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William J. Pink, In Proper Person

48310 Pechanga Road

Temecula, CA 92592

wjpink@hotmail.com

909-936-1216

UNITED STATES DEPARTMENT OF THE INTERIOR

OFFICE OF THE ASSISTANT SECRETARY - INDIAN AFFAIRS

MS-4141-MIB

1849 C Street, N.W.

Washington, D.C. 20240

Appeal of June 12, 2013 Findings and Decision in the Matter of:

TIFFANY L. (HAYES) AGUAYO, et al., ) No. ______

Appellants v. ACTING PACIFIC )

REGIONAL DIRECTOR, BUREAU OF ) Date: September 19, 2013

INDIAN AFFAIRS, Appellee: GINA )

HOWARD, et al., Appellants v. ACTING ) STATEMENT OF REASONS

PACIFIC REGIONAL DIRECTOR, )

BUREAU OF INDIAN AFFAIRS, )

Appellee. )

___________________________________ )

I. INTRODUCTION

Appellant, William J. Pink (Appellant), a member of the Pala Tribe (Tribe),

Enrollment Number 373, brings forth this appeal on the basis of the Pala Tribe’s

Executive Committee failure to notify him as a descendent of Margarita Britten

that his Degree of Indian Blood has been lowered from 1/8 Cupeno to 1/16

Cupeno. This act has then served to reduce Appellant’s total blood degree from 3/8

to 5/16, 1/4 Luiseno Indian and 1/16 Cupeno Indian. Appellant first learned of this

decision when reviewing particular court documents in the case of RONALD D.

ALLEN, JR., et al., Plaintiffs, vs. ROBERT H. SMITH, et al.

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Other separate and independent basis for this appeal are the Acting Regional

Director, Bureau of Indian Affairs (BIA), decisions dated February 24, 2012 and

June 7, 2012 that relied on the disputed authority provided under the Band’s 1997

Constitution and 2009 enrollment ordinance, as well as the June 12, 2013 decision

rendered by Kevin K. Washburn, Assistant Secretary – Indian Affairs (AS-IA)

concluding that:

Based on the foregoing analysis, we conclude that the Regional

Director acted based on a proper interpretation of authority under

tribal law to review the enrollment appeals. Tribal law limited

the Regional Director to making a “recommendation,” rather

than actually deciding the enrollment appeals. We further

conclude that the Department has no authority under Federal or

tribal law to decide enrollment issues for the Band.

By letter, dated July 24, 2013, Appellant Pink notified the Agency of his

intent to file an appeal/disagreement of the June 12, 2013 AS-IA decision noted

above.

II. STATEMENT OF JURISDICTION AND STANDING

William J. Pink is former member of the Pala Executive Committee. He has

served as an Interim Chairman and duly elected Vice-Chairman for the Tribe. He

also served as the Tribe’s representative on the San Luis Rey River Indian Water

Authority, the Tribe’s Business Planner and grants specialist. As an elected official

of the Tribe, he was sworn to uphold the provisions of the Tribe’s Articles of

Association and the Tribe’s Ordinances. As a consequence of his past and current

knowledge of the internal workings of the Tribe and its Executive Committee, he is

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extremely qualified to make the arguments regarding the invalidity of the Tribe’s

current Constitution, Enrollment Ordinance and other key factual/legal issues

proving the June 12, 2013 AS-IA decision is in error.

William J. Pink has a long history of working with Tribal, State and Federal

Agencies. In 1979, he was appointed by the Secretary of the Interior, Cecil B.

Andrus, to serve as a member of the California Desert Conservation Area Advisory

Committee as authorized under the Federal Land Management Policy Act of 1976.

In 1980, he was appointed by Governor Jerry Brown to serve as the Executive

Secretary for the State’s Native American Heritage Commission. He assisted in the

development of the first comprehensive Native American burial protection law in

the United States in cooperation with then State Senator John Garamendi, the bill’s

Author. During his tenure as the Executive Secretary, he also served as the Native

American Representative to the Department of Water Resources under then

Director Ronald Roby. He also served as an advisor to the Department of Parks

and Recreation. William J. Pink also served as a grants administrator for various

Tribes under the then PL 93-638 funding program, Administration for Native

American grants, Farm Bill grants and other like funding.

William J. Pink is military veteran. His service record includes a tour of duty

with the 5th

Special Forces Group, Republic of Vietnam, and a tour of duty with the

8th

Special Forces Group, Panama. He was awarded the Bronze Star for his service

in Vietnam as well as the Civic Action Award.

It is because of Appellant’s professional and personal history that he feels

compelled and qualified to bring forth this appeal on a matter of utmost

significance – His Degree of Indian Blood.

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Appellant attempted to contact the Southern California Agency, BIA, more

specifically, Mr. Robert J. Eben, Superintendent of the Southern California

Agency. The Appellant was informed that the matter of Margarita Britten and the

reduction of her and her ancestors’ Degree of Indian Blood was under appeal and

that the Agency could not discuss the matter with the Appellant. See Notice of

Appeal Letter, dated July 24, 2013, (Exhibit A). In effect, Appellant was deprived

of his right to oppose the Tribe’s lowering of his Degree of Indian Blood and, thus,

deprived of his right to Due Process by the actions of the BIA, a federal agency.

In terms of further jurisdiction to support the filing of this appeal, Appellant

cites the federal Administrative Procedures Act (APA), 5 U.S.C. § 706(2), because

the 2012 Acting Regional Director’s decisions and the 2013 AS-IA decision

include a number of conclusions that are not in accordance with law, are in excess

of statutory authority, and are without observance of procedure required by law.

Appellant also argues below that the Acting Regional Director and the AS-IA

rendered their respective decision on an incomplete record.

The 2012 and 2013 Decisions at issue here are also arbitrary and capricious

under the APA, § 707(2). Agency action is “arbitrary and capricious” under the

APA if the agency (1) entirely failed to consider an important aspect of the

problem, (2) offered an explanation for its decision that runs counter to the

evidence before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise, (3) failed to base its decision

on consideration of the relevant factors, or (4) made a clear error of judgment. See

Hillsdale Env. Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156,

1165 (10th Cir. 2012), citing New Mexico ex rel.Richardson v. Bureau of Land

Mgmt, 565 F.3d 683, 704 (10th Cir. 2009). Appellant contends that the Agency

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decisions at issue here were the result of an incomplete administrative record that

failed to include certain key documents going directly to prove that the 1997

Constitution was wrongfully approved.

There is absolutely no doubt that this instant appeal stands out alone on the

“disenrollment legal landscape”. This entire Pala disenrollment scenario is

extraordinarily unique because of two (2) decisions made by the AS-IA in 1989

that serve as the “baseline” point of departure or measuring point in regards to the

4/4 Indian Blood Quantum of Margarita Britten. Rather than honor its legal duty

and legal obligation to abide by these “baseline” Departmental administrative

decisions made in 1989, both the Acting Regional Director and the AS-IA made

recent arbitrary and capricious findings based on an invalid Tribal Constitution and

Enrollment Ordinance to disregard these precedential decisions. Where the AS-IA

had firm grounds to agree with the disenrolled appellants in those appeals, he

chose to side step the road to truth and justice by playing games with the meaning

of words, throwing the lives of a 160 disenrolled Pala tribal members into the

hands of rogue and often out of control Executive Committee under the helm of

Chairman Robert Smith.

The decision of both the Regional Director and the AS-IA not only resulted

in causing severe and possibly irreparable harm to me and any other descendent of

Margarita Britten, it also resulted in surrendering reserved powers of the United

States.

III. STATEMENT OF CONCURRENCE

Appellant concurs with both the Pacific Regional Director and the Assistant

Secretary determination that Margarita Britten was 4/4 Indian as found in the

February 24, 2012, June 7, 2012 and June 12, 2013 Agency decisions.

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IV. STATEMENT OF DISAGREEMENT, DISPUTE OF THE STATED

FACTS AND RESPONSE

A. The 2012 And 2013 Agency Decisions Rely On

Unprecedented And Legally Unsupported Rationales Advanced

By The Department For The First Time In The Pala

Disenrollment Situation.

Historical facts prove the Pala Tribe through its General Council has, within

the Spirit of Santa Clara Pueblo v. Martinez, acted in a manner to determine its

tribal/citizenship, an undeniably true act of sovereignty and self-governance. The

Assistant Secretary states in his June 12, 2013 Decision described above, at p. 1:

“An important attribute of tribal sovereignty and self-

government is the right to determine citizenship. Indeed,

composition of its body politic is one of the most important

decisions any government can make. Like the United States,

tribal governments define and determine tribal citizenship

through their political process. The links between sovereignty

and self-government and political membership are strong. The

Federal Government should engage in such key tribal issues only

when the law clearly provides such authority.”

Of course the greatest challenge I face, as the Appellant, is the issue of

overcoming the facts as determined in the United States Supreme Court case of

Santa Clara Pueblo v. Martinez. Simply stated, only a Tribe has a right to

determine its membership. Within the facts of the Tribe’s Executive Committee

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decreasing my Indian Blood Quantum, I can prove that the “Tribe” or its General

Council has indeed determined its membership as shown by historical records that

were not accounted for by the Acting Regional Director or the AS-IA. I believe I

can do this and as a matter fact I will do so by embracing the very essence of Santa

Clara Pueblo v. Martinez. The true violators in respecting this fact are the Pala

Executive Committee and the Southern California Agency, BIA who have relied

on erroneous and misleading documents to advance unsupported rationales that the

Executive Committee holds the key to unilaterally decide who is and who is not a

Tribal member to the exclusion of the General Council. The General Council

spoke in firm understandable terms in 1984 when it voted to “restore” the Degree

of Indian Blood of Appellant’s ancestor, Margarita Britten, to full blood. In

contrast, Santa Clara Pueblo v. Martinez was all about one Tribe’s Traditional

practice of disallowing women who married outside of the Tribe to enroll their

children. This lowering of the Degree of Indian Blood circumstance is entirely

different in nature. Blood degree was not at issue in Santa Clara Pueblo v.

Martinez.

As background, the Articles of Association that the Pala Band of Mission

Indians adopted as their governing document also leads to the adoption of a base

roll where their membership is determined by Pala Allotment Rolls of April 12,

1895, and November 3, 1913 and further approved by the Secretary of the Interior.

Anyone altering this fact is not complying with Santa Clara Pueblo v. Martinez

legal principles, including the BIA. Once the Tribe adopted the Articles of

Association, then the BIA erred in using other documents, such as the 1928 and

1940 California Indian Census Roll, to determine tribal membership or Indian

Blood Quantum or Degree. This manner of deciding who is or who is not an

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eligible member cannot be altered by BIA or a renegade Executive Committee

acting under the “pretext” of a valid governing document.

Assuming for sake of argument that Santa Clara Pueblo v. Martinez applies,

we do not ask the BIA or anyone else to violate that case law precedent. Appellant

embraces and concurs with Santa Clara Pueblo v. Martinez and the General

Council (not the Executive Committee) of the Pala Band of Mission Indians who

adopted its Base Roll for the Tribe which is a pure sovereign action and within this

same action, granted authority to the Assistant Secretary to have final approval of

enrollment applications for Tribe. Does this power still exist? Yes. Does the

Executive Committee comprised of other than Cupeno Indians have the legal

authority to alter the membership qualifications of a Cupeno Indian? No. As a

matter of fact, the only Executive Committee member qualified to vote with

respects to the Margarita Britten case was barred from doing so under the provision

in the Tribe’s Constitution under Article V, Section 12. Quorum and Voting:

“No member shall vote on any matter in which he/she or his/her immediate

family has a personal interest or would receive personal benefit other than that

provided for tribal members in general.” ***

This very section, as it was imposed on the Cupeno representative, violates

the entire premise of Santa Clara Pueblo v. Martinez. This further demonstrates

the Pala Executive Committee’s disregard for the General Council and its right to

determine the membership of the Tribe.

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Secondly, the Tribe adopted, thru its Articles of Association, its Base Roll

and the Tribe granted the final authority to the Assistant Secretary to determine

who was or was not a member.

It is my position that there is one operating fact that has remained preserved

in all primary governing documents of the Pala Tribe regardless of their validity or

invalidity. That fact rests and is embodied as the only true act of sovereignty in this

matter in the Tribe’s Articles of Association and valid or invalid Constitutions.

Under Article II – Membership in all versions of governing documents so state:

Section 1. Membership Requirements

The membership of the Band shall consist of:

A. Those persons whose names appear on the Pala Allotment Roll as

approved by the Secretary of the Interior on April 12, 1895, and November 3,

1913, who were living on the date of approval of the Pala Band’s original

Articles of Association by the Commissioner of Indian Affairs.

B. All living descendents of persons on the Allotment Rolls covered in

Section (1) above regardless of whether the original allottees are living or

deceased, provided that they are direct lineal descendants and have one-

sixteenth (1/16) or more degree of Indian blood of the Pala Band.

C. Those persons who have been adopted by the Band and such adoption

has been approved by the Bureau of Indian Affairs.

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These sections have been approved time and time again whether those actions are

termed as valid or invalid. The major fact here is that the Tribe, not the Tribe’s

Executive Committee, established its Tribal membership base roll as stated in

Article II, Section 1. Subsection A. It is the General Council, and not the Executive

Committee, that enjoys the right of sovereignty. The Tribe’s General Council is

the ultimate decision maker on all aspects of tribal membership and this governing

body has never wavered in consistently applying the plain language and letter of

the law on membership of the Band. On the other hand, the Executive Committee

has clearly violated the Spirit and essence of Santa Clara Pueblo v. Martinez to the

point where the BIA has become complicit in its unlawful actions.

These quoted sections of tribal law do not allow for a “witch hunt” to search

any and all documents that may contradict the Pala Allotment Roll as approved by

the Secretary of the Interior on April 12, 1895, and November 3, 1913. They do not

allow anyone or any entity authority to alter or determine anyone’s Degree of

Indian blood other than that as stated in the Tribe’s base roll. No such authority has

ever been granted to the Tribe’s Executive Committee nor has it ever been

intended by the General Council. The Acting Pacific Regional Director and the

AS-IA should know this as proven by their acknowledgment that Margarita Britten

was 4/4 Indian blood.

At a meeting in June 2011, with Superintendent Eben, Southern California

Agency, BIA, and his Tribal Operations staff members, Francis Muncy and Nancy

Rosales, stated that they used the 1928 California Indian Judgment Roll to

determine the Tribe’s membership. There were 30 members of the Britten family

present during this meeting when these statements were made. The Britten family

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members immediately informed the staff members that if they did this they did so

in violation of the Tribe’s governing documents regarding Tribal membership.

It is my position that the Tribe’s own Executive Committee, has through the

years attempted to and has succeeded in deceiving the Tribe’s General Council and

the United States of America via its representative agency, the BIA. This artfully

planned deception on the part of the Executive Committee violates Santa Clara

Pueblo v. Martinez in such an obvious manner where the 1989 AS-IA decisions are

eliminated as though they never existed. The same deception by the Executive

Committee has resulted in the unlawful elimination of the Pala Allotment Roll as

approved by the Secretary of the Interior on April 12, 1895, and November 3,

1913. Margarita Britten’s name was listed on the original roll as “full-blood

Cupa.”

The Executive Committee adopted a revised enrollment ordinance in 2005

and again in 2009 with the latter serving as the current ordinance of the Tribe as

advanced by the unilateral and illegal determination of the Executive Committee.

The Executive Committee supposes to derive its authority to revise the Tribe’s

enrollment ordinance via the Tribes revised 1997 Constitution. Presuming that the

1997 Constitution is valid, consider Article II – Membership, Section 5.

Membership Ordinances, which states:

The Executive Committee may from time to time amend and/or

replace its existing Enrollment Ordinance with and Ordinance

governing adoption, loss of membership, disenrollment, and

future membership, provided that such ordinances are in

compliance with this Constitution. (Emphasis added)

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The Executive Committee’s revised enrollment ordinance absolutely violates

the Tribe’s Constitution/Articles of Association because it in fact attempts to alter

and amend the Constitution. The Executive Committee clearly exceeds its

authority when it tries to define who and who cannot be a member of the Tribe.

This is already determined in the Tribe’s governing documents and cannot be

altered without an amendment to those documents. The validity of the

1994/1997/2000 versions of the Tribe’s Constitution will be challenged and

expressed in a different section of this appeal.

Secondly, and as expressed in other areas of this appeal, the word “its” as it

appears in Article II – Membership, Section 5. Membership Ordinances clearly

nullifies any actions taken by the Executive Committee to revise, amend or replace

the Tribe’s Ordinance No. 1 as adopted November 26, 1961 and as so noted

effective as of that date. The Executive Committee, although empowered to amend

or replace “its’ ordinance, cannot enact or effect an ordinance having authority

over the General Council of the Tribe and it’s already effected enrollment

ordinance of 1961.

The Executive Committee clearly chooses to ignore the governing

documents of the Tribe and through one of the most heinous acts perpetrated upon

the Cupeno people since their removal from Agua Caliente in 1903, the Executive

Committee adopted an ordinance purely intended to terrorize and harass any and

all members of the General Council and the Tribe. The following section, from

page 2 of the enrollment ordinance can be interpreted in no less degree:

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“BE IT FURTHER KNOWN, that this revised ordinance shall

become effective upon approval by the Executive Committee of the Pala

Band of Mission Indians without further approval of the Secretary of the

Interior or his or her delegated representative.”

And Section 6. Part A, Subsetion 2:

“If a tribal member submits an application for a minor or provides

information an application, including information which that which a

member knew of should have known was not correct, the Pala Band may

penalize that member by withholding his her per capita payments for

a period of up to one year.” (Emphasis Added)

The Executive Committee has no authority to alter the Tribe’s

Revenue Allocation Plan. The only authorization that the Tribe has to

affect any persons per capita as per the Tribes approved Revenue

Allocation Plan is for purposes of court ordered child support. Clearly this

section is intended to intimidate, harass and convict a member of the

General Council without due process. To prove that a person knew or

should have known is conviction based on conjecture. The decision to

reduce my blood degree by the Executive Committee is based purely on

conjecture and lacking relevant facts.

Even if the revisions as supposedly enacted by the Executive

Committee were valid, nowhere within the revised Ordinance No. 1 does

it grant the Executive Committee authority to reduce my Degree of Indian

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Blood or the Degree of Indian Blood of any member or former member of

the Pala Tribe be they living or deceased.

The AS-IA, as a representative agent of the sovereign power of the United

States erred by failing to recognize and protect the sovereign right of the United

States through its well established policies determining the Degree of Indian Blood

and the Pala Executive Committee lacks authority to change the Degree of Indian

Blood of any person or tribal member.

Indian blood degree has always been a subject controlled and guided by

federal law and regulation. It is the Department of Interior, BIA, who has

historically and consistently been authorized under federal law and regulation to

change or modify Degree of Indian Blood and that has been a “bedrock” fact for

more than a hundred years. As a matter of fact and law, in this situation, the BIA

has permitted the Executive Committee to outright violate federal laws and

regulations to my detriment and by so doing resulted in the reduction of my Indian

Blood Quantum.

Lacking any special authority or privilege granted by the United States to the

Tribe, at a minimum the United States would have to enter into a Memorandum of

Agreement with the Tribe to allow the Tribe to administer the Certificate of Degree

of Indian Blood Program. The Tribe lacks both the personnel and authoritative

records to administer such a program. An example of the Tribe’s inability to

correctly apply existing historical documents maintained by the BIA is seen in an

August 9, 2006 letter from James Fletcher, Superintendent, Southern California

Agency, BIA to Chairman Smith:

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“The intent of this letter is not to interfere with tribal enrollment, but to

caution the Tribe on compliance with tribal laws.” (See Exhibit B).

Prior to Fletcher’s letter, Smith officially notified my son, Michael P.

Hackman, by letter, dated June 23, 2006, that he was approved for membership in

the Tribe effective July 1, 2006. (See Exhibit C). Handwritten notes attributed to

Chairman Smith where he disapproved the previously approved application of Mr.

Hackman state: “M. Britten blood, whose her father! Father to be full blood.”

(Emphasis Added)

It is clear that the BIA admonished the Executive Committee in Michael P.

Hackman’s situation where his approved membership application was approved

under the Election Ordinance in operation before the December 12, 2005 revised

Enrollment Ordinance was enacted. Obviously, the BIA’s contact with Smith on

non-compliance with tribal law caused him to develop an ordinance severing the

BIA’s authority over the Tribe’s enrollment.

Even at this current moment, the Tribe is totally dependent upon records

under the control and as administered by the BIA. The Tribe cannot and has not

offered any new evidence for the BIA to consider in this matter that is outside the

well established records of the BIA.

The Tribe’s Executive Committee took it upon itself to request, review and

reach an independent decision based upon the official records of the BIA and that

decision controverts and dismantles acts performed under the Sovereign Powers of

the United States as set forth in the Constitution of the United States regarding

Indians.

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It is a fact that the Pala Reservation and Agua Caliente Reservations were

established under same Executive Order in 1875. There are three distinct tribes at

Pala, Cupeno, Luiseno and Diegueno. This goes to the Heart and Spirit of the

issue of what Santa Clara Pueblo v. Martinez was about: not allowing one distinct

tribe to reach across the fence to decide who is a member of another tribe or to

determine their established Degree of Indian Blood.

My Certificate of Degree of Indian Blood (CDIB) is attached to this appeal.

(See Exhibit D). My CDIB is at the heart of this matter. I have also attached the

CDIB of Maria Antonia Britten from 1947 as similar evidence. (See Exhibit E).

I stress in my appeal that there is a dangerous link between the Executive

Committee’s actions and how they could impact on federal programs and

expenditure of federal monies to tribal members. The AS-IA “hands off” decision

gives the Executive Committee absolute unquestioned control over Indian Blood

Degree: If the AS-IA’s decision now allows the Executive Committee to decrease

Indian Blood Degree of enrolled tribal members, then it has also explicitly handed

over to that body the unquestioned ability to “increase” blood quantum of persons

now ineligible for tribal membership. Should this result in increased membership

by actions taken by the Executive Committee, then the BIA must consider taking

the unprecedented step of eliminating the federal trust relationship with the Tribe.

The issue is simply not the authority to lower one's blood quantum but the

authority to raise blood quantum as well. If Robert Smith prevails in this matter he

will have achieved in wresting away this power from the United States without

inclusion of any checks and balances. Robert Smith can create out of “thin air”

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Indian Blood Quantum where none had previously existed at all. Robert Smith, if

the decision of the AS-IA is allowed to stand, is free to create his own Tribe

complete with Federal recognition and eligible for any and all federal sources of

funding intended for Indian Tribes and Indian persons.

Having the ability to change or alter any persons Degree of Indian Blood

will have far reaching impacts because this authority will be achieved for all

Tribes. Tribes could then begin to falsely change degrees of Indian blood in any

manner they see fit and remain unaccountable for their far reaching actions.

One such purpose would be to increase a Tribe's eligibility for Federal funds

through various grant programs to include the BIA’s PL 93-638 funding program

by increasing its membership by adjusting blood degree upwards and therefore

making more people eligible to become Tribal members who were not eligible

before.

A Tribe would then have the authority to make non-Indians into Indians.

This would directly impact Federal programs because non-Indians would be

included in population counts which are directly tied to federal services provided

to Indians. A group of non-Indians, made Indian by virtue of this authority, would

then cause deprivation of federal resources to those Indians truly deserving of these

resources. Even if one such non-Indian person is made an Indian by this unbridled

authority, although miniscule in the sense of per-capita, is still an action of fraud

and deceit and would cause deprivation to another Indian or Indians.

The BIA has to acknowledge that this is strictly a program of the United

States, administered by the United States and protected by the sovereign powers of

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the United States. The BIA’s current system of processing a request for CDIB is

proof that the federal government has always controlled this area of federal law

and regulation. (See Exhibit F) There is no proof in the record that the Executive

Committee has been handed over the responsibility of issuing or changing Indian

Blood Degree of any of its members, whether still on the roll or disenrolled, living

or deceased. It is this question of who has control over the CDIB program, the

United States or the Tribe that becomes an issue in this appeal. It is Appellant’s

argument that the BIA’s CDIB regulations prevail over any tribal enactments or

laws that change any member’s historically established blood quantum for no

stated reason or fact. The BIA agrees that there is no valid evidence in the entire

record of this matter that would act to decrease Margarita Britten’s Indian Blood

Degree.

Appellant further contends that the Tribe's Constitution/Articles of

Association only allow for the determination of lineal descent and to compute

blood quantum from the Tribe's base roll with no other facts interfering. This must

be the situation where the Tribe utterly failed to appeal the 1989 Final Decisions of

the AS-IA within the Statute of Limitations period that ended on or about August

1994. There is no proof in the record that the Tribe maintains a formally approved

Memorandum of Agreement (MOA) with the United States to manage the CDIB

program. The Pala Executive Committee is not qualified nor do they have the data

base to offer such a program. To act outside of these basic concepts violates the

rights of Tribal members due them as a result of lineal descent and a pre-

determined qualifying blood quantum running from Margarita Britten that cannot

be questioned.

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The Executive Committee argues that the Tribe was not a party to the

Appeal of 1985. This could not be more false. The Tribe was made part of that

appeal as a result of the procedures for appeal as described in Ordinance No. 1.

The Tribe is made party by this fact especially in this instance because it was the

BIA that rejected the appellant’s applications for enrollment not the Tribe. The

Tribe approved the appellant’s right of appeal via Ordinance No. 1 and therefore

was a supportive ex officio party to the appeal of 1985.

The BIA needs to be reminded that it represents the United States and not

the Tribes and that it is duty bound to protect all of the Inherent Rights of the

United States as embodied within the Constitution of the United States and in

particular to that section regarding Indians.

It is my position that the BIA and the AS-IA must act so as to immediately

halt this action by the Pala Executive Committee and inform them that they do not

have the authority to alter, in any manner the Blood Degree of any Indian person as

so certified by the United States. As per the following I further contend that the

AS-IA does have the authority to reverse the decision/s of the Pala Executive

Committee. Even in consideration of the 1997 Constitution if determined valid:

Section 5. MEMBERSHIP ORDINANCES

“The Executive Committee may from time to time amend and/or replace its

existing Enrollment Ordinance with an Ordinance governing adoption, loss

membership, disenrollment, and future membership, provided that such ordinances

are in compliance with this Constitution.” (Emphasis Added)

Literally stated this means that the Executive Committee can only amend

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or replace its Ordinance. The Executive Committee does not nor did it ever have

an Enrollment Ordinance to amend or replace. The Tribe, acting through its

General Council, does have this authority and this section of the Constitution does

not authorize the EC to amend the Tribe's Enrollment Ordinance.

Therefore, the Tribe’s Ordinance No. 1 remains in effect and so does the

authority of the Secretary of the Interior to make final determinations regarding the

Tribe’s Roll.

B. The History Of The Pala And Agua Caliente Reservations

Do Not Allow For Agency Determinations Contrary To

Federal Law That Grant Authority To One Separate Tribe To

Affect The Indian Blood Quantum Of Another Separate

And Distinct Tribe.

What governmental entity exists for the purpose of determining who is of

and to what degree of Cupeno Indian blood? It is surely not a rogue Executive

Committee who has been allowed by the BIA to wrongfully eliminate longstanding

federal Census Rolls and to amend the Tribe’s membership criteria, all contrary to

federal law. The Cupeno originating from the village of Cupa, also known as

Agua Caliente and forcibly removed from their homeland in 1903 have been

historically acknowledged as a distinct “Tribe”. This fact cannot be ignored

because to do so would be contrary to federal law. The Cupeno people of Agua

Caliente were first granted a reservation in 1875 but it was later “cancelled” and in

1903 the Cupeno people were moved adjacent to the Pala Reservation which is

occupied by Luiseno people. There was also a group of Digueno Indians from the

Village of San Felipe who were also forcibly removed to lands adjacent to the Pala

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Reservation. The United States actively and knowingly maintained separateness

between these three distinct Tribal entities as is apparent in the Indian censuses up

to 1907. The Census of 1907 specifically states the Pala Luiseno, Agua Caliente

(Cupeno) and San Felipe (Digueno). In other words, early census records maintain

Agua Caliente, Pala and San Felipe as separate entities.

There is no formal record combining all three entities into one Tribe. This

raises the seminal question of whether one of these Tribes can unilaterally change

or modify the tribal membership criteria of the Agua Caliente in the absence of

such a record. In this particular matter, would the Digueno or Lisueno have the

legal right to determine the membership of the Cupeno Tribe? In the spirit of

Santa Clara Pueblo v. Martinez, this answer is a resounding “no.” A female

member of the Santa Clara Pueblo Tribe (Tewa) could not change the longstanding

custom and tradition of Tewa Indians to not recognize off spring of a Tewa female

if they married outside of their tribe while male Tewa Indians who married outside

of the Tribe could have their children become members. The U.S. Supreme

Court’s ruling in Santa Clara Pueblo v. Martinez must be applied in these facts at

Pala to conclude that none of these Tribes on the today’s Pala Reservation can

intermeddle in the historical base line determination of who was a Cupeno Indian

and what their Degree of Indian Blood quantum was. It is a historical fact that

cannot be denied that the Thirteenth Census of the United States conducted in 1910

indicates Margarita Britten’s mother and father were “Cupeno”. (See Exhibit G)

22

Cupeno evictees from Warner Valley were forcibly relocated in 1903 and

situated on lands purchased for their benefit adjacent to the existing Pala

Reservation (See Act of Congress, Exhibit H). Records indicate that most of the

San Felipe, separate from Cupeno evictees, leave Pala or are absorbed by the Agua

Caliente. The Agua Caliente continued to govern by custom and tradition after

their forced removal until 1961, when the Articles of Association were adopted.

Neither the BIA or a rogue Executive Committee can change and

consolidate the 3 entities into one Tribe as both lack legal authority to do so. Until

1961 the Agua Caliente Tribe or Cupenos continued to govern themselves by

“custom and tradition.” There are sufficient legal grounds for Agua Caliente

descendants to defend their right and title to Agua Caliente and to protect their

Indian Blood Degree from unlawful reduction.

It is important to note that 1910 was the first formal recordation of Cupeno

Indian Blood Degree in preparation for Dawes Act Allotments. In 1906 and 1908

Congress amended the Dawes Act which stated that Dawes Act Rolls are

conclusive. Facts prove that the Dawes Act was used loosely and applied to

California Indians as evidenced by the allotments for Cupenos, such as Margarita

Britten, after their 1903 removal, were authorized by the Dawes Act. The Dawes

Act roll of 1913 was adopted by the Agua Caliente Cupeno as their “base roll” for

the Tribe and the April 12, 1895 Dawes Act Roll was employed as the “base roll”

for the Luiseno Tribe. The fact that there are two separate Dawes Act rolls

supports Appellant’s position that there are two separate and distinct tribal entities

that were erroneously forced into consolidating the two tribes all without lawful

authority. Appellant contends that the Articles of Association retain this distinct

23

and inherent cultural and historical difference. According to former Tribal

Chairperson, King Freeman, the members of the Pala Reservation were not

allowed to vote in the adoption of the Agua Caliente Tribe’s Articles of

Association. The legal name of current tribal government is “Pala Band of Luiseno

Mission Indians of the Pala Reservation, California”. This supports the reasonable

position that there has been no Executive Order or Act of Congress that

“consolidated” the two distinct tribal entities, Luiseno and Cupeno. “Old Pala”

(Luiseno) still has jurisdiction of its reservation and must have the right to

determine its own membership.

Two distinct dates must be emphasized because of the 1895 and 1913

issuance of allotment patents. For the Cupeno and Digeuno, land was purchased in

1903 for Warner Ranch evictees adjacent to the Pala Reservation and allotments

were made to these two groups in 1913 with patents issued to the allottees in 1915.

The BIA made a mistake by consolidating them, giving each one authority over the

other when these separate entities had been culturally and historically separate with

their own distinct membership as established by tribal custom and tradition.

Interestingly, in 1913, two Cahuilla Indians were given allotments within the

lands purchased for the Warner Ranch evictees but they were not evictees of

Warner Ranch. In addition, their names appear on the BIA censuses of Cahuilla

and Morongo Indian Reservations respectively. Because their names are on the

Pala 1913 Dawes Act allotment roll, their descendants have enjoyed the benefit of

membership within the Tribe. This action is defended by the BIA claiming that the

land purchases made adjacent to the Pala Reservation were for the benefit of

Homeless Indians and they were treated as homeless Indians, when they were not.

What the BIA has actually done by taking this position is to recognize the extreme

24

significance of the Dawes Act Rolls. Even though these particular individuals

were not evictees from the Warner Ranch, due to the significance of the Tribes

Dawes Act Roll the Cahuilla descendents of these two individuals are recognized

as members of the Tribe. Two of those descendents are sitting on the Executive

Committee and voted to disenroll members of the Agua Caliente Cupeno Tribe.

This act of adversely affecting the membership status of Cupenos violates the very

principles established in Santa Clara Pueblo v. Martinez.

Equally, and respecting the action of the Tribe to adopt the 1895 and 1913

Allotment Roll as its base Roll, I would then be compelled to defend these Cahuilla

whose names appear on that Roll as members of the Tribe. I would respectfully

expect that they offer and grant me the same privilege.

In a book written by Joel H. Hyer, “We Are Not Savages” published

12/28/2001, he notes at pages 136 and 137:

“The arrival of the San Felipe Kumeyaays at Pala meant that three unique

Indian peoples now resided on the same reservation. The close proximity of the

Cupenos, Luisenos, and Kumeyaays created tensions and renewed rivalries. For

centuries, Kumeyaays and Luisenos had been enemies. Before the Spanish

invasion of California, these two peoples occasionally fought over resources as

well as for other reasons. Although the San Felipe Kumeyaays appear not to

have had any disputes or conflicts with Luisenos in the recent past, these

Kumeyaay realized that they were now on Luiseno lands and they were not

welcome. The Luisenos of “Old Pala” also did not appreciate the Cupeno

presence in the valley, particularly since the Cupenos were twice as numerous as

the Luiseno there. Notwithstanding their oral traditions, which suggested that

they were distantly related to Luiseno and Kumeyaay peoples, Cupenos also felt a

25

degree of animosity toward both groups. However, before the removals of 1903,

the Cupeno Agua Caliente were on friendly terms with the Luisenos of Puerta

de la Cruz even to the point that marriages occurred between the two peoples.

The peaceful relationship continued at Pala. Despite this exception, intertribal

animosities prevailed on the reservation.” (Emphasis Added)

It is important to note that the Luiseno, Cahuilla, Diguenos and Cupenos

were traditional enemies and were forced to live together on one or two

Reservations adjacent to each other. Kumeyaay is a modern expression for

Digueno.

C. Utilization Of The California Indian Judgment Roll Established In 1928 And

Other Documents To Determine The Degree Of Indian Blood Of Margarita

Britten Violates The Very Principles Set Forth In The Articles Of Association Of

The Pala Band Of Mission Indians.

Even at the time of this writing, it has never been made clear as to what

evidence the Pala Executive Committee utilized to determine that Margarita

Britten was not a full blood Indian. Deprived of this fact I am forced to assume that

by inference that probate records and the California Indian Judgment Roll (CIJR)

as provided to the Executive Committee by the BIA were utilized for this purpose.

(See Exhibit I) Letters from Robert J. Eben to Robert Smith)

As per these letters, Robert J. Eben did advise Robert Smith of the following:

“Enclosed are copies of the 1928 applications from the 1928 California Roll

of Indians. No information was in 1928 for Fildeo Magee. Please be advised these

26

applications do not denote tribal membership or enrollment. In 1928 Congress

enacted legislation (45 Stat. 602) which permitted a class of Indians known as the

"Indians of California" to bring suit against the United States for "lands taken from

them...by the United States to compensate them for their interest in land. . .which

the United States appropriated to its own purpose without the consent of said

Indians. As you are aware tribal enrollment is-based on the eligibility

requirements of the specific group.” (Emphasis Added)

Robert Smith and the Executive Committee chose to ignore the caution and

advice offered by Robert J. Eben, Superintendent of the Southern California

Agency. By so doing, they have acted in violation of the Tribes Dawes Act Base

Roll of the Tribe as adopted in 1961. To make a determination regarding my blood

degree from these records is a blatant violation of my basic right as a member of

the Pala Tribe. I am entitled to the strictest adherence to the Tribes adopted base

roll as the final determining documents as to which my Cupeno blood degree is to

be determined. The only other documents subject to review are those documents

which prove my position within line as a lineal descendent of a person listed on the

Tribe’s base roll. To use documents of any source to alter the Tribe’s base roll

violates the Tribes Constitution/Articles of Association.

Consider these facts. The California Indian Judgment Roll (CIJR) was

established in 1928. Margarita Britten was deceased in 1928 and a non-Applicant.

Of significance is that in all cases of census or other records made while she is

alive she is noted as “full blood”. While alive, she was always 4/4 Indian blood.

There can be no question on this crucial factual truth.

27

As historical background, in 1929 John Ortega, a member of the California

Mission Indian Federation vows to enroll every single Indian on the CIJR. John

Ortega completes and files applications for members of the Britten family without

their knowledge or permission. This type of filing was allowed by the law.

Because Robert Smith chose the 1928 CIJR as substantive evidence that Margarita

Britten was not a full blood Indian, he then violated the Tribe’s Articles of

Association as setting aside the 1913 Dawes Allotment roll where she is identified

as 4/4. This is a patent violation of Articles of Association or the Constitution.

In addition, Francis Muncy, Director of Tribal Operations, Southern

California Agency, BIA, stated among a group of Britten descendants in June 2011

that the BIA has always used 1928 CIJR for assessing eligibility for membership

within the Pala Tribe. This admission by Francis Muncy clearly demonstrates that

the BIA has been complicit in violating my rights as a descendent of Margarita

Britten as well as any and all descendents of Margarita Britten. I was in attendance

at this meeting.

So critical is the BIA’s participation in the initial action of the Executive

Committee to disenroll the first eight members of the Britten family that the actual

disenrollment letter is reprinted here for review. This letter is so filled with

falsehoods that it is almost impossible to know where to begin in offering an

analysis. So serious and egregious is this letter that no simple fact can be

overlooked. The underlined words or phrases of the disenrollment letter are offered

for analysis and conjecture.

Recently, the Executive Committee of the Pala Band of Mission Indians was

asked to review the 1928 enrollment application for Juana Regetti, and the 1928

application for the descendents of Martha Regetti Freeman.

28

The legal authority on which the Executive Committee relied for this review and

reevaluation of membership applications was in accordance with, and pursuant

to, Seciton 6, Paragraph A, 1, of the Pala Band’s Enrollment Ordinance,

Ordinance #1, as set forth in the tribal constitution, which states:

This section is set forth in the Executive Committee Enrollment Ordinance and not

in the Constitution.

“Should the Executive Committee subsequently find that an applicant or

the person filing the application on his/her behalf misrepresented or

omitted facts that might have made him/her eligible for enrollment, his/her

application shall be reevaluated in accordance with the procedure for

processing an original application.”

As used here, the term eligible appears to mean that the eight disenrollees had

information omitted that would have made them eligible for enrollment.

As such, and at the request of Pala tribal members, the Executive Committee

coordinated with the United States Department of the Interior, Bureau of Indian

Affairs, to gain access to federal documentation related to the Regetti/Freeman

applications. It was alleged that there was a misrepresentation of facts regarding

the blood quantum in the Regetti enrollment. A careful review of the

documentation indicates the following individuals had, for the above stated

reason, previously been disenrolled by the Pala Band of Misison Indians and

later re-enrolled.

29

This paragraph is most disturbing because it implies that the Bureau of

Indian Affairs knowingly and willingly assisted the Executive Committee in

violating the rights of the descendents of Margarita Britten by going outside the

scope of the Tribe’s Articles of Association/Constitution by providing documents

other than the 1913 Allotment Roll which is the approved base roll of the Tribe.

The use of the term disenrolled represents a complete falsehood. The eight

individuals listed in this letter were never disenrolled. They were denied

enrollment and they subsequently appealed that decision and prevailed.

1. Anthony Freeman

2. Cheryl Lynn Freeman Majel

3. Luanne Cynthia Freeman Moro

4. Keith Christopher Denver

5. Milton K. Denver

6. Jacqueline Boisclair Withers

8. Mia Tahirih Boisclair

Although the Pala tribe has, for over two decades recognized these individuals as

tribal members, the Bureau of Indian Affairs did extensive research and was

unable to concur with the validity of the claims in the original applications. A

letter from the B.I.A. dated July 29, 1985, has been provided as proof of these

claims.

It was this letter that was appealed and the appellants prevailed in 1989 and

a final decision was issued in 1989. Robert Smith was aware of this fact but chose

to ignore the 1989 decision and misled the Executive Committee members by not

30

providing them with a copy of the 1989 decision and subsequent actions taken as a

result of that decision.

A further review of the federal documentation indicates that prior to the 1980’s

above named persons were not eligible for enrollment with the Pala Band, and

were in fact disenrolled once after gaining enrollment. At the time, the General

Council voted to increase their blood quantum. Whether the General Council

has the power to increase a tribal member’s blood quantum is a separate debate,

but worthy of noting in this case because it was the grounds for the 1985

appeals. The above named persons were then re-enrolled with the Pala Band,

and have remained on the rolls for over two decades.

The eight individuals mentioned here were never enrolled prior to 1980

along with many other members of the Britten family because someone had

tampered with the Tribe’s base roll and reduced Margarita Britten’s blood degree

to ½. The Tribe did not vote to increase their blood quantum. The Tribe voted to

correct and restore the blood degree of Margarita Britten as per the

recommendation of the BIA in a letter to Forrest Wright, California Indian Legal

Services. (See Exhibit J)

The double underscored section is significant because here the Executive

Committee challenges the concept of changing a Tribal members blood degree

while at the same time doing the very exact same thing. It was not the grounds of

the 1985 appeal. The 1985 appeal was based on a rejection of the eight individuals

enrollment applications by the Bureau of Indian Affairs, not the Tribe and not the

validity of the General Councils vote to restore the 1913 Allotment Roll to its

original form and as adopted by the Tribe in 1961.

31

The final sentence in the paragraph is incorrect because the eight individuals

were never enrolled to be disenrolled. Their enrollment applications were

disapproved and then appealed in accordance with the provisions made in

Ordinance No. 1 as adopted by the Tribe in 1961.

On May 26th

, 2011, the conclusion of the Pala Enrollment Committee was to

support the position of the Bureau of Indian Affairs, the acting Area Director,

signed by Tom W. Dowell, that in fact the above named individuals are not

eligible for enrollment with the band. As such, the Pala Enrollment Committee

wishes to take these names off of the band’s rolls, effective June 1, 2011.

How can the Executive Committee support a position that was overruled by

Assistant Secretary, Indian Affairs and ruled as final? The eight individuals were

determined eligible for enrollment in 1989 along with several other members of the

Britten family.

The word wishes is double underscored because wishes is not an action. So

taking this single word alone the Executive Committee actually failed to take an

action as represented in this letter. A wish is a want, a desire or to long for. It in no

way represents an action or decision. This simple word “wishes” should be

interpreted to mean that the eight individual members mentioned herein were never

in fact disenrolled.

The Enrollment Committee recognizes the right of these persons to appeal the

decision. Such procedures are outlined in the band’s enrollment ordinance. A

32

copy of the enrollment ordinance has been provided, outlines the steps for such a

procedure.

Submitted:

K. Lattin, Secretary

Pala Band of Mission Indians (Emphasis Added)

I have reviewed the 1928 CIJR Applications in question here and other

Applications of the Britten family as well. I was able to make the following

observations and conclusions.

The Britten Applications submitted by other than John Ortega list Margarita

Britten’s maiden name as Saubel. This shows people knew her father as “Peligrino

Saubel”. (See 1928 application of Viviano Trujillo Banks). Because the law

allowed for applications to be submitted for others without their knowledge there

are indications that some signatures were forged. Evidence shows reliance on the

1928 CIJR can lead to erroneous consequences. For instance, Santiago Britten,

Applicant 1113, and his wife, Flora Machado, Applicant 2401, are Appellant’s

Grandparent. A reading of their applications list them as having the same children

but those children have different blood degrees. (See Exhibit K and Exhibit L)

It can easily be detected that the signatures on the CJIR Applications of

Santiago Britten and Juana Regetti were probably forged.

33

Please note the misspelling of the names. My grandfather, Santiago (James) Britten

was an educated man and knew how to spell his name. Please note that the name

printed below his signature is typed as Brittain. The same can be said for the

signature of Juana Regetti. Please note the faltering in the spelling of the name

Regetti. Although probably forged, this was not an illegal act as the law allowed

for others to fill out and submit CJIR Applications on behalf of California Indians

without their knowledge.

It is my understanding that the information contained in the 1928 CJIR, the

BIA no longer allows the information to be used in applications for Tribal Federal

Recognition.

It is for these very reasons as stated here that it is beyond appalling and

repugnant that my Degree of Indian Blood Degree has been reduced by the Pala

Executive Committee based on evidence that can be easily disproven. I must re-

iterate that to use the 1928 CJIR Applications to alter the Tribe adopted 1913

34

Allotment Roll (Dawes Act Roll) as the Tribe’s base roll is a blatant violation of

the Tribes Articles of Association/Constitution.

D. The United States, Through Its representative Agents Of The Bureau Of

Indian Affairs Does Have The Authority To Decide Enrollment Issues Of The

Pala Band Of Mission Indians.

The conclusion that the Bureau of Indian Affairs does not have the authority

to decide enrollment issues of the Pala Tribe is completely erroneous and based on

inaccurate representations and misleading facts. The Assistant Secretary offered as

his decision the following:

Conclusion

Based on the foregoing analysis, we conclude that the Regional Director acted

based on a proper interpretation of authority under the tribal law to review the

enrollment appeals. Tribal law limited the Regional Director to making a

“recommendation,” rather than actually deciding the enrollment appeals. We

further conclude that the Department has no authority under Federal or Tribal

law to decide enrollment issues for the Band. (Emphasis Added)

Provided the foregoing and subsequent facts, it can clearly be demonstrated

that the Enrollment and Membership Roll of the Pala Tribe is still subject to

approval by the Assistant Secretary, Indian Affairs.

35

As previously demonstrated, the Constitution of the Tribe, whether valid or

invalid, only allows the Executive Committee to amend or replace “its” ordinance.

Again stated, the Executive Committee does not have an enrollment ordinance nor

is it authorized to amend or replace the Tribe’s enrollment ordinance. Therefore

Ordinance No. 1 of the Pala Band of Mission Indians as approved November 26,

1961, is still in effect and the only true operating document governing the

enrollment of the Tribe. (See Exhibit M)

The Tribe’s Enrollment Ordinance grants specific and exclusive authority to

the Secretary of the Interior to make the final decision in the event of an appeal

regarding enrollment within the Pala Tribe. That authority is expressed as follows:

Pala Band of Mission Indians, Pala Reservation, Ordinance No. 1

Section 5. Appeals

“A person whose application has been rejected shall have 30 days from the

date of the mailing of the notice to him to file with the Director an appeal from the

rejection of his application, together with any supporting evidence not previously

furnished. The Director shall forward to the Commissioner of Indian Affairs, the

appeal, supporting data, his recommendation thereon, and the report and

recommendation of the Executive Committee on the application. When upon

review the Commissioner is satisfied that the appellant meets the provisions of

Section 1, he shall notify the appellant in writing and the Executive Committee

shall enter the applicant’s name on the membership roll. If the Commissioner

determines that an appellant is not eligible for enrollment he shall notify the

appellant in writing of his decision and the reasons therefore. The appellant shall

36

then have 30 days from the date of the mailing of the notice to him to file an appeal

with the Secretary of the Interior. The decision of the Secretary on an appeal shall

be final and conclusive and the appellant and the Executive Committee shall be

given written notice of the decision.”

Given these facts, the Assistant Secretary has no other recourse except to

bind the Pala Executive Committee to the decision of then Acting Assistant

Secretary, Indian Affairs, Donald F. Asbra dated May 17, 1989 and addressed to

various Britten appellants a courtesy copy was provided to the Chairman of the

Pala Band of Mission Indians. He therein states:

“Accordingly, we find that you possess 1/16 degree of Cupa Indian blood.

You, therefore, meet the minimum blood degree requirement for enrollment and

your appeal is sustained. The Southern California Agency staff is hereby directed

to add your name to the roll being prepared for the distribution of tribal assets.

This decision is based on authority delegated to me by the Secretary of the

Interior and is final for the Department.” (Emphasis Added)

On September 11, 1989, separately and in response to an inquiry by the

Tribe’s Chairperson, Patricia Nelson, the then Acting Assistant Secretary, Indian

Affairs, Walter R. Mills issued the following statement:

“Although generally the Bureau of Indian Affairs does not have the authority

to make decisions which effect membership for tribal purposes, as specified above,

Ordinance No. 1 provides that the Executive Committee shall enter the applicant’s

name on the membership roll when his/her appeal is sustained. In this situation,

therefore, the decision of the Assistant Secretary – Indian Affairs is final for all

37

purposes. You submitted no documentation with your letter which would have

proven that the Assistant Secretary’s decision was erroneous and we have no basis

upon which to request that the Assistant Secretary reconsider his May 17 decision.

The decision, therefore, is final.” (Emphasis Added)

What needs to be noted here is that Santa Clara Pueblo v. Martinez was

decided 11 years earlier. SANTA CLARA PUEBLO v. MARTINEZ, 436 U.S. 49

(1978) 436 U.S. 49 SANTA CLARA PUEBLO v. MARTINEZ ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT No. 76-682. Argued November 29, 1977 Decided May 15,

1978.

The Tribe, in its right of self-governance and as a sovereign entity, has acted

within its capacity and granted the United States the authority to determine it tribal

membership. The Executive Committee was never granted authority to rescind this

action of the Tribe.

The Tribe further acknowledges the authority of the United States to

determine its membership in the Pala Band of Mission Indians, Pala Reservation,

Ordinance No. 1 under Section 7. Use of Membership Roll. There it states:

“Unless otherwise directed by the Congress of the United States, the current

membership roll shall be used for all official purposes. If at any time the Pala

Membership Roll may be required for official purposes, the roll shall be certified

and submitted by the Executive Committee, through the Field Representative, to

the Area Director. Before the roll may be used for the distribution of tribal assets, it

shall be submitted to the Secretary of the Interior for his approval.”

38

This Section in conjunction with BIA guidelines for the distribution of the

Tribe’s assets serves as the Distribution Plan of Tribal Assets of the Tribe. (See

Exhibit M)

Provision No. 1 of the plan states:

“1. In accordance with the Pala Enrollment Ordinance No. 1, the distribution of

funds shall be made after the roll has been approved by the Secretary of the

Interior.”

This distribution plan remains in effect as so does Ordinance No. 1 of

November 26, 1961.

This is significant because in 2012 the Tribe did release moneys in the form

of a per-capita payment to the membership. However, it was done without

following the Tribe’s Distribution Plan and resulted in the following issues:

Vulcan Money issues:

1. There was never an authorizing resolution from the Tribe to have the Vulcan

money released to the Tribe or Robert Smith for distribution as per the

request of the BIA. The original authorizing resolution requested that the

BIA release the money to only the adult members of the Tribe and this was

rejected by the BIA.

39

2. Robert Smith communicated to Robert Eben that the money would be

distributed to the children as well but we do not know where the children’s

money went. It does not show up in the IIMA accounts for the children.

3. Were the children’s funds placed into the Trust accounts maintained by the

Tribe? There is no record of this occurring.

4. If the moneys were placed into Tribe’s Trust accounts and the children who

were disenrolled had their accounts dissolved, were the Vulcan moneys

dissolved too and absorbed by the Tribe?

5. The Vulcan moneys have always been the sacred cow of the Tribe.

Distribution always forced the Tribe to update its Tribal Roll and before the

BIA could distribute those moneys the BIA had a responsibility to update

and approve the Tribal Roll. The BIA shirked its responsibility and left it

directly to Robert Smith to determine who is and not a Tribal member and

eligible for distribution. This is a fact ascertained after several conversations

with Robert Eben.

6. There would be a question as to status of the moneys owed to Mia Boisclair

(deceased). The Vulcan money should now be a part of her estate and

subject to probate.

7. Robert Eben stated repeatedly that he told Robert Smith that he would not

release the Vulcan money to the Tribe unless Robert Smith guaranteed

distribution to the original eight disenrollees. Robert Smith did not distribute

40

those moneys to the eight at the time the other Tribal members received their

money.

8. Robert Eben was advised that he may have illegally authorized the release of

the Vulcan moneys because he did not have an authorizing resolution from

the Tribe. As a matter of fact, Robert Eben was made aware of this fact

several days before he actually released the funds but chose to do so anyway

on the advice and promise of Robert Smith. He personally told me that

Robert Smith had reassured him that there was an authorizing resolution. If

there was such a resolution then why didn’t Robert Eben have a copy in

hand before releasing the funds?

9. Robert Smith has now taken it upon himself to deduct supposed debt to the

Tribe from individual Vulcan money accounts. This is done again without

due process, without court order and can only be construed as outright

felony theft. (See Exhibit N)

10. Where is the balance of the Vulcan money? At the time the Vulcan moneys

were released there were still immature accounts and those moneys could

not be released. The intent of the General Council was to completely

dissolve the Vulcan Trust Account so where are the final moneys. Did

Robert Eben release those moneys to Robert Smith again and the Tribe is

unaware of this release. Did Robert Smith use any of those moneys for

personal gain? There should be approximately $500,000.00 left in the

Vulcan account and those moneys should be distributed as well. However,

the Tribe still has not issued a valid resolution authorizing such a release of

funds.

41

I personally advised Robert Eben by letter written 4/20/2012 of these several

issues regarding the distribution of the Vulcan moneys. (See Exhibit O)

At the time the Vulcan moneys were distributed there were several immature

accounts that were not available for distribution. It is unknown as to the status of

these accounts and without the honoring of the Tribe’s Distribution Plan these

moneys are at risk.

Again, the most significant matter of distributing the Vulcan moneys per-

capita is that the Tribal Roll should have been updated and approved by the BIA.

Furthering the argument that the United States, through its representative

agents of the Bureau of Indian Affairs does have the authority to decide enrollment

issues of the Pala Band of Mission Indians rests with the fact that the 1994 and

1997 Constitutions are indeed invalid and therefore preserving as the Tribes

governing documents the Articles of Association as adopted and amended and the

effective ordinances adopted under the authority of the Articles of Association.

E. The Constitution Is Invalid

The administrative record and facts in it are clear: the 1994 Constitution did

not garner the necessary 50% of the eligible voters voting in the election for its

adoption. Therefore, it was wrongly certified and the BIA should have acted to

void the election. This is a matter of fact and not conjecture. In determining

whether or not something as serious as the governing documents of a Tribe should

be approved based on prior questionable actions of the Tribe and the BIA is wrong.

The question here was whether or not the 1994 Constitution was in fact duly

approved by the Tribe. The simple and short answer is no. That “no” cannot be

42

made into a yes through application of wrongs as so cited by the AS-IA in his

ruling.

The vote in the 1994 Election was certified as Yes 131 and No 65. (See

Exhibit P) This represents a total of 196 votes tallied. As a former member of the

Executive Committee and participant in Tribal elections, I can state the number of

Eligible Voters/General Council members in 1994 exceeded 600 individuals. It

would then require that at least 300 Eligible Voters/General Council members

participate in the election to formally and properly adopt the Constitution.

Article 11, Amendment of the Articles of Association states:

“These Articles of Association may be amended by a majority vote of

the General Council and such amendment shall be in effect upon the approval

of the Commissioner of Indian Affairs.” (Emphasis Added)

In 1989 the Tribe conducted a Special Election to recall Tribal Chairperson,

Patricia Nelson from Office. As per the Articles of Association, Article 5:

*** “A majority of those voting in such a recall election shall govern,

provided that at least 30 percent of those eligible to vote shall vote in the election.”

There was a lot of discussion on what was meant by 30 percent and a close

tally of the eligible voters was made and observed. It was determind properly that

30 percent meant 30 percent of the total eligible voters of the Tribe. In this

particular case, more than 200 hundred voters were required to vote in the election

in order to qualify the election as valid. Why it is so memorable to me is that if the

supporters of Chairperson Patricia Nelson had simply chosen not to vote in the

43

election she would not have been removed from office. As Tribal Politics are, we

did everything we could legally to encourage her supporters to participate in the

election so we could garner the necessary 30 percent. Robert Smith was a

participant in this action so to declare that wrongful acts committed by him are

customary for the Tribe is completely wrong. Robert Smith operates today having

full knowledge of what our voting requirements are but chooses to ignore them.

The same discussions and arguments included the difference between

adopting an amendment versus a recall election. As stated and noted earlier:

“These Articles of Association may be amended by a majority vote of the General

Council”.

The AS-IA mistakenly confuses the difference between a General Council

meeting and the General Council. Article 3 of the Tribe’s Articles of Association

state:

“The governing body of the Band shall be the General Council which

shall consist of all adult members eighteen years of age or older.”

I would submit those words in the form of a neon flashing sign if it were

possible. They are plain, simple and comprehensive. Past voting practices of the

Tribe does not erase the fact of truth and validity.

As a matter of fact, now kown to me, so desperate was Robert Smith to have

his Constitution adopted, he hired non-Tribal members to vote in the 1994 election.

I believe he did this because he was fully aware and knowledgeable of the fact that

he would have to have a 50%+ vote of the Eligible Voters/General Council

44

members voting to approve the Constitution. This will be discussed further in a

separate section.

A letter of January 23, 1961 establishes political history and intent of

amendments. This is significant because the AS-IA questions the voting intent of

Pala as viewed against the quote below. These are recommendations for the

Articles of Association as made by Orlando Garcia, BIA, Field Representative,

Riverside, CA, in letter to Sacramento Area Office, Tribal Programs. (See Exhibit

Q) In that letter he offers the following:

13. P. 5 – Section 4. Voting:

It is clearly understood that in voting on a matter on a ballot, that a

majority of those voting are required to vote. Suggests the Band

consider applying the voting to all eligible voters as this could limit the

position of allowing matters to be voted on and changed by small

number of participants.

This bit of political history becomes monumentally significant because it clearly

demonstrates the intent of the Tribe as to its intention of voting in elections.

“Suggests the Band consider applying the voting to all eligible voters as this

could limit the position of allowing matters to be voted on and changed by a

small number of participants.” (Emphasis Added)

It is also apparent from documents obtained through a FOIA request that on

June 16, 1995, Acting Superintendent, Southern California Agency, Gilbert Stuart,

with regards to the Pala Band – Proposed Constitution, noted and made the exact

same recommendation as made by Field Representative. Orlando Garcia.

45

This clearly demonstrates a concern with respects to the rights of General

Council and the Tribe overall. In the 1994 version of the Constitution it states:

“This Constitution may by (sic) further amended by a two thirds (2/3)

vote of the voting members of the Pala Band at an elections (sic) duly-called

for this purpose in which not less than half of the eligible members of the Pala

Band cast their ballots.”

This would mean that the Constitution could be amended in an election

where there are 600 eligible voters with a required 300 eligible voters voting and at

least 200 eligible voters voting in favor of the amendment. This would effectively

mean that the Constitution could be amended with a simple 1/3 vote of the eligible

voters of the Tribe. This would in fact represent a minority vote rather than a true

majority vote.

Even assuming the proposed Constitution was legally approved and valid to

the point where BIA approved the draft, it then should have been returned to Tribe

for a General Election held in accordance with the Tribes voting requirements

under the Articles of Association. The record in this matter fails to include any

evidence that a General Council Election was held as required by the Constitution

to establish its effective date, even though necessarily required after Carmen

Facio’s approval. Under the proposed Constitution’s, Article IX – Amendments

and Effective Date, Section 1 Effective Date states:

46

“This Constitution shall become effective immediately after its approval by

a majority vote of the voters voting in a duly called elections at which this

Constitution is approved by the Bureau of Indian Affairs.” (Emphasis Added)

Immensely clear is the fact that the Tribe could not vote to adopt the

Constitution until it was approved by the Bureau of Indian Affairs. Even though

the BIA did approve the Constitution it was never voted upon by the Tribe as

required for final adoption and establishing it as effective. To allow such a gross

error on the part of Robert Smith to evolve into the allowing of this proven morbid

document as the governing document of the Tribe is beyond comprehension.

This goes well beyond any issue of Statute of Limitations because the final

act to effect the Constitution never occurred. The misleading of the General

Council by Robert Smith as to the validity of the Constitution is a clear act of

misconduct and deceit.

There are so many issues regarding the validity of the Tribe’s governing

documents that each of these issues taken collectively should be taken as cause to

invalidate the Constitution. I have have submitted a side by side comparison of the

1994 Constitution and the 1997 Constitution. (See Exhibit R) The revisions are

such that they themselves constitute amendments and would require that the 1997

version of the Constitution be voted on as such.

Additionally, the Constitution was presented in the wrong format in the 1994

election. Each change to the Articles of Association should have been voted on

separately as an amendment. This would mean that the ballot should have had at

least 25 or more amendments for the General Council to vote on. This is even

47

acknowledged by a letter from the BIA from Gilbert Stewart. Further complicating

the matter, in 1993, the Executive Committee begins revising the Articles of

Association without a directive from the Tribe.

It is also now made clear from recently disclosed documents from the BIA

via a FOIA request that the original 1994 Constitution was rejected by the BIA.

These records denote that the adoption of the Constitution did require BIA

approval and that the Constitution was to be treated as amendments to the Articles

of Association. This information is contained in the Tribe’s Constitution history

file located at the BIA’s Southern California Agency. It is unclear as to why these

documents were not made available to the AS-IA for consideration in the prior

appeals.

It is even more wrong for the AS-IA to hold me as accountable for what he

deems to be the past practices of the Tribe regarding its governance and voting

record. If the information, as contained in the files in the FOIA release do nothing

else they demonstrate a clear action/s by Robert Smith to deceive the Tribe by

depriving the Tribe of materials and actions relevant to the Tribe adopting a

succinct and comprehensive governing document.

I will go further to say that I believe that the withholding of this information

from the AS-IA by the Pacific Regional Officer, who had full knowledge of these

documents, makes her complicit in Robert Smith’s actions. It can also be advanced

as the reason the Pacific Regional Officer argued so strongly that the issue of my

blood degree and the blood degree of other members was not a question of the

validity of the Constitution. Her acts or actions in covering up the facts regarding

the validity of the Constitution can only lend credence to her culpability in this

48

most serious offense against the Tribe and every Britten family member that has

been harmed and/or severely damaged by her actions.

As provided in the 1997 version of the Constitution includes a Savings

clause. Article VII – Savings Clause states:

All enactments of the Tribe adopted before the effective date of this

constitution shall continue in effect to the extent that they are consistent with

this constitution.

For this reason, the Tribe’s General Council vote on February 22, 1984 to correct

and restore the Tribe’s Base Roll still stands as of today. (See Exhibit S) More

notedly and from the minutes of that meeting:

Vice-Chairwoman Hayes stated that, there was a misprint on the agenda. The

word “approval” needed to be changed to read “change.” Margaret Hilton had

presented to the Executive Council, a correction of Indian blood degree for

Margarita Britten. Doreen Vega made note, that this was done with the last Exec.

Council. Vice Chairwoman Hayes stated that: the Bureau had made the change

of blood degree and this Exec. Council wish it to be known to the Gen. Council.

Polly Pink (Britten) state from the 1913 Census, the blood degree for her

Grandmother, Margarita Britten was changed from Full-blood, to one-half. it

was penciled in, and the Bureau corrected , and recognized it. All we are trying

to do is correct it!! *** (Emphasis Added)

All arguments were concluded and a vote was taken:

49

***Theresa Griffith made a Motion: to approve the change of blood degree for

children of Margarita Britten: Second by Mary Ownby, 29 in favor, 25 opposed,

2 obstensions…….Motion carried…. (Emphasis Added)

Of incredible note is that more people voted to approve the correction to

Margarita Britten’s Degree of Indian Blood then voted for the approval of the

Constitution in 1997. It is then only appropriate that the AS-IA’s decision to

uphold the 1997 vote of the General Council to approve the Constitution, then

similarly he must uphold the 1984 vote of the General Council to correct the

Degree of Indian Blood of Margarita Britten.

Additionally noted is that Polly Pink (Pauline ‘Britten’ Pink) is my mother.

She served as Secretary/Treasurer of the Tribe and during her term as an Officer of

the Executive Committee the BIA did provide her with a true and correct copy of

the 1895 and 1913 Allotment Roll. (See Exhibit T) This original document was

issued by the BIA and it bears no pen and ink changes. Her comment noted in the

minutes of the 1984 minutes were a statement of fact and not assumption. This

historical representation made by her was represented to me on several occassions

as part of her parentage and commitment to make me and my siblings aware of our

Indian heritage. Because of this fact, the actions of Robert Smith and the Executive

Committee to lower my Degree of Indian Blood go to offer harm in proportions

much more than can be imagined by anyone not a victim of these circumstances.

Probably the most significant aspect of the 1994 Constitution is that it was

not initiated by the General Council. It was initiated by the Executive Committee

in violation of the Tribe’s Articles of Association of Article 6. Sections A and B

relative to the powers of the General Council. The Executive Committee was not

50

authorized to initiate actions to change the Articles of Association to a

Constitution. This is called a defective act which means that the statute of

limitations does not apply and it can be challenged as to its validity.

Also consider that a Certificate of Approval was issued approving the

Constitution of the Tribe on July 26, 2000. This approval was conditional and

states:

“Pursuant to the authority redelegated by the Assistant Secretary of the

Indian Affairs in 209 DM 8, Secretary’s Order No. 3150, as amended, and 10

BIAM Bulletin 13, as amended and redelegated to me by Memorandum of

Agreement dated August 16, 1994, the Constitution of the Pala Band of Mission

Indians is hereby approved retroactive to the date of adoption on November 12,

1997; PROVIDED, that nothing in this approval shall be construed as

authorizing any action under this document that would be contrary to Federal

law.” (Emphasis Added)

I argue and contend that the Pala Executive Committee is in violation of the

Act of May 27, 1908, § 3, 35 Stat. 312 and the Act of Apr. 26, 1906, § 19, 34 Stat.

137, 144. Important provisions in the 1906 and 1908 acts stated that the blood

quantum listed on the Dawes Commission rolls would be conclusive.

Again, although the language in the Dawes Act and subsequent amendments

never mention California Indians, the Dawes Act and its subsequent amendments

have served as the authority by which to enroll and allot Indian persons of

California. Therefore the Allotment Rolls of Pala 1895 and 1913 are Dawes

Commission Rolls and in particular the 1913 Allotment Roll was compiled from

51

data acquired by Special Allotting Agent, L. W. Green in 1910. I would further

contend that his authority to conduct and prepare the Roll was authorized under the

Dawes Act and further the Dawes Commissioner.

Also important is the statement within the Certificate of Approval is: “the

Constitution of the Pala Band of Mission Indians is hereby approved retroactive

to the date of adoption on November 12, 1997.” (Emphasis Added)

In a letter from Amy L. Dutschke, dated June 8, 1999 (See Exhibit U) it states in a

highlighted section: “If the Tribe decides to incorporate our recommendations and

changes and re-send the constitution, it will be approved retroactive to 11/1/97.”

To the contrary, on July 18, 2000, Robert Smith submitted a letter to the BIA

without proof of a directive from the Tribe or any Tribal action authorizing him to

issue such a letter rejecting the recommendations of the BIA. In the letter Robert

Smith states: “We decided not to incorporate those comments, ***”

There is no proof that we as the General Council rejected the

recommendations of the BIA.

This situation is further exacerbated by a letter from Virgil Townsend to the

Regional Director on July 21, 2000. (See Exhibit U) In that letter Virgil Townsend

states:

“By letter dated July 18, 2000, Chairman Robert Smith of the Pala Band has

notified this office that the Band decided not to incorporate the comments last

provided from the Pacific Region. The Band is requesting that the Constitution

adopted November 19, 1997 be approved.”

52

Again, there is no proof that in the matter of the Constitution the proposed

revisions were ever brought before the General Council for adoption or rejection.

Robert Smith is barred from making such a decision on his own. The BIA, to

include all its agencies and the Assistant Secretary – Indian Affairs, should have

questioned the validity of Chairman Smith’s action.

An additional fact is that on several occasions Robert Smith was advised and

therefore informed that any changes to the Articles of Association would be treated

as amendment/s. On April 8, 1995, Arlene Lacy, Acting Superintendent wrote:

“The new Constitution is considered to be an amendment to the Articles of

Association.” (Emphasis Added) (See Exhibit U)

Additionally, on August 11, 1995, Acting Area Director, Michael R. Smith

advised Robert Smith as follows: “The proposed document is currently being

reviewed for appropriate action under Article 11 of the Band’s Articles of

Association, as amended.” (Emphasis Added)

Again and similarly, on June 3, 1999, a letter for Acting Superintendent,

(signature indiscernible) to Robert Smith states:

“The Area Branch of Tribal Operations has advised in review of the listing

of tribes who organized under the IRA, shows that the Pala Band voted against

such organization, therefore, technically, the Bureau of Indian Affairs is not

required to approve the proposed Constitution. However, review of their existing

53

Articles of Association requires the BIA to approve amendments to that

document.” (Emphsis Added)

A very significant recommendation from the BIA regarding the delegation

of authority to the Executive Committee by the General Council was never brought

before the Tribe for consideration. That recommendation, as recommended by the

Acting Director, Amy L. Dutschke on December 8, 1999 is as follows:

Subsection C. It has been the Bureau’s experience in reviewing tribal

governing documents that when the governing body of a tribe delegates totally

the enactment of governing documents to its executive body, problems may

occur causing internal disputes. In adhering to the governmental principle of

checks and balances between the General Council and the Executive

Committee, it is recommended that the General Council not delegate the

enactment of Ordinances to the Executive Committee. They may of course

delegate the enforcement of Ordinances to the Executive Committee.

Again, this shows knowledge by the Director of the Pacific Regional Office,

BIA, that she was much more than just aware of potential conflicts that could occur

between the General Council and the Executive Committee. I would contend that if

this recommendation had been presented to the General Council it would have

never allowed that section of the Constitution to go unchanged.

For the Director of the Pacific Regional Office, BIA, to argue and contend

that the validity of the Constitution of the Pala Band of Mission Indians is not an

issue in these proceedings could not be further from the truth.

54

The AS-IA decision cites now Regional Director Amy L. Dutschke as

follows:

“The Regional Director argues that her 2012 letters appropriately relied

upon the Band’s most recent Constitution and that she was not required to render a

decision concerning its validity. She argues that the Constitution was never

previously challenged and was not the subject of the appeals before her, as the

appeals were for disenrollment actions taken by the EC. “There was no statement

that any decision by the BIA concerning the validity of the Pala Constitution was

being appealed to the Regional Director.” Moreover, such claims under the

Administrative Procedure Act (APA) are subject to a 6-year statute of limitations,

which commenced to when appellants had actual notice. The Regional Director

argues that the Constitution was adopted in 1997, approved in 2000, and amended

three times since then. In 2003, the Band passed a motion that members are to be

provided a copy of the Constitution upon turning age 18. The Regional Director

argues that the Constitution was not kept secret from the members, that the

appellants had knowledge or should have had knowledge of the Constitution, and,

therefore, that appellants should have asserted their claim within six years, before

the expiration of the limitations period.”

This is most disturbing because it clearly demonstrates that the Regional

Director had knowledge of the fact that she advised and informed Robert Smith

that the Tribe must adopt the recommendations of the Tribe before the Constitution

could be approved retroactively. Her omission of this fact and her failure to

provide all parties concerned with this record of fact can do no more than to

demonstrate the complicity and collusion of the BIA in this matter. Moreover, the

Howard Appellants specifically requested that Amy L. Dutschke, Regional

55

Director, PRO, recues herself from these proceedings because of the well known

fact of her close and personal relationship with Robert Smith. (See Exhibit V)

I contend and argue that if Amy L. Dutschke had provided information to

the Regional Acting Director, Carmen Facio, regarding BIA approval of the

Tribe’s Constitution, approval would have been withheld.

F. The 2012 And The 2013 Decisions Are Arbitrary And

Capricious Under the APA Because They Were Based On A

Misleading And Incomplete Administrative Record.

The 2012 and 2013 Decisions at issue in this appeal are arbitrary and

capricious under the standards of the APA, § 707(2). Agency action is “arbitrary

and capricious” under the APA if the agency (1) entirely failed to consider an

important aspect of the problem, (2) offered an explanation for its decision that

runs counter to the evidence before the agency, or is so implausible that it could

not be ascribed to a difference in view or the product of agency expertise, (3) failed

to base its decision on consideration of the relevant facts, or (4) made a clear error

of judgment.

Pursuant to a request for information I made on August 19, 2013 under the

federal Freedom of Information Act, I recently received extremely credible and

relevant documents from the BIA: “Enclosed are copies of documents listed on

Exhibit that pertain to the development and or revision of the Articles of

Association and or the Constitution of the Pala Band.” (See Exhibit U)

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In 1994, the Constitution was put on the ballot for adoption. Each revision

should have been voted on as an “amendment” and it is so stated by the BIA in

their recommendations of 1993. The Constitution is certified as adopted by the

Tribe even though there were not enough votes to adopt the Constitution. The

ASIA cites past voting practices of the Tribe to justify the certification of the

election.

The Constitution is rejected by the BIA by withholding approval and it

makes recommendations/revisions. The BIA continues to make recommendations

to the Tribe. The Tribe never participates in developing or approving these

revisions. The revisions are voted on at a General Council meeting and then

forwarded to the BIA for approval.

Evidence shows that the BIA still rejected the revised constitution and was

still advising the Executive Committee as late as April of 2000. April 25, 2000,

letter from Barbara Karshmer on meeting with BIA to go over recommendations

and revisions. (See Exhibit X). In 2000, the BIA certifies the 1997 revised

constitution. It must be noted that the Executive Committee is only granted

authority to amend or replace its ordinance. There is no Executive Committee

ordinance governing enrollments as this is the responsibility of the General

Council.

This vote never occurs. As late as April 2000, Karshmer wants to meet with

BIA to discuss recommendation/revisions. Facio approval was on July 26, 2000.

The Constitution now requires that it go to general election for adoption.

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G. The Pala Band Of Mission Indians Amendment No. 1 To

The Articles Of Association Time Bars The Executive

Committee From Making Any Changes To The Tribes Base

Roll.

On March 19, 1961, the Pala Band of Mission Indians approved Amendment

No. 1 to the Tribe’s Articles of Association. The amendment reads as follows:

“B. The tribal membership roll shall be completed within six (6) months

after the approval of this document and a period of one year shall then be allowed

for making any such correction to the roll. The membership roll shall then be

submitted to the Secretary of the Interior for his approval.

The Amendment was approved by the Commissioner of Indian Affairs on

July 3, 1961. ( See Exhibit V). It is Appellant’s contention that the most

significant aspect of the Articles of Association is found within Amendment No. 1.

The clear terms of this federally approved Amendment states in plain language that

any corrections to the Roll have to be made within one year. This Amendment was

made by the Tribe and approved by the Commissioner of Indian Affairs. It doesn't

matter which act is the start date of the one year period because both have run

more than 50 years ago. None of the interested parties filing brief upon which the

AS-IA rendered his decision addressed this major issue.

The Tribe approved the amendment on March 19, 1961 and the

Commissioner approved the amendment on July 3, 1961. In the case of the Tribe's

approval as the starting date, the time to correct the Roll expired March 18, 1962.

Rather than blame the disenrolled Appellants for not questioning the approval of

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the 1997 Constitution within the federal Statute of Limitations, I am submitting

now in my appeal that it is the Tribe who has gone well beyond the Statute of

Limitations to make any corrections to the Roll. In the case of the Commissioner's

approval as the start date the time to correct the Roll expired January 2, 1963.

It is then evident and a fact that any person had until January 2, 1963 to

make correction/s to the Tribe’s Roll. There was an attempt to change the Degree

of Indian Blood of Margarita Britten by then Chairperson Juliana Calac. In

response to Juliana Calac’s and the Pala Enrollment Committee inquiry, the Office

of Indian Affairs answered on February 27, 1962:

“In regards to our recent conversation about certain Pala Indians,

we wish to report the following:

Margarita Britten, Allottee #25

A record made by Mr. L. W. Green, Special Allotting Agent, on

December 5, 1910, shows that Margarita was a fullblood Cupa

Indian. Her husband, Jim Britten, was non-Indian.”

(See Exhibit X).

This should have settled once and for all the dispute regarding the degree of

Indian blood of Margarita Britten. Instead, some dissatisfied individual chose to

ignore the determination of the Office of Indian Affairs and made pen and ink

changes to the Tribes Base Roll and reduced the degree of Indian blood of

Margarita Britten and her descendents. This simple fraudulent action has created

issues of such tremendous significance that these simple pen and ink changes have

detrimentally changed the lives of almost every descendent of Margarita Britten.

In his decision, the AS-IA could have erred on the side of fairness and justice to

59

correct this tragedy. However, the AS-IA took every opportunity to agree with the

Tribe’s own misleading interpretations of its own tribal laws when he reviewed an

incomplete administrative record.

Members of the Britten family were successful in 1983 in having Margarita

Britten’s blood degree restored to full blood. This was so noticed in a letter to

Forrest Wright of California Indian Legal Services from BIA Superintendent

Jerome Tomhave on November 17, 1983. (See Exhibit J). The record before the

BIA proves that the Tribe’s General Council then voted on February 22, 1984 to

correct and restore the Tribe’s Base Roll and note the true original status of

Margarita Britten as full blood. Subsequently, members of the General Council full

of hatred and spite against the Brittens created and submitted a petition to the

Bureau of Indian Affairs in an attempt to reverse the 1983 determination of the

Bureau of Indian Affairs and the 1984 action of the General Council which

occurred at a duly called meeting of the General Council.

To this day, no person of the Britten family has ever been afforded an

opportunity to view the petition that was submitted to the BIA. More importantly,

there was never any formal notice to the Tribe or the Britten family that the

determination by Jerome Tomhave, Superintendent, Office of Indian Affairs had

been reversed. We did not learn of this action until the BIA began rejecting

enrollment applications of Britten family members in 1985.

As a result of these disapproved enrollment applications, the Britten family

was once more forced to engage in a lengthy appeal process which resulted in

denying benefits to eligible family members for a period of five years. The Britten

family prevailed once again and for the third time. Members of the General

60

Council then again inquired as to the right of the Tribe to appeal the final decision

of the Assistant Secretary. (See Exhibit Y) No further action was taken by the

Tribe to overturn the final decision.

At the present day, the Executive Committee, not the Tribe, has taken a

circuitous route and a series of evil minded machinations in order to circumvent

the Statute of Limitations in this matter. Guided by attorneys not employed by the

Tribe’s General Council, these unscrupulous attorneys developed a scheme which

would allow the Executive Committee to disenroll any member of the Tribe at will.

I believe these actions to be not only illegal but criminal because of the great harm

they have caused not only to me but every member of the Britten family.

All of the above actions should have been determined time barred by the

BIA as per the provisions of Amendment No. 1 to the Tribe’s Articles of

Association. It is now that we ask the AS-IA to respect Tribal Law and issue a

determination that the actions of the Executive Committee are time barred and that

the Executive Committee does not nor can they accrue the authority to reduce my

degree of Indian blood.

H. Statute Of Limitations – Fraudulent

The recent sworn declaration of Lalu Castenada provides good grounds to

argue that Robert Smith and others have concealed their own illegal federal voting

rights violations. (See Lalu Castenada Sworn Declaration, (Exhibit Z) and Sworn

Declaration of William J. Pink (Exhibit Z) Robert Smith has concealed his voting

misbehavior for years. His concealment prevents the running of the Statute of

Limitations.

61

In general, to establish fraudulent concealment, a plaintiff must prove (1)

that the defendant took affirmative action to conceal the cause of action or

remained silent and failed to disclose material facts despite a duty to do so and, (2)

the plaintiff could not have discovered the cause of action despite exercising

reasonable care and diligence.

The third essential element of fraudulent concealment is knowledge on the

part of the defendant of facts giving rise to the cause of action. In other words, the

defendant must be aware of the wrong.

The fourth and final essential element of fraudulent concealment is a

concealment of material information from the plaintiff.

The admission of Lalu Castenada, a non-member, voting in our election

works to nullify that election. Hence, the adoption of the Constitution is invalid.

This operates to make the action of the General Council defective and therefore the

statute of limitations does not apply. It is my position that when the initial action is

defective, the statute of limitations does not apply since that defective initial act

itself cannot ripen into an action as if approved.

Within these facts, the statute of limitations should be tolled because,

regardless of what other information any tribal member may have possessed at the

time of Smith’s fraudulent action in abusing tribal and federal voting laws, no one

had sufficient facts to bring a claim against the validity of the 1997 Constitution.

Based on the Castenada Declaration, I am now arguing that the facts verified by

him toll the running of the Statute of Limitations.

62

Additionally, with regards to the Statute of Limitations, the Director of the

Pacific Regional Office, BIA and the AS-IA both concurred that the 6 year Statute

of Limitations had run with respects to challenging the validity of the Tribe’s

Constitution. There are several minor children included in the Appeals presented

by both parties. This fact should have been considered when determining whether

or not the statute of limitations applies to the validity of the Constitution. It is my

understanding that each one of those minor children, when reaching adulthood, has

the right to challenge the validity of the Tribe’s Constitution. In addition, there are

young adults included in the Appeals of both parties that are of adult age but who

are still within the six year period of being eligible to appeal the validity of the

Tribe’s Constitution. This fact should be duly considered and held in contention

because in 2003 the Tribe did pass a motion requiring that a copy of the Tribe’s

Constitution be provided to Tribal members upon turning the age of 18. I would

then argue that the Statute of Limitations does not begin to run for those

individuals upon their achieving 18 years of age but from the date the Tribe

provides the Constitution to that particular individual.

V. CONCLUSION

1. I argue and conclude that I have clearly demonstrated that the valid actions of

the Tribe adhere to the legal principles of Santa Clara Pueblo v. Martinez. All valid

actions taken by Tribe since its adoption of the Articles of Association and its

accompanying Enrollment Ordinance have and currently bestow upon the United

States via its representative agents the full and complete authority to determine

who is and who is not a member of the Tribe. As such, the AS-IA must conclude

and concur that the Secretary of the Interior does have the final authority to decide

who is and who is not a member of the Tribe.

63

2. The Tribe has determined its membership by adopting the 1895 and 1913

Allotment Rolls and by further determining that any person a descendent of a

person whose name appears on said Rolls and possessing 1/16 degree of Indian

Blood is eligible to become a member of the Tribe.

3. The information contained within the 1895 and 1913 Allotment Rolls has been

determined to conclusive and unchangeable by enactment of the Congress of the

United States.

4. The Executive Committee as well as any person, to include the Secretary of the

Interior, is now time barred from changing the status and/or contents held therein

and within the Tribe’s Base Roll, which is comprised of the 1895 and 1913

Allotment Rolls, as so determined by Amendment No. 1. of the Tribes Articles of

Association.

5. The validity of the Constitution is subject to challenge for all the reasons so

stated in this pleading. Those reasons include, defective acts, fraud, voter fraud,

rights of minor children, ineffective voting and failure to hold the required election

necessary to effect the Constitution.

6. The Executive Committee does not have the authority to alter a Tribal members

Degree of Indian Blood. The Executive Committee is bound by the Tribe’s Base

Roll and can take no action to alter any entry made upon the Base Roll to include

changing the determined blood degree of an original allottee of the Tribe.

64

7. The 1984 action taken by the Tribe to correct and restore the Tribe’s Base Roll

to its original condition as finally adopted in 1964, is still in effect and has never

been rescinded.

8. The 1994 vote to approve the changing of the Tribe’s Articles of Association to

a Constitution was invalid as per the requirements of the Tribe’s Articles of

Association. The Tribe was required to vote on the Constitution as Amendments to

the Articles of Association and as per at least 50%+ of the eligible voting members

would have had to voted in favor of the Consitution.

9. The AS-IA, as a result of the actions by the Director of the Pacific Regional

Director to withhold information regarding the validity of the Constitution, was

obstructed and prevented from making a proper decision with regards to his

authority to intervene and act in adherence and compliance with Tribal Law and

determine membership issues, the Degree of Indian Blood of Margarita Britten and

prevent the Executive Committee from lowering my Degree of Indian Blood.

10. Finally, if the 1997 Constitution is determined to be valid, the Executive

Committee did not accrue the authority to amend or replace the Tribe’s Ordinance

No. 1 as it applies to Tribal Enrollment. Given this fact, the AS-IA still has the

authority to determine Tribal membership issues of the Tribe.

I therefore ask that the AS-IA issue an order favorable to me and determine

that my Cupeno Degree of Indian Blood is 1/8. Further, that said order be

served upon the Executive Committee and it decree that the AS-IA still has

the authority to determine membership within the Tribe and the authority to

65

issue final determinations regarding disputes which may arise regarding

Tribal membership.

66

TABLE OF EXHIBITS

A. Notice of Appeal Letter, dated July 24, 2013

B. Letter from James Fletcher, Superintendent, Southern California Agency,

BIA, to Robert Smith dated August 9, 2006

C. Enrollment Application of Michael P. Hackman

D. Certificate of Degree of Indian Blood of William J. Pink

E. Certificate of Degree of Indian Blood of Maria Antonia Britten

F. Current Federally Approved Certificate of Degree of Indian Blood

Application

G. The Thirteenth Census of the United States, 1910

H. Act of Congress Authorizing Expenditure for Purchase of Lands for Warner

Ranch Evictees.

I. Letter from Robert J. Eben, Superintendent, Southern California Agency,

BIA to Robert Smith dated July 13, 2011

J. Letter to Forrest Wright, Attorney, California Indian Legal Services dated

November 17, 1983

K. 1928 CIJR Application No. 1113 Page 1. of Santiago Britten (James F.

Brittain)

L. 1928 CIJR Application No. 2401 Page 1. of Flora Machado Brittain

M. Pala Band of Mission Indians, Pala Reservation, Ordinance No. 1

N. Letter Regarding Vulcan Per Capita to Gina Howard from Robert Smith

dated April 4, 2012

O. Letter to Robert J. Eben, Superintendent, Southern California Agency, BIA,

from William J. Pink dated April 20, 2012

67

TABLE OF EXHIBITS (Continued)

P. Certification of 1994 Election approving Constitution

Q. Recommendations of Orlando Garcia, BIA, Field Representative, Riverside,

CA, in letter to Sacramento Area Office, Tribal Programs dared January 23,

1961

R. Side by Side comparison of the 1994 and 1997 Pala Band of Mission Indians

Constitutions

S. Minutes of the February 22, 1984 General Council meeting of the Pala Band

of Mission Indians

T. Letter to Pauline Pink from Frank L. Haggarty, Jr. Acting Area Field

Representative dated January 12, 1967, with original copy of 1913 allotment

Roll

U. History File of the Pala Band of Mission Indians governing documents as

provided per FOIA request

V. Letter from Dennis Chappabitty to Amy L. Dutschke requeting her recusal

in Howard matter

W. Letter from Barbara Karshmer, Attorney, to Robert Smith dated April 25,

2000

X. Letter to Juliana Calac’s regarding Margarita Britten Degree of Indian Blood

from the Office of Indian Affairs dated February 27, 1962:

Y. Letter to Patricia Nelson from Walter R. Mills, Aciting Assistant Secretary

dated September 11, 1989

Z. Sworn Declarations of Lalu Castenada, Michael Vasquez and William J.

Pink