Embed Size (px)
Citation preview
FILED
16-799No.
DEC 1 9 2016
OFFICE OF THE CLERK
Sn t~e Dupreme ~ourt of t~e IEtniteb Dtate~
ALBERT P. ALTO, et al.,
V.Petitioners,
SALLY JEWELL,Secretary of Department of Interior, et al.,
Respondents.
On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
Tracy L. EmblemCounsel of Record
P.O. Box 300764Escondido, CA 92030(760) [email protected]
Counsel for Petitioners
Becker Gallagher ¯ Cincinnati, OH ¯ Washington, D.C. ¯ 800.890.5001
BLANK PAGE
QUESTIONS PRESENTED
The questions presented are (1) whether thedoctrine of res judicata and collateral estoppelprecluded the Assistant Secretary of the Department ofInterior in 2011 from revisiting his predecessor’s 1995final and conclusive decision about petitioners’ statusas Native Americans; and (2) whether the AssistantSecretary’s 2011 decision to declassify petitioners’Native American Indian status violated theAdministrative Procedures Act.
ii
PARTIES TO THE PROCEEDING
Petitioners are individuals named as follows: AlbertP. Alto, Andre E. Alto, Anthony Alto, Brandon Alto,Chastity Alto, Christopher J. Alto, Daniel J. Alto, Jr.Daniel J. Alto, Sr., Dominique N. Alto, Raymond Alto,Raymond E. Alto, Raymond J. Alto, Robert Alto,Victoria (Alto) Ballew, Angela Ballon, Juan J. Ballon,Rebecca Ballon, Rudy Ballon, Janice (Alto) Banderas,Peter Banderas, Victor Banderas, Monica (Sepeda)Diaz, Anthony Forrester, Dustin Forrester, Johanna(Alto) Forrester, Sarah Forrester, Ernest Gomez,Henrietta (Alto) Gomez, Kathleen Gomez, Humberto R.Green, Lydia (Alto) Green, Paul Anthony Green, MaryJo (Alto) Hurtado, Justin A. Islas, Cynthia (Sepeda)Ledesma, Destiny C. Ledesma, Isabelle M. (Alto)Sepeda, Lupe Sepeda, Deborah L. (Alto) Vargas,Desiree Vargas, Jeremiah Vargas, Jessiah Vargas, andTerry E. Weight, individuals, and Pamela J. Alto asguardian ad litem for Marcus M. Green, PedroBanderas as guardian ad litem for Reina A. Banderas,and Dawn Castillo as guardian ad litem for Alexis N.Ledesma.
Petitioners sued respondents, Department ofInterior and the Bureau of Indian Affairs under theAdministrative Procedures Act.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ...................i
PARTIES TO THE PROCEEDING .............ii
TABLE OF AUTHORITIES ..................vi
PETITION FOR A WRIT OF CERTIORARI ......1
OPINIONS BELOW ......................... 1
JURISDICTION ............................ 1
RELEVANT STATUTORY ANDCONSTITUTIONAL PROVISIONS ..........1
STATEMENT OF THE CASE .................2
STATEMENT OF THE FACTS ................4
A. Assistant Secretary Deer’s 1995 finaldecision ............................... 7
B. The Enrollment Committee’s 2008Subsequent 3-2 action ................... 8
C. The Regional Director’s 2008 Decision ......9
D. Assistant Secretary Echo Hawk’s 2011Decision ............................. 10
E. The District Court found in favor ofpetitioners’ succeeding on the merits andissued a preliminary injunction order .....11
F. The District Court reversed course andaffirmed the Assistant Secretary’s 2011decision and order ..................... 13
iv
G. The Ninth Circuit Court of Appeal’sdecision ............................. 13
REASONS FOR GRANTING THE WRIT .......14
The Ninth Circuit and District Court’s decisionsaffirming the Assistant Secretary’s decision andorder ignored important public policy andlaw-the Department of Interior’s duty to applyprinciples of res judicata and collateral estoppelbecause the same claim had been previouslyadjudicated and a final and conclusive decisionwas issued .............................. 14
II. The Assistant Secretary’s 2011 decision todeclassify Marcus Sr.’s, status as "non-Indian" todisenroll petitioners was arbitrary. There mustbe clear and convincing evidence to divest thepetitioners of their Indian citizenshipand federal recognition as Native AmericanIndians ................................. 18
CONCLUSION ............................ 23
APPENDIX
Appendix A
Appendix B
Memorandum in the United StatesCourt of Appeals for the Ninth Circuit(September 20, 2016) .......... App. 1
Order (1) Denying Pla:intiffs’ Motionfor Summary Judgment; and(2) Granting Defendants’ Cross-Motion for Summary Judgment in theUnited States District Court SouthernDistrict of California(September 30, 2015) .......... App. 6
V
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
Appendix I
Appendix J
Judgment in a Civil Case in theUnited States District Court for theSouthern District of California(September 30, 2015) ......... App. 56
Order Granting PreliminaryInjunction [Doc. No. 4] in the UnitedStates District Court for the SouthernDistrict of California(December 19, 2011) ......... App. 60
Order of the United States UnitedStates Department of the Interior,Office of the Secretary(January 28, 2011) .......... App. 111
25 C.F.R. Part 76 ...........App. 152
Appeal Decision of the United StatesDepartment of the Interior, PacificRegional Office(November 26, 2008) ........ App. 171
Letter to U.S. Department of theInterior from Robert Phelps, Ph.D.,Vice Chairman, San Pasqual Band ofMission Indians(August 30, 2008) ........... App. 189
Appeal Decision of the United StatesDepartment of the Interior, Office ofthe Secretary(April 10, 1995) ............ App. 209
U.S. Const. amend. V5 U.S.C. § 706 ..............App. 214
vi
TABLE OF AUTHORITIES
CASES
Dalson v. Pacific Regional Director,46 IBIA 209 (2008) .................... 14, 15
Fedorenko v. United States,449 U.S. 490 (1981) ...................... 23
Santa Clara Pueblo v. Martinez,436 U.S. 49 (1978) ..................... 4, 16
United States v. Utah Mining Constr. Co.,384 U.S. 394 (1966) ...................... 17
CONSTITUTION
U.S. Const. amend. V ........................ 1
STATUTES AND REGULATIONS
5 U.S.C. § 706 .............................. 1
25 U.S.C. § 13 ............................. 20
25 U.S.C. § 479 ............................ 20
28 U.S.C. § 1254(1) .......................... 1
25 C.F.R. Part 48 ......................... 5, 13
25 C.F.R. § 48.14 (d) ........................ 10
25 C.F.R. Part 76 ....................... passim
25 C.F.R. § 76.4 ............................. 6
25 C.F.R. § 76.14 ...................... 6, 14, 17
25 C.F.R. § 290.2 ........................... 20
vii
25 C.F.R. § 290.14 .......................... 20
OTHER AUTHORITIES
Gabriel S. Galanda and Ryan D. Dreveskracht,Curing the Tribal Disenrollment Epidemic:In Search of a Remedy, 57 Ariz. L. Rev. 383(2015) ........................... 16, 18, 23
http://thelawdictionary.org/conclusive/ .........14
https://www.bia.gov/FAQs ................... 18
http://www.dictionary.com/browse/conclusive ....14
https://www.ihs.gov/ihm/ .................... 22
http://www.merriam-webster.com/dictionary/conclusive .............................. 14
Tribal Disenrollment: The New Wave of Genocide,Johnnie Jae (Feb. 11, 2016)www.http://nativenewsonline.net ...........21
BLANK PAGE
PETITION FOR A WRIT OF CERTIORARI
Petitioners, Albert Alto, et al., respectfully petitionfor a writ of certiorari to review the judgment of theUnited States Court of Appeals for the Ninth Circuitthat affirmed the Assistant Secretary’s 2011 decisionand order.
OPINIONS BELOW
The decision of the United States Court of Appealsfor the Ninth Circuit is set forth in an unpublishedmemorandum. (Pet. App. 1) The Regional Director’sNovember 2008 decision in favor of petitionersremaining federally recognized tribal members isunpublished. (Pet. App. 171) The Assistant Secretary’sJanuary 28, 2011, decision and order is unpublished.(Pet. App. 111) The district court’s opinion granting apreliminary injunction in favor of petitioners isunpublished. (Pet. App. 60) The district court’s opiniongranting summary judgment in favor of defendants isunpublished. (Pet. App. 6)
JURISDICTION
The Ninth Circuit’s judgment was entered onSeptember 20, 2016. (Pet. App. 1) This Court hasjurisdiction pursuant to 28 U.S.C. § 1254(1).
RELEVANT STATUTORY ANDCONSTITUTIONAL PROVISIONS
25 C.F.R. Part 76. This case also involves dueprocess considerations under 5 U.S.C. § 706 and theFifth Amendment in that Assistant Secretary EchoHawk’s 2011 decision and order resulted in a loss ofcitizenship and declassification of petitioners’ Native
2
American Indian status, similar to a denaturalizationorder.
STATEMENT OF THE CASE1
Petitioners’ case involves a recurring theme inIndian Country. Disenrollment of federally recognizedtribal members despite final Department of Interiordecisions finding individuals eligible for tribalmembership. See Aguayo v. Jewell, Docket No. 16-660filed Nov. 14, 2016.
Under 25 C.F.R. Part 76, adopted by the SanPasqual Band of Mission Indians as its enrollmentordinance, the Assistant Secretary had "final andconclusive" authority to determine the Band’smembership. Petitioners were enrolled as members ofthe Band pursuant to Assistant Secretary-IndianAffairs, Ada Deer’s 1995 final decision that concludedthat petitioners’ ancestor, Marcus Sr., was 4/4 degreeIndian. Assistant Secretary Deer’s decisionadjudicated the petitioners’ rights. Petitionersparticipated as members of the Band for sixteen years,including holding governmental offices andestablishing the Band’s successful casino.
In 2008, by a 3-2 vote, the Band’s enrollmentcommittee recommended disenrollment of all MarcusSr. descendants. In support of its disenrollmentrecommendation, the committee submitted a baptismalrecord that purportedly recorded Marcus’ baptism in1907. The baptismal certificate cited Jose Alto as thechild’s father. The disenrollment recommendation was
1 The Department of Interior and Bureau (BIA) are
interchangeably used in this petition.
3
submitted to the Bureau’s Pacific Regional Office foragency approval to remove petitioners’ names from thefederally recognized tribal roll. In November 2008, theRegional Director rejected the enrollment committee’saction citing insufficient evidence for disenrollment.However, the Band appealed the Regional Director’sdecision to the Assistant Secretary-Indian Affairs. InJanuary 2011, Assistant Secretary Larry Echo Hawkopined that he had authority to revisit his predecessor’s1995 final decision. He concluded that petitioners’ancestor, Marcus, was not the biological son of Jose andMaria Alto and therefore not Native American. EchoHawk ordered petitioners’ names removed from thefederally recognized tribal roll.
In making this decision, Assistant Secretary EchoHawk overturned three previous BIA agency decisionsincluding one on parity by his predecessor AssistantSecretary Ada Deer. Echo Hawk’s decision rewrote thefamily’s lineage, and declassified the petitioners’Native American status despite DNA evidence thatestablished petitioners’ Native American ancestry. Theevidence was uncontested. The Assistant Secretary, notthe Band, disenrolled the petitioners. Petitioners losttheir heritage and all tribal and federal benefits whichflow from their status as federally recognized tribalmembers. The petitioners will lose their Indian Healthcare and other federal benefits that flow from theirNative American ancestry due to the AssistantSecretary’s finding that their ancestor, Marcus Sr., was"non-Indian."
Petitioners have been federally enrolled tribalmembers long before the successful Valley View Casinoopened. Before being disenrolled, petitioners
4
represented approximately 20-percent of the Band’stribal members. Tribal disenrollments from casino-richtribes have dramatically increased in recent yearsacross a broad number of tribes. Disenrollments occurwhen a small minority of tribal members are put inpositions of power on committees to secure a largershare of the revenues for themselves and theirsupporters. In this case, the initial "disenrollment"action that initiated the Department’s review of thefinal 1995 decision was brought by a 3-2 vote. Mostcases brought to challenge mass disenrollmentsdisenfranchising tribal members have been rejectedbecause of jurisdictional or procedural problems.Because petitioners are federally recognized tribalmembers, this case provides the Court with a uniqueopportunity to distinguish and limit its decisionrendered thirty-eight years ago in Santa Clara Pueblov. Martinez, 436 U.S. 49 (1978).
STATEMENT OF THE FACTS
In 1920, Marcus Alto, Sr.2 was listed as the "Indian"son of Jose and Maria Alto on the United StatesCensus. (Pet. App. 82) In 1930, Reginald Duro, onbehalf of Marcus St., certified under oath that Marcuswas the son of Jose and Maria, and eligible forinclusion in the California Judgment Roll. Marcus andMaria Alto were listed as Indians on the 1933California roll prepared by the Bureau.3 (Pet. App. 115)
2 Unless otherwise indicated, all reference to "Marcus" are to
Marcus Alto, St.
s Although also eligible for inclusion in the 1933 roll, Jose Alto diedseveral years before the roll was prepared.
5
The San Pasqual Indian families were scatteredaround California and did not live on the reservationland set aside for them in 1910. However, in the 1950’ssome individuals began to organize the "Band." On July29, 1959, the Department of Interior published a noticeof proposed rulemaking, setting out regulationsintended to govern the preparation of the Band’soriginal roll. The rule was codified at 25 C.F.R. Part48, published March 2, 1960. The implementation ofPart 48 regulations resulted in the creation of anapproved 1966 tribal roll recognized by the Departmentof Interior. Marcus and his descendants did not applyfor membership in the Band at that time. (Pet. App.115-116) The Band’s Constitution thereafter receivedSecretary approval in January 1971. Article II of theBand’s Constitution provides that:
Section 1. Membership shall consist of thoseliving persons whose names appear on theapproved Roll of October 5, 1966, according toTitle 25, Code of Federal Regulations, Part 46.1through 48.15.
Section 2. All membership in the band shall beapproved according to the Code of FederalRegulations, Title 25, Part 48.1 through 48.15and an enrollment ordinance which shall beapproved by the Secretary of Interior.
(Pet. App. 118)
On March 20, 1982, Part 48, which wasincorporated by reference as the Band’s enrollmentregulation in Article II of the Band’s Constitution, wasre-designated Part 76, as part of a reorganization ofC.F.R. Title 25. (See ER 245; AR 1573) The Band had
6
not updated its original membership roll since it wassubmitted to the Secretary. Part 76 was enacted tomake certain the Department complied with its trustduty to ensure all eligible San Pasqual Indians receivedtheir portion of Docket 80A judgment funds. (Pet. App.160) Besides petitioners, there were several otherunrelated individuals whose names were added to thetribal roll when the roll was brought current underPart 76. The Band reviewed a draft of Part 76, and onJuly 13, 1986, the Band’s General Council voted toadopt Part 76. (ER 539, 541; AR 2717, 2719)4
Section 76.4 provided a basis to bring the Band’smembership current by (1) adding the names ofpersons living on April 27, 1985, who were not enrolledwith some other tribe or band; and (i) who would havequalified for the inclusion of their names on theJanuary 1, 1959, membership roll had they filedapplications within the time prescribed. Section 76.14authorized the Assistant Secretary to review allappeals of rejected applicants and stated: "It]hedecision of the Assistant Secretary on an appeal shallbe final and conclusive .... The name of any personwhose appeal has been sustained will be added to theroll." (Pet. App. 210)
~ "ER" cites to Excerpts of Record filed in the Ninth Circuit Courtof Appeals. "AR" cites to the Agency’s Record submitted to theU.S. District Court.
A. Assistant Secretary Deer’s 1995 finaldecision.
On April 10, 1995, Assistant Secretary Ada Deersent a final decision to the Band’s attorney, EugeneMadrigal, which affirmed the Alto descendants’ tribalmembership eligibility. Assistant Secretary Deer foundthat "both [Maria] and her husband, Joe Alto, werefull-blooded Diegueno Indians. (Pet. App. 209-215) Onreview of the Band’s contention that Marcus was "nota ’blood’ lineal descendant of an ancestor fromPasqual," (Pet. App. 211-212) Assistant Secretary Deerstated:
Although Marcus Sr. was not previously enrolledon the January 1, 1959, membership roll, hepossessed 4/4 degree Indian blood of the Bandwhich is more than the 1/8 degree Band bloodrequired. He qualified for enrollment because hewas born before January 1, 1959, and he wasliving on April 27, 1985 .... [~I] All availabledocumentation involving this case has beenthoroughly reviewed and based on thepreponderance of evidence, I am sustaining thedecision made by Acting Sacramento AreaDirector on January 31, 1994 upholding theenrollment of Marcus Alto, Sr., and hisdescendants ....[~I] This decision is final for theDepartment.
(Pet. App. 212-213, emphasis added)
Thereafter, on June 3, 1996, Part 76 was removedfrom the Code of Federal Regulations. (Pet. App. 119)Although the federal agency repealed Part 76, the Band
8
took no official tribal action to repeal or withdraw Part76.
B. The Enrollment Committee’sSubsequent 3-2 action.
2008
From 1995 until 2008, the Band abided byAssistantSecretary Deer’s final decision until an enrollmentchallenge was brought against Marcus’ descendantsand upheld by a 3-2 enrollment committee vote. Thedisenrollment action was based on the same 1995litigated claim. The committee forwarded a request todisenroll the petitioners to the Bureau of IndianAffairs, Regional Office, along with an anthropologyreport claiming to cite to "new evidence" supporting itsaction to disenroll petitioners. The committee providedno explanation for its failure to present the purportedlynew evidence in the 1995 adjudication. Tribal Vice-Chair Robert Phelps, who is a history professor, andwas also an enrollment committee member, votedagainst petitioners’ disenrollment. Phelps notified theDepartment of Interior that the action taken by the 3-2committee vote to disenroll the petitioners had violatedthe petitioners’ due process rights. Phelps advised theDepartment that "disenrollment is a serious matter.To rob a family of the rights and benefits of tribalmembership, to say nothing of their cultural identity,requires overwhelming proof supportingdisenrollmento" Based on the anthropology reportevidence, Vice Chairman Phelps stated that theproponents of petitioners’ disenrollment did not possesssuch proof. (Pet. App. 189, 190, 198}
9
C. The Regional Director’s 2008 Decision.
On November 26, 2008, the Regional Directoracknowledged that Assistant Secretary Ada Deer hadissued the 1995 final decision and it was inappropriatefor the Committee to seek a remedy as follows:
...Mr. Alto’s eligibility for membership in theTribe was already determined by the BIASouthern California Agency Superintendent onMay 23, 1991, and was affirmed by the ActingDirector on January 31, 1994. On April 10, 1995,the Assistant Secretary-Indian Affairs deniedthe Band’s appeal from the Area Director’sJanuary 31, 1994 decision, and the denialdecision of the Assistant Secretary was final forthe Department. Therefore, no additional actionregarding the enrollment of Mr. Alto and hisdescendants is required.
(Pet. App. 172, 173, emphasis added)
The Regional Director also analyzed each item ofevidence submitted by the Committee and rejecteddisenrollment. The Regional Director found that thepurportedly new evidence did not demonstrate thatMarcus Alto was adopted by Jose and Maria Alto. (Pet.App. 172) As to the baptismal record produced by theCommittee, the Regional Director logically concluded:
Assuming the baptism record is Mr. Alto’s, thiswould prove that he is the son of Jose Alto. OnMaria Alto’s 1928 application, she listed JoseAlto as 4/4 Digueno Indian from San Pasqual.Jose Alto was listed on several San Pasqualcensus rolls, in particular the 1910 CensusRoll .... If this were the case Mr. Alto would still
10
be eligible to be included on the San Pasqualmembership roll as a descendant of Jose Alto.
(Pet. App. 179)
D. Assistant Secretary Echo Hawk’s 2011Decision.
Petitioners argued that the 1995 Ada Deer decisionwas final. [ER 476, 479; AR 860, 867] In his January2011 decision, Assistant Secretary Echo Hawkacknowledged that the petitioners had participated inthe Band for sixteen years and were fully engaged inthe Band’s activities including holding offices in thetribal government. He further noted that "It]he settledexpectation of these Band members, established asthey were by good faith decisions by [his] predecessorand by Regional Directors in 1994 and 2008,establish[ed] a strong presumption against reversingcourse and approving the disenrollments." (Pet. App.121) Despite the strong legal presumption, Echo Hawkconcluded that he retained the authority to revisit hispredecessor’s decision under 25 C.F.R. section 48.14 (d)and ordered petitioners’ names removed from thefederally recognized tribal roll.5
Although Assistant Secretary Echo Hawk stated inhis decision, "the fact that ’Jose Alto’ is the name given
5 That section provides that "In]ames of individuals whoseenrollment was based on information subsequently determined tobe inaccurate may be deleted from the roll, subject to the approvalof the Secretary." Petitioners argued that this language onlyapplied to individuals who had not had their membership factuallyadjudicated by the Department of Interior in a "final andconclusive" decision, which was binding on the parties.
11
as the child’s father on the baptismal certificate and isalso the name of the man who raised the childestablishes a strong presumption the two are thesame," he took a 180 degree turn by concluding theJose Alto named on the baptismal record was notMarcus’ biological father. (Pet. App. 145) In makingthis finding that some other Jose Alto other than theperson named in the baptismal record was Marcus’biological father, Echo Hawk rewrote the family’sancestry as "non-Indian." (Pet. App. 148)
E. The District Court found in favor ofpetitioners’ succeeding on the merits andissued a preliminary injunction order.
The district court issued a preliminary injunctionbarring defendants from disenrolling petitioners,finding petitioners had demonstrated a likelihood ofsuccess on the merits in the APA action. Judge IrmaGonzalez opined that the Band’s enrollment committeewas essentially attempting to reargue the samequestion that was determined in the earlier challenge -whether Marcus Alto was the biological son of Jose andMaria Alto. The court stated that the doctrine of resjudicata was applicable with equal force toadministrative decisions. The court noted that even ifres judicata did not apply, there were serious questionsas to whether collateral estoppel/issue preclusionshould bar the re-adjudication of individual issuespreviously determined by Assistant Secretary Deer.(Pet. App. 75-77)
Judge Gonzalez also found that Echo Hawk’sfinding that Marcus was the adoptive son of Jose Altoand that the Assistant Secretary’s alternative theorythat some other Jose Alto was Marcus’ father was
12
inconsistent with the agency record evidence and notreasonable because Marcus was listed as the "Indian"son of Jose and Maria on the 1920 United Statescensus. (Pet. App. 82.) Similar to the RegionalDirector’s reasoning, the court found that thebaptismal record established petitioners’ ancestor’s SanPasqual Indian ancestry as follows:
... IT]he evidence submitted by the Tribe suggeststhat the ’Jose Alto" listed on the [baptismal]certificate was the Jose Alto who raised MarcusAlto Sr.-i.e., a full blooded San Pasqual Indian.Specifically the baptismal certificate lists’Franco Alto’ and ’Litalia Duro’ as sponsors.(Citation) In her "Analysis of the Marcus Alto,Sr. Enrollment Challenge," prepared on behalf ofthe Tribe, Dr. Grabowski states that both ofthese individuals were San Pasqual Indians andmost likely were related to either Jose Alto orMaria Duro. [~[] [Echo] Hawk’s alternateconclusion that ’Jose Alto’ listed on thecertificate might have been the Jose Alto thatraised Marcus Sr., but at the same time was nothis biological father is hardly plausible. It isplainly inconsistent, on the one hand, to acceptas true that the ’mother’ listed on the baptismalcertificate (Benedita Barrios)is the child’sbiological mother, while, on the other hand,insisting that the ’father’ listed on the samebaptismal certificate (Jose Alto) is not thatchild’s biological father.
(Pet. App. 89)
13
The District Court reversed course andaffirmed the Assistant Secretary’s 2011decision and order.
After Judge Gonzalez retired, petitioners’ APA casewas reassigned to a new district court judge. Thatcourt found that resjudicata/issue preclusion principlesdid not apply because in 1995, Assistant Secretary AdaDeer’s authority to review Marcus’ eligibility wasauthorized under Part 76, while in 2011, AssistantSecretary Echo Hawk’s asserted authority wasexercised under 25 C.F.R. Part 48. (Pet. App. 25-26) Inmaking this finding, the district court failed to addressthe issue preclusion effect of the Deer 1995 finaldecision and whether evidence could have beenpresented in the earlier adjudication. The district courtalso rejected petitioners’ arbitrary and capriciousclaims and affirmed Echo Hawk’s decision that rejectedpetitioners’ DNA evidence of petitioners’ NativeAmerican ancestry even though no contrary DNAevidence was presented. (Pet. App. 39-41)
G.The Ninth Circuit Court of Appeal’sdecision.
In a very brief memorandum, the Ninth CircuitCourt of Appeal affirmed the Assistant Secretary’sdecision approving the petitioners’ disenrollment. (l~et.App. 145)
14
REASONS FOR GRANTING THE WRIT
The Ninth Circuit and District Court’sdecisions affirming the Assistant Secretary’sdecision and order ignored important publicpolicy and law-the Department of Interior’sduty to apply principles of res judicata andcollateral estoppel because the same claimhad been previously adjudicated and a finaland conclusive decision was issued.
Petitioners and the Band agreed to be bound byAssistant Secretary Ada Deer’s final and conclusivedecision in 1995 because 25 C.F.R. § 76.14 states:
The decision of the Assistant Secretary on anappeal shall be final and conclusive .... "
(Pet. App. 169)
Several dictionaries, including Black’s LawDictionary online, define the word "conclusive" as"putting an end to inquiry, final, decisive.’’6
Here, the Department of Interior issued a "final andconclusive" decision. Res judicata and claim preclusionprinciples apply to final Department of Interiordecisions. Dalson v. Pacific Regional Director, 46 IBIA209, 212-213 (2008). In Dalson, the appellants urgedthe Interior Board of Indian Appeals (IBIA) to revisit aprevious final decision based on new law, anintervening federal court decision involving anothertribe. The IBIA rejected reconsideration and
See, http://thelawdictionary.org/conclusive/http://www.merriam-webster.com/dictionary/conclusivehttp://www.dictionary.com/browse/conclusive.
15
acknowledged that principles of res judicata apply tofinal agency decisions as follows:
Described in general terms, the doctrine of resjudicata prevents a party from relitigating thesame cause of action against the same partyafter a final decision has been issued on themerits. See Federated Dep’t Stores, Inc. v. Moitie,452 U.S. 394, 398 (1981); Allen v. McCurry, 449U.S. 90, 94 (1980); see also Black’s LawDictionary 1336-37 (8th ed. 2004) (definition of"res judicata"). The Board applies the doctrine ofres judicata to final Departmental decisions,including those rendered by officials whosedecisions were subject to appeal to the Board,but for which no timely review was sought. See,e.g., Racine v. Rocky Mountain RegionalDirector, 36 IBIA 274, 277 (2001); Estate ofRalph James (Elmer) Hail,12 IBIA 62, 65 (1983);Estate of George Swift Bird, 10 IBIA 63, 66(1982). [~] When Appellants failed to file atimely appeal from the Regional Director’sFebruary 15, 2006, decision, that decisionbecame final for the Department. See 25 C.F.R.§ 2.6 (Finality of Decisions); American LandDevelopment Corp. v. Acting Phoenix AreaDirector, 26 IBIA 197, 199 (1994) (as aconsequence of the appellant’s failure to file atimely appeal, the Regional Director’s earlierdecision was final for the Department).
Dalson, supra, 46 IBIA 209, 212-213.
Likewise, the Assistant Secretary was required toapply resjudicata and issue preclusion principles basedon Assistant Secretary Deer’s 1995 final decision in
16
petitioners’ case. That decision was issued after theU.So Supreme Court decision in Santa Clara Pueblo v.Martinez, supra, 436 U.S. 49. The Band was aware ofits legal rights, was represented by counsel, and couldhave readily challenged the Assistant Secretary’sdecision in federal court under the AdministrativeProcedures Act. (ER 234; AR 2298)
The district court erred in finding there weresovereignty and self-determination policyconsiderations that supported the Assistant Secretary’s2011 decision to review the stale claim evidence. (SeePet. App. 27) "Santa Clara Pueblo did not and does notstand for the proposition that tribal, membership is ’amatter within the exclusive province of the tribesthemselves’-a matter that the federal governmentabsolutely lacks the authority to intervene in .... itsrelatively narrow holding...was purely jurisdictional."See, Curing the Tribal Disenrollment Epidemic: InSearch of a Remedy, 57 Ariz. L. Rev. 383, 407 (2015).7
Here, there is no issue of sovereignty and self-determination because the Band gave the Secretary theabsolute authority to render a "final and conclusive"adjudicative decision.
Assistant Secretary Echo Hawk explicitlyrecognized that "It]he settled expectation[s]" of theparties had long since been adjudicated, but overturnedtwo regional agency decisions and a final Departmentof Interior decision on parity from his predecessor.Both the Regional Director and Judge Irma Gonzalezrecognized that principles of res judicata and issue
Authors, Gabriel S. Galanda and Ryan D. Dreveskracht.
17
preclusion applied. The Regional Director’s decisionreasonably concluded:
It is inappropriate for the Committee to continueto raise this issue of the validity of the inclusionof Mr. Alto and his descendants on the Band’smembership roll or to attempt to disenroll hisdescendants and continue to seek remedy fromthe BIA.
(Pet. App. 187, emphasis added)
The primary policy underlying application of thecollateral estoppel and resjudicata doctrines is finality.Once a claim or issue has been finally decided, alitigant cannot demand that it be decided again. InUnited States v. Utah Mining Constr. Co., 384 U.S. 394(1966), this Court recognized that "final andconclusive" language was harmonious with res judicataand collateral estoppel principles and barredrelitigation. When an administrative agency acts in ajudicial capacity and resolves disputed issues of factproperly before it which the parties have had anadequate opportunity to litigate, courts apply resjudicata. Id. at pp. 421-422. Accordingly, as a matterof law, the Assistant Secretary should not haverevisited his predecessor’s final decision.
18
II. The Assistant Secretary’s 2011 decision todeclassify Marcus Sr.’s, status as "non-Indian"to disenroll petitioners was arbitrary. Theremust be clear and convincing evidence todivest the petitioners of their Indiancitizenship and federal recognition as NativeAmerican Indians.
Petitioners are federally recognized tribal members,and, as individuals, the Department owes them a dutyof trust,s As noted on the Department of Interior’swebsite: "The rights, protections, and services providedby the United States to individual AmericanIndians...flow not from a person’s identity as such in anethnological sense, but because he or she is a memberof a federally recognized tribe.’’9 A"tribal government’sability to determine, define, and limit the criteria formembership, is distinct from its ability to retract aprevious determination that an individual has satisfiedexisting criteria for tribal membership. While theformer is properly defined as an aspect of inherenttribal sovereignty-the latter-disenrollment is not."See, Curing the Tribal Disenrollment Epidemic, supra,57 Ariz. L. Rev. 383,389.
In terminating petitioners’ tribal citizenship andfederal recognition, Assistant Secretary Echo Hawkacknowledged the crucial difference between applicants
8 "The Assistant Secretary Indian Affairs (AS-IA) has
responsibility for fulfilling the Interior Department’s trustresponsibilities to American Indian and Alaska Native tribes andindividuals." See https://www.bia.gov/FAQs/Section V.
See https://www.bia.gov/FAQs/Section IV.
19
and those individuals who are federally enrolled tribalmembers:
Until a person becomes enrolled in a tribe, thefederal government has few obligations to thatperson; certainly no generalized duty as trusteeor guardian. Therefore, as regards therelationship between a tribal government and anapplicant for enrollment, all federal duties flowtoward the tribal government. Disenrollment ofa recognized tribal member invokes an entirelydifferent set of relationships. The federalgovernment has the duty to protect individualtrial members even from their own tribalgovernment .... Therefore, as a matter of law, theFederal Government must apply a more stringentstandard of review to enrollment committeerecommendations to disenroll tribal members.
(Pet. App. 128, 129; emphasis added)
The necessity to protect Indians from arbitrarytribal disenrollment far outweighs the tribe’s interestin restricting membership. However, AssistantSecretary Echo Hawk then proceeded to apply apreponderance of evidence standard in petitioners’case. Echo Hawk reasoned:
Balancing well-established principles ofdeference to tribal governments against federalresponsibilities to all members of recognizedtribes, I find, in agreement with my predecessorin her decision letter of April 10, 1995, that atribal governing body or enrollment committee
20
must show that disenrollment is appropriate bythe ’preponderance of the evidence.’
(Pet. App. 129)
In making this decision, Assistant Secretary EchoHawk failed to apply a more stringent standard ofreview. It was appropriate ~br Echo Hawk’spredecessor, Assistant Secretary Ada Deer, to apply apreponderance of evidence standard to the originalagency adjudication involving petitioners’ applicationfor tribal membership. However, when AssistantSecretary Echo Hawk revisited his predecessor’s finaldecision, petitioners were no longer "applicants."Rather, petitioners are federally recognized tribalmembers subject to a final Department of Interiordecision with vested tribal and federal benefits andrights. Cf., 25 U.S.C. § 13, 25 U.S.C. § 479, 25 C.F.R.§ 290.2, § 290.14. As explained above, since the priordecision recognizing the petitioners~ tribal status was"final and conclusive," no challenge at all by the Bandshould have been permitted. That authority was givento Assistant Secretary Deer, who, in 1995, made thefinal binding determination.
Nonetheless, petitioners alleged that AssistantSecretary Echo Hawk was required to apply a higherevidentiary standard to disenrollment. (ER 97,208) Inthis case, tribal citizenship is just as important as U.S.citizenship to the petitioners. Echo Hawk’s decisionterminating the petitioners’ tribal membership andfederal recognition is similar to denaturalization
21
proceedings.I° Tribal disenrollment does not merelynullify tribal affiliation, it strips the individualsdisenrolled entirely of their cultural identity."Although it is true that they will always be Native byblood and spirit, they are no longer recognized as beingNative American by tribal, state and federalgovernments. Therefore, they are deemed ineligible toreceive the benefits and privileges that are granted toenrolled tribal members, such as access to healthcare;housing, tribal schools, various social and educationalprograms; land allotments; per capita payments as wellas tribal and federal educational stipends andgrants.’’11 Indeed, disenrollment has "severe andunsettling consequences."
The Assistant Secretary’s declassification ofpetitioners’ Indian status will cause petitioners severehardships. See, Amicus Curiae Brief in Aguayo v.Jewell, Docket No. 16-660 submitted by the Director ofthe Tribal Justice Clinic of the Indigenous Peoples Lawand Policy Program (IPLP) of the University of ArizonaJames E. Rogers College of Law. Assistant SecretaryEcho Hawk’s declassification will cause the petitionersto lose their Indian Health Care Services that theywould have qualified for irrespective of whether they
lO Petitioners argued that a "clearly erroneous" evidentiary
standard applied and alleged in their District Court complaint thatthe Assistant Secretary abused his discretion in applying thepreponderance of evidence standard. (See ER 97, 208)
11 See, Tribal Disenrollment: The New Wave of Genocide, Johnnie
Jae (Feb. 11, 2016) www.http://nativenewsonline.net.
22
are enrolled tribal members.12 Echo Hawk’s findingthat Marcus Sr., was of"non-Indian" descent was madeeven though no evidence was presented thatpetitioners’ Native American DNA evidence wasinaccurate.
As recognized by the San Pasqual Vice ChairmanRobert Phelps, who is also a professional historian, thetheories concocted by the Band’s anthropologist andaccepted by the Assistant Secretary were implausible.(Pet. App. 189, 194-198) Likewise, the Bureau’sRegional Director, after reviewing the purported "newinformation" from the Band’s anthropologist, concludedthe information "does not demonstrate the BIA’s [prior]determination is inaccurate, and therefore does notsupport deletion of Mr. Alto ii"om the Band’smembership roll." (Pet. App. 172) Similarly, indetermining that a preliminary inj unction should issue,Judge Gonzalez found that Assistant Secretary EchoHawk’s explanation that declassified Marcus as "non-Indian" and the adopted child of the San Pasqualcouple that raised him was an explanation that ran
12 According to the Indian Health Manual, irrespective of tribal
enrollment, petitioners would be eligible for Indian Health Careservices if they can prove Indian descent. Section 2-1.2 of themanual provides "Persons to Whom Services May Be Provided."
A person may be regarded as within the scope of theIndian Health program if he is not-otherwise, excludedtherefrom by provision of law, and:
Is of Indian and/or Alaska Native descent as evidenced byone or more of the following factors such as...(5)Any otherreasonable factor indicative of Indian descent.
See https://www.ihs.gov/ihm/.
23
"counter to the evidence before the agency" and was "soimplausible that it could not be ascribed to a differencein view of the product of agency expertise." (Pet. App.88) These are three independent sources that foundpetitioners’ disenrollment was not warranted by theevidence in this case.
At oral argument, petitioners urged the NinthCircuit to follow Judge Gonzalez’s reasoning in issuingthe preliminary injunction. Respondents urged thepanel to affirm Assistant Secretary Echo Hawk’sdecision on a scintilla of evidence standard. Asemphasized in Echo Hawk’s decision, the governmentwas required to apply a more stringent standard ofreview when citizenship and federal recognition isdivested. This Court should apply the standard used indenaturalization proceedings. "The evidence justifyingrevocation of citizenship must be clear, unequivocal,and convincing and not leave the issue in doubt."Fedorenko v. United States, 449 U.S. 490, 505 (1981).
Here, the Assistant Secretary’s finding that someother Jose Alto was Marcus Alto’s biological father didnot even meet a preponderance of evidence standardand cannot be upheld to terminate petitioners’ tribalcitizenship and federal recognition.
CONCLUSION
Disenrollment in Native American tribes is rapidlyexpanding around the country. Curing the TribalDisenrollment Epidemic, supra, 57 Ariz. L. Rev. 383,385-386. For individuals, like petitioners, who havehad their rights adjudicated in a final and conclusiveDepartment of Interior decision, to divest their Indiancitizenship and federal recognition on less than a clear
24
and convincing evidentiary standard violatesfundamental principles of due process.
For the foregoing reasons, the writ of certiorarishould be granted.
Respectfully submitted,
Tracy L. EmblemCounsel of Record
P.O. Box 300764Escondido, CA 92030(760) [email protected]
Counsel for Petitioners
