case 1:15-cv-00391-wbs-sko document 16 filed 06/26/15 page … · 2015-10-16 · case...

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BENJAMIN B. WAGNERUnited States AttorneyEastern District of California

JOHN CRUDENAssistant Attorney GeneralEnvironment and Natural Resources Division

MAUREEN E. RUDOLPHSenior Counsel, Natural Resources SectionUnited States Department of JusticeEnvironment and Natural Resources Division601 D St., NWWashington, DC 20004Telephone: (202) 305-0479Facsimile: (202) 305-0274Email: maureen.rudolphna,usdoj.gov

Attorneys for the United States.

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

PATRICK HAMMOND III, )

Plaintiffs, )

v. )

SALLY JEWELL, Secretary of the U.S. )Department of the Interior; INTERIOR BOARD )OF INDIAN APPEALS, U.S. Department of the )Interior; U.S. DEPARTMENT OF THE )INTERIOR; AMY DUTSCHKE, Regional )Director, Pacific Regional Office, Bureau of Indian)Affairs; TROY BURDICK, Superintendent, )Central California Agency, Bureau of Indian )Affairs, )

Defendants. )

Case No. 1:15-cv-00391-SKO

FEDERAL DEFENDANTS' MOTION TODISMISS

Case 1:15-cv-00391-WBS-SKO Document 16 Filed 06/26/15 of 19

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................................................1

FACTUALBACKGROUND ................................................................................................................. 2

I. The election and removal of Patrick Hammond from the Chuchanski TribalCouncil............................................................................................................................ 2

II. The ongoing leadership dispute on the Picayune Reservation and the Bureau ofIndian Affairs Decision ...................................................................................................2

III. Appeal to the Interior Board of Indian Appeals and its Decision ...................................4

IV. Plaintiff's Complaint .......................................................................................................5

STANDARD OF REVIEW ....................................................................................................................5

ARGUMENT.......................................................................................................................................... 6

I. Plaintiff does not have standing because his removal from the Tribal Council istraceable to the Tribe not the Federal Government, and the Court cannot provideredress............................................................................................................................. 6

II. The Court lacks jurisdiction to adjudicate internal tribal disputes .................................8

III. There is no constitutionally protected property interest in remaining on TribalCouncil thus, the due process guarantee does not apply .................................................9

IV. The Indian Civil Rights Act only applies to actions by Tribes, not to the federal

government ...................................................................................................................11

V. Plaintiff's Complaint does not set forth statutes by which to measure the BIA'sor the IBIA's actions .....................................................................................................12

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TABLE OF AUTHORITIESCases

Am. Mfrs. Mut. Ins. Co. v. Sullivan,526 U.S. 40 (1999) ....................................................................................................................10

Armstrong v. Manzo,380 U.S. 545 (1965) ..................................................................................................................10

Bell Atl. Corp. v. Twombly,550 U.S. 544 (2007) ....................................................................................................................6

Ben Oehrleins &Sons &Daughter, Inc. v. Hennepin Co.,115 F.3d 1372 (8th Cir. 1997) ....................................................................................................6

Bucktooth v. Acting E. Area Dir., BIA,29 IBIA 144 (1996) .....................................................................................................................8

California Vallev Miwok Tribe v. Salazar,967 F. Supp. 2d 84 (D.D.C. 2013) ............................................................................................12

Chuchua v. Pac. Reg'1 Dir., BIA,42 IBIA 1 (2005) .......................................................................................................................11

Cnty. of Charles Mix v. U.S. Dept of Interior,674 F.3d 898 (8th Cir. 2012) ......................................................................................................8

Cummin s~ vDep't of the Navy,279 F.3d 1051 (D.C. Cir. 2002) ..................................................................................................6

Grand Lodge of the Fraternal Order of Police v. Ashcroft,185 F. Supp. 2d 9 (D.D.C. 2001) ................................................................................................5

Hamilton v. Acting Sacramento Area Dir., BIA,29 IBIA 122 (1996) .....................................................................................................................3

In re Sac &Fox Tribe of Miss. in IowalMeskwaki Casino Liti~.,340 F.3d 749 (8th Cir.2003) ...................................................................................................8, 9

In re Swine Flu Immunization Prods. Liab. Liti~.,880 F.2d 1439 (D.C. Cir. 1989) ..................................................................................................5

Kokkonen v. Guardian Life Ins. Co.,511 U.S. 375 (1994) ....................................................................................................................5

Leatherman v. Tarrant County Narcotics Intelligence &Coordination Unit,507 U.S. 163 (1993) ....................................................................................................................5

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Lipsman v. Sec'y of the ArmX,257 F.Supp.2d 3 (D. D.C. 2003) .................................................................................................6

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992) ....................................................................................................................6

Mathews v. Eldridge,424 U.S. 319 (1976) ..................................................................................................................10

Milam v. Dept of the Interior,10 Indian L. Rep. 3013 (D.D.C. 1982) .......................................................................................8

Mobil Oil Corp. v. Albuquerque Area Dir., BIA,18 IBIA 315 (1990) ...................................................................................................................11

Mullane v. Cent. Hanover Bank &Trust Co.,339 U.S. 306 (1950) ..................................................................................................................11

Nero v. Cherokee Nation,892 F.2d 1457 (10th Cir.1989) ...................................................................................................8

O'Bannon v. Town Court Nursin C~ enter,447 U.S. 773 (1980) ..................................................................................................................10

Or. Natural Res. Council v. Thomas,92 F.3d 792 (9th Cir. 1996) ......................................................................................................12

Panasan v. Allain478 U.S. 265 (1986) ....................................................................................................................6

Preferred Risk Mut. Ins. Co. v. United States,86 F.3d 789 (8th Cir. 1996) ......................................................................................................12

Reeve Aleutian Airways, Inc. v. United States,982 F.2d 594 (D.C. Cir. 1993) ..................................................................................................10

Santa Clara Pueblo v. Martinez,436 U.S. 49 (1978) ................................................................................................................8, 11

Simon v. Eastern Ky. Welfare Ri ht~ s Org_,426 U.S. 26 (1976) ..................................................................................................................6, 7

Singh v. Mom,867 F.2d 1035 (7th Cir. 1989) ..................................................................................................12

Smith v. Babbitt,875 F. Supp. 1353 (D. Minn. 1995), aff d 100 F.3d 556 (8th Cir. 1996) ...............................8, 9

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Stands Over Bull v. Bureau of Indian Affairs,442 F. Supp. 360 (D. Mont. 1977) ......................................................................................11, 12

Starr v. Mandanici,152 F.3d 741 (8th Cir. 1998) ......................................................................................................6

Timbisha Shoshone Tribe v. Kennedy,687 F.Supp.2d 1171 (E.D. Cal. 2009) .........................................................................................8

Timbisha Shoshone Tribe v. Kennedy,714 F. Sup. 2d 1064 (E.D. Cal. 2010) .....................................................................................7, 8

United States v. Mitchell,463 U.S. 206 (1983) ....................................................................................................................5

Va11e~Forge Christian Coll. v. Ams. United for Separation of Church and State,454 U.S. 464 (1982) ....................................................................................................................7

Wadena v. Acting Minneapolis Area Dir., BIA,30 IBIA 130 (1996) .....................................................................................................................8

Wheeler v. Swimmer,835 F.2d 259 (10th Cir. 1987) ................................................................................................ 8, 9

Statutes

5 U.S.C. § 702 .......................................................................................................................................12

25 U.S.C. §§ 1301-1341 .........................................................................................................................8

25 U.S.C. § 1302(a)(8) ..........................................................................................................................11

42 U.S.C. § 1983 .....................................................................................................................................9

Regulations

25 C.F.R. § 2 .........................................................................................................................................11

43 C.F.R. § 4.318 ..................................................................................................................................13

Rules

Fed. R. Civ. P. 12(b)(1) ....................................................................................................................... 5, 6

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INTRODUCTION

This lawsuit concerns the tribal leadership dispute of the Picayune Rancheria of Chukchansi

Indians. The Plaintiff here, Patrick Hammond, claims the other members of the Tribal Council

removed him from the Council for improper reasons. Plaintiff claims that the Bureau of Indian

Affairs ("BIA") should have taken action to reverse his removal, and by not acting, denied him due

process rights. Plaintiff further claims that when the BIA Regional Director named which Tribal

Council the BIA would work with for the limited purposes of federal contracting —that the BIA

should have revisited his removal, and put him back on the Tribal Council.

The fundamental issue with Plaintiff's position is that the BIA does not have a role in

deciding who is on Tribal Council —the Tribal membership decides who is elected to those positions.

And if a tribal council determines pursuant to tribal law that a person should be removed from tribal

council, there is no federal action or role for the BIA to play. Accordingly, the BIA is not the cause

of Plaintiff being removed from Tribal Council and BIA cannot put him back on Tribal Council.

Plaintiff's remedy was to pursue appeals within the Tribe. Plaintiff does not met the traceability and

redressability prongs of Article III standing, and the Court should dismiss Plaintiff's Complaint.

Similarly, this Court does not have jurisdiction over Plaintiff's grievance about his removal

from Tribal Council. Intra-tribal disputes —such as whether removal from tribal council was

appropriate —should be resolved in tribal forums and not in federal courts. Plaintiff should have

pursued a remedy with the Tribal court.

Additionally, Plaintiff's due process claims should be dismissed. Being on the Tribal Council

is not a property interest that is protected by the U.S. Constitution. Moreover, Plaintiff received due

process by raising the issue of his removal from Tribal Council before the Interior Board of Indian

Appeals ("IBIA" or "the Board") in the administrative appeals brought by other factions within the

Tribe over the BIA's decision concerning contracting with the Tribe. Likewise, Plaintiff's claims that

BIA violated the Indian Civil Rights Act do not state a claim because that statute only applies to

Indian tribes. Finally, Plaintiff's generic claims that BIA violated the Administrative Procedure Act

("APA") should be dismissed because Plaintiff does not state which statute (other than the due

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process clause and Indian Civil Rights Act) he claims the BIA violated. Accordingly, Plaintiff does

not provide the statutory guidepost against which to measure either IBIA or BIA's conduct, and thus,

there is no waiver of sovereign immunity under the Administrative Procedure Act. The Court should

dismiss Plaintiff's Complaint.

FACTUAL BACKGROUND

~I. The election and removal of Patrick Hammond from the Chuchanski Tribal Council

The Constitution of the Picayune Reservation provides for the elections of the Tribal Council.

See Ex. A (Constitution of the Picayune Reservation) at Article VII. The Tribe's Constitution also

provides for the removal, recall and forfeiture of any member of the Tribal Council. Id. at Article X,

Section 1. ("The Tribal Council may, by a majority vote, remove any member of the Tribal Council

for neglect of duty or gross misconduct."). The Tribe's Constitution does not provide for BIA to

review removal actions by the Tribal Council. Id. The tribal membership elected Patrick Hammond

in December 2008 and 2010. Pl.'s Compl. at ¶¶ 10, 12. In January 2011, the Tribal Council placed

Plaintiff under a temporary suspension from the Tribal Council for violations of the Tribe's Ethics

Ordinance. Id. at ¶ 13. In Apri12011, the Tribal Council held a hearing, found Mr. Hammond in

violation of the Tribe's Ethics Ordinance, and removed him from the Tribal Council in June 2011.

Id. at ¶ 14. Mr. Hammond was replaced on the Tribal Council by Nokomis Hernandez. Id. at ¶ 26.

II. The ongoing leadership dispute on the Picayune Reservation and the Bureau of IndianAffairs Decision

Since December, 2011, the leadership of the Tribe has been embroiled in dispute. Pl.'s

Compl. at 16, 19-25; see also Ex. B (Bureau of Indian Affairs, February 11, 2014 Decision ("BIA

Decision")) at 3. At that time, the Tribe had fractured into two factions (the Reid Faction and the

Lewis Faction), each vying for control of the Tribal Council. BIA Decision at 3. The situation

deteriorated to the point where each tribal election, including the one held on December 2011, was

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considered invalid by one faction or another. BIA Decision at 3-4. Eventually, an additional faction

emerged, the Ayala and later the AyalalMcDonald Faction. BIA Decision at 4

The BIA Decision reflects that Tribal relations were further strained and the situation further

muddled on February 21, 2013, when the Ayala Faction removed the entire Tribal Council, with the

exception of Ayala, and replaced them with a new Tribal Council. BIA Decision at 5. After that

action there were a series of purported suspensions and removals by all of the factions with

questionable legal effect. BIA Decision at 5. The separate tribal factions again held elections on

December 7, 2013, this time the elections were based on separate election ordinances that appear to

have been independently modified by the respective factions prior to their elections.

All three factions submitted Indian Self—Determination and Education Assistance Act ("Self-

Determination Act") contracts to the BIA. Each faction was claiming to be the rightful Tribal

governing body for purposes of contracting and working with BIA on agovernment-to-government

basis. Yet, as the BIA Regional Director observed the situation had deteriorated to the point that the

BIA Superintendent decided to return the contracts to all three factions because "it has not been

possible to ascertain which factions[`] actions are consistent with Tribal law." BIA Decision at 7.

The Bureau of Indian Affairs properly recognized that it could not determine tribal leadership since it

"is quintessentially an intra-tribal matter" to be decided "through an appropriate tribal forum." BIA

Decision at 7 (citing Hamilton v. Acting Sacramento Area Dir., BIA, 29 IBIA 122, 123 (1996)).

The three factions then appealed the Superintendent's decision to the Regional Director

through the administrative appeals process within the Department of the Interior. After reviewing the

Superintendent's decision, the Regional Director decided that "for the purpose of contracting under

the [Self-Determination Act] and preventing any further hiatus of the government-to-government

relationship with the Picayune Rancheria of Chukchansi Indians" the BIA would conduct business,

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~ on an interim basis, with the last uncontested Tribal Council, elected December 2010. BIA Decision

at 6; Pl.'s Compl. at ¶ 25. The Regional Director listed that last uncontested Tribal Council as being

Dora Jones, Chance Alberta, Jennifer Stanly, Nancy Ayala, Morris Reid, Reggie Lewis and Nokomis

Hernandez. Id. at ¶ 26, 30. In a footnote, the Regional Director's decision refers to the replacement

of Patrick Hammond by Nokomis Hernandez. Id.

III. Appeal to the Interior Board of Indian Appeals and its Decision

The Regional Director's Decision was appealed to the Interior Board of Indian Appeals by

two tribal factions, a tribal citizens group and Patrick Hammond. Pl.'s Compl. at ¶ 28. Following the

violence between the factions at the Casino (and its closure), the appellants and the BIA asked the

Board to expedite consideration of the Regional Director's Decision and to place the decision into

immediate effect. The Board determined that public exigencies required that the decision be made

effective immediately. See Ex. C (IBIA Public Exigency Decision) at 5. Specifically, the Board

found that making the BIA Decision effective immediately was in the public interest, citing evidence

that tribal services and the casino were both shut down, as well as evidence that the majorities on two

prior tribal councils were now cooperating. Id.

Because the BIA's Decision was made immediately effective, the Board did not address the

merits of either the Regional Director's Decision or any of the various appellants' arguments. Id. at

footnote 11 (stating that because the Decision is being placed into immediate effect, it is unnecessary

to address the merits of the arguments concerning the composition of the tribal council). Likewise,

the Board did not reach the merits of Mr. Hainmond's appeal and instead, stated in footnote 5 that

"Hammond, who was elected to the Council in 2010, appeals from the Regional Director's

acceptance of his subsequent removal from the Council and replacement with Nokomis Hernandez."

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1 ~ ~ IV. Plaintiff s Complaint

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~~

Plaintiff seeks to have "the Court review and vacate" the Regional Director's Decision and the

IBIA's decision to make the Decision effective. Pl.'s Compl. at ¶ 1. Plaintiff alleges violations of the

Fourteenth Amendment Due Process Clause (count one), the Indian Civil Rights Act (count two), and

brings two claims that the Decisions violated the APA (counts three and four). Id. at ¶¶ 34-51. As

relief, Plaintiff request that the Court "order that defendants' Decision is vacated; that the Tribal

Council's removal of plaintiff from the Tribal Council ...was invalid and void, and that plaintiff is a

member of the Tribal Council pursuant to the election held on December 5, 2010, the last undisputed

Tribal council." Id. at Prayer for Relief (E).

STANDARD OF REVIEWIn considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the Court

must consider whether the Plaintiff's allegations are sufficient to meet their burden of establishing the

Court's jurisdiction over this claim. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

Because the federal courts "possess only that power authorized by Constitution and statute," Plaintiff

must identify a statute or constitutional provision that provides jurisdiction. Id. Moreover, in a suit

against the United States, Plaintiff must also identify an applicable waiver of sovereign immunity in

order to establish jurisdiction. United States v. Mitchell, 463 U.S. 206, 212 (1983). It is the

Plaintiffs burden to establish that the court has subject matter jurisdiction to hear the case. In re

Swine Flu Immunization Prods. Liab. Liti~., 880 F.2d 1439, 1442-43 (D.C. Cir. 1989). While the

Court must accept as true all factual allegations contained in the complaint, Leatherman v. Tarrant

County Narcotics Intelligence &Coordination Unit, 507 U.S. 163, 164 (1993), "[p]laintiff's factual

allegations in the complaint ...will bear closer scrutiny" when the court's subject matter jurisdiction

has been challenged. Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9,

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13-14 (D. D.C. 2001) (internal quotation marks omitted). In making its determination regarding the

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existence of subject matter jurisdiction, the court may consider matters outside the pleadings.

Lipsman v. Sec'v of the Army, 257 F.Supp.2d 3, 6 (D. D.C. 2003).

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must

accept the complaint's factual allegations as true. Cummin sg v. Dept of the Navy, 279 F.3d 1051,

1053 (D.C. Cir. 2002). The complaint must be dismissed if plaintiff cannot prove any set of facts that

would entitle it to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("[A] plaintiff's

obligation to provide the grounds of his entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.")(internal

quotes marks omitted) (citing Papasan v. Allain, 478 U.S. 265 (1986)).

ARGUMENT

I. Plaintiff does not have standing because his removal from the Tribal Council istraceable to the Tribe not the Federal Government, and the Court cannot provideredress.

Standing is a constitutional requirement imposed pursuant to the "cases or controversies"

provision of Article III. Ben Oehrleins &Sons &Daughter, Inc. v. Hennepin Co., 115 F.3d 1372,

1378 (8th Cir. 1997). If an action does not satisfy the case-or-controversy requirement, a court does

not have jurisdiction to proceed on the claims alleged, and they must be dismissed pursuant to Rule

12(b)(1). See Starr v. Mandanici, 152 F.3d 741, 747 (8th Cir. 1998). The elements of standing are

"not mere pleading requirements but rather an indispensable part of the plaintiffs' case." Lujan v•

Defenders of Wildlife, 504 U.S. 555, 561 (1992). A plaintiff seeking to invoke a federal court's

jurisdiction must establish: (1) that it has suffered an "injury in fact—an invasion of a legally-

protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural

or hypothetical," 504 U.S. at 560 (citations and quotations omitted); (2) that its injury is fairly


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traceable to the challenged action of the defendant and not the result of the "independent action of

some third party not before the court," id. at 560-61 (quoting Simon v. Eastern Kv. Welfare Rights

Ors•, 426 U.S. 26, 41-42 (1976)); and (3) that it is "likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision," id. at 561 (quoting Eastern Ky. Welfare Rights

Ors•, 426 U.S. at 38) (internal quotation marks omitted). These three elements constitute an

"irreducible minimum" required by Article III of the Constitution. Valley Forge Christian Coll. v.

Ams. United for Separation of Church and State, 454 U.S. 464, 472 (1982).

Plaintiff cannot trace his alleged injuries to the federal government. Plaintiff's grievance

concerns his removal from the Tribal Council. The allegations brought against Plaintiff by the Tribal

Council concerned violations of the tribal Ethics Ordinance. Pl.'s Compl. ¶¶ 11, 14. Plaintiff claims

that the federal government "had full knowledge" that his removal from Council was "in conflict with

the Tribal governing documents" and that the removal "violat[ed] tribal law." Id. at ¶ 35. Whether

the Tribal Council properly followed the Tribal Constitution in his removal, provided Plaintiff his due

process rights, or whether Plaintiff violated the Tribal Ethics Ordinance —are all matters of tribal law

-- matters in which BIA has no role. BIA's role in the leadership dispute here came about because of

the submission of the Self-Determination Act contracts to BIA. Before BIA could award a contract,

BIA needed to determine if the entity submitting the contract represented the tribe, and this inquiry

did not include reviewing Mr. Hammond's removal from the Tribal Council. In sum, the federal

government did not remove Plaintiff from Tribal Council —the other members of the Tribal Council

did. Accordingly, the federal government is not the cause of Plaintiff's grievance —and Plaintiff does

not have standing to pursue a claim against the federal government.

Likewise, the remedy sought by Plaintiff — an order directing that he is on the Tribal Council

and his removal was void —require the Court to look at whether his removal was proper. In order to

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review whether his removal was proper, the Court necessarily would have to opine on tribal law.

Federal courts should not make pronouncements about tribal law. See Timbisha Shoshone Tribe v.

Kennedy, 714 F. Sup. 2d 1064, 1070-71 (E.D. Cal. 2010) (quoting Milam v. Dept of the Interior, 10

Indian L. Rep. 3013, 3015 (D.D.C. 1982) (ordinarily, disputes "involving intratribal controversies

based on rights allegedly assured by tribal law are not properly the concerns of the federal courts"));

Wheeler v. Swimmer, 835 F.2d 259, 261 (10th Cir. 1987) (declining to hear action involving

challenge to tribal election). Thus, this Court cannot provide redress for Plaintiff's grievance.

II. The Court lacks jurisdiction to adjudicate internal tribal disputes.

It is well-established that intra-tribal disputes should be resolved in tribal forums. Smith v.

Babbitt, 875 F. Supp. 1353, 1362 (D. Minn. 1995), aff d 100 F.3d 556 (8th Cir. 1996) ("Federal

courts do not have jurisdiction to resolve tribal law disputes."). This rule applies with particular force

to intra-tribal disputes concerning the proper composition of a tribe's governing body. See Wadena

v. Acting Minneapolis Area Dir., BIA, 30 IBIA 130, 143 (1996 (citing Bucktooth v. Acting E. Area

Dir., BIA, 29 IBIA 144, 149 (1996)); see also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55

(1978). "Internal matters of a tribe are generally reserved for resolution by the tribe itself, through a

policy of Indian self-determination and self-government as mandated by the Indian Civil Rights

Act[.]" Timbisha Shoshone Tribe v. Kennedy, 687 F.Supp.2d 1171, 1185 (E.D. Cal. 2009 (citing 25

U.S.C. §§ 1301-1341). "Unless surrendered by the tribe, or abrogated by Congress, tribes possess an

inherent and exclusive power over matters of internal tribal governance." Id. (citing Nero v.

Cherokee Nation, 892 F.2d 1457, 1463 (10th Cir.1989); see also Cnty. of Charles Mix v. U.S. De~'t

of Interior, 674 F.3d 898, 903 (8th Cir. 2012) ("` [J]urisdiction to resolve internal tribal disputes,

interpret tribal constitutions and laws, and issue tribal membership determinations lies with Indian

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tribes and not in the district courts. "') (quoting In re Sac &Fox Tribe of Miss. in IowalMeskwaki

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Casino Liti~., 340 F.3d 749, 763 (8th Cir.2003); Wheeler, 835 F.2d at 261 (affirming dismissal of suit

brought by defeated tribal office-seekers on the grounds that "the Cherokee Nation possesses an

inherent right to self-government ...without federal government intrusion.").

As discussed above, there is no question that Plaintiff's removal from Tribal Council is a

matter of tribal law. Moreover, "[fJederal court jurisdiction does not reach this matter simply because

the plaintiffs carefully worded their complaint." Smith, 100 F.3d at 559. Plaintiff alleges violations

of the APA, the U.S. Constitution, and the Indian Civil Rights Act. It is evident though that "these

allegations are merely attempts to move this [internal tribal] dispute, over which this [C]ourt would

not otherwise have jurisdiction, into federal court." Smith, 100 F.3d at 559. This Court cannot, and

appropriately should not, permit Plaintiff to pursue his removal grievance in this forum. This Court

lacks the necessary subject matter jurisdiction to do so pursuant to the aforementioned authority,

despite Plaintiff's attempts to cloak his removal from Tribal Council — a matter of tribal law -- under

the guise of an APA action. Leaving these issues to the Tribe and to the Tribe alone is what current

Federal law and policy towards Indian self-determination requires.

III. There is no constitutionally protected property interest in remaining on Tribal Councilthus, the due process guarantee does not apply.

In count one, Plaintiff alleges that the BIA violated his right to due process in violation of the

Fifth Amendment to the Constitution) by not deciding whether his removal from Tribal Council

followed tribal law, and by not giving him adequate opportunity to be heard before the Regional

1 Plaintiff actually alleges a violation of the Fourteenth Amendment and of 42 U.S.C. § 1983 —neither of which apply to the United States or to federal agencies. As Plaintiff could cure thisdeficiency by amending the Complaint and citing the Fifth Amendment Due Process clause, weaddress herein why such an amendment to the Complaint would be futile.

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Director issued her Decision. Pl.'s Compl. ¶¶ 34-39. Plaintiff cannot set forth a property interest in

being on tribal council; thus, there is nothing for the Government to deprive, and Plaintiff's First

Count cannot set forth a claim upon which relief can be granted. Mr. Hammond also received full

opportunity to be heard and participated in the appeal before the Board, which is all the Due Process

Clause requires. This Court should dismiss Plaintiff's count one.

Procedural due process imposes certain requirements on government decisions depriving an

individual of an interest in life, liberty, or property. See Mathews v. Eldridge, 424 U.S. 319, 332.

(1976). "The first inquiry in every due process challenge is whether the plaintiff has been deprived of

a protected interest in ̀ property' or ̀ liberty."' Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59

(1999). If a government action does not deprive an individual of such an interest, the due process

guarantee does not require any hearing or process whatsoever —even if the challenged action

adversely affects that individual in other ways. See ems., O'Bannon v. Town Court Nursin Center,

447 U.S. 773, 789 (1980). Thus, "only after finding the deprivation of a protected interest" may the

Court proceed to considering Plaintiff's allegations regarding not being heard before the Regional

Director when she was deciding how to address the various submissions of Self-Determination Act

contracts. See Am. Mfrs. Mut. Ins. Co., 526 U.S. at 59; see also Reeve Aleutian Airways, Inc. v.

United States, 982 F.2d 594, 598 (D.C. Cir. 1993) ("If the party has a protected interest, we then20

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decide how much process is due.") (internal quotation marks omitted).

As discussed above, Plaintiff cannot set forth a property right to be on Tribal Council or to

have his removal considered. Moreover, even assuming Plaintiff has a valid property interest,

Plaintiff was heard before the Interior Board of Indian Appeals. The fundamental principle of due

process is "the opportunity to be heard ̀ at a meaningful time and in a meaningful manner."' Eldridge,

424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Due process requires the

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Government to precede any deprivation of a protected interest with "notice and opportunity for

hearing appropriate to the nature of the case." Mullane v. Cent. Hanover Bank &Trust Co., 339 U.S.

306, 313 (1950). Here, Mr. Hammond filed an appeal of the Regional Director's decision and filed a

brief with the IBIA. Pl.'s Compl. ¶ 28. As such, he was afforded full due process. See Chuchua v.

Pac. Reg'1 Dir., BIA, 42 IBIA 1, 7, 2005 WL 3506563 (2005) ("An appellant's due process rights are

protected by the right to appeal a BIA decision to [the IBIA]."); Mobil Oil Corp. v. Albuquerque

Area Dir., BIA, 18 IBIA 315, 332-33, 1990 WL 321061 (1990) (holding that the appellant's due

process rights were adequately protected given the administrative review process of 25 C.F.R. Part 2

and the fact that appellant had fully participated in the IBIA proceedings). In short, by providing

notice and the opportunity to be heard, Interior complied with the requirements of procedural due

process. The Court should dismiss count one.

IV. The Indian Civil Rights Act only applies to actions by Tribes, not to the federalgovernment.

Plaintiff seeks a declaration that BIA's "administrative findings, inferences, conclusions and

the Decision, are in violation of the Indian Civil Rights Act." Pl.'s Compl. at ¶¶ 45-47, Prayer for

Relief (B). The Indian Civil Rights Act (25 U.S.C. § 1302(a)(8)) requires that Indian tribes provide

due process rights:

No Indian tribe in exercising powers of self-government shall deny to anyperson within its jurisdiction the equal protection of its laws or deprive anyperson of liberty or property without due process of law.

Id. (emphasis added). The Indian Civil Rights Act imposes "restrictions upon tribal governments

similar, but not identical, to those contained in the Bill of Rights and Fourteenth Amendment." Santa

Clara Pueblo, 436 U.S. at 57. The Indian Civil Rights Act does not operate against the federal

government, nor does it create rights in tribal members against the federal government. Stands Over

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Bull v. Bureau of Indian Affairs, 442 F. Supp. 360, 366 (D. Mont. 1977); California Vallev Miwok

Tribe v. Salazar, 967 F. Supp. 2d 84, 93 (D.D.C. 2013) (dismissing an Indian Civil Rights Act claim

against the United States alleging improper recognition of a tribal governing body). The Court

should dismiss count two of Plaintiff's Complaint.

V. Plaintiff s Complaint does not set forth statutes by which to measure the BIA's or theIBIA's actions

In Counts three and four, Plaintiff alleges a generic violation of the APA. Plaintiff simply

restates the standard of review under the APA and incorporates the above paragraphs. Thus, it is

difficult to tell what Plaintiff claims are in counts three and four. Plaintiff appears to be incorporating

his due process and Indian Civil Rights Act claims into counts three and four. As discussed above,

these claims either cannot be brought against the federal government or fail to state a claim.

Additionally, the APA does not provide for afree-standing claim that an agency has acted

arbitrarily or capriciously, but instead requires the plaintiff to identify the source of law it seeks to

invoke. See Or. Natural Res. Council v. Thomas, 92 F.3d 792, 798 & n.l l (9th Cir. 1996); see also

Singh v. Mover, 867 F.2d 1035, 1038 (7th Cir. 1989) ("In determining whether a ̀meaningful

standard' for review is available, this court considers four areas: the statutory language, the statutory

structure, the legislative history, and the nature of the agency action") (citation omitted)). Plaintiff

here provides no statute by which to measure the IBIA's decision. See 5 U.S.C. § 702 (Plaintiff must

show it is "adversely affected or aggrieved by agency action within the meaning of a relevant

statute."). "[T]here is no right to sue for a violation of the APA in the absence of a ̀relevant statute'

whose violation ̀ forms the basis for [the] complaint."' Preferred Risk Mut. Ins. Co. v. United States,

86 F.3d 789, 792 (8th Cir. 1996) (citation omitted). "[P]laintiff must identify a substantive statute or

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regulation that the agency action had transgressed and establish that the statute or regulation applies

to the United States." Id.

The only other source of law found in Plaintiff's Complaint is 43 C.F.R. § 4.318, which

Plaintiff cites in his due process claim (count one) for the proposition that Interior has the authority to

"correct a manifest injustice or error where appropriate," and "failed ... to exercise that authority on

behalf of plaintiff." Pl.'s Compl. at ¶ 36. The regulation cited provides the scope of review for

appeals before the Board:

An appeal will be limited to those issues that were before the administrative lawjudge or Indian probate judge upon the petition for rehearing, reopening, orregarding tribal purchase of interests, or before the BIA official on review.However, except as specifically limited in this part or in title 25 of the Code ofFederal Regulations, the Board will not be limited in its scope of review and mayexercise the inherent authority of the Secretary to correct a manifest injustice orerror where appropriate.

43 C.F.R. § 4.318. Presumably, Plaintiff believes that the Board should have ruled whether his

removal was proper and that by only deciding that public exigency required the Decision be effective,

that IBIA acted arbitrary and capriciously. The issue of Hammond's removal was not before the

Regional Director at the time of decision because the issue presented to the Regional Director was

which faction's Self-Determination Act contract should be accepted —not the issue of whether Mr.

Hammond's removal was proper. Under the regulation, the appeal before the Board should have

been "limited" to the narrow issue of the contracts. Similarly, in determining whether to make the

Regional Director's Decision effective immediately, the Board was looking at whether the. factors for

public exigency had been met. The regulation also leaves the discretion to exercise the Secretary's

authority to correct a manifest injustice "where appropriate" with the Board. The Board was clearly

aware of Mr. Hammond's appeal (as they referred to it in the footnote) and, in its discretion, the

Judges did not address the merits of anyone's pending claims. This regulation does not require IBIA

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to address all claims when issuing decisions, and Plaintiff has not identified a source of law that does.

Plaintiff has not stated an APA claim upon which relief can be granted and both APA claims (counts

three and four) should be dismissed.

RESPECTFULLY SUBMITTED,

JOHN CRUDENASSISTANT ATTORNEY GENERAL

/s/Maureen E. Rudolph_Maureen E. Rudolph, DC Bar No. 976416Senior CounselDepartment of JusticeEnvironment and Natural Resources DivisionP.O. Box 7611Washington, DC 20044

Tel. 202-305-0479Fax.202-305-0506Email: [email protected]

DATED: June 26, 2015

14


Exhibit A

Case 1:15-cv-00391-WBS-SKO Document 16-1 Filed 06/26/15 Page 1 of 7

Exhibit B


United States Department of the Interior

J:-; REP I.Y REFER TO.

BUREAU OF INDIAN AFFAIRS Pacific Regional Office

2800 Cottage Way Sacramento, California 95825

Tribal Operations

Robert A. Rosette, Attorney

Rosette, LLP

for Lewis Faction

565 West Chandler Boulevard, Suite 212

Chandler, Arizona 85225

CERTIFIED, MAIL NO.: 7013 0600 00011876 6925

RETURN RECEIPT REQUESTED

John Peebles, Attorney

Fredericks Peebles & Morgan LLP

For Reid Faction

2020 L Street, Suite 250

Sacramento, California 95825

CERTIFIED MAIL NO.: 7013 0600 00011876 6932


Lester J. Marston, Attorney

Law Offices of Rapport and Marston

for Ayala Faction

405 W. Perkins Street

Ukiah, California 95482

CERTIFIED MAIL NO.: 7013 0600 00011876 6949


Dear Mr. Rosette, Mr. Peebles, and Mr. Marston:

FEB 11 2014

The purpose of this correspondence is to inform yciu of my decision regarding the Notices of Appeal

dated June 14, 2013, October 3, 2013, and October 9, 2013, filed in accordance with 25 CFR, Part 2.9

by the Reid Faction~ the Lewis Fa~ion, and the Ayala Factior;i, respectively. These appeals relate to the

actions of the Superintendent, Central California Agency, returning the requests to ·contract with the

Bureau of Indian Affairs (BIA) under the Indian Self-Detern:iination and Education Assistance Act

(ISDEAA), Public Law 93-638, submitted by each faction .

TAKE PRIDE •R:f:? ~ IN AMERICA ~·


The Reid Faction, consisting of Morris Reid, Janice Devine, Dixie Jackson, Harold Hammond, and Frank

Fernandez, timely filed a Notice of Appeal, dated June 14, 2013, of the Superintendent' s May 16, 2013,

decision. The Reid Faction cites two decisions in the Superintendent's May 16, 2013, correspondence

as the subject of the appeal. First, the Superintendent's decision to recognize the council elected as a

result of the December 1, 2012, election consisting of: Nancy Ayala, Chairperson; Reggie Lewis,

Vice-Chairperson ; Tract Brechbuel , Secretary; Karen Wynn, Treasurer; Chance Alberta,

Member-at-Large; Charles Sargosa, Member-at-Large; and Carl Buzz Bushman, Member-at-Large.

Second, the Superintendent' s decision to return the Reid Faction's request to contract under Public

Law 93-638 with the BIA.

The Lewis Faction, consisting of Reggie Lewis, Chairman; Carl "Buzz" Bushman, Vice Chairman; Irene

Waltz, Secretary; Chance Alberta, Treasurer; Melvin Espe, Member-at-Large; David Castillo,

Member-at-Large; and Lynn Chenot, Member-at-Large, timely filed a Notice of Appeal, dated October

3, 2013, of the Superintendent's September 4, 2013, decision. The Lewis Faction cites three

appeal able issues of the Superintendent's decision to return the Lewis Faction's request without

act ion due to his lack of jurisd iction because of the Reid Faction's appeal pending before the Regional

Director. First, the Lewis Faction asserts the Superintendent " . . . failed to cite any declination criteria,

legal basis, or lawful reason for refusing to act upon the Tribe's 638 Contract Proposal." Second, the

Lewi s Faction asserts " ... the IBIA Orders and the applicable law all clearly direct the Superintendent

to perform his duty and his responsibility to determine which individuals are authorized Tribal offieials

empowered to apply for and execute a 638 contract for FY 2013." Third, " . . . the BIA has not lived up

to its duties under its trust relationship to make clear that the current governing body [is] occupying

the Chukchansi Gold Resort & Casino."

The Ayala Faction, consisting of t he Tribal Council led by Nancy Ayala, timely fi led a Notice of Appeal ,

dated October 9, 2013, of the Superintendent's September 4, 2013, decision 1• The Ayala Faction cites

the Superintendent' s decision to return without action , the Ayala Faction's P.L. 93-638 application for

a new three-year contract, Fiscal Years 2013-2015, because the Superintendent was precluded from

acting upon the Ayala Faction's request due to the appeal pending before the Interior Board of Indian

Appeals (I BIA), citing BIA' s reliance upon Picayune Rancheria of the ChukchansJ Indians; Morris Reid,

Dora Jones, Dixie Jackson, and Harold Hammond v. Pacific Regional Director, Bureau of Indian Affairs,

Docket No IBIA 13-045, Order dated April 2, 2013, as the appealable issue.

In the Order of April 2, 2013, in Picayune Rancheria of the Chukchansi Indians; Morris Reid, Dora Jones,

Dixie Jackson, and Harold Hammond v. Pacific Region a I Director, Bureau of Indian Affairs, ~upra, IBIA

(Board) states "without determining whether the pendency of this appeal, under the facts of this

1 On November 13, 2013, the Pacific .Regional Office received the Reid Faction's Motion to Dismiss the "untimely" Notice of Appeal filed by the Ayala Faction. In a letter dated December 2, 2013, I denied the motion citing 25 CFR Part 2.15, computation of time, which states "computation shall include the last day of the period, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday." Due to the 2013 Government shutdown, from October 1, 2013,- to October 17, 2013, the Ayala Faction was not afforded the opportunity to submit their Notice of an Appeal until October 17, 2013, or the end of the next day following October 7, 2013, when the BIA was reopened.


case, divests BIA of jurisdiction to consider a request on behalf of the Tribe for a new contract for FY

2013, the Board grants BIA jurisdiction to consider such a request (or requests) ." Further, in the

July 10, 2013, Order Concerning BIA Jurisdiction Over FY 2013 Contract Proposals and Over FY 2012

Contract Matters, and Order Directing and Allowing Responses to Appellant's Supplemental

Submission, the IBIA states: "Any issues regarding the jurisdiction of the Superintendent to address

proposals or requests while Appellants' appeal is pending before the Regional Director should be

resolved by the Regional Director." Thus the Board's Order provides me the authority to hear these

appeals, as they are all related to the ISDEAA contract proposals of the Picayune Rancheria of

Chukchansi Indians for Fiscal Years 2013-2015.

All the appeals pertain to a request for a new ISDEAA contract for the Picayune Rancheria of

Chukchansi Indians for FY 2013-2015. On December 10, 2013, due to the related subject matter of the

appeals, and in accordance with Title 25, Code of Federal Regulations, Part 2.18, Consolidation of

Appeals, I exercised my discretionary authority to combine the related appeals and issue one decision

to resolve them. In addition, each party was given the opportunity to submit any final arguments to

this office before a decision is issued 2•

The leadership of the Picayune Rancheria of Chukchansi Indians has been embroiled in disputes'Since

the December 3, 2011, election . The hold-over officers (individuals not up for election and who,se

terms had not expired) that remained on the Tribal Council were Nancy Ayala, Jennifer Stanley and

Nokomis Hernandez3. It appears the 2011 election was conducted in accordance with the Tribe's

Constitution adopted on October 22, 1988, and the Election Ordinance adopted on October 21, 2010.

Under the 1988 Constitution, the Tribal Council has staggered terms and the regular tribal election

held on December 3, 2011, was for the four Tribal Council seats whose terms had expired . The 2011

election results reflect that Morris Reid, Dora Jones, Dixie Jackson and Harold Hammond; Sr., received

the highest number of votes in the election4• However, multiple candidates running in the election

appealed to the Election Committee challenging eligibility of Harold Hammond, Sr., to be seated as a

member of the Tribal Council, claiming that Mr. Hammond should have never been qualified to run

for office as he did not meet the eligibility requirements5• The appeals of Mr. Hammond's eligibility to

run for office led to a disagreement over whether the Reid Faction was duly installed on to the council

in accordance with the Constitution. The Reid faction claimed to be duly seated at the December 26,

2011, Tribal Council meeting, in accordance with tribal law. The Lewis Faction disputed whether the

elected Tribal Council was properly seated and remained in office in accordance with tribal law. The

record does not reflect ifthe question whether the elected Reid Faction was properly seated in

accordance with Tribal law was finally resolved and this issue resulted in ongoing internal leadership

disputes with both factions claiming to be the authorized governing body. The record shows the

2 The December 10, 2013, letter pro~ded a deadline of January 7, 2014, to submit final arguments; however, on January 6, 2014, the Superintendent forwarded a requestJrom the Ayala Faction to extend the deadline to January 10, 2014. In accordance with 25 CFR § 2.16, on January 7, 2014, I granted the request to extend the deadline to January 10, 2014. All arguments were submitted or postmarked by January 10, 2014. 3 The record reflects that Nokomis Hernandez was appointed by the Tribal Council to replace Patrick Hammond, Ill. 4 See February 1, 2013, Administrative Record, Tab F, 66. 5 See February 1, 2013, Administrative Record , Tab F, 59,60,64,63, and 65.


Lewis Faction held a General Council meeting on March 10, 20126, in an attempt to settle the dispute,

but the validity of the meeting and the actions adopted at that meeting are contested by the Reid

Faction . The Reid Faction did not participate in this meeting and challenges the validity of the

meeting, claiming it was not called and conducted by the legitimate Tribal Council.

It appears the Tribe was still embroiled in an intra-tribal dispute between the Reid Faction and the

Lewis Faction when a December 1, 2012, election was held by the Lewis Faction. The record reflects

the December 1, 2012, election was conducted in accordance with the Tribe's Constitution adopted

on October 22, 1988, and the Election Ordinance amended on September 20, 2012. The Tribal Council

has staggered terms and a regular tribal election was conducted on December 1, 2012, forthe three

Tribal Council seats whose terms had expired . As indicated by the December l, 2012, election report

signed by Dominque Carrillo on January 3, 2013, the hold-over officers that remained on the Tribal

Council were Reggie Lewis, Chance Alberta, Tracey Brechbuel and Karen Wynn and that Nancy Ayala,

Carl Bushman and Charles Sargosa received the highest number of votes in the election. The Reid

Faction did not participate in this election and contends it was not a valid tribal election because it

was not held by the legitimate tribal government or Election Committee (due to the Reid Faction

suspending Dominique Carrillo, Dana Hall and Orianna Walker from their positions on the Electi.on

Committee 7). Further, they challenge the inclusion of Reggie Lewis, Chance Alberta, Karen Wynn and

Tracey Brechbuel, on the Tribal Council, as those four seats are the same seats the Reid Faction

claimed to occupy. The record does not reflect that the December 1, 2012, election resolved the

pending leadership dispute regarding the interpretation of the installation of newly elected officers

from the past election.

The Ayala/Lewis Faction temporarily suspended Tribal Council members Karen Wynn and Tracey

Brechbuel on January 24, 2013, due to allegations concerning misuse of tribal funds. In

correspondence dated January 31, 2013, the Ayala/Lewis Faction provided notice of the temporary

suspensions to Karen Wynn and Tracey Brechbuehl pending the outcome of an investigation (the

Ayala Faction later disputed the validity of these suspensions) .

The record reflects that another intra-tribal dispute arose splitting the Ayala/Lewis Faction, apparently

resulting from actions taken by the Ayala Faction on February 21, 2013, wherein they removed the

entire Tribal Council, with the exception of Ayala, and replaced them with another Tribal Council. A

series of suspensions and removals occurred in both factions, but it is unclear if either had a quorum

of the Tribal Council.

In a purported attempt to resolve the dispute, the Lewis Faction attempted to utilize the referendum

procedure, and on June 19, 2013, the Indian Dispute Resolution Services certified the results of the

referendum and held a General Council meeting on September 14, 2013. At some point, following

the General Council Meeting, the Lewis and Reid Factiohs reconciled their differences and began

working together. In a letter dated January 2, 2014, the Reid and Lewis Factions submitted a joint

6 See February 1, 2013, Administrati\€ Record, Tab F, 6. 7 See February 1, 2013, Administrati\€ Record, Tab F, 35.


response to this Office's December 10, 2013, letter. The Lewis/Reid Faction state " ... the two

separate P.L. 93-638 contract applications for FY 2013-2015, are renewed, by way of this

correspondence, as a single contract application for your considerat ion ." 8

Th is Office received two reports of a Tribal Election held December 7, 2013, submitted by the

Lewis/Reid Faction and the Ayala Faction . According to memorandums from the Central California

Agency Superintendent dated January 15, 2014, and January 22, 2014, the combined Lewis/Reid

Faction reported its election was conducted pursuant to the Tribe 's Constitut ion adopted on I

October 22, 1988, and an Election Ordinance amended on October 17, 2013, while the Ayala Faction

December 7, 2013, t ribal election was conducted in accordance with the Tribe's Constitution adopted

on October 22, 1988, and the Election Ord inance amended on September 23, 2013. Following the

December 7, 2013, elections, attorneys for both factions submitted correspondence argu ing the

merits of their elections, urging BIA recognition of respective elections, and discussing the invalidity of

the other faction ' s election .9 Despite efforts by the various factions, the two tribal elections held on

December 7, 2013, did not resolve the intra-tribal dispute over the interpretation regarding the

installation of newly elected officers and the controversy carried over to the subsequent elections.

In Cayuga Indian Nation of New York, Clint Ha/ftown, Tim Twoguns, and Gary Wheeler v Eastern

Regional Director, Bureau of Indian Affairs, Docket No. IBIA 12-005, Order Vacating Decision, the IBIA

states, 11 ••• at least since 1996, the Board has recognized that BIA has the authority to make a

determination on tribal leadership 'when the situation [has] deteriorated to the point that

recognition of some government was essential for Federal purposes.' Wadena v. Acting M inneapolis

Area Director, 30 IBIA 130, 145 (1996) (emphasis added) . A corollary is that BIA has 'both the authority

and responsibility to interpret tribal law when necessary to carry out the government-to-government

relationship with the tribe .' United Keetoowah Band of Cherokee Indians v. Muskogee Area Director, 22

IBIA 75, 80 (1992) (emphasis added); see also Ransom v. Babbitt, 69 F. Supp. 2d 141, 151-52 (D.D.C.

1999) (Department has authority to review tribal procedures 'when it is forced to recognize' tribal

leadership). And it is well -established that in executing respons ibilities for carrying on government

relations with a tribe and providing necessary day-to-day services, BIA may not effectively create a

hiatus in tribal government by simultaneously recognizing two tribal governments or declf ning to

recognize any tribal government. Good/ace v. Grassrope, 708 F.2d 335, 338-39 (8th Cir. 1983) ."

In Steven R. Smith v Acting Pacific Regional Director, Bureau of Indian Affairs; Docket No. 42 IBIA 224,

Order Dismissing Appeal, the I-BIA states:" ... it is well-settled that a valid election held during the

pendency of an appeal moots any questions concerning prior tribal leadership. See e.g. , · Williams v.

Alaska Regional Director, 39 IBIA 140, 142 (2003); Kostzuta v. Southern Plains Regional Director, 35 IBIA

205 (2000) ; Rosales v. Sacramento Area Director, 34 IBIA 125, 126 (1999); Hamilton v. Acting

Sacramento Area Director, 291 BIA 122, 123 ( 1996); Villegas v. Sacramento Area Director, 241 BIA 150,

8 No 'formal request meeting the requirements set forth in 25 CFR § 900, Subpart C, has been submitted for consideration by the Lewis/Reid Faction. 9 Although the Lewis and Reid factions ha\€ apparently reconciled and are now working together, the Reid Faction has two appeals pending before the IBIA claiming to be the legitimate go\€rning body of the Picayune Rancheria, IBIA Docket Nos. 13-045 and 13-081 .


151-52 (1993). '[T]he determination of tribal leadership is quintessentially an intra-tribal matte r raising

issues of triba l sovereignty, and therefore the Department should defer to tribal resolution of the

matter through an appropriate tribal forum, including the normal electoral process.' Hamilton , 29 IBIA

at 123."

While this Office defers to tribal interpretations of tribal laws; it has not been possible to ascertain

which factions actions are consistent with Tribal Law. There is no dispute that the Constitution of the

Picayune Reservation, adopted by the Tribe October 22, 1988, is the Tribe's supreme governing

document. However, the record reflects numerous instances where the Election Ordinance was

amended by the various compositions of the oppos ing factions, 10 purportedly in accordance with the

Tribe's Constitution. The record also shows that multiple Tribal Courts were formed by the opposing

factions, in attempts to resolve these issues. There is no provis ion in the Tribe's Constitution or

federal law that provides the BIA with the authority to determine which of the opposing factions

interpretation of the Tribe 's law is correct, disputes regarding leadership of Picayune Rancheria of

Chukchansi Indians are controlled by tribal law, and fall within the exclusive jurisdiction of the tribe,

and BIA does not have the authority to determine the Tribe 's permanent leadership. The record does

not reflect whether recent tribal elections were conducted in accordance with tribal governing

documents. As such, I affirm the Superintendent's decision to return the ISDEAA contract requests of all three factions, and vacate the Superintendent's decision to recognize the results of the December 1, 2012, election.

The situation at the Picayune Rancheria of Chukchansi Indians has deteriorated to a point that

recognition of a government is essential forthe purpose of contracting under the ISDEAA, and to

prevent any further hiatus of this government-to-government relationship with the Picayune

Rancheria of Chukchansi Indians. Therefore, the Bureau of Ind ian Affairs, Pacific Region, will conduct

business, on an interim basis, with the last uncontested Tribal Council 1 1 elected December 2010,

consisting of: Dora Jones, Chance Alberta, Jennifer Stanley, Nancy Ayala, Morris Re id, Reggie Lewis,

and Nokomis Hernandez, unti l such time as the issue is resolved in accordance with the Tribe ' s laws.

The level of conflict to which this dispute or disputes have risen since the December 2011, election is

extremely concerning to this Office. In February 2012 it was reported that an attempt to take over

the Tribal Office by one of the factions led to violence resulting in a stabbing of one individual , and

requiring the Madera County Sheriff's Department to intervene. In February 2013 it was reported

that a faction occupied the Tribal Office threatening violence with respect to anyone who attempted

to remove the faction, again lead ing to intervention by the Sheriff's Department12. In addition to

10 While this Office has recei-.ed a copy of two of the -.ersions of the amended Election Ordinance, the other -.ersions ha-.e been addressed by the factions in various correspondence. (See September 10, 2013, letter from Dominique Carillo to the General Membership; January 16, 2014, memorandum from Superintendent to Regional Director; January 22, 2014 memorandum from Superintendent to Regional Director; December 16, 2013, letter from Lewis/Reid Faction to Regional Director, Exhibit C) 11 See Acting Governor Leslie Wardrie-Harjo, Cheyenne. and Arapaho Tribes V. Southern Plains Regional Director, 53 IBIA 121, 124 (2011) 12 As indicated by the February 27, 2013, Sierra Star article titled "Tribal Leadership Split At Picayune Rancheria.


these reports, the dispute over the Tribe's leadership has led to multiple financial hardships including

reported defaults on loans connected with the Tribe's gaming facility. In addition, many Federal

agencies have been unable to determine with whom to conduct business amidstthe dispute, causing

essential Tribal programs that are funded by the Federal government to cease operation 13, including

the loss of NAHASDA funds. Due to these increasing issues there appears to be several grounds for

finding it would be in the public interest to put this decision into immediate effect. As such, I will be

filing a motion with the IBIA to place my decision into immediate effect.

This decision may be appealed to the Interior Board of Indian Appeals, 801 North Quincy Street,

Arlington, Virginia 22203, in accordance with regulations at 43 CFR § 4.310 and 4.349. Your Notice of

Appeal to the Board must be signed by you or your attorney and must be mailed within 30 days of the

date you receive this decision . It should clearly identify the decision being appealed. If possible,

attach a copy of the decision . You must send copies of your Notice of Appeal to (1) The Assistant

Secretary- Indian Affairs, 4160 MIB, U.S. Department of the interior, 1849 C Street, N.W. Washington,

D.C. 20240, (2) each interested party known to you, and (3) this office. Your Notice of Appeal sent to

the Board of Indian Appeals must certify that you have sent copies to these parties. If you file a

Notice of Appeal, the Board of Indian Appeals will notify you of further appeal procedures. If no

appeal is timely filed, this decision will become final for the Department of the Interior at the

expiration of the appeal period . No extensions of time may be granted for filing a Notice of Appeal.

Sincerely,

cc: See Attached Distribution List

13 See Picayune Rancheria ofChukchansi Indians, et al, v. Sandra B Henriquez, et al, No. CV-13-01917-PHX-DGC, Order, December 30, 2013, at Page 8 Line 5 11


Michael Black, Director Bureau of Indian Affairs 1849 C Street, N.W. MS - 4606 - MIB Washington, DC 20240

Troy Burdick, Superintendent Bureau of Indian Affairs Central California Agency 650 Capital Mall; Suite 8-500 Sacramento, CA 95814

Congressman Jeff Denham United States Congress 1730 Longworth HOB Washington, DC 20515

Congressman Tom McClintock United States Congress 434 Cannon House Office Building Washington, DC20515

Carolyn O'Neil, Administrator U.S. Department of Housing and Urban Development Southwest Office of Native American Programs 1 North Central Avenue, Suite 600 Phoenix, AZ 85004

John Anderson, Sheriff Madera County Sheriffs Office 14143 Road 28 Madera, CA 93638

Paula Hart, Director Office of Indian Gaming, Indian Affairs MS - 3657 - MIB 1849 C Street, NW Washington, DC 20240

Interior Board of Indian Appeals United States Department of the Interior 801 North Quincy Street, MS 300 QC Arlington, VA 22203

Office of the Solicitor Pacific Southwest Region United States Department of Interior 2800 Cottage Way, Room E-1712 Sacramento, CA 95825

Senator Dianne Feinstein United States Senate 331 Hart Senate Office Building Washington, DC 20510

Office of the Governor Edmund G. Brown, Jr. ATIN: Jacob Appelsmith, Senior Advisor to the Governor c/o State Capitol, Suite 1173 Sacramento, CA 95814

Denise Zvanovec, Grants Management Officer Management & Technical Services Division U.S. Environmental Protection Agency, Region 9 75 Hawthorne Street, M/S ORC-2 San Francisco, CA 94105

Board of Supervisors County of Madera Madera County Government Center 200 West Fourth Street Madera, CA 93637

National Indian Gaming Commission ATIN: Maria Geoff, Senior Attorney 1441 L Street NW, Suite 9100 Washington, DC 20005


Exhibit C


United States Department of the Interior OFFICE OF HEARINGS AND APPEALS

INTERIOR BOARD OF INDIAN APPEALS 801 NORTH STREET

SUITE 300 ARLINGTON, VA 22203

PICAYUNE RANCHERIA OF T H E

C H U K C H A N S I I N D I A N S

Councils), CITIZENS

A N D W I C K MEMBERS OF

T H E PICAYUNE RANCHERIA,

PATRICK H A M M O N D I I I , A N D

PICAYUNE R A N C H E R I A OF T H E

C H U K C H A N S I I N D I A N S (Lewis/Reid

Council),

Appellants,

v.

PACIFIC REGIONAL DIRECTOR, BUREAU OF I N D I A N AFFAIRS,

Appellee.

Order Making Decision Effective

Immediately

Nos. 14-065

14-071

14-073

14-079

February 9,

Two groups claiming to constitute the lawful Tribal Council of the Picayune

Rancheria of the Chukchansi Indians McDonald Council1 and a

Lewis/Reid Council;2 a group identifying itself as Citizens and Hardwick Members of the

The composition of the McDonald Council appears to have changed during the

proceedings, but as of Apri l 8, it consisted of Tex McDonald, Lynda Appling,

Vernon King, Donna Featherstone, Charles Sargosa, and Amanda Ramirez. The

McDonald Council contends that i t is the lawful successor, through a tribal election

conducted in December 2013, to the Quorum Council" (identified as a co-

appellant), which is a reference to four Tracey Brechbuehl,

Karen Wynn, and Charles as a quorum of what began as an 2012

Council that included Reggie Lewis, Chance Alberta, and Carl Bushman.

The Lewis/Reid Council, consists of Reggie Lewis, Morris Reid, Chance Alberta, Carl

Bushman, Dixie Jackson, David Castillo, and Melvin Espe, and reflects the result of another

December tribal election, held cooperatively by the "former" Lewis and "former"

Reid factions. Lewis[/Reid] Council Reply Brief (Br.), May 30, 2014, at 15; see Notice of

Appeal of 2013 Elected Council (Lewis/Reid Council), Mar. 14, 2014, at 2 n . l ; 2013

Lewis/Reid Council Opening Br., Apr. 28, 2014, at 5 & n . l . The Lewis/Reid Council

(continued...)


Tribe (Citizens); and Patrick Hammond I I I (Hammond), have appealed to Board of Indian

Appeals (Board) from a February 2014, decision (Decision) of the Pacific Regional

Director (Regional Director), Bureau of Indian Affairs involving a governmental

dispute within the Tribe.3 Pending resolution of the dispute by the Tribe, the Regional

Director determined that BIA could not accept, as properly authorized, Indian

Determination and Education Assistance (ISDA) contract proposals submitted in 2012 by

three competing Councils composed of or controlled by the then-existing

and "Ayala" factions.4 Instead, the Regional Director concluded that, for conducting

business with the Tribe, BIA would recognize the last

undisputed Tribal Council, which the Regional Director identified as the Council as

constituted following a tribal election in with one change ("2010 Council").5

Supplemental Br ief in Support o f Expedited Consideration

and Responses to Supplemental Br ief

Briefing on the merits of the appeals has concluded. Pending before the Board is a Supplemental Brief in Support of Request for Expedited Consideration (Supplemental Brief), filed by the 2010 and Lewis/Reid Councils.

The 2010 and Lewis/Reid Councils contend that an armed takeover of casino

premises by agents of the McDonald Council in October resulted in a closure of the

casino, default on the Tribe's debt obligations, and Federal court injunctive relief against

McDonald and his followers for threatening the public safety. Thus, according to the 2010

and Lewis/Reid Councils, the Tribe now lacks funding from either ISDA funding or casino

variously refers to itself as the "2013 Elected Tribal Council" (Notice of Appeal, Mar. 14,

2014) and as the "2013 Lewis Tribal Council" (2013 Lewis Tribal Council Opening Br.,

Apr. 28, 2014).

The Board's references to actions taken by or on behalf of the Tribe, tribal entities, or

tribal officials, and the Board's use of titles claimed by various individuals, shall not be

construed as expressing any view on the underlying merits of the dispute.

Under tribal law, the Tribal Council consists of seven members, a quorum consists of four members.

Hammond, who was elected to the Council in appeals from the Regional Director's

acceptance of his subsequent removal from the Council and replacement with Nokomis

Hernandez. As identified in the Decision, the Council consists of Dora Jones, Chance

Alberta, Jennifer Stanley, Nancy Ayala, Morris Reid, Reggie Lewis, and Nokomis

Hernandez, Council has as a respondent in this appeal in support of

the Decision, but also supports recognition of the Lewis/Reid Council.

2


revenue, and is unable to provide any to tribal members. The 2010 and

Lewis/Reid Councils also contend that their two Councils and the

Council, see supra note which the McDonald Council supports in these proceedings as

entitled to BIA interim recognition,7 have reconciled and appointed a "Unification Council"

to govern the Tribe and administer tribal programs. I t appears that among the members of

the Council, Ayala, Brechbuehl, and (three of the four members of

the Ayala Quorum Council) have realigned themselves Lewis, Alberta, and Bushman.

Thus, according to the 2010 and Lewis/Reid Councils, there is no longer any dispute

between the two Councils that have been identified, respectively, by each Appellant Council

in these proceedings as entitled to BIA interim recognition.

The McDonald Council supports the supplemental request for expedited

consideration it believes that the National Indian Gaming Commission

wil l recognize, as the governing body of the Tribe, the Council that is recognized through

proceedings involving decision ISDA proposals. The McDonald

Council contends, however, that the Unification is not the lawful governing body

of the Tribe that the McDonald is successor to the Ayala

Council. also takes issue with allegations that members of the

crimes contends that closure of the casino was because

of violent acts of the Unification its agents. Although the Council

is silent the apparent majorities the the

Council, it its position that the was

in with law. See Council's Response to Request for

Expedited Consideration, Dec, 22, 2014, at 7, 13.

Appellant Citizens contends that none of the

McDonald, standing because none meet the

requirements of membership. Citizens argues that circumstances exist, but suggests

that the grant authority to a Council by Citizens.

Appellant Hammond disputes of the Council, does

address the issue of expedited consideration.

The Council, which was disputed by the faction, consisted of Nancy Ayala, Reggie Lewis, Tracey Brechbuehl, Karen Charles Sargosa, Chance Alberta, and Carl Bushman.

See Ayala Quorum Council/McDonald Council Opening Br., Apr. 28, at 2, 41 ;

Ayala Quorum Council/McDonald Council Answer Br., May 30, at 22; Ayala

Council/McDonald Reply Br., June 18, at 4.

3


The Regional Director supports expedited consideration, but also reiterates her

support for making the Decision effective immediately. See Regional Director's Response

in Support of Expedited Consideration, Dec. 19, 2014, at

A group identifying itself as the Faction," which has not previously appeared

in these proceedings, also filed a response to the Supplemental Brief.9 The Reid Faction

does not identify its members, or the basis for its standing to intervene, but based on the

arguments raised, i t appears that the Reid Faction consists of a minority block on the 2010

Council (Morris Reid and Dora Jones), and a minority block on the 2013 Lewis/Reid

Council (Morris Reid and Dixie Jackson).10 The Reid Faction argues that because of

substantial changes in factual circumstances, an apparent reference to the realignment

within the 2010 Council, to recognize 2010 interim basis

no longer be the matter should be to the Assistant Secretary -

Indian Affairs. According to the Faction, the Faction" does not

"constitute" the Council for any of the years of t Councils the and

now contend have united. The contends the

Lewis/Ayala Faction "only constitutes the Lewis/Ayala Faction's version" of those

various Councils' compositions. Reid Faction's Response, 23, 2014, at 1.

Order Placing Decision into Immediate Effect

None of the parties, while still lobbing blame at each other, disputes the premise of

the Brief: factual circumstances have markedly from when the

Board denied the Regional s initial motion to place the Decision into immediate

effect, in particular that without any source of either or the Tribe's

casino, the Tribe's government (regardless of which Council may be recognized) is unable

to function and unable to provide services to Tribal members. I n addition, while making

the Decision effective in would have a facto "status quo" of sorts,

Earlier in the proceedings, the denied a motion by Director, which

was by the Council, to place the into effect. See Order

Denying Motion, Apr. 15,

Lewis/Reid Opening Apr. 28, at (dispute between

the "Lewis and Reid Factions . . . was resolved by the Election").

The Faction disputes the composition of the Lewis/Reid Council, arguing that

it only consisted of four individuals, Reggie Lewis, Morris Reid, Alberta, and Dixie

Jackson, and not the three additional members previously identified by Appellant

Lewis/Reid Council. But see Notice of Appeal of Elected Council (Lewis/Reid

Council), 14, at 2 n . l ; 2013 Lewis/Reid Council Opening Br., Apr. 28,

5 n . l .

4


apparently would no longer be the case, given the shutdown of the casino and apparent

shutdown of tribal government services.

Although the Supplemental Brief is presented as a renewed motion to expedite a

decision by the Board on the merits, the Board has decided, instead, to the Decision

effective immediately, based on the exigent circumstances presented. The Board finds that

doing so has now been shown, on this record, to be in the public interest.

The Board is persuaded to make the Decision effective, rather than expedite

consideration, in part by the apparent realignment of majorities on the Council and

the Councils. The realignment is a recent development that possibly

have an on the Board's consideration of the merits of appeals, but also at

present appears relevant to the Decision effective immediately.

Lewis/Reid Council has not opposed o f the (i.e.,

upholding Decision ), and Appellant has argued that i f

recognition is appropriate, it be extended to the as the

last Council. I f majorities on Ayala/Lewis Councils are

now cooperating, making the effective immediately would not appear to

intrude into affairs, at least when by the litigating positions

of two Appellant Councils in these proceedings. Making the Decision effective provides

an immediate result that is less than each Appellant Council argues should be the ultimate

resolution of the appeal, but one that is arguably consistent with their "interim recognition"

In making the Decision effective immediately, the Board emphasizes that it makes

no determination about whether, once the Council is recognized by BIA on an

interim basis, an ISDA proposal from that Council wi l l meet the applicable requirements in

order for the Tribe to resume contracting programs and services from That is a

separate determination that BIA must make, upon receipt of a proposal. The Board also

makes no determination about whether it is permissible for any entity other than the

Council, e.g., the Unification Council, to a contract and the

Tribe through the Council. Similarly, the parties now appear to agree

interim of the Council for government-to-government purposes

wil l likely be accepted by and other entities for their dealings with the Tribe, the

Because the Board is placing the Decision to recognize the Council on an interim

basis into effect, it is unnecessary to address the Reid Faction's argument that the

subsequent Councils' compositions only reflected the Lewis/Ayala faction's "disputed"

version of those Councils, nor need the address the Reid Faction's standing to appear

in these proceedings. The Board notes that no party has disputed the membership of

Morris Reid and Dora Jones on the Council.

5


Board's to make the Decision effective shall not be construed, in any respect,

as a determination on the ability of the 2010 Council to execute the Tribe's obligations, or

on the qualifications or disqualifications of any individuals (e.g., based on allegations of

illegal conduct), in relation to dealings between BIA or third parties and the Council

or its agents.

For the reasons discussed above, the Board makes the Decision effective

immediately.

Steven K. Linscheid Thomas A. laser

Chief Administrative Judge Administrative Judge

Distribution: See attached list.

6


Distribution: 14-065 & consol.

Lester J. Marston, Esq. for Picayune Rancheria of

the Chukchansi Indians (McDonald faction) Law Offices of Rapport & Marston 405 W. Perkins Street Ukiah, 95482

Citizens and Hardwick Members of the Picayune Rancheria

Appellant P.O. Box 62/46815 Road 417 Coarsegold, CA 93614

Patrick Hammond I I I Appellant 1935 Ivory Court Madera, CA 93638

Robert A. Rosette, Esq. Saba Bazzazieh, Esq. for Appellant Picayune Rancheria of

the Chukchansi Indians (Lewis/Reid faction)

Rosette, LLP 1100 H Street, NW, Suite 400 Washington, DC 20005

Steven J. Bloxham, Esq. James Qaqundah, Esq. for Appellant Picayune Rancheria of

the Chukchansi Indians (Lewis/Reid faction)

Fredericks Peebles & Morgan LLP 2020 Street, Suite 250 Sacramento, CA 95825

National Indian Gaming Commission ATTN: Maria Senior Attorney 1849 C Street, N.W., MS 1621 - Washington, 20240

Carolyn O'Neil, Administrator U.S. Dept. of Housing and Urban Development Southwest Office of Native American Programs 1 North Central Avenue, Suite 600 Phoenix, AZ 85004

Anderson, Sheriff Madera Office 14143 Road 28 Madera, CA 93638

Congressman Jeff United States Congress 1730 Longworth HOB Washington, DC 20515

Congressman Tom McClintock United States Congress 434 Cannon House Office Building Washington, DC

Senator Dianne Feinstein United States Senate

Hart Senate Office Building Washington, DC 20510

Office of the Governor Edmund G. Brown, Jr. ATTN: Joe Dhillon, Senior Advisor

For Tribal Negotiations c/o State Capitol, Suite 1173 Sacramento, CA

Denise Zvanovec, Grants Management Officer Management 8c Technical Services Division U.S. Environmental Protection Agency, Region 9 75 Hawthorne Street, M/S San Francisco, CA 94105


Distribution: (Continued - page 2)

Board of Supervisors, County of Madera Madera County Government Center 200 West Fourth Street Madera, CA 93637

David S. Heller, Esq. Latham & Watkins, LLP 885 Third Avenue New York, NY 10022

Steven R. Schindler, Esq. Schindler Cohen 8c Hochman, LLP 100 Wall Street, 15th Floor New York, NY 10005

Robert Friedman, Esq. Sheppard Mullen Richter 8c Hampton, LLP 30 Rockefeller Plaza New York, NY

Bingham McCutchen, LLP 399 Park Avenue New York, NY 10022-4689

Rory Dilweg, Esq. Tilden McCoy + Dilweg, LLP 4151 Redwood Avenue, Unit 307 Los Angeles, CA 90066

Paula Hart, Director Office of Indian Gaming, Indian Affairs 1849 C Street, N.W., MS 3657 - MIB Washington, DC 20240

Michael Black, Director Bureau of Indian Affairs 1849 C Street, N.W., MS 4606 - MIB Washington, DC 20240

Central California Agency Superintendent Bureau of Indian Affairs 650 Capitol Suite 8-500 Sacramento, CA 95814-4710

Pacific Regional Director Bureau of Indian Affairs 2800 Cottage Way Sacramento, CA 95825

Sapphire Diamant-Rink, Esq. Karen D. Koch, Esq. Office of the Pacific Southwest Regional Solicitor U.S. Department of the Interior 2800 Cottage Way, Room Sacramento, CA 95825


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