Law | National

Court sides with Bureau of Indian Affairs in disenrollment dispute

Friday, July 8, 2016

Robert Smith serves as chairman of the Pala Band of Mission Indians in California. Photo from California Native American Day / Facebook

The Bureau of Indian Affairs lacks authority to review enrollment matters within the Pala Band of Mission Indians, the 9th Circuit Court of Appeals confirmed on Friday.

The BIA at one point played a role in reviewing and making recommendations regarding the tribe's rolls. But that changed with the adoption of a new constitution in 1997 and a membership ordinance in 2009 that removed federal oversight.

As a result, the BIA was right to maintain a "hands-off" approach with respect to the tribe's internal matters, a three-judge panel of the 9th Circuit concluded. The unanimous decision effectively leaves more than 150 people who were disenrolled in 2011 out in the cold.

"A generalized invocation of the government’s trust responsibility toward Native Americans does not compel the conclusion that the BIA acted arbitrarily or capriciously under these circumstances," Judge Milan D. Smith, Jr. wrote for the court.

Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in Aguayo v. Jewell February 5, 2016

The California tribe has removed hundreds of members from the rolls over the years. Included in the 2011 purge were the descendants of a woman whom the BIA -- acting under its prior oversight role -- determined was "full-blooded" Pala.

After adopting the new constitution and updating its membership ordinance, tribal leaders revisited the matter and concluded that Margarita Britten, a revered Pala basket weaver who was born in 1865, was not full-blooded. That means her descendants, who number more than 150, did not meet the 1/16 blood quantum standard for membership.

Margarita's descendants argued that the BIA should have reaffirmed its earlier stance but the 9th Circuit did not agree. Since the tribe changed its own laws, the agency had no power to take action, the court ruled.

"Because the executive committee now has ultimate authority over enrollment decisions under the 1997 constitution and 2009 ordinance, the AS-IA reasonably concluded that any questions of the surviving preclusive effect of the 1989 decision are properly directed to the band, not the BIA," Smith wrote, referring to the Assistant Secretary for Indian Affairs, the leader of the BIA.

The court acknowledged that the 1997 constitution was peculiar in that it was never brought up for a vote among the general membership. The tribe, however, never organized itself under the Indian Reorganization Act of 1934 so it was not required to hold an election, the decision stated.

The 2009 ordinance vests the people who serve on the tribe's executive committee -- and no one else -- with the power to “reevaluate” previous membership decisions, remove members from the rolls and serve as the ultimate authority over enrollment matters.

9th Circuit Court of Appeals Decision:
Aguayo v. Jewell (July 8, 2016)