California Valley Miwok Tribe v. Pacific Regional Director, Bureau of Indian Affairs, 51 IBIA 103 (2010)

INTERIOR BOARD OF INDIAN APPEALS California Valley Miwok Tribe v. Pacific Regional Director, Bureau of Indian Affairs 51 IBIA 103 (01/28/2010)

United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

CALIFORNIA VALLEY MIWOK TRIBE, Appellant, v. PACIFIC REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS, Appellee.

Order Dismissing Appeal in Part and Referring Appeal in Part to the Assistant Secretary - Indian Affairs

Docket No. IBIA 07-100-A

January 28, 2010

The California Valley Miwok Tribe (Tribe) (formerly known as Sheep Ranch Rancheria, and Sheep Ranch of Me-wuk Indians of California), under the direction of Silvia Burley as the Tribe’s Chairperson,1 appealed to the Board of Indian Appeals (Board) from an April 2, 2007, decision (Decision) of the Pacific Regional Director, Bureau of Indian Affairs (Regional Director; BIA). The Regional Director affirmed a November 6, 2006, decision of the BIA Central California Agency Superintendent (Superintendent) that BIA would “assist” the Tribe in organizing a tribal government. To do so, the Superintendent announced that BIA would sponsor a “general council meeting of the Tribe,” to which BIA would invite tribal members (apparently numbering six) as well as “potential” or “putative” members (apparently numbering in the several hundreds). BIA decided the criteria for (and intends to make individual eligibility determinations for) the class of “putative” members who would be allowed to participate in the general council meeting, and whose involvement BIA deemed necessary in order to include the “whole tribal community” in the tribal organization and membership decisions. BIA concluded that these actions were necessary because until the tribal organization and membership1

Rancheria, and she voted to accept the distribution plan and was issued a deed to the land. AR, Tabs 86-88.5 II. BIA Dealings with the Tribe Between 1994 and 2003.

Mabel was the mother of Yakima, who grew up on the Rancheria. See AR, Tab 73 at 5-6. In 1994,6 Yakima wrote to the Superintendent, expressing a need for BIA assistance for home repairs, and describing himself as “the only descendant and recognized . . . member” of the Tribe. AR, Tab 76. Sometime during the 1990s, Burley contacted BIA for information related to her Indian heritage, which BIA provided, and by 1998 — at BIA’s suggestion — Burley had contacted Yakima.7 On August 5, 1998, Yakima, “[a]s Spokesperson/Chairman” of the Tribe, signed a statement accepting Burley as an enrolled member of the Tribe, and also enrolling Burley’s two daughters and her granddaughter. AR, Tab 75. In September of 1998, Yakima and Burley met at the Rancheria with BIA staff from the Sacramento Area (now “Pacific Regional”) Office to discuss organizing the Tribe. Among the issues discussed was developing criteria for membership in the Tribe. BIA staff suggested during the meeting that Yakima had both the authority and broad discretion to decide that issue. See, e.g., AR, Tab 73 at 7-8, 24-25. Brian Golding, a BIA Tribal Operations Officer, characterized Yakima and his brother, Melvin, along with Burley and her adult daughter, as the “golden members” of the Tribe. Because Melvin’s whereabouts were unknown at the time, Golding stated: “that basically leaves us with three people.” AR, Tab 73 at 32. Golding continued, “usually what we’ll do is we’ll call that group of5

On November 5, 1998, Yakima and Burley signed a resolution establishing a General Council, consisting of all adult members of the Tribe, to serve as the governing body of the Tribe. AR, Tab 71. In less than 5 months, however, a leadership dispute arose between Burley and Yakima. In April of 1999, Yakima purportedly resigned as chairperson of the Tribe, concurred in General Council action appointing Burley as Chairperson, and then repudiated his resignation, while still giving Burley “the right to act as a delegate to represent” the Tribe, subject to his orders. See AR, Tabs 68-70. There was sufficient cooperation, however, for Yakima, Burley, and the elder of Burley’s daughters, Rashel Reznor, to submit a petition to BIA asking for a Secretarial election to be held, pursuant to the IRA, 25 U.S.C. § 476, to vote on a proposed constitution. AR, Tab 66. The proposed constitution (1999 Yakima-Burley Constitution) identified the “base enrollees” as Yakima, Burley, Burley’s two daughters, Burley’s granddaughter, and (prospectively) the direct lineal descendants of these base enrollees. It also provided that all descendants of base enrollees and all descendants of any person who became a member subsequent to the adoption of the constitution “shall automatically become members of the Band at birth.” Id., 1999 Yakima-Burley Constitution, Art. II, Sec. 3(B). Other persons “of Sheep Ranch blood” could also be adopted into membership by a 2/3 majority vote of the General Council, which consisted of all members 18 years of age or older. Id., 1999 Yakima-Burley Constitution, Art. II, Sec. 3(C) & Art. III, Sec. 2. BIA did not call a Secretarial election to vote on the 1999 Yakima-Burley Constitution. By October of 1999, any remaining cooperation between Yakima and Burley appears to have evaporated, and Yakima sought assistance from BIA to expel Burley and her family from the Tribe. See AR, Tabs 57, 62. In December of 1999, Yakima provided BIA with a tribal constitution, purportedly adopted on December 11, 1999 (1999 Yakima Constitution). Enclosed with the constitution were documents by which Yakima, as Chairperson, purported to enroll seven additional individuals as members of the Tribe. The 1999 Yakima Constitution identified the Tribe’s membership as (1) all persons who were listed as distributees and dependent members of their immediate families in the Sheep Ranch Rancheria Distribution Plan, (2) lineal descendants of those falling into the first category, (3) all persons enrolled by Yakima, and (4) all persons approved in the future by the Chairperson and Tribal Council to become members. By letter dated February 4, 2000, the Superintendent returned the 1999 Yakima Constitution to Yakima without action, observing that the body that approved it did not appear to be the proper body to do so. The Superintendent agreed to a meeting with Yakima later in the month, with notice to Burley.

Burley and her daughter declined to participate in the meeting between BIA and Yakima, and on March 7, 2000, the Superintendent sent her a summary of the meeting. AR, Tab 8. The Superintendent reaffirmed BIA’s view that the General Council consisted of Yakima, Burley, and Rashel. The Superintendent reported that BIA had rejected an assertion by Yakima that he had only given “limited enrollment” to Burley and her family, and also reported that BIA had advised Melvin, with whom BIA was now in contact, that as an heir of Mabel Hodge Dixie for the Rancheria land, he was entitled to participate in the organization of the Tribe. Meanwhile, Burley and her daughter Rashel adopted their own tribal constitution, on March 6, 2000 (2000 Burley Constitution). The 2000 Burley Constitution identified the membership of the Tribe as Yakima, Burley, her two daughters, and her granddaughter, and provided that any further membership would be decided by a subsequent enrollment ordinance to be adopted by 2/3 majority vote of the Tribal Council. On October 31, 2001, the Superintendent wrote to Burley to “acknowledge receipt” of the 2000 Burley Constitution, as amended and corrected in September 2001. The Superintendent stated that BIA could not act on it without a formal request. The Superintendent concluded his letter by stating that “[t]he Agency will continue to recognize the Tribe as an unorganized Tribe and its elected officials as an interim Tribal Council until the Tribe takes the necessary steps to complete the Secretarial election process.” AR, Tab 49 at 2 (unnumbered). Between 1999 and 2003, BIA corresponded with Burley by addressing and recognizing her as the Tribe’s Chairperson, or sometimes as “Interim Chairperson.” See, e.g., AR Tabs 8, 14 (Nov. 24, 2003, Letter from Superintendent), and 52. Eventually, as discussed in Part IV of this Background, BIA began to refer to Burley as a “person of authority” whom BIA considered as representing the Tribe for government-to-government purposes. III. The Tribe’s ISDA Contract

Beginning in 1999, and continuing through FY 2007, BIA executed an ISDA contract with the Tribe for improving tribal government, which apparently included such functions as developing a tribal enrollment ordinance and membership lists. Initially, BIA seems to have treated Burley as the Tribe’s Chairperson for purposes of executing the contract. Later, when BIA began referring to her as a “person of authority,” it continued to relate to the Tribe through Burley for purposes of executing annual funding agreements for the ISDA contract. The Decision that is the subject of this appeal was issued during FY 2007, when an ISDA contract funded for that year was in effect.

For FY 2008, the Superintendent returned without action a proposal from Burley to renew or re-fund the Tribe’s ISDA contract, after concluding (in light of several court decisions) that Burley had not shown that the Tribe had authorized her to submit the ISDA contract proposal. See California Valley Miwok Tribe v. Central California Agency Superintendent, 47 IBIA 91 (2008). Burley’s attempt to challenge, in court, BIA’s decision not to renew the Tribe’s ISDA contract for FY 2008, was unsuccessful. See Memorandum and Order, California Valley Miwok Tribe v. Kempthorne, No. Civ. S-08-3164 FCD/EFB (E.D. Cal. Feb. 23, 2009), appeal docketed, No. 09-15466 (9th Cir. Mar. 12, 2009). For FY 2009, Burley again submitted a contract proposal and BIA again returned it without action on the same grounds relied upon for returning the FY 2008 proposal. The Tribe, through Burley,...