Agua Caliente Tribe of Cupeno Indians of The Pala Reservation v. Washburn

MOTION for SUMMARY JUDGMENT

E.D. Cal.February 7, 2017

1 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ANDREW W. TWIETMEYER SBN: 254436 email: awt@twietmeyerlaw.com THE LAW OFFICE OF ANDREW W. TWIETMEYER 10780 Santa Monica Blvd., Suite 401 Los Angeles, CA 90025 Tel: (310) 909-7138 Fax: (323) 988-7171 Attorney for Plaintiff The Agua Caliente Tribe of Cupeño Indians of the Pala Reservation UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA THE AGUA CALIENTE TRIBE OF CUPEÑO INDIANS OF THE PALA RESERVATION (a federally-recognized but unlisted Indian Tribe) Plaintiff, vs. LAWRENCE S. ROBERTS, Acting Assistant Secretary of Indian Affairs, United States Department of the Interior (in his official capacity); and DOE Defendants 1 through 10, inclusive, Defendants. Case No.: 2:15-cv-02329-JAM-KJN NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Date: May 16, 2017 Time: 1:30 p.m. Courtroom: 6 Judge: Hon. John A. Mendez Case 2:15-cv-02329-JAM-KJN Document 22 Filed 02/07/17 Page 1 of 4 1 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 TO DEFENDANT AND HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on May 16, 2017 at 1:30 p.m. or as soon thereafter as the matter may be heard in Courtroom 6 of the above-entitled Court, located at 501 I Street, Sacramento, CA 95814, Plaintiff, the Agua Caliente Tribe of Cupeño Indians of the Pala Reservation will, and hereby does, move the Court for summary judgment pursuant to the Administrative Procedures Act on the ground that Defendants’ decision refusing to list Plaintiff on the list of federally-recognized Indian tribes published annually pursuant to 25 U.S.C. § 479a-1 (the “List”) violated BIA precedent, was arbitrary and capricious, and lacked a rational basis; and, therefore, violated the APA and Plaintiff’s equal protection rights; and, therefore, Plaintiff is entitled to judgment as a matter of law reversing Defendant’s decision ordering Defendant to correct the List. /// /// /// Case 2:15-cv-02329-JAM-KJN Document 22 Filed 02/07/17 Page 2 of 4 2 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 This motion is based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the declaration of Andrew W. Twietmeyer, the Administrative Record filed by Defendants on January 25, 2017, Plaintiff’s Excerpts of the Administrative record filed herewith, all pleadings and papers on file in this action, and upon such other matters as may be presented to the Court at the time of the hearing. RESPECTFULLY SUBMITTED DATED: February 7, 2017 /s/ Andrew W. Twietmeyer______ ANDREW W. TWIETMEYER The Law Office of Andrew W. Twietmeyer 10780 Santa Monica Blvd., Suite 401 Los Angeles, California Tel: (310) 909-7138 Fax: (323) 375-1123 E-mail: awt@twietmeyerlaw.com Attorney for Plaintiff, the Agua Caliente Tribe of Cupeño Indians of the Pala Reservation Case 2:15-cv-02329-JAM-KJN Document 22 Filed 02/07/17 Page 3 of 4 3 PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 CERTIFICATE OF SERVICE I, Andrew W. Twietmeyer, hereby certify that on February 7, 2017, I caused the foregoing to be served upon counsel of record through the Court’s electronic service. I declare under penalty of perjury that the foregoing is true and correct. Dated: February 7, 2017 /s/ Andrew W. Twietmeyer Andrew W. Twietmeyer Case 2:15-cv-02329-JAM-KJN Document 22 Filed 02/07/17 Page 4 of 4 i PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ANDREW W. TWIETMEYER SBN: 254436 email: awt@twietmeyerlaw.com THE LAW OFFICE OF ANDREW W. TWIETMEYER 10537 Santa Monica Blvd., Suite 240 Los Angeles, CA 90025 Tel: (310) 909-7138 Fax: (323) 375-1123 Attorney for Plaintiff The Agua Caliente Tribe of Cupeño Indians of the Pala Reservation UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA THE AGUA CALIENTE TRIBE OF CUPEÑO INDIANS OF THE PALA RESERVATION (a federally-recognized but un-Listed Indian Tribe) Plaintiff, vs. LAWRENCE S. ROBERTS, Acting Assistant Secretary of Indian Affairs, United States Department of the Interior (in his official capacity); and DOE Defendants 1 through 10, inclusive, Defendants. Case No.: 2:15-cv-02329-JAM-KJN PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Date: May 16, 2017 Time: 1:30 p.m. Judge: Hon. John A. Mendez Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 1 of 97 ii PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I. INTRODUCTION ................................................................................................ 1 II. SUMMARY OF FACTS ...................................................................................... 3 A. History of the Cupeño Tribe ............................................................................. 3 B. History of the Pala Luiseño ............................................................................... 4 C. In 1852, the United States Negotiates a Treaty with Both Tribes ................. 5 D. The United States Provides Benefits and Services to Each Tribe ................. 6 E. In 1875, the United States Grants Each Tribe a Reservation ........................ 7 F. In 1901, The Supreme Court Rules That the Cupeño Tribe Has No Right of Occupancy at Agua Caliente Village ........................................... 9 G. In 1902, Congress Passes Legislation to Provide Land for the Cupeño ........................................................................................................ 10 H. After the Cupeño Tribe Is Removed to Lands Adjacent to Old Pala, Each Tribe Independently Receives Federal Services ................. 11 I. In 1934, the Cupeño and Pala Luiseño Reject the Opportunity to Unify As a Single Tribe under the Indian Reorganization Act ............... 14 J. The BIA Unilaterally Asserts That Both Tribes Have the Exact Same Interest in All of Pala ............................................................................ 16 K. The BIA Counsels the Indians at Pala to Organize ...................................... 19 L. In 1960, the Tribes and Indians at Pala Create the PBMI ........................... 22 M. The United States Continues to Exhibit Its Awareness of the Separate Existence of the Cupeño Tribe and Pala Luiseño ......................... 24 N. In 1979, the BIA Lists the Pala Luiseño, But Not the Cupeño Tribe .......... 25 O. In 1994, the BIA Lists the Pala Luiseño But Not the Cupeño Tribe ........... 26 Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 2 of 97 iii PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 P. In 1994, the BIA Corrects the List to Add the Ione Band ............................ 28 Q. In 1994 the PBMI Submits a PBMI Constitution to BIA for Approval ..................................................................................................... 30 R. In 2000, the BIA Corrects the List to Add Lower Lake Rancheria ............ 32 S. In 2006, the BIA Declines to List the Muwekma Ohlone Tribe .................. 34 T. The United States Shows Continued Awareness of the Cupeño Tribe .................................................................................................... 38 U. In 2012, the BIA Corrects the List to Add the Tejon Tribe ......................... 39 V. In 2012, the PBMI Dis-enrolls 170 Cupeño Indians ..................................... 41 W. In December 2014, the Cupeño Tribe Adopts a Constitution and Requests Correction of the List ............................................................... 42 X. In May 2015, the PBMI Replaces the Pala Luiseño on the List By Way of a Purported Name Change ........................................................... 44 Y. In June 2015, the Cupeño Tribe Reiterates Its Request that Defendant Correct the List ............................................................................. 48 Z. Defendant Denies the Cupeño Tribe’s Request to Correct the List ............ 49 III. LEGAL ARGUMENT ........................................................................................ 51 A. Standard on Summary Judgment in APA Cases .......................................... 51 B. Federal Recognition of Indian Tribes ............................................................ 55 C. The Trust Relationship and the List .............................................................. 57 D. Defendant’s Refusal to Correct the List Violates Established BIA Precedent Without any Reasoned Justification ................................... 60 1. The Cupeño Tribe Is Similarly Situated to the Ione Band ....................... 60 Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 3 of 97 iv PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2. The Cupeño Tribe Is Similarly Situated to Lower Lake ........................... 64 3. The Cupeño Tribe Is Similarly Situated to the Tejon Tribe ..................... 67 4. Defendant Provided No Reasoned Basis for His Disparate Treatment of the Cupeño Tribe .................................................................. 72 a) The July 2015 Policy Guidance Does Not Address the Correction of Administrative Error ........................................................ 72 b) Even if the Policy Guidance Did Apply, Defendant Does Not Have Authority to Apply It Retroactively .............................. 75 c) Defendant Did Not Explain Why the Cupeño Withdrawal Resolution Is a Relevant Distinction. ..................................................... 77 d) Defendant’s Purported Basis for His Disparate Treatment of the Cupeño Tribe Contradicts the Facts ............................................. 79 IV. CONCLUSION ................................................................................................... 85 TABLE OF AUTHORITIES Cases Aguayo v. Jewell, 827 F.3d 1213 (2016) ............................................................................................... 78 Airmark Corp. v. FAA, 758 F.2d 685 (D.C. Cir. 1985) ................................................................................. 53 Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918) ............................................................................................. 58, 59 Aldarwich v. Hazuda, 2016 U.S. Dist. LEXIS 35616 (C.D. Cal. Mar. 18, 2016) ................................. 54, 55 Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 4 of 97 v PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Allen v. Smith, 2013 U.S. Dist. LEXIS 35046 (S.D. Cal. Mar. 11, 2013) ........................................ 41 Appel v. Spiridon, 531 F.3d 138 (2nd Cir. 2008) ................................................................................... 60 Barker v. Harvey, 181 U.S. 481 (1901) ....................................................................................... 9, 10, 67 Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) ................................................................................................. 58 Bowen v. Am. Hosp. Ass’n, 476 U.S. 610 (1986) ........................................................................................... 52, 78 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) ........................................................................................... 76, 77 Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105 (9th Cir. 2015) ........................................................................... 51, 52 Cherokee Nation v. Georgia, 30 U.S. 1 (1831) ....................................................................................................... 57 Choate v. Trapp, 224 U.S. 665 (1912) ................................................................................................. 58 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) ........................................................................................... 51, 54 City & Cnty. of San Francisco v. United States, 130 F.3d 873 (9th Cir. 1997) ................................................................................... 54 Claridge Apartments Co. v. Commissioner, 323 U.S. 141 (1944) ........................................................................................... 76, 77 Cobell v. Norton, 240 F.3d 1081 (D.D.C. 2001) .................................................................................. 57 Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 5 of 97 vi PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Columbia Broad. Sys. v. FCC, 454 F.2d 1018 (D.C. Cir. 1971) ......................................................................... 53, 60 Conners v. United States, 180 U.S. 271 (1901) ........................................................................................... 23, 84 FEC v. Democratic Senetorial Campaign Comm., 454 U.S. 27 (1981) ................................................................................................... 51 Freeman Engineering Assoc., Inc. v. F.C.C., 103 F.3d 169 (D.C. Cir. 1997) ........................................................................... 53, 60 Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986) ................................................................................... 54 Greater Boston Television Corporation v. FCC, 444 F.2d 841(D.C. Cir. 1970) ................................................................................. 75 Greene v. United States, 376 U.S. 149 (1935) ........................................................................................... 76, 77 Grider v. City of Auburn, Ala., 618 F.3d 1240 (11th Cir. 2010) ............................................................................... 60 Hansen v. Salazar, 2013 U.S. Dist. LEXIS 40622 (W.D. Wash. Mar. 22, 2013) ............................ 53, 60 Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978) ................................................................................. 56 Harjo v. Kleppe, 420 F.Supp. 1110 (D.D.C. 1976) ............................................................................. 56 Hornbeck Offshore Transp. v. U.S. Coast Guard, 424 F.Supp.2d 37 (D.D.C. 2006) ............................................................................. 51 Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202 (10th Cir. 2006) ............................................................................... 60 Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 6 of 97 vii PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Jicarilla Apache Nation v. Supron Energy Corp., 728 F.2d 1555 (10th Cir. 1984) ......................................................................... 58, 59 Jones v. Meehan, 175 U.S. 1 (1899) ..................................................................................................... 58 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2009) ................................................................................... 52 Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999) ................................................. 52, 53, 54, 60, 78, 85 Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) ................................................................................................. 52 Massachusetts v. E.P.A., 549 U.S. 497 (2007) ........................................................................................... 52, 85 Miller v. United States, 294 U.S. 435 (1935) ........................................................................................... 76, 77 Montoya v. United States, 180 U.S. 261 (1901) ................................................................................................. 84 Motor Veh. Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) ................................................................................................... 52 Muwekma Tribe v. Babbit, 133 F.Supp.2d 30 (D.D.C. 2000) ....................................................................... 34, 35 Muwekma Ohlone Tribe v. Kempthorne, 452 F.Supp.2d 105 (D.D.C. 2006) ............................................. 35, 36, 51, 53, 60, 74 Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209 (D.C. Cir 2013) ............................................................................ 38, 67 Muwekma Ohlone Tribe v. Salazar, 813 F.Supp.2d 170 (D.D.C. 2011) ............................................................... 38, 52, 78 Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 7 of 97 viii PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Nat. Resources Def. Council v. U.S. Dep’t of the Interior, 113 F.3d 1121 (9th Cir. 1997) ................................................................................. 78 Neilson v. D’Angeles, 409 F.3d 100 (2nd Cir. 2005) ................................................................................... 60 Occidental Eng’g Co. v. I.N.S., 753 F.2d 766 (9th Cir. 1985) ............................................................................. 54, 55 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) ................................................................................................. 27 Partridge v. Reich, 141 F.3d 920 (9th Cir. 1998) ................................................................................... 51 Plyler v. Doe, 457 U.S. 202 (1982) ................................................................................................. 54 Pyramid Lake Paiute Tribe v. Morton, 354 F.Supp. 252 (D.D.C. 1972) ............................................................................... 57 Pyramid Lake Pauite Tribe of Indians v. Dept. of the Navy, 898 F.2d 1410 (9th Cir. 1990) ................................................................................. 78 Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677 (7th Cir.2005) .............................................................................. 60, 72 Ramaprakash v. F.A.A., 346 F.3d 1121 (D.C. Cir. 2003) ............................................................. 52, 53, 60, 75 San Joaquin River Group Auth. v. Nat’l Marine Fisheries Serv., 819 F.Supp.2d 1077 (E.D. Cal. 2011) ...................................................................... 55 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ....................................................................................... 42, 78, 79 Seminole Nation v. United States, 316 U.S. 286 (1942) ........................................................................................... 57, 59 Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 8 of 97 ix PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Settles v. U.S. Parole Comm’n, 429 F.3d 1098 (D.C. Cir.2005) ................................................................................ 53 Sierra Club v. Tahoe Reg’l Planning Agency, 916 F.Supp.2d 1098 (E.D. Cal. 2013) ................................................................ 52, 60 The Kansas Indians, 72 U.S. 737 (1866) ................................................................................................... 55 U.S. v. Magnolia Petroleum Co., 276 U.S. 160 (1928) ........................................................................................... 76, 77 U.S. v. Southern Pac. Trans. Co., 543 F.2d 676 (9th Cir. 1976) ................................................................................... 83 U.S. v. Weston, 255 F.3d 873 (D.C. Cir. 2001) ................................................................................. 54 U.S. v. Wheeler, 435 U.S. 313 (1978) ................................................................................................. 55 U.S. v. Title Ins. & Trust Co., 265 U.S. 472 (1924) ................................................................................................. 67 Ursack v. Group, 639 F.3d 949 (9th Cir. 2011) ............................................................................. 54, 60 Statutes United States Code 5 U.S.C. § 551 ............................................................................................................. 51 5 U.S.C. § 701 ............................................................................................................. 51 5 U.S.C. § 706 ....................................................................................................... 51, 85 25 U.S.C. § 63 ....................................................................................................... 16, 82 Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 9 of 97 x PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 25 U.S.C. § 398d ................................................................................................... 17, 82 25 U.S.C. § 461 ........................................................................................................... 14 25 U.S.C. § 476 ........................................................................................................... 14 25 U.S.C. § 478 ........................................................................................................... 15 25 U.S.C. § 479a ............................................................................................. 26, 27, 55 25 U.S.C. § 479a-1 .......................................................................................... 26, 27, 55 25 U.S.C. § 1212 ......................................................................................................... 59 25 U.S.C. § 2719 ......................................................................................................... 74 43 U.S.C. § 150 ........................................................................................................... 16 Code of Federal Regulations 25 C.F.R. § 1.2 (2006) ................................................................................................ 35 25 C.F.R. § 83.3 (2016) .................................................................................. 48, 74, 75 25 C.F.R. § 83.5 (1994) .............................................................................................. 26 25 CFR § 54.6 (1979) ........................................................................................... 25, 55 25 C.F.R. Part 83 ................................................................................................. passim Statutes at Large 22 Stat. 88 (1882) ........................................................................................................ 16 23 Stat. 97 (1884) ........................................................................................................ 16 32 Stat. 257 (1902) ............................................................................................... passim Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 10 of 97 xi PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 38 Stat. 582 (1914) ................................................................................................ 32, 65 48 Stat. 984 (1934) ................................................................................................ 14, 17 48 Stat. 987 (1986) ...................................................................................................... 14 70 Stat. 595 (1956) ...................................................................................................... 33 102 Stat. 2938 (1988) .................................................................................................. 14 108 Stat. 4791 (1994) ................................................................................ 26, 27, 58, 59 Congressional Materials H.R. Rep. No. 103-781 (1994) .................................................................. 26, 56, 58, 81 H.R. Rep. No. 2503 (1953) ............................................................................. 20, 22, 66 Federal Register 44 Fed.Reg. 7235 (January 31, 1979) ................................................................... 25, 29 60 Fed.Reg. 9250 (February 16, 1995) ....................................................................... 28 73 Fed. Reg. 29,363 (May 20, 2008) .......................................................................... 74 73 Fed. Reg. 59,651 (Oct. 9, 2008) ............................................................................. 39 80 Fed.Reg. 37,538 (July 1, 2015) .............................................................................. 73 Secondary Sources AMERICAN INDIAN LAW DESKBOOK, CONFERENCE OF WESTERN ATTORNEYS GENERAL (K. Armstrong et. al. 2016) ...................................................................................... 55 COHEN’S HANDBOOK OF FEDERAL INDIAN LAW (Nell Jessup Newton ed., 2015) ......................................................................... 56, 57 Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 11 of 97 1 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I. INTRODUCTION Since 1994, the United States Bureau of Indian Affairs (“BIA”) has published annually in the Federal Register a list of Indian Entities Recognized and Eligible to Receive Services from the BIA (hereinafter, the “List”). In at least three instances, the BIA has corrected the List to add an Indian tribe that had been left off the List despite the tribe’s federally recognized status. The BIA characterized those instances as the correction of an administrative error. In each instance the BIA determined that the United States had maintained a government-to-government relationship with the tribe in question, despite the fact that the tribe was not Listed. The BIA made that determination based on evidence that the United States had recognized that tribe at some point in the past, that Congress had never terminated the tribe, and that the United States had periodically exhibited its awareness of the tribe during the past century. The history set forth below, and the Administrative Record in this case, demonstrates that the Agua Caliente Tribe of Cupeño Indians of the Pala Reservation’s own history shows evidence that is equal or superior to all of the three tribes that the BIA has reaffirmed through the correction of administrative error, and, accordingly, the absence of the Agua Caliente Cupeño from the List is also administrative error. In other words, the Cupeño tribe is federally recognized, but erroneously un-Listed. In December 2014, and again in June 2015, Plaintiff requested that Defendant correct the List. Defendant did not respond, then in July 2015, issued a Policy Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 12 of 97 2 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Guidance which purports to change the BIA’s policy with respect to federal acknowledgment. Specifically, the Policy Guidance provides that, since the BIA has recently amended its regulations governing petitions for federal recognition (Title 25, Part 83 of the Code of Federal Regulations) the BIA will only recognize tribes through those Part 83 regulations. Then, after Plaintiff filed this lawsuit, Defendant denied Plaintiff’s request for a correction of the List—inaccurately characterizing it as a request for federal recognition. Defendant cited the BIA’s 2015 Policy Guidance and directed Plaintiff to petition for federal recognition under the new Part 83 regulations. In fact, the BIA’s policy has not changed. It has always required tribes petitioning for recognition to utilize Part 83, and it has always corrected the List to include the missing names of federally recognized tribes outside the Part 83 process. In the BIA’s own words, “The acknowledgment regulation does not apply to Indian tribes whose government-to-government relationship was never severed. Rather, it applies to tribes who have yet to establish such a government-to-government relationship when a previously existing government-to-government relationship has lapsed or when the government-to-government relationship was terminated through an administrative process.” [See Plaintiff’s Excerpts of the Administrative Record, PE-1 at AC-446.]1 1 Plaintiff’s Excerpts are identical to their corresponding pages in the Administrative Record save that Plaintiff has removed all legacy highlights and Bates numbers from the Excerpts, and inserted brackets to highlight text relevant to this brief. This brief will cite the Excerpts as PE-1 through PE-85. Where needed, the notation AC-### (representing the Bates number AGUACALIENTE-000###) is also used for pin citing. Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 13 of 97 3 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 The Cupeño tribe is a federally recognized tribe and should be on the List. Defendants refusal to List the Cupeño tribe after Listing three similarly situated tribes violates BIA precedent, is arbitrary, capricious, violates Defendant’s trust duty, and Plaintiff’s constitutional rights, and, therefore, does not accord with the law. As a matter of bureaucratic convenience, Defendant has simply ignored the Cupeño Tribe’s right to self determination. The Court must overturn Defendants’ denial of Plaintiff’s request and should order Defendant to correct the List as requested. II. SUMMARY OF FACTS. The relevant history in this case is extensive, spanning over a century-and-a-half. Plaintiff has endeavored to be as concise as possible, however, given the long history at issue, Plaintiff submits that this case simply cannot be adequately briefed in less space than is herein presented. The relevant facts below are organized chronologically. A. History of the Cupeño Tribe. The Agua Caliente Tribe of Cupeño Indians of the Pala Reservation is a historic Indian Tribe originally hailing from the village of kúpa (meaning “sleep water” also known as “Agua Caliente Village”) at Warner’s Hot Springs, California. [See PE-2 at AC-174.] The Smithsonian Handbook of North American Indians, Volume 8, notes that the Cupeño settled at kúpa and resided there since before European contact. [PE-3 at AC-1721.] The word “Cupeño” adopts the native place-name kúpa appending Spanish - eño to mean a person who lives at or comes from kúpa. [Answer (hereinafter “Ans.”) ¶ Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 14 of 97 4 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 8.] Cupeño is a distinct language. A 285-page book of Cupeño culture and mythology with a Cupeño language dictionary entitled Mulu’wetam: The First People was published by Malki Museum Press in 1973 and reprinted in 2005. [Ans. ¶ 10.] In its Annual Reports of the Commissioner of Indian Affairs (“ARCIA”) from the mid-nineteenth through the early twentieth centuries, the BIA referred to the Cupeño variously as “Agua Caliente (Warner’s ranch),” or “Agua Caliente (Warner’s) Reservation” or “Agua Caliente No. 1”. [See PE-4 & PE-5.] In a contemporaneous report to the House of Representatives, the BIA also (erroneously) referred to the Cupeño as “Agua Caliente No. 2.” [See PE-25 at AC-1465.] BIA records have also referred to the Cupeño as the “Cupa” or “Warners Ranch Indians” or “The Agua Caliente ‘Warner’ ” [See e.g., PE-6 at AC-840; PE-7; PE-8; PE-12.] Plaintiff is comprised of descendants of the Cupeño from Agua Caliente Village. [See PE-9 (May 1989 BIA determination that Margarita Britten was a full-blooded Agua Caliente or “Cupa” Indian); PE-10; PE-11; & PE-74 at AC-016 (showing Cupeño officers Kenneth Johnson and William Pink are descendants of Margarita Britten); see also PE-12 (1897 census of Agua Caliente Village, with Margarita Britten as 104.)] B. History of the Pala Luiseño. The Pala Band of Luiseno Mission Indians of the Pala Reservation, California (the “Pala Luiseño” or sometimes “Old Pala”) is a band of Luiseño Indians who have historically inhabited the Pala Valley. [Ans. ¶ 11.] The Luiseño Indians are a culturally Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 15 of 97 5 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 and linguistically distinct tribe from the Cupeño. [See Ans. ¶ 12.] Malki Museum Press published a Luiseño Language text entitled An Introduction to the Luiseño Language in 1971. [Id.] The term “Luiseño” derives from the mission named San Luis Rey and has been used in Southern California to refer to those Takic-speaking people associated with Mission San Luis Rey. [Ans. ¶ 13.] The Present day Pala Reservation is centrally located in the Luiseño’s traditional territory. [Ans. ¶ 16.] Also within that traditional territory are the reservations of numerous other bands of Luiseño Indians, including the Pauma Band of Luiseno Mission Indians; the Pechanga Band of Luiseno Mission Indians; the Soboba Band of Luiseno Indians; the La Jolla Band of Luiseno Indians; and the Rincon Band of Luiseno Mission Indians. [Ans. ¶ 16.] The Luiseño shared boundaries with other tribes, including the Gabrieliño and Serrano to the west and northwest, the Cahuilla from the deserts to the east, and the Ipai to the south. [Ans. ¶ 18.] To the southeast, the Luiseño shared a boundary with the Cupeño. [Ans. ¶ 19.] C. In 1852, the United States Negotiates a Treaty with Both Tribes. According to a January 1888 Senate Report, in 1851, a group of Cupeño Indians attacked the house of a white settler, giving rise to fears of an Indian uprising. [See PE- 13 at AC-1676 to 1677.] On or about January 5, 1852, after the Cupeño outbreak was quelled, United States Indian Agent O.M. Wozencraft negotiated and executed a treaty with the Cupeño and several other Southern California Indian Groups. [See id.; see also Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 16 of 97 6 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 PE-14.] On or about January 5, 1852, Jose Noca (Chan-gah-lang-ish) signed the Temecula Treaty on behalf of the Cupeño, and Pablino (Coo-hac-ish) signed on behalf of the Pala Luiseño. [See id. at AC-151] Twenty-six others signed that treaty on behalf of other Southern California Indian groups. [See id.] Among those 26 signatories were representatives of Indian groups that are presently on the List, including the Augustine Band of Cahuilla Indians; the Cabazon Band of Mission Indians; the Morongo Band of Mission Indians; the Pauma Band of Luiseno Mission Indians; the Soboba Band of Luiseno Indians; the Pechanga Band of Luiseno Mission Indians (referred to as the “Temecula” see PE-45 at AC-1618); and the La Jolla Band of Luiseno Indians. [See PE-14 at AC-151 to 152; compare PE-15.] D. The United States Provides Benefits and Services to Each Tribe. On March 28, 1865 (prior being appointed as Special Indian Agent) J.Q.A. Stanley wrote to Superintendent of Indian Affairs, Austin Wiley observing that the Cupeño, among others, needed farming tools, seeds, and military protection. [See PE- 16 at AC-1442 to 1443. In 1865, Superintendent Wiley appointed Special Indian Agents Stanley and W.E. Lovett to report to him on the condition of the Southern California Indians. [See id. at AC-1438; 1443 to 1448; & 1450.] In April 1865, Wiley directed Agent Stanley to purchase seeds and agricultural tools for distribution to the Indians in Southern California. [See PE-16 at AC-1448.] In April and early May 1865, Stanley and Lovett toured the reservations and Indian villages of Southern California Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 17 of 97 7 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (including Agua Caliente and Pala) and reported back to Wiley on the condition, needs, and wants of the “Mission Indians.” [See id. at AC-1443; & 1449 to 1450.] As part of that tour, on May 4, 5, and 6th of 1865, Agent Lovett held a meeting in Temecula attended by Indians of the Cupeño, Pala Luiseño, and fifteen other tribes or bands. [See id. at AC-1445; & 1447 to 1448.] At the Temecula Meeting, Agents Lovett and Stanley distributed seeds, and agricultural implements to the Indians and heard grievances from each tribe or family present. [Id.] On May 19, 1865, Agent Stanley recommended that a small reservation be made at Agua Caliente so that the Cupeño could remain there unmolested. [See PE-16 at AC-1449.] Stanley also recommended Pala as a very desirable location for a reservation for the “San Luis Indians”. [See id. at AC-1450.] E. In 1875, the United States Grants Each Tribe a Reservation. In 1875, the United States granted reservations to the Cupeño and the Pala Luiseño for each group’s “permanent use and occupancy.” [Ans. ¶ 21.] Specifically, by executive order, President Ulysses S. Grant granted the Cupeño 960 acres of land encompassing Agua Caliente Village. [Ans. ¶ 22.] By that same executive Order, he granted the Pala Luiseño a tract of approximately 320 acres, located in the Pala Valley approximately 27 miles to the west of Agua Caliente Village. [Ans. ¶ 23.] The 1875 grant in the Pala Valley is referred to in BIA records, and among the Indians of the Pala Valley, as “Old Pala.” [See, e.g., PE-18 through PE-23.] Only five years after President Grant set aside the Agua Caliente reservation, President Rutherford B. Hayes issued an Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 18 of 97 8 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 executive order which stated, “It is hereby ordered that so much of the order of December 27, 1875, as relates to the Agua Caliente Indian Reservation in California be, and is hereby canceled.” [Ans. ¶ 25.] Despite that Executive Order, the Cupeño tribe continued to occupy its homelands at Agua Caliente village. [See PE-13 at AC-1689.] In May 1883, Commissioner of Indian Affairs, J.D.C. Atkins hired a Los Angeles law firm to provide an opinion on the rights of Southern California Indians (including the Cupeño) to remain on lands they had historically occupied, but which had been patented to private parties after the United States took over California from Mexico. [See PE-13 at AC-1679; 1683 & 1689.] In January 1888, Commissioner Atkins reported to the U.S. Senate on the “number and extent of Mission Indian reservations in the State of California….” [PE- 13 at AC-1673.] According to Atkins’s, there were 19 reservations set apart for the “Mission Indians.” [See id.] The Cupeño did not occupy one of those 19 reservations. [See id. at AC-1674.] However, at the time of the Atkins’s report, the Cupeño were still residing at Agua Caliente Village. [See id. at AC-1689.] According to Atkins, Agua Caliente Village was one of the most important villages that he visited. [See id. at AC- 1678 & 1689.] Atkins reported that there were five Indian villages within the boundaries of Warner’s Ranch, “four [were] very small, but Agua Caliente [had] long been the most flourishing and influential village in the country.” [See PE-13 at AC- 1689; cf. also PE-25 at AC-1465.] At that time, the United States was providing Agua Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 19 of 97 9 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Caliente Village with a school and a teacher. [See PE-13 at AC-1690.] The August 31, 1893 Report of the Mission Tule River Agency lists the Cupeño as numbering 150 individuals. [Ans. ¶ 27; PE-26.] The same Report describes the Pala reservation and the Pala Luiseño as numbering 53 individuals. [Ans. ¶ 28; PE-26.] F. In 1901, The Supreme Court Rules That the Cupeño Tribe Has No Right of Occupancy at Agua Caliente Village. In the summer of 1893, the owner of Warner’s Ranch filed a lawsuit against the Indians there. [Ans. ¶ 29; PE-25 at AC-1464.] The lawsuit, Downey v. Barker, sought to quiet title to Warner’s Ranch and to evict the Cupeño Indians from their ancestral home at Agua Caliente Village. [Id.] In December 1896, the court found for the plaintiff. [See id.] The Indians appealed to the California Supreme Court—which affirmed. [Id.] The Indians then appealed to the United States Supreme Court, “The appeal from the supreme court of California to the Supreme Court of the United States was taken by the [United States] Attorney-General on behalf of the Indians.” [Id.] In June 1897, while the Indians’ appeal was still pending, the United States conducted a census of the “Agua Caliente ‘Warner.’” [See PE-12.] In that census, Margarita Britten was identified as number 104 of 149 individuals. [Id. at AC-1401.] On May 13, 1901, in Barker v. Harvey, 181 U.S. 481, the United States Supreme Court ruled that the Cupeño Indians had no right of occupancy at Warner Springs. See id. 181 U.S. at 499. Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 20 of 97 10 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 G. In 1902, Congress Passes Legislation to Provide Land for the Cupeño. The 1901 annual report of the Commissioner of Indian Affairs Agent for the Mission Agency refers to the Barker v. Harvey decision as, “The most noteworthy and unfortunate event that has occurred during the year, or perhaps ever occurred in this agency….” [PE-2.] On or about January 25, 1902, Secretary of the Interior E.A. Hitchcock transmitted to the House of Representatives the Report of Commissioner of Indian Affairs W.A. Jones regarding the eviction of the Warner Ranch Indians and the need for the United States to provide suitable lands for the Indians. [PE-25.] He wrote, The Commissioner’s report contains a full history of the case, and shows the necessity for providing a home for these Mission Indians, who are subject to ejectment from the lands they have resided upon under a decree of the superior court of San Diego, Cal., as affirmed by the Supreme Court of the United States. [Id.] Secretary Hitchcock’s report contained a draft bill. [See id. at AC-1485.] Hitchcock recommended that “the bill submitted receive early and favorable consideration.” [Id. at AC-1462.] The report also provided the details of the BIA’s investigation of numerous tracts of Southern California land to which the Warner’s Ranch Indians could be relocated. [See e.g., PE-25 at AC-1465, 1467, 1472 & 1484.] On May 27, 1902, Congress passed, and Theodore Roosevelt signed, 32 Stat. 257 adopting language from Hitchcock’s proposed bill almost verbatim, as follows: the Secretary of the Interior be, and he is hereby, authorized to purchase a suitable tract of land in southern California and to locate thereon such Mission Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 21 of 97 11 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Indians heretofore residing or belonging to the Rancho San Jose del Valle, or Warners Ranch, in San Diego County, California, and such other Mission Indians as may not be provided with suitable lands elsewhere, as the Secretary of the Interior may see fit to locate thereon. … Provided further, That of said amount a sum not exceeding thirty thousand dollars may be expended, under the direction of the Secretary of the Interior, in the removal of said Indians to the said tract, and in the purchase of such building materials, agricultural implements, harness, subsistence supplies, and other necessaries, as may be required to properly establish the Indians at their new location:…. [PE-27 (italics original; bold emphasis added) compare PE-25 at AC-1485.] Consistent with Congress’s instructions in 32 Stat. 257, the BIA created the Warner’s Ranch Indian Commission and tasked it with locating suitable lands for the Warners Ranch Indians--including the Cupeño. [Ans. ¶ 33; PE-27 at AC-117; PE-5 at AC-1459.] After its extensive search, the Commission selected a tract of land adjacent to Old Pala—in the heart of traditionally Luiseño territory. [Ans. ¶¶ 16, 33; PE-28.] H. After the Cupeño Tribe Is Removed to Lands Adjacent to Old Pala, Each Tribe Independently Receives Federal Services. Congress did not direct that the purposes of 32 Stat. 257 was to expand the Old Pala reservation. [See PE-27; Ans. ¶ 35.] On the contrary, Congress’s express purpose was to find suitable lands for the Warner Ranch evictees. [See id.] As set forth above, the Commission selected Pala, among several other options, because it was good land. After their removal to Pala, the Cupeño lived separately alongside the Pala Luiseño and each tribe independently received benefits and services from the United States. Census records from the time of the Cupeño removal show that the United States identified separate tribes at Pala. [See PE-29.] It identified individuals removed from Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 22 of 97 12 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Agua Caliente Village as belonging to the Cupeño tribe, and individuals who were already residing at Old Pala as belonging to the Luiseño tribe. [See PE-30 at AC-1420.] After being removed to Pala, the Cupeño “show[ed] no desire or intention to affiliate with the resident local Indians, as was illustrated by their demand, not request, of the Catholic Bishop of the diocese, when he was [at Pala] the middle of [August 1903], for a separate graveyard, a church to themselves, and another priest.” [PE-31 at AC-1520.] Both before and after their removal from Agua Caliente Village, the Cupeño Indians had a captain whom they chose and followed. [See id.; see also PE-32 at AC-1513.] On April 1, 1903, the Acting Commissioner of Indian Affairs requested withdrawal of additional tracts of land in the Pala Valley for the Pauma and Warner’s Ranch Indians who needed pasture land. [See PE-6 at AC-844.] On April 8, 1903, the Secretary of the Interior granted the April 1, 1903 request, temporarily reserving the land until it could be formally set aside. [See id.] That temporary withdrawal order was never revoked and those lands temporarily reserved for “Warner’s Ranch, Pauma, and Pala Indians” remained reserved for those Indians as late as October 8, 1968. [See id.] In October 1903, U.S. Superintendent and Special Disbursing Agent Charles E. Shell, requested the Commissioner of Indian Affairs for permission to “Issue … tools and axes shovels spades here to adult male Indians of the San Felipe and Agua Caliente tribes.” [See PE-33 (emphasis added).] In January 1904, United States Superintendent and Special Disbursing Agent L.A. Wright, reported to Agent Shell that other “articles Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 23 of 97 13 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 embracing, implements, tools, etc. for Pala, were intended for the Indians of the old Pala reservation and not for the Indians who were moved there.” [PE-34 (italics added.)] According to Agent Wright, the “new Pala Indians have had all the tools issued to them and that they are very well supplied.” [See id.] In August 1905, Special Agent for California Indians, C.E. Kelsey reported to the Commissioner of Indian Affairs on the Indians of California. [See Administrative Record Document Number 127 (“Admin. Rec.-127”).] According to Kelsey, more than half of the San Felipe Digueno Indians, who were also removed to the Pala Valley at the same time as the Cupeño, had left Pala because they were culturally and linguistically distinct from the Cupeño and the two groups of Indians shared a history of animosity. [See PE-35 at AC-1549.] In 1910, the U.S. Department of Commerce and Labor-Bureau of the Census took a census of Pala Township. [See PE-30.] That census identified each Indian at Pala as belonging to the Luiseño tribe, the Cupeño tribe, or the Digueno tribe. [See id.] When the United States allotted land at Pala between 1910 and 1913, Cupeño allottees were identified in Land Cards and Individual History Cards as belonging to the “Cupa” Tribe—i.e. the Cupeño. [See, e.g., PE-36 see also Admin. Rec.-88 to 95.] During the ensuing decades, the Cupeño and the Pala Luiseño each continued to reside alongside each other at Pala. [See Ans. ¶ 38.] BIA records indicate that the contention among the Indians at Pala as to which tribe or tribes had rights to the land Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 24 of 97 14 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 purchased pursuant to 32 Stat. 257 (1902) did not go away. Nor, apparently, was there any clear directive as to that question from the federal government. In a June 1928 BIA correspondence, Special Allotting Agent Wadsworth responded to an apparent inquiry about allotting land to “members of the Old Pala band” writing, “My impression is that the land at Pala was purchased for the Warner Hot Springs band, and that only members of the same can be allotted at Pala.” [PE-37.] I. In 1934, the Cupeño and Pala Luiseño Reject the Opportunity to Unify As a Single Tribe under the Indian Reorganization Act. In 1934, Congress passed the Indian Reorganization Act (the “IRA”) [See 48 Stat. 984 (1934) currently codified as amended at 25 U.S.C. §§ 461 to 479.] Section 16 of the IRA, as originally enacted, provided in part: Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, which shall become effective when ratified by a majority vote of the adult members of the tribe, or of the adult Indians residing on such reservation, as the case may be, at a special election authorized and called by the Secretary of the Interior under such rules and regulations as he may prescribe. 48 Stat. 987, 25 U.S.C. § 476 (1986) (emphasis added.)2 Thus, the IRA “authorize[d] the members of a tribe (or a group of tribes located upon the same reservation) to organize as a tribe….” [PE-38 at AC-946, quoting 2 The above-quoted text of the IRA was amended to its current form in November 1988. See Pub. L. 100-581, 102 Stat. 2938 compare 25 U.S.C. § 476(a)-(b) (removing the text, “or tribes, residing on the same reservation” and “or of the adult Indians residing on such reservation, as the case may be….”) Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 25 of 97 15 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Solicitor’s Opinion M-27810 (Dec. 13, 1984), 1 Op. Sol. on Indian Affairs 484, 487 (U.S.D. I. 1979).] Likewise the IRA “authorize[d] the residents of a single reservation (who may be considered a tribe for the purposes of this act), under Section 16 to organize without regard to their past tribal affiliation.” [Id.] In other words, the IRA authorized the Cupeño, the Pala Luiseño (and other Indians at Pala) to unify as a single tribe. [See id.] The practical effect of the IRA “was the creation of new ‘tribes’ where none previously existed.” [PE-38 at AC-947.] Under section 18 of the IRA, the IRA “shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application.” See 25 U.S.C. § 478 (italics added). In 1934, a Secretarial Election was held among the Indians at the Pala Reservations (including the Cupeño and the Pala Luiseño) by a single vote to accept or reject the IRA). [Ans. ¶ 42.] The Indians of the Pala Reservations voted 66 to 7 to reject the IRA. [Ans. ¶ 43.] Accordingly, the IRA has never applied to the Indians at Pala. See 25 U.S.C. § 478; [see also PE-39 at AC-801.] Since passage of the IRA, Congress has never passed any legislation that authorizes tribes or adult Indians residing on the same reservation to adopt a constitution and thereby form a new federally recognized tribe. In the following decades, despite living in alongside each other, the Cupeño and Pala Luiseño acted as separate tribes. For example, in April 1939, Captains for “Old Pala,” and “New Pala” separately signed a petition on behalf of various Southern Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 26 of 97 16 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 California tribes requesting that their reservations be forever exempted from the provisions of the Indian Reorganization Act. [See PE-24 at AC-1569 to 1570.] And even by 1951, a half-century after the Cupeño and Pala Luiseño were forced to live as close neighbors, they were still acting independently. In July 1951, members of the “Original or Old Pala Band of Mission Indians of California” executed a resolution authorizing Robert Ardillo as the Old Pala Band’s captain and leader. [See PE-21.] J. The BIA Unilaterally Asserts That Both Tribes Have the Exact Same Interest in All of Pala. Back in 1882, Congress passed, and the President signed, 22 Stat. 88 (May 17, 1882) which was later amended pursuant to 23 Stat. 97 (July 4, 1884) and is currently codified at 25 U.S.C. § 63. The statute provides: The President may, in his discretion, consolidate two or more agencies into one, and where Indians are located on reservations created by Executive order he may, with the consent of the tribes to be affected thereby, expressed in the usual manner, consolidate one or more tribes, and abolish such agencies as are thereby rendered unnecessary. 25 U.S.C. § 63 (italics added.) As set forth above, Old Pala was created by Executive order. [See Ans. ¶ 23; PE- 40.] However, the reservation at Pala to which the Cupeño were removed was created pursuant to Congressional mandate. See 32 Stat. 257 (1902). On June 30, 1919, Congress terminated the President’s authority to establish reservations by executive order. See 43 U.S.C. § 150 (“hereafter no public lands of the United States shall be withdrawn by Executive Order, proclamation, or otherwise, for or as an Indian Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 27 of 97 17 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 reservation except by act of Congress.”) On March 3, 1927, Congress reserved for itself the power to change the boundaries of executive-order reservations. See 25 U.S.C. § 398d (“[c]hanges in the boundaries of reservations created by Executive order… shall not be made except by Act of Congress.”) From immediately after the Cupeño tribe arrived at Pala, there was persistent contention among the Indians at Pala regarding the two Indian groups’ respective rights to lands at Pala and the benefits and services provided by the United States. [See, e.g. PE-31 at AC-1521 (1903 Butler report noting that the Warner Ranch people “regards the whole appropriation of $100,000 as theirs individually; the lands, rations, tools, horses, wagons, and everything as belonging to them personally….”).] The Cupeño continued thereafter to resist and object to the Pala Luiseño and other Indians claiming rights in the lands that were set aside pursuant to 32 Stat. 257. Indeed, BIA records show that contention persisted for half a century. On February 28, 1951, Area Director James Ring wrote to the Commissioner of Indian affairs describing friction between “the two groups of Indians now living at Pala” as to what Mission Indians are entitled to reside at Pala. [See PE-41 (emphasis added.)] Similarly, on or about April 27, 1955, Area Director Leonard M. Hill wrote to Pala resident Catherine Trujillo addressing, her questions including “1. The question as to the old and new Pala keeps coming up—will you tell me if there are two Pala Reservations?” [PE-42.] Without explanation or citation to any authority, without Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 28 of 97 18 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 identifying or then seeking to obtain the consent of the Cupeño or the Pala Luiseño to consolidate their tribes, and despite the fact that Old Pala was created by Executive Order reservation while “new Pala” was not, Mr. Hill responded as follows: “It is true that the land included in the Pala Reservation was acquired at different times under different conditions. However, it is all considered as one reservation and no distinction is made between the lands acquired at different times.” [Id.] Even in the face of the BIA’s attempt to compel their unification, the Indians at Pala persisted in maintaining their independent identities, and they continued to disagree about their respective rights. For example, in testimony taken before the California Senate Interim Committee on California Indian Affairs taken in or about 1954 to 1955, Cupeño Indian Juliana Calac testified “[W]e are two Palas. We are called the new Pala—the members of the Warner Springs band.” [PE-22 at AC-991.] Then Robert Ardillo testified on behalf of “old Pala” that the old Pala Indians did not have the same rights as the Warner Springs Indians, that he thought the old Pala Indians do not have an interest in the lands purchased for the Warner Springs Indians, but old Pala would like to have an interest in the lands. [See PE-22 at AC-991.] Two years later, on July 1, 1957, Assistant Area Director J.N. Lowe was still addressing questions from Catherine Trujillo about the Cupeño tribe’s and Pala Luiseño’s respective rights. [See PE-20.] He responded by reference to a March 24, 1955 letter of Area Director Hill stating that “only one Pala Reservation is recognized Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 29 of 97 19 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 and [] all of the people who reside on what is sometimes called old Pala, or new Pala, have exactly the same interest in all tribal resources.” [Id.] Again, Area Director Lowe identified no Congressional action or statutory authority for that conclusion. [See id.] Nor did he identify any consent or then seek to obtain the consent of the tribes at Pala that they be consolidated into one tribe. Congress has never passed any legislation unifying the Old Pala reservation with the lands purchased pursuant to 32 Stat. 257. [Ans. ¶ 36.] Congress has never terminated the Cupeño tribe. [See Ans. ¶ 40.] Congress has never terminated the Pala Luiseño. [See Ans. ¶ 41.] K. The BIA Counsels the Indians at Pala to Organize. In the face of resistance to the concept of a unified Pala, the BIA counseled the Indians at Pala (who had overwhelmingly rejected a unified organization under the IRA) to nevertheless adopt a governing document. In November 1957, BIA Sacramento Area Director Leonard M. Hill responded to an inquiry from the Indians at Pala regarding adoptions. [See PE-43.] Area Director Hill responded in relevant part, “it is proposed as a general policy that there be no approval of adoptions into tribes or bands until, or unless, they are organized and have a constitution which sets forth membership requirements and adoption procedures.” [Id.] Against a backdrop of the BIA’s repeated insistence that all of the Indians at Old Pala and New Pala had exactly the same rights at Pala, the implication was clear—the BIA was advising that government-to-government relations with the United States would be more productive Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 30 of 97 20 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 if the Indians all treated themselves as a single group. [See id.] Plaintiff respectfully submits that the benefits to the BIA of that One-Pala approach are plainly apparent in the BIA’s contemporaneous communications relating to the administration of its trust duty to the Indians at Pala. For example, in October 1941, prior to distributing an allotment of proceeds from labor, the Department of the Interior required the Indians at Pala to check the Pala census roll, note all deaths and births that had occurred, and send the noted changes to the Department. [See PE-44.] Rather than parsing out which Pala Indian belonged to which Tribe, and which Tribe was entitled to benefit from what lands, the BIA simply administered distributions based upon the Government’s census of the Indians at Pala—all of the Indians treated as having the exact same interest in all of the reserved lands at Pala. [Compare PE-20 & PE-42.] Even as the BIA stressed the purportedly unified interest of the Cupeño and Pala Luiseño, the United States was fully aware of the distinction between the two Tribes because the BIA had cooperated extensively with the U.S. House of Representatives only a few years earlier to investigate the government-to-government relations between the United States and the American Indian tribes—with the specific intent of terminating those relationships. [See PE-45 at AC-1577 to 1578.] On December 15, 1952, Pursuant to House Resolution 698, the House Committee on Interior and Insular affairs submitted House Report 2503. [see PE-45.] The report is over 1500 pages long. [See id. at AC-1576.] The report identifies the Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 31 of 97 21 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Cupeño and/or Warner’s Ranch Indians and their separate reservation in several instances. First, Part I of the report, includes an alphabetized list of “Indian Tribal and Band Groups.” [See id. AC-1585 to 1588.] Page, 342 of that list includes the following entry: “Cupeño Formerly occupants of the village of Cupa, they are now mainly on Pala Mission, San Diego County, Calif. They are probably Shoshonean stock and related to Luiseño.” [PE-45 at AC-1586 (italics original).] Page 433 of that list includes the following entry: “Luiseño or San Luiseño A Shoshonean group in western Riverside and northwestern San Diego Counties, Calif. The group is now located on several small mission areas of southern California, namely, La Jolla, Pala, Pauma and Yuima, Pechanga, Rinçon, San Manuel, San Pasqual and Soboba.” [Id. at AC-1588.] The report then identifies Luiseño and Cupeño separately as two of the ten Uto- Aztecan languages spoken at the time of the Report. [See id. at AC-1596 & 1599.] Part II of the House Report has a List of Tribes and Reservations spanning 313 pages and identifying more than 500 tribes. [See id. at AC-1575 to 1576 & 1607.] Each tribe is listed in italicized, all-capital, letters. “The names of the reservations have been included in alphabetical arrangement, with cross-references to the tribe under which material is located.” [Id.] That list includes an entry for the tribe “CUPEÑO INDIANS” and notes that Cupeño Indians are on the Pala Reservation and cross references the entry with “See Mission Indians, Pala Reservation.” [PE-45 at AC-1608.] Under the heading for the tribe “MISSION INDIANS,” the House Report contains entries for each Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 32 of 97 22 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 “MISSION INDIAN” reservation. It contains an entry for “Pala,” [see id. at AC-1617 to 1618], and another entry that reads “Warners Ranch, Calif. See above Pala Reservation.” [Id. at AC-1621.] Finally, at page 1014, the following entry appears: “WARNER’S RANCH INDIANS See Mission Indians, Pala Reservation, Calif.” [Id. at AC-1626.] The Report does not identify a tribe of “PALA INDIANS.” L. In 1960, the Tribes and Indians at Pala Create the PBMI. Pursuant to the BIA’s guidance, in or about September 1957, the Indians at Pala formed a Committee on Constitution and By-laws to explore the possibility of adopting a Constitution. [See PE-46; see also PE-47 & PE-48.] The Indians at Pala did not adopt a Constitution. Instead, in 1959, the Cupeño, the Pala Luiseño, and other Indians on the reservation lands in the Pala Valley adopted Articles of Association to formally create an association called the Pala Band of Mission Indians (hereinafter the “PBMI”). [Ans. ¶ 51.] The BIA approved the PBMI Articles of Association in 1960. [Ans. ¶ 52.] The Articles were adopted shortly before the PBMI entered a sand and gravel contract under the BIA’s approval. [See PE-49.] The PBMI Articles of Association thus coincide with the first major economic exploitation of Pala. [See id.; Admin. Rec.-98; Ans. ¶ 52.] The Articles do not express any intent to create a new tribe. Most of the Indians who formed the PBMI were Cupeño and Pala Luiseño. [See Ans. ¶ 62.] However, under the Articles of Association, membership in the PBMI was not based on proof of an individual’s blood degree of any Indian Tribe. [See Article 2, Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 33 of 97 23 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 PE-50 at AC-200; compare Ans. ¶ 58.] Instead, PBMI membership was based on an individual’s lineal descent from an Indian allottee whose name appears on the Pala allotment rolls that were approved by the Secretary of the Interior in 1895 and 1913 without regard to specific tribal ancestry of that allottee. [See id.; Ans. ¶ 56.] Thus, PBMI membership under the Articles is not based on any tribal tradition, initiation, descent, or even tribal blood quantum. [See id.] Thus, “Indian blood of the Band” means Indian blood of an allottee by Article 2’s clear terms. [See PE-50 at AC-200.] Plaintiff alleges and believes that membership in the PBMI based on Indian allottee blood quantum rather than blood quantum of a tribe was necessary because the PBMI was formed among Indians of various tribes and bands. [See Amended Complaint ¶ 111; Ans. ¶ 111.] Thus, Plaintiff is informed and believes, and on that basis alleges, that the choice of the term “Band” rather than “Tribe” was deliberate. [See Conners v. U.S., 180 U.S. 271, 275 (1901) (The word ‘band’ implies an inferior and less permanent organization than ‘tribe.’) The Articles of Association do not provide for the termination of the Cupeño tribe. [See Ans. ¶ 65; Admin. Rec.-61.] The Articles of Association do not provide that the Cupeño tribe relinquishes its sovereign identity as a federally recognized tribe. [See Ans. ¶ 66; Admin. Rec.-61.] When the PBMI was formed, and thereafter, the BIA did not ever advise the Cupeño tribe that forming an association with the other Indians of the Pala Reservations would operate to terminate the Cupeño tribe. [See Ans. ¶ 67.] Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 34 of 97 24 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 M. The United States Continues to Exhibit Its Awareness of the Separate Existence of the Cupeño Tribe and Pala Luiseño. After the PBMI was formed, the United States continued to show awareness of the distinct tribes at Pala. For instance, as late as 1961, the BIA was still recording allotment records that identified individuals as members of the “Cupa” tribe. [See PE-7 at AC-1301 (History Card for Maria Antonia Britten identifying her, her mother, and her grandmother as a members of the Cupa Tribe, and noting that she died in 1961.)] Likewise, on or about October 8, 1968, the Department of the Interior, Office of the Solicitor issued a memorandum examining jurisdiction over the lands reserved on April 1, 1903 as described in section II(H) above. The memo repeatedly refers to the “Mission Indians at Pala and Pauma and the Warner’s Ranch Indians who were moved to Pala land in May 1903.” [See PE-6 (emphasis added.)] That 1968 Memorandum does not mention the PBMI. [Ans. ¶ 69.] The Memorandum concludes that issuance of a patent to the United States in trust for the benefit of “these Indians” would be proper. [See id. at AC-844.] Additionally, as late as August 1968, realty officers with the BIA were issuing certificates of title for allotments on the “Old Pala” Reservation. [See PE- 18.] And as late as August 1971, the United States was issuing land patents for plots designated as “Old Pala” [See PE-23.] The United States also kept track of the Cupeño and the Pala Luiseño as separate tribes for purposes of dispensing federal benefits and services. Specifically, in December 1969, the United States Department of the Interior, Division of Employment Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 35 of 97 25 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Assistance, updated its Reservation & Trust Land codes, which it determined had been incomplete and inaccurate. [See PE-52.] The Division used those Reservation & Trust Land codes to ensure accuracy of reporting as to the number of individuals who have received services by the Division from a particular reservation, or (in the case of Indian individuals living outside the exterior boundaries of a reservation) a particular tribe. [See id.] The Division noted, “Considerable research has gone toward developing the new Code and we believe it is complete.” [Id.] That December 1969 updated Code was compiled in two parts, Code for Reservations and Code for “Tribe or Tribal Element.” [See id.] The updated Code separately identified “Pala” as reservation number 167 and “Warner’s Ranch (Pala)” also as reservation number 167. [PE-52 at AC-1660 & 1662.] Likewise, the December 1969 updated Code identified “Cupeno” and “Luiseno” separately as tribe or tribal element numbers 427 and 577 respectively. [Id. at AC-1664 & 1666.] Those updated Codes do not identify “Pala” as a tribe or tribal element. [See PE-52.] N. In 1979, the BIA Lists the Pala Luiseño, But Not the Cupeño Tribe. On January 31, 1979, the BIA published its first Federal Register List of recognized tribal entities. [See PE-15 (44 Fed. Reg. 7,235 (Jan. 31, 1979)]; see also 25 CFR § 54.6(b) (1979). The notice is entitled “Indian Tribal Entities That Have a Government-to-Government Relationship with the United States” See id. The BIA did not list the Cupeño tribe [Ans. ¶ 70; PE-15.] Nor did the BIA list Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 36 of 97 26 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 the PBMI. [See id.] The 1979 List did include the “Pala Band of Luiseno Mission Indians, Pala Reservation, California” (emphasis added.) [See id.] Each subsequent List, until 2016, listed the Pala Luiseño, but not the Cupeño or the PBMI. It is undisputed that the Pala Luiseño is a distinct historic tribe from the Cupeño. [Ans. ¶¶ 12, 73.] It is also undisputed that the Pala Luiseño and the PBMI are not one and the same. [See Ans. ¶ 110 “the PBMI includes the Pala Luiseño….” (italics added).] O. In 1994, the BIA Lists the Pala Luiseño But Not the Cupeño Tribe. In 1994 Congress passed the Federally Recognized Tribes List Act of 1994 Pub.L.No. 103-454, 108 Stat. 4791; codified at 25 U.S.C. §§ 479a to 479a-1 (hereinafter the “FRTLA”). Prior to the enactment of the FRTLA, the BIA had been publishing its List of Indian Tribes at least every three years pursuant to 25 C.F.R. § 83.5(a) (1994). An important impetus of the FRTLA was Congress’s recognition of a disturbing tendency on the part of the Secretary of the Interior to “derecognize” tribes. That concern is reflected in House Report 103-781 which provides the House Committee on Natural Resources’ analysis and recommendation to adopt the FRTLA with amendments and summarizes the law’s background and purpose, While the Department clearly has a role in extending recognition to previously unrecognized tribes, it does not have the authority to “derecognize” a tribe. However, the Department has shown a disturbing tendency in this direction. Twice this Congress, the Bureau of Indian Affairs (BIA) has capriciously and improperly withdrawn federal recognition from a native group or leader. H.R. Rep. No. 103-781, at 3 (1994). Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 37 of 97 27 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Under section 103 of the FRTLA, Congress made the following findings: the United States has a trust responsibility to recognized Indian tribes, maintains a government-to-government relationship with those tribes, and recognizes the sovereignty of those tribes; (3) Indian tribes presently may be recognized by Act of Congress; by the administrative procedures set forth in part 83 of the Code of Federal Regulations denominated ‘Procedures for Establishing that an American Indian Group Exists as an Indian Tribe;’ or by a decision of a United States court; (4) a tribe which has been recognized in one of these manners may not be terminated except by an Act of Congress;… (6) the Secretary of the Interior is charged with the responsibility of keeping a list of all federally recognized tribes; (7) the list published by the Secretary should be accurate, regularly updated, and regularly published, since it is used by the various departments and agencies of the United States to determine the eligibility of certain groups to receive services from the United States; and (8) the list of federally recognized tribes which the Secretary publishes should reflect all of the federally recognized Indian tribes in the United States which are eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Pub.L.No. 103-454, 108 Stat. 4791 § 103; codified at 25 U.S.C. §§ 479a to 479a-1 (italics. added.) Contemporaneous with the passage of the FRTLA, the BIA affirmed that BIA policy “distinguished between the powers possessed by a historic tribe and those possessed by a community of adult Indians residing on a reservation, i.e. a non-historic tribe.” [See PE-38 (Jan. 14, 1994 Letter of Acting Assistant Secretary for Indian Affairs (“AS-IA”) Wyman D. Babby to House Committee on Natural Resources (hereinafter the “Babby Letter”).] According to the Babby, that distinction “affects the group’s authority to define its membership and determines who is allowed to vote.” [Id.] The BIA’s view is that an historic tribe has existed since time immemorial. Its powers derive from its unextinguished, inherent sovereignty. Such a tribe Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 38 of 97 28 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 has the full range of governmental powers except where it has been expressly limited by Congress or is inconsistent with the dependent status of tribes. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). In contrast, a community of adult Indians is composed simply of Indian people who reside together on trust land. A community of adult Indians may have only those powers which are incidental to ownership of property and to its carrying on of business and those which may be delegated to it by the Secretary. [PE-38 at AC-948.] The BIA omitted the Cupeño tribe from the first List published pursuant to the FRTLA. See 60 Fed. Reg. 9,250 – 9,255 (Feb. 16, 1995). P. In 1994, the BIA Corrects the List to Add the Ione Band. On March 22, 1994, AS-IA Ada Deer issued a directive to add the Ione Band to the List. [Ans. ¶ 129; PE-54.] Unlike, the Cupeño tribe, the United States never set aside any land for the Ione Band. [Ans. ¶ 130.] Instead, attempts to purchase land were made in the 1910s and 1920s and a petition to purchase land on behalf of the Ione Band was considered and denied in 1941. [Id. see also PE-55 at AC-421 to 422.] Notwithstanding the foregoing attempts, the federal government never secured any land for the Ione Band prior to including the Ione on the List. [Ans. ¶ 131.] In January 1972, the Ione Band, with the assistance of the California Rural Indian Land Project (“CRILP”), contacted the BIA requesting that the United States take a 40-acre parcel of land into trust for the Band. [PE-56.] Ten months later, the BIA learned that the Ione Band, with CRILP’s assistance, had filed suit in California court to quiet title to the parcel of land. [Id.] On October 18, 1972, Commissioner of Indian Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 39 of 97 29 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Affairs, Luis Bruce, wrote to the Ione Band stating “Federal Recognition was evidently extended to the Ione Band of Indians at the time that the Ione Land purchase was contemplated.” [Id. at AC-403.] Bruce, then agreed to take the land into trust. [Id.] The Ione Band prevailed in its quiet title action in October 1972. [See PE-57.] Despite prevailing, and despite Bruce’s agreement to take the land into trust—the United States did not take any land into trust, and did not include the Ione Band on the first publication of the List in 1979. [Ans. ¶ 133; 44 Fed. Reg. 7,235 (Jan. 31, 1979).] In 1994, AS-IA Ada Deer “re-affirmed” Commissioner Bruce’s observation that federal recognition of the Ione Band was “evidently extended to the Ione Band” when the United States “contemplated” purchasing land for the Ione Band back in 1916. She agreed, to take land into trust that Bruce had agreed to take into trust more than two- decades earlier. [See PE-54; PE-56 at AC-403.] Despite the federal government’s subsequent decades-long failure to actually secure land for the Ione Band, AS-IA Deer implicitly concluded that the government-to-government relationship with the Ione Band still existed. [See PE-54; see also PE-55 at 419-420.] The BIA added the Ione Band’s name to the List in 1995. [See Ans. ¶ 134.] AS-IA Deer’s decision itself provides almost no analysis as to the BIA’s reasoning. [See PE-54.] However, in the BIA’s own words describing the decision in 2006, the BIA implicitly made that determination “on the basis of a judgment that the group never lost its Federal recognition.” [PE-55 at AC-420 (emphasis added).] It “relied upon a concept of Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 40 of 97 30 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 administrative error, in which a misinterpretation of the [Ione Band’s] status, rather than an actual change in its status, had resulted in the [Ione Band] being left off the list of federally recognized tribes.” [See id.] The Ione Band is currently on the List under the name, “Ione Band of Miwok Indians of California.” [Ans. 137.] Q. In 1994 the PBMI Submits a PBMI Constitution to BIA for Approval. In 1994, PBMI Executive Committee conducted an election to adopt a PBMI Constitution. [See PE-59 & PE-60.] The election to adopt the Constitution did not garner the necessary majority vote of the approximately 635 voting PBMI General Council members required under the Articles of Association provision 11 for adoption of any change. [See Art. 11, PE-50 at AC-206 (requiring majority vote of the entire General Council); compare PE-60 (identifying only 196 votes cast); see also PE-71 at AC-094 (plaintiff providing BIA with its estimate of the voting population in 1994).] Nevertheless, Chairman Smith submitted the constitution to the BIA for review and approval. On April 18, 1995, the BIA acknowledged receipt of the Constitution through Acting Superintendent Arlene J. Lacy, who wrote, The newly adopted Constitution is subject to Bureau approval and will require formal review. Until Bureau approval of the new document is given the basis of review will be conducted in conformance with the present Articles of Association Section 11. Amendment. The new constitution is considered to be an amendment to the present Articles of Association. Please be advised that until the Constitution receives Bureau approval the present Articles of Association remain in effect. [PE-61 (emphasis added.)] Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 41 of 97 31 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Repeatedly thereafter, the BIA recommended that the PBMI make changes to the Constitution and stated that if the PBMI accepted the recommendations, and submitted resolutions showing that the PBMI General Council had adopted the recommended changes, then the BIA would approve the PBMI Constitution. [Ans. ¶ 86.] In May 2000, a BIA memo between the BIA Southern California Agency, and the BIA Pacific Regional Director observed that, because PBMI was not an IRA tribe, the BIA was not required to approve the PBMI Constitution under the IRA, however, under the Articles of Association, the BIA did have approval authority. Therefore, “until such time that provision is removed Bureau approval will remain.” [See PE-39.] The memo cited article 11 of the Articles of Association [See id.] Provision 11 of the Articles of Association was never amended or repealed. [See id., see also Admin. Rec.-61 (complete articles with Amendments).] Chairman Smith did not make the changes that the BIA recommended. [Ans. ¶ 87.] Instead, on July 18, 2000, he sent a letter to Francis Muncy at the BIA’s Southern California Agency stating that the PBMI had decided not to incorporate the BIA’s recommendations and stated “We voted and passed the Constitution, which was submitted to the Bureau of Indian Affairs, Southern California Agency.” [See PE-62.] The letter provided no Resolution or evidence that there had been a vote to adopt the Constitution without incorporating the BIA’s comments. [See id.] Mr. Smith requested immediate approval of the PBMI Constitution. [See id.] Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 42 of 97 32 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 On July 25, 2000, Acting Regional Director Carmen Facio approved the PBMI Constitution. [See Ans. ¶ 89; PE-63 at AC-285.] The BIA’s approval of the PBMI Constitution did not terminate the Cupeño tribe. [Ans. ¶ 90.] The PBMI Constitution itself does not provide for the termination of the Cupeño tribe. [See PE-59; Ans. ¶ 90.] The PBMI Constitution does not provide that the Cupeño tribe relinquishes its sovereign identity as a federally recognized tribe. [See id.] The PBMI Constitution, like the Articles of Association defines membership based on lineal descent and blood quantum of individual Indian allottees on the 1895 and 1913 rolls. [Ans. ¶ 92.] R. In 2000, the BIA Corrects the List to Add Lower Lake Rancheria On December 29, 2000, AS-IA Kevin Gover ordered a correction of the List to include the Lower Lake Rancheria. [Ans. ¶ 139.] In reaching that decision, Gover relied on a Memorandum Drafted by BIA Employee Dale Risling dated September 14, 2000. [See Admin. Rec.-17 (hereinafter the “Risling Memo”); & Admin. Rec.-16 (Appendix Exhibits to the Risling Memo); see also PE-55 at AC-428 (stating that AS- IA Gover relied on Risling Memo in making his Lower Lake decision).] The Lower Lake Rancheria was purchased in 1916 with funds appropriated by 38 Stat. 582 (1914). [See PE-64 at AC-408.] There were between 0 and 20 inhabitants of the Lower Lake Rancheria between 1916 and 1947. [Ans. ¶ 140.] “The Superintendent of the Sacramento Indian Agency considered the land as uninhabitable, describing it in one memorandum as ‘a rock pile without any water for domestic use’” Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 43 of 97 33 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 [PE-64 at AC-408; see also PE-65 at AC-1066.] On October 9, 1947, the Acting Superintendent, California Indian Agency, granted an assignment of the entire Lower Lake Rancheria to four individual Indians (the Johnsons). [Ans. ¶ 142.] Lake County wished to use the Lower Lake Rancheria to construct an airport. Therefore, between 1951 and 1956 a sale of the Lower Lake Rancheria was negotiated and in 1956, pursuant to the Lower Lake Act, 70 Stat. 595 (1956), the land was transferred to Lake County. [Ans. ¶ 143.] The Johnsons consented to the sale of most of the Lower Lake Rancheria in return for the issuance of a fee patent for a 41-acre parcel of the land. [Ans. ¶ 144.] In two letters sent to the House Committee on Interior and Insular Affairs in 1954 and 1955, Assistant Secretary of the Interior Orme Lewis described the proposed sale of the Lower Lake Rancheria as, “in line with” the plan (and, in 1955, the policy) “of termination of Federal supervision over the property and activities of the Indians of the State of California.” [Ans. ¶ 145; see also PE-64 at AC- 409; PE-65 at AC-1105, & 1110.] “These letters were incorporated into the reports of the Committee on Interior and Insular affairs regarding the [Lower Lake Act.]” [Id. at PE-64 at AC-411, & PE-65 at AC-1110.] However, “the Lower Lake Act contains no words either expressly terminating, or expressing the intent to terminate, the legal status of either the Johnsons or the Tribe.” [Ans. ¶ 146; PE-64 at AC-411.] The BIA did not include Lower Lake Rancheria on the first publication of the List in 1979, an error which carried over to all subsequent publications. [Ans. ¶ 146.] Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 44 of 97 34 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 As of September 2000, the BIA considered Lower Lake Rancheria terminated. [See PE- 64 at AC-410 see also PE-65 at AC-1142 & 1145.] In or about 1995, “Indian persons lineally descended from those having at one time a connection to the Lower Lake Rancheria…adopted a tribal constitution…, drafted enrollment and election ordinances, and an enrollment manual” and sought re- affirmation of the Lower Lake Rancheria. [See PE-64 at AC-410; PE-65 at AC-1148.] AS-IA Gover concluded that statements in the Congressional record characterizing the Lower Lake Act as “in line with the plan and policy of termination” nevertheless “do not clearly evince an express intent to terminate.” [PE-64 at AC-411; PE-55 at AC- 428.] Thus, on December 29, 2000, Gover concluded that since the Lower Lake Act did not explicitly terminate the Lower Lake Rancheria, “the federal relationship between the Lower Lake and the United States never ended.” [See PE-55 at AC-417; PE-1 at AC-448.] Thus, the BIA did not “recognize” Lower Lake in 2000, it simply corrected the List to reflect Lower Lake’s status. Lower Lake Rancheria is currently on the List under the name “Koi Nation of Northern California.” [Ans. ¶ 158.] S. In 2006, the BIA Declines to List the Muwekma Ohlone Tribe. In January 1995, the Muwekma Ohlone tribe petitioned the Secretary of the Interior for recognition under 25 C.F.R. Part 83. See Muwekma Tribe v. Babbit, 133 F.Supp.2d 30, 31-32 (D.D.C. 2000) (hereinafter “Muwekma #1”). It was undisputed that the Muwekma Tribe had previously been recognized as the “Pleasanton or Verona Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 45 of 97 35 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Band,” however, the Muwekma tribe was not on the List. See id. In 1999, the Department of the Interior (“DOI”) placed the Muwekma tribe’s petition on active consideration and informed the tribe that it would be two to four more years before the petition would be reviewed. Id., 133 F.Supp.2d at 33. The Muwekma Tribe then sued asserting that the DOI had unreasonably delayed review of their petition. Id. The court granted the Muwekma Tribe’s Motion for Summary Judgment in part, directing the DOI to submit a proposed schedule to the Court not later than July 28, 2000. Id. at 41. In September 2002, the DOI promulgated a Final Determination concluding that Muwekma Tribe did not merit recognition as an Indian Tribe under Part 83. See Muwekma Ohlone Tribe v. Kempthorne, 452 F.Supp.2d 105, 110 (D.D.C. 2006) (hereinafter “Muwekma #2.”) In June 2003, the Muwekma Tribe sued seeking reversal of the Final Determination, placement on the List, and other injunctive relief. Id. 542 F.Supp.2d at 112. The Muwekma Tribe moved for summary judgment arguing that the DOI violated the APA and the Equal Protection clause of the United States Constitution when it required Muwekma to petition for acknowledgment under Part 83 despite reaffirming the status of the Ione Band and the Lower Lake Rancheria—which, Muwekma argued, were both similarly situated to Muwekma. See id. On competing summary judgments, the Court concluded the DOI had the authority under 25 C.F.R. § 1.2 (2006) to allow Muwekma to “bypass” the Part 83 procedures, as it did for Ione and Lower Lake. Muwekma #2, supra, 452 F.Supp.2d at Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 46 of 97 36 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 118. Therefore, the DOI was obligated to “cogently explain why it has exercised its discretion to require Muwekma to complete a Part 83 petition despite the fact that while Muwekma’s petition for recognition was pending, the Department reaffirmed the status of Ione and Lower Lake outside the Part 83 procedures.” Id. (internal citations, quotation marks, and brackets omitted.) The court ruled that, based on the administrative record, it was unable to discern the DOI’s rationale for disparately treating Muwekma. Id. at p. 125. The court ordered the DOI to remedy that deficiency by supplementing the administrative record not later than November 27, 2006. Id. On November 27, 2006, the DOI filed the Muwekma Explanation. [See Admin. Rec.-22; PE-55.] In that filing, the DOI asserted that its “decisions to clarify the status of Ione in 1994 and to reaffirm Federal recognition of Lower Lake in 2000 ... were not based merely on a finding that those groups were previously recognized by the Federal Government at some time in the past.” [PE-55 at AC-416.] Rather, the DOI found that the “Lower Lake and Ione ... had trust lands, agreements, legislation, or consultation [with the Federal Government] decades later than 1927….” whereas the Muwekma had no such interactions with the Federal Government. [Id. at AC-421.] With regard to the Lower Lake, DOI pointed out that “[t]he Federal Government purchased land to establish the Lower Lake Rancheria on January 25, 1916,” and that “[t]he government held this land in trust until the Act of 1956 authorized its sale.” [PE- 55 at AC-421.] The Department also cited a report issued in 1927 that “advised against Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 47 of 97 37 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 the purchase of land for [Muwekma],” and “recommended that land be purchased for the Lower Lake band.” [Id.] The DOI further observed that, “[i]n 1935, the agency again sought to acquire additional land for the [Lower Lake, Cache Creek, and Sulpher Bank people].” [Id.; citing PE-65 at AC-1066 to 1067.] The DOI also cited a 1944 DOI report in which it “noted the existence of a Lower Lake group living off the rancheria,” after which it “authorized an individual to move onto the rancheria and ... surveyed the rancheria’s population.” [PE-55 at AC-421.] The DOI also noted that the Federal Government has recognized the existence of the Lower Lake on two separate occasions. The first was in 1953, when the entry “Lower Lake Reservation, Calif.” was listed under the tribe “POMO INDIANS” in House Report 2503 [See PE-55 at AC-421; see also PE-45 at AC-1623 to 1624.] The second was in 1980 when “the BIA central office and regional office considered including the Lower Lake Rancheria on the list of federally recognized tribes, but did not do so.” [PE-55 at AC-421 (italics added); see also PE-65 at AC-1144.] According to DOI, “[t]his evidence demonstrate[d] a pattern of Federal Dealings with Lower Lake Rancheria that differs from any similar evidence for [Muwekma.] [PE-55 at AC-421.] The DOI stated, “[t]he Lower Lake action of 2000 recognized that group outside of the administrative process of acknowledgment on the basis of a judgment that the group never lost its Federal recognition.” [Id. at AC-420 (emphasis added.)] DOI also set forth its evidence showing a history of contact between the federal Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 48 of 97 38 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 government and the Ione Band, including the government’s attempts to purchase land for the Ione Band, internal BIA communications “about the general ‘Ione situation,” and the BIA’s denial of a petition from the Ione Band requesting the purchase of land. [PE-55 at AC-421 to 422.] DOI observed that “[b]ecause there is no evidence of any Federal dealings with a Muwekma group or Verona band after 1927, any relationship the group had with the Federal Government had ‘lapsed.’”) [Id. at AC-417 (emphasis added). The Court concluded it could not rule that DOI’s disparate treatment of Muwekma was arbitrary, capricious or unconstitutional. See Muwekma Ohlone Tribe v. Salazar, 813 F.Supp.2d 170, 198-199 (D.D.C. 2011) (hereinafter “Muwekma # 3”). The Muwekma tribe appealed to the D.C. Circuit court. See Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209 (D.C. Cir 2013) (hereinafter “Muwekma # 4”). The appellate court found that the federal government had identified facts showing its government-to-government interactions with the Ione Band and Lower Lake Rancheria. See id. 708 F.3d at 216. The court concluded that Muwekma showed no such evidence of government-to-government interactions, and thus, the Muwekma Tribe was not similarly situated to Ione and Lower Lake. Id. at pp. 216-217. The court affirmed the dismissal of the Muwekma Tribe’s APA and Equal Protection claims. See id. T. The United States Shows Continued Awareness of the Cupeño Tribe. While it did not include the Cupeño tribe on the List in 1979, or in 1994, or thereafter, the United States has continued to publicly exhibit its awareness that the Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 49 of 97 39 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Cupeño tribe is a distinct tribe from the Pala Luiseño. As late as October 2008, the BIA publicly exhibited its awareness of the Cupeño tribe alongside the Pala Luiseño in addition to six other federally-recognized southern California tribes and one “non- federally recognized Indian group” in a Notice published in the Federal Register directing in that, the San Diego Archaeological Center to provide notice to “the Cupeno (Cupa, Kuupangaxwichem) Nation of the Pala Reservation, California” of items found at an archaeological sight. See 73 Fed. Reg. 59,651 (Oct. 9, 2008), [PE-67 at AC-954.] The United States has also tracked the Cupeño and the Pala Luiseño as distinct populations. In the 2010 census “Cupeno tribal grouping, Agua Caliente” is listed as a tribal grouping C89. [Ans. ¶ 80; PE-68 at AC-894.] In that census, 286 individuals self identified as Agua Caliente Cupeño, and hundreds more self-identified as Pala Luiseño under tribal grouping E68. [Id. at AC-896.] There is no tribal category in the census for the “Pala Band of Mission Indians.” [Ans. ¶ 80.] U. In 2012, the BIA Corrects the List to Add the Tejon Tribe. On December 30, 2011, AS-IA Larry Echo Hawk corrected the List to include the Tejon Indian Tribe. [Ans. ¶ 160.] He summarized his conclusion as follows: It is clear that the United States previously and unambiguously recognized a political relationship with the Tejon Indian Tribe. Not only did the United States sign a treaty with the Tribe in 1851, it litigated on the Tribe’s behalf—all the way to the United States Supreme Court—in an effort to obtain title to the land occupied by the Tribe. When that effort did not succeed, the United States made multiple efforts to purchase the same land for the Tribe. When the owners would not sell the land, the United States continued to monitor the welfare of the Tribe. The United States also withdrew lands from the public domain Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 50 of 97 40 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 specifically to provide a land base for the Tejon Indian Tribe in 1916. Although the United States returned this land to the public domain in 1962, since the Tribe had made no use of it as the land was not fit for habitation, this act was not intended to terminate the Tribe. Congress has never formally terminated the Tribe’s legal and political status. [April 24, 2012 Echo Hawk Decision re Tejon, PE-1 at AC-453.] Based on those facts, AS-IA Echo Hawk determined that “the circumstances surrounding attempts to secure a reservation for the Tejon Indian Tribe support a finding that the Tribe was excluded from the List as a result of bureaucratic error resulting from either a misinterpretation of the facts or an administrative oversight.” [Id. at AC-452.] He concluded that that “mistaken omission from the list published in 1979 carried over to each list thereafter.” [PE-1 at AC-453.] He observed that “[t]hese circumstances point to an oversight in the list of federally recognized tribes, rather than an actual change in the status of the Tejon Indian Tribe.” [Id.] In that regard, and relying on Secretary Gover’s 2000 Lower Lake Decision, Echo Hawk stated, The acknowledgment regulation [at 25 C.F.R. part 83] does not apply to Indian tribes whose government-to-government relationship was never severed. Rather, it applies to tribes who have yet to establish such a government-to- government relationship when a previously existing government-to-government relationship has lapsed or when the government-to-government relationship was terminated through an administrative process. [PE-1 at AC-446 & 448; accord PE-69 at AC-1281.] AS-IA Echo Hawk made explicit that he made no attempt to decide who were the current citizens of the Tejon Tribe, but only observed that the Tribe’s citizens were enumerated on and are descended from the 1915 Terrell BIA Census. [See PE-1 at AC- Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 51 of 97 41 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 454.] The Tejon Indian Tribe is currently on the List. [Ans. ¶ 174.] V. In 2012, the PBMI Dis-enrolls 170 Cupeño Indians. In 2012, the PBMI dis-enrolled 170 descendants of Margarita Britten (sometimes misspelled “Brittain” or “Brittian”) from the PBMI based on the PBMI Executive Committee’s unilateral revision of the BIA’s historical records. Specifically, the PBMI Executive Committee changed Margarita Britten’s blood quantum from 4/4 Cupeño blood to only 1/2. [See PE-71 at AC-083; PE-9 & PE-70]; see also, generally, Allen v. Smith, 2013 U.S. Dist. LEXIS 35046 (S.D. Cal Mar. 11, 2013). Margarita Britten was a resident of Agua Caliente Village at Warner’s Springs. [See PE-12 at AC-1401.] In 1903, Ms. Britten was forcibly removed with the rest of her village to the Pala Valley pursuant to 32 Stat. 257. [See id.] Historical records, from that time, including census records, identify Ms. Britten as full-blooded Cupeño Indian. [See June 4, 1910 census, PE-30 at AC-1419 to 1420.]3 Based, on similar records, the BIA made a final determination in 1989 that Margarita Britten was a full-blooded “Cupa” (i.e., Cupeño) Indian. [See PE-9.] After the dis-enrollments in 2012, the BIA, through Acting Regional Director Risling, unequivocally expressed its awareness of the final determination that Margarita Britten was a full-blooded “Cupa” Indian, and recommended re-enrollment of her descendants on that basis. [See PE-70 at AC-464.] However, despite publicly re-affirming its conclusion that Margarita Britten was a full- 3 To assist the Court, Plaintiff has included a screenshot enlargement of the relevant portion of AC-1419 at the end of PE-30. Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 52 of 97 42 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 blooded Cupeño Indian, the BIA thereafter declined to issue Certificates of Degree of Indian Blood to descendants of Margarita Britten. [See PE-72.] W. In December 2014, the Cupeño Tribe Adopts a Constitution and Requests Correction of the List. The PBMI Executive Committee’s revision of established history demonstrated to Plaintiff that the PBMI is broken and no longer serves the Cupeño tribe. [See PE-71 at AC-084.] The PBMI has never had any authority to dis-enroll anyone from the Cupeño tribe under either the Articles of Association or the Constitution. [See Admin. Rec.-61 & 63.] That is the exclusive sovereign right of the Cupeño tribe. See Santa Clara Pueblo, 436 U.S. 49, 72 n.32. (1978). Thus, on August 23, 2014, the Cupeño tribe resolved to withdraw from the PBMI and disassociate from the Pala Luiseño. [See Resolution No. 08-23-2014-1, PE-73 (hereinafter the “Cupeño Withdrawal Resolution”).] On August 23, 2014, the Cupeño further resolved to change its name from “Agua Caliente No. 1” to “The Agua Caliente Tribe of Cupeño Indians of the Pala Reservation.” [See Resolution No. 08-23-2014-2, PE-74.] On December 20, 2014, the Cupeño adopted a Constitution. [See Admin. Rec.-4 at AC-025 to AC-061.] On December 23, 2014, the Cupeño tribe, through its Attorney Andrew W. Twietmeyer, sent written notice to AS-IA Kevin Washburn of the Cupeño tribe’s adoption of a Constitution. [See PE-75.] In that letter, the Cupeño tribe also requested that the BIA correct the List to include the Cupeño. [See id.] A copy of the Cupeño Constitution was enclosed. [See id.; see also Admin. Rec.-4.] Included with the Cupeño Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 53 of 97 43 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Constitution was a cover letter signed by William Pink, Tribal Chairperson; Kenneth Johnson, Vice Chairperson; and Gina Howard, Secretary and Treasurer. [PE-75 at AC- 019 to 021.] That letter, introduced the Constitution, requested that the Cupeño tribe be added to the List, and requested the BIA’s assistance with accounting and peaceable division of the assets of the Pala Reservation. [Id.] On January 16, 2015, Attorney Twietmeyer submitted a request to schedule a phone call with AS-IA Washburn to follow up on the December 22, 2014 letter. [Ans. ¶ 97.] On February 5, 2015, Mr. Twietmeyer received an email response from AS-IA Washburn’s office. The email stated, that the Office of the AS-IA was referring the Tribe’s request to the Office of Federal Acknowledgment (“OFA”) and directed Attorney Twietmeyer to contact OFA Director Lee Fleming. [Ans. ¶ 98.] On February 5, 2015, Attorney Twietmeyer called OFA Director Fleming, left a message with his secretary, and followed up with Director Fleming by email. Mr. Twietmeyer attached a copy of the December 22, 2014 letter to his email. [Ans. ¶ 102.] On February 6, 2015, Director Fleming promptly called Mr. Twietmeyer back and thanked him for attaching the December 22, 2014 letter—which Director Fleming said he had never seen before. [Ans. ¶ 103.] Director Fleming told Mr. Twietmeyer that, after he had reviewed the December 22, 2014 letter, he had looked into the matter and had been advised that a response is being formulated and that the BIA needed some time. [Ans. ¶ 104.] Director Fleming told Mr. Twietmeyer that, at some point, Director Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 54 of 97 44 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Fleming may be asked for his input on the December 22, 2014 letter, and that he would probably advise that the Cupeño tribe’s request did not fall within the OFA, since (as Mr. Twietmeyer explained) the Cupeño tribe was not seeking federal recognition, but rather, was seeking to have the List corrected to reflect its federally-recognized status. [Ans. ¶ 105.] Director Fleming gave Attorney Twietmeyer his phone number and told him that he could call Director Fleming back in a few weeks if he had not received a response. [Ans. ¶ 106.] As of April 24, 2015 Director Fleming told Mr. Twietmeyer that the Solicitor was still preparing a response. [Ans. ¶ 108.] X. In May 2015, the PBMI Replaces the Pala Luiseño on the List by Way of a Purported Name Change. In every publication of the BIA’s Tribal Leaders Directory (“TLD”) until 2011, the BIA identified Robert Smith as the chairman of the PBMI. [See PE-71 at AC-097.] However, commencing in 2011, the TLD began listing Mr. Smith as Chairman of the “Pala Band of Luiseño Mission Indians” (emphasis added).—i.e., the tribe listed in the Federal Register. [See id.] The identification of Mr. Smith as the chairman of the Pala Luiseño has no basis in fact. As set forth above, the Pala Luiseño are a historic tribe that has existed in the Pala Valley since time immemorial. [See Ans. ¶¶ 11 - 19.] The PBMI is an association that was created in 1959. [See Ans. ¶¶ 51-52.] The PBMI and the Pala Luiseño are not the same entity. [Amended Complaint & Ans. ¶¶ 110-111.] On or about March 3, 2014 Pacific Regional Director, Amy Dutschke issued a Notice of Decision addressed to “Honorable Robert Smith Chairman, Pala Band of Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 55 of 97 45 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Luiseno Mission Indians” (emphasis added.) [See PE-76.] That Notice of Decision purports to grant an application purportedly on the part of the Pala Luiseño to have land taken into trust for the benefit of the Pala Luiseño. [See id.] There are no facts in the Administrative Record supporting the conclusion that Mr. Smith has ever been elected or appointed as chairman of the Pala Luiseño. Mr. Smith is chairman of the PBMI. [See, e.g., PE-63 & PE-77.] Plaintiff is aware of no prior BIA correspondence addressed to Mr. Smith in the purported capacity of chairman of the Pala Band of Luiseño Mission Indians. [See Original Complaint Dkt. No. 1 at ¶ 121.] The stage having thus been set, in or about September, 2014, the PBMI passed a resolution declaring that the Pala Band of Mission Indians’ official name is “Pala Band of Mission Indians.” [Ans. ¶ 109; PE-78.] The resolution states that the PBMI is entered on the List as “the Pala Band of Luiseno Mission Indians of the Pala Reservation, California” [See id. (emphasis added.)] The resolution requests that the BIA change the List entry to “Pala Band of Mission Indians of the Pala Reservation, California” and “Update all BIA files to reflect the Tribe’s official name.” [Id.] On May 14, 2015, BIA Tribal Government Officer, Harley Long, emailed the resolution to Division of Indian Services Chief, Laurel Iron Cloud. Mr. Long stated, Attached is the Pala’s request to have the Tribe listed as the Pala Band of Mission Indians of the Pala Reservation, California. They passed the attached resolution requesting such, however, their Constitutions[sic] states the official name of the Tribe is Pala Band of Mission Indians. They are currently listed in the Federal Register and TLD as the Pala Band of Luiseno Mission Indians of the Pala Reservation, California, which does not match their request or their Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 56 of 97 46 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Constitution. I contacted the Tribe and explained the guidance you provided stating their official name must match their governing documents, and they are agreeable to be listed as the Pala Band of Mission Indians. Is[sic] the attached request and supporting documents sufficient to [sic] listed as the Pala Band of Mission Indians? The Tribe would like to have their name listed as the Pala Band of Mission Indians in the upcoming directory, so your immediate response is appreciated. [PE-79 at AC-643 (italics added).] Thus, unilaterally claiming the identity of the Pala Luiseño, the PBMI, submitted a PBMI resolution, requesting that the BIA change the Pala Luiseño’s name to the PBMI’s name and to “update” the Tribal Leaders directory to identify Robert Smith as Chairman of the PBMI—an “update” which, as set forth above, was actually a reversion to the TLD’s pre-2011 accurate form. [See id.; see also PE-71 at AC-098.] Without questioning, Long’s unsupported assertion that the PBMI was listed as the Pala Luiseño, and despite having received no resolution from the Pala Luiseño requesting a name change, Iron Cloud responded that she had no problem with the name change [see PE-79 at AC-647.] Iron Cloud advised that the name in the TLD could not be changed until the updated List was published because, as she later explained in an email of June 15, 2015, “from before [she] came on board, the practice has been to match the names in the leaders directory to the official names in the Federal Register.” [PE-79 at AC-644.] On or about May 19, 2015, Cupeño Chairman Pink learned of the PBMI’s request to replace the Pala Luiseño on the List and he called Ms. Iron Cloud and told Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 57 of 97 47 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 her that “the federally recognized tribe – Pala Band of Luiseno Mission Indians of the Pala Reservation – is not the group that is requesting the name change to “Pala Band of Mission Indians.” [PE-79 at AC-645.] Ms. Iron Cloud immediately emailed Long, I want to make sure we have crossed all of our T’s and dotted all of our i’s in this matter. Historically speaking, the entity from which we received the formal request, resolution and constitution from is, indeed, the group that is currently known as “Pala Band of Luiseno Mission Indians of the Pala Reservation” – correct? [Id. (italics added.)] Mr. Long responded with only the following: “Yes the request received is from the correct group as it was submitted by the recognized governing body of the Tribe.” [Id.] Mr. Long identified no evidence that the Pala Luiseño, the Cupeño, or any other Indians at Pala had unified as a single tribe or consented to the BIA consolidating the Indians at Pala into a single tribe. Moreover, the BIA is aware of no correspondence, solicitor opinions, congressional acts, executive orders or secretarial orders that have established the PBMI as a tribe. [See (BIA response to 2015 FOIA Request) PE-80.] On January 29, 2016, Defendant published the 2016 List. The 2016 List replaced the name of the Pala Luiseño with the name of the PBMI. [Ans. ¶ 192.] The Tribal Leaders Directory has also been changed back to its pre-2011 form, identifying Robert Smith as the leader of the PBMI. See BIA’s recently launched interactive Directory. Available at: < http://www.bia.gov/tribalmap/DataDotGovSamples/tld_map.html >. Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 58 of 97 48 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Y. In June 2015, the Cupeño Tribe Reiterates Its Request that Defendant Correct the List. On June 16, 2015, Attorney Twietmeyer, sent a 20-page letter to Ms. Iron Cloud copying (among several others) AS-IA Kevin Washburn, OFA Director Lee Fleming, and Solicitor, Scott Keep. [Ans. ¶ 118.] Attorney Twietmeyer, provided a detailed account, with more than 220 pages of exhibits. [Ans. ¶ 119; see also Admin. Rec.-6.] In that letter, Mr. Twietmeyer conveyed the Cupeño tribe’s demand that the United States promptly confirm that the next publication of the List will be corrected to identify the Cupeño. [See PE-71 at AC-083; 084; 092 to 093; 94; 96; and 100.] On July 1, 2015, the BIA published new rules for Federal Acknowledgement of American Indian Tribes. [Ans. ¶ 121.] The new rules, by their own terms, still apply to tribes who are seeking recognition, and, therefore, are inapplicable on their face to a tribe whose government-to-government relationship is active despite erroneous exclusion from the List. See 25 C.F.R. § 83.3 (2016) (“This part applies only to indigenous entities that are not federally recognized Indian tribes.”); compare PE-1 at AC-446 (“The acknowledgment regulation does not apply to Indian tribes whose government-to-government relationship was never severed. Rather, it applies to tribes who have yet to establish such a government-to-government relationship when a previously existing government to government relationship has lapsed or when the government-to-government relationship was terminated through an administrative process.”) accord PE-55 at AC-417 & PE-69 at AC-1281.] Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 59 of 97 49 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 On July 1, 2015, the BIA also published a “Policy Guidance” stating that the BIA “has determined that it will no longer accept requests for acknowledgement outside the 25 C.F.R. Part 83 process. Rather, the Department intends to rely on the newly reformed Part 83 process as the sole administrative avenue for acknowledgment as a tribe.” [PE-81 at AC-456.] The Policy Guidance does not state that the BIA will no longer correct administrative errors in the List. [See id.; compare Ans. ¶ 123.] Between July 17, 2015, and July 28, 2016, Mr. Twietmeyer and Assistant Solicitor Keep corresponded. Mr. Twietmeyer expressed his belief that the BIA had issued its recent Policy Guidance in response to the Cupeño tribe’s request for correction of the List, and that, to the extent the BIA would purport to require the Cupeño tribe to go through the Part 83 process based on that new Policy Guidance, the BIA would be missing the point—since, the Cupeño tribe is seeking a correction of the List, and is not seeking re-affirmation as a previously-acknowledged tribe whose government-to-government relationship has lapsed or been terminated. [Ans. ¶ 124.] Z. Defendant Denies the Cupeño Tribe’s Request to Correct the List. Plaintiff filed this action on November 9, 2015. See Complaint, Dkt. No 1. The Complaint stated two claims for relief. The first claim was for an order to compel Defendant to respond to Plaintiff’s request to correct the List. See id. ¶ 207. The second claim sought a prohibitory injunction enjoining Defendant from removing the name of the Pala Luiseño from the List. See id. ¶ 219. On January 20, 2016, Defendant moved Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 60 of 97 50 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 to dismiss Plaintiff’s second claim for relief. See Dkt. No. 11. That Motion and Plaintiff’s second claim for relief were mooted when, on January 29, 2016, Defendant published the 2016 List, which as set forth above, replaced the Pala Luiseño with the following entry: “Pala Band of Mission Indians (previously listed as the Pala Band of Luiseno Mission Indians of the Pala Reservation, California)” [See PE-82.] On February 17, 2016, Defendant finally responded to the Cupeño tribe’s request to correct the List. [Ans. ¶ 193.] He denied the Cupeño tribe’s request that the List be corrected. [Ans. ¶ 194.] Defendant based his response on his conclusion that the people now seeking Federal recognition as the Agua Caliente Tribe of Cupeño Indians of the Pala Reservation are, or were until recently, members of the Pala Band of Mission Indians, a federally recognized tribe. Thus the Cupeño Indians is not similarly situated to the reaffirmed tribes [i.e. the Ione, Lower Lake, and Tejon] as none of those tribes claimed to be withdrawing or dissociating from a federally recognized tribe. Accordingly, denying [Plaintiff’s] request for reaffirmation and directing [Plaintiff] to exhaust administrative remedies by proceeding through the Part 83 process does not violate their equal protection guarantees. [Ans. ¶ 195; PE-83 at AC-002.] The parties stipulated on February 23, 2016 to request the Court permit Plaintiff to file an Amended Complaint, and the Court granted the request. See Dkt. Nos. 12 and 13. Plaintiff filed the Amended Complaint on March 8, 2016. See Dkt. No. 14. The Amended Complaint states a single claim for injunctive relief seeking an order that the Court reverse Defendant Robert’s decision refusing to place the Cupeño on the List and order Defendant to correct the List by adding the Cupeño. See id. at prayer ¶¶ 1-2. Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 61 of 97 51 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 III. LEGAL ARGUMENT A. Standard on Summary Judgment in APA Cases. Under the Administrative Procedures Act, found at 5 U.S.C. § 551 et. seq. and 5 U.S.C. §§ 701 et. seq. (the “APA”) an agency decision will be set aside if it is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (B) contrary to constitutional right, power, privilege, or immunity; … (D) without observance of procedure required by law;….” 5 U.S.C. § 706(2)(A); see also Partridge v. Reich, 141 F.3d 920, 923 (9th Cir. 1998) quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-414 (1971). The Court’s review is deferential to the agency. “Review under the arbitrary and capricious standard is narrow, and [the Court does] not substitute [its] judgment for that of the agency.” Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1110 (9th Cir. 2015). However, “[e]ven in matters of agency expertise,…, the degree of deference a court should pay an agency’s construction is affected by the thoroughness, validity, and consistency of the agency’s reasoning.” Muwekma #2, supra, 452 F.Supp.2d at 115 quoting Hornbeck Offshore Transp. v. U.S. Coast Guard, 424 F.Supp.2d 37, 46 (D.D.C. 2006) quoting FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (internal quotation marks brackets and ellipsis omitted). Under 5 U.S.C. § 706, the Court should reverse a decision as arbitrary and capricious if the agency, “failed to consider an important aspect of the problem, or Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 62 of 97 52 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 offered an explanation 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.” Cascadia Wildlands, supra, 801 F.3d at 1110; quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2009); accord Motor Veh. Mfrs. Assn. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Accordingly, the Court, “must consider whether the agency’s decision was based on a consideration of relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (emphasis added). “At a minimum, the agency must have considered relevant data and articulated an explanation establishing a ‘rational connection between the facts found and the choice made.’” Muwekma # 3, supra, 813 F.Supp.2d at 189 quoting Bowen v. Am. Hosp. Assn., 476 U.S. 610, 626 (1986). “Where the agency has failed to provide a reasoned explanation, or where the record belies the agency’s conclusion, [the court] must undo its action.” Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999); see also Massachusetts v. E.P.A., 549 U.S. 497, 535 (2007) (E.P.A. action found arbitrary, capricious, and not in accordance with law because E.P.A. offered no reasoned explanation for its action). In that regard, “agency action is arbitrary and capricious if it departs from agency precedent without explanation.” Ramaprakash v. F.A.A., 346 F.3d 1121, 1124 (D.C. Cir. 2003). While “[a]gencies are free to change course as their expertise and experience may suggest or require, [] when they do so they must provide a ‘reasoned Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 63 of 97 53 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.’”; see also Sierra Club v. Tahoe Reg’l Planning Agency, 916 F.Supp.2d 1098, 1111-1112 (E.D. Cal. 2013) (adopting Ramaprakash.) “An agency’s failure to come to grips with conflicting precedent constitutes ‘an inexcusable departure from the essential requirement of reasoned decision making.’” Ramaprakash, supra 346 F.3d at 1125 quoting Columbia Broad. Sys. v. FCC, 454 F.2d 1018, 1027 (D.C. Cir. 1971). In other words, “an agency may not ‘treat like cases differently’” Freeman Eng’g. Assoc., Inc. v. F.C.C., 103 F.3d 169, 178 (D.C. Cir. 1997) quoting Airmark Corp. v. FAA, 758 F.2d 685 (D.C. Cir. 1985); see also, Hansen v. Salazar, 2013 U.S. Dist. LEXIS 40622 at *22 (W.D. Wash. Mar. 22, 2013) quoting Los Angeles v. Shalala, supra, 192 F.3d at 1022 (“an agency action is arbitrary when the agency offers insufficient reasons for treating similar situations differently”) (quotation marks and citations omitted). Disparate treatment of similarly situated parties without adequate explanation is not only a violation of the APA, it is a violation of Constitutional guarantees of equal protection. “Both the Equal Protection Clause and the APA prohibit agencies from treating similarly situated petitioners differently without providing a sufficiently reasoned justification for the disparate treatment.” Muwekma # 2, supra, 452 F.Supp.2d at 115; see also Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1102–03 (D.C.Cir.2005) (“To prevail on [an] equal protection claim, [a plaintiff must] Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 64 of 97 54 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 demonstrate that [it] was treated differently than similarly situated [parties] and that the [agency’s] explanation does not satisfy the relevant level of scrutiny.”); accord Plyler v. Doe, 457 U.S. 202, 216 (1982). As the Ninth Circuit has observed, “the equal protection argument can be folded into the APA argument, [where] no suspect class is involved and the only question is whether the defendants’ treatment of [the plaintiff] was rational (i.e., not arbitrary and capricious)” Ursack v. Group, 639 F.3d 949, 955 (9th Cir. 2011) citing U.S. v. Weston, 255 F.3d 873, 880 (D.C. Cir. 2001) (describing the rational basis test and the arbitrary and capricious standard as “analogues”). In reviewing an APA claim, the Court is, for the most part, limited to considering the Administrative Record compiled by the agency. See Friends of the Earth v. Hintz, 800 F.2d 822, 828-829 (9th Cir. 1986); Citizens to Preserve Overton Park, supra 401 U.S. at 420. Thus, in reviewing an administrative action under the APA, “there are no disputed facts that the district court must resolve.” Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985). Instead, “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Id.; see also City & Cnty. of San Francisco v. U.S., 130 F.3d 873, 877 (9th Cir. 1997). Thus, “when reviewing the final agency action, the district court is not managing a “garden variety civil suit,” but rather “sits as an appellate tribunal.” See Los Angles v. Shalala, supra, 192 F.3d at 1011; accord Aldarwich v. Hazuda, 2016 U.S. Dist. LEXIS Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 65 of 97 55 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 35616 at *17 - *18 (C.D. Cal. Mar. 18, 2016). The usual “genuine dispute of material fact” standard for summary judgment does not apply in an APA case. San Joaquin River Group Auth. v. Nat’l Marine Fisheries Serv., 819 F.Supp.2d 1077, 1083-84 (E.D. Cal. 2011). Instead, summary judgment functions as a mechanism for determining as a matter of law whether the administrative record supported the agency’s decision and whether the agency complied with the APA. Occidental Eng’g Co., supra, 753 F.2d at 769. “[S]ummary judgment is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.” Id. at 770. B. Federal Recognition of Indian Tribes. Prior to the enactment of regulations (see 25 C.F.R. § 54.6 (1979)) and then statutes (see 25 U.S.C. §§ 479a-479a1) requiring publication of a List of federally recognized Indian tribes, “[a]cknowledgment of ‘Indian Tribe’ status traditionally came through official interaction between the federal government and the tribe, most often by way of treaty or statute.” AMERICAN INDIAN LAW DESKBOOK, CONFERENCE OF WESTERN ATTORNEYS GENERAL § 2:6 at 102 (K. Armstrong et. al. 2016); see also, The Kansas Indians, 72 U.S. 737, 756 (1866) (determining that actions of the United States in forming treaties with the head men of the Shawnees “settles, beyond controversy, that the Shawnees are as yet a distinct people, with a perfect tribal organization.”) see also Treaty with the San Luis Rey, Etc., 1852 [PE-14.] The United States has long recognized that Indian tribes are qualified to exercise Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 66 of 97 56 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 powers of self-government, not by virtue of any delegation of powers, but by reason of their original tribal sovereignty. See U.S. v. Wheeler, 435 U.S. 313, 323-324 (1978). Recognition of an Indian Tribe is “a formal political act, it permanently establishes a government-to-government relationship between the United States and the recognized tribe as a ‘domestic dependent nation,’ and imposes on the government a fiduciary trust relationship to the tribe and its members.” H.R. Rep. No. 103-781, at 2 (1994). Tribal powers of self-government are recognized by the Constitution, legislation, treaties, judicial decisions, and administrative practice. Neither the passage of time nor the apparent assimilation of native peoples can be interpreted as diminishing or abandoning a tribe’s status as a self governing entity. Once recognized as a political body by the United States, a tribe retains its sovereignty until Congress acts to divest that sovereignty. COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 4.01[1][a] at p. 207 (Nell Jessup Newton ed., 2015) (hereinafter “COHEN’S HANDBOOK”) (emphasis added); see also Harjo v. Kleppe, 420 F.Supp. 1110, 1142-1143 (D.D.C. 1976) aff’d sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978) (congressional action to terminate a tribe must be explicit); [see also PE-64 at AC-411; PE-1 at AC-448 (lack of any explicit termination showed that government-to-government relationships persisted.)] Thus, the List is not determinative of federal recognition—it is merely serves to reflect it. In other words, a careful inquiry as to whether a tribe is federally recognized does not require a simple perusal of the List, but rather, it requires a inquiry as to whether a tribe should be on the List. That principal is plainly illustrated by the BIA’s past practice recorded above in which the BIA determined that the Ione Band, Lower Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 67 of 97 57 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Lake Rancheria, and Tejon Tribe should be on the List. [See, e.g., PE-69 at AC-1281 (“A fact intensive analysis must be conducted to determine whether the United States had a previous, unambiguous political relationship with a particular tribe in question that has not been severed or lapsed.”) As set forth in section III(D) below, the Cupeño tribe should also be on the List. C. The Trust Relationship and the List. Perhaps the most fundamental principal of federal Indian law is that the federal government has a fiduciary trust relationship with Indian tribes. See generally, COHEN’S HANDBOOK, supra, § 5.04[3][a] at 412. Since the early part of the nineteenth century, the United States Supreme Court has likened the trust relationship between the United States and American Indian tribes to that of a “ward to his guardian.” Cherokee Nation v. Georgia, 30 U.S. 1, 27 (1831) (Marshall J.) In carrying out its treaty obligations with the Indian tribes the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards. Seminole Nation v. U.S., 316 U.S. 286, 296-297 (1942) Thus, actions that might otherwise be within the BIA’s discretion may be found arbitrary and capricious in the context of its trust responsibility to Indians. See, e.g., Cobell v. Norton, 240 F.3d 1081, 1104 (D.C. Cir. 2001); Pyramid Lake Paiute Tribe v. Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 68 of 97 58 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Morton, 354 F.Supp. 252 (D.D.C. 1972) (Secretary’s actions in allocating water was breach of trust and thus arbitrary and capricious); Jicarilla Apache Nation v. Supron Energy Corp., 728 F.2d 1555, 1566 (10th Cir. 1984) (it is significant error to “employ[] administrative law analysis without considering what role, if any, the Secretary’s fiduciary duty should play in a court’s examination of his administrative action.”) Moreover, because of the federal government’s trust relationship with the tribes, it has long been the rule that statutes passed for the benefit of Indians, treaties with Indian tribes, and the federal government’s other dealings with Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Alaska Pacific Fisheries v. U.S., 248 U.S. 78, 89 (1918); Choate v. Trapp, 224 U.S. 665, 675-676 (1912); Jones v. Meehan, 175 U.S. 1, 10-11 (1899); Blatchford v. Native Village of Noatak, 501 U.S. 775, 795 (1991). The Federally Recognized Tribes List Act of 1994 (“FRTLA”) is legislation passed for the benefit of Indians. See FRTLA, Pub. L. No. 103-454, 108 Stat. 4791 § 103(2) (expressing United States’ trust duty to Indians in Congressional findings supporting the Act); see also H.R. Rep. No. 103-781, at 3 (1994) (expressing congress’s disapproval of the Secretary’s “disturbing tendency” to “derecognize” tribes). As a statute passed for the benefit of Indians, the FLRTA must be construed liberally in favor of the Cupeño. See AK. Pac. Fisheries, supra, 248 U.S. at 89. The FRTLA thus requires the Secretary of the Interior to annually publish a List that is Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 69 of 97 59 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 accurate and “reflects all of the federally recognized Indian tribes in the United States which are eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 108 Stat. 4791 § 103(7)-(8). At the same time Congress passed the FRTLA, Congress reiterated the limitations of the Secretary’s authority and its mandate that the List be accurate and complete by the enactment of 25 U.S.C. § 1212—which was directed specifically to the BIA’s omission of the Central Council of Tlingit and Haida Indian Tribes of Alaska from the List. The statute reaffirmed the tribe’s federal recognition and provides: (3) the Secretary does not have the authority to terminate the federally recognized status of an Indian tribe as determined by Congress; (4) the Secretary may not administratively diminish the privileges and immunities of federally recognized Indian tribes without the consent of Congress;…. 25 U.S.C. § 1212. Plaintiff respectfully submits that, in the administration of his trust duties, and pursuant to Congressional mandate, Defendant is affirmatively obligated to publish a List that includes every federally recognized tribe. Thus, when, as in this case, the BIA is presented with evidence showing that a federally recognized tribe exists, but is not on the List, the BIA is bound by law to correct the List. That is precisely what the BIA itself concluded with respect to the Ione Band, the Lower Lake Rancheria, and the Tejon Tribe. Anything less is a violation of a statutory mandate and a breach of trust. See AK. Pac. Fisheries, supra, 248 U.S. at 89; Seminole Nation, supra, 316 U.S. at Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 70 of 97 60 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 296-297; Jicarilla Apache Nation v. Supron Energy Corp., 728 F.2d at 1566. D. Defendant’s Refusal to Correct the List Violates Established BIA Precedent Without any Reasoned Justification. As set forth above, both the Equal Protection Clause and the APA prohibit agencies from treating similarly situated parties differently without providing a sufficiently reasoned justification for the disparate treatment. Ramaprakash, supra, 346 F.3d at 1124; Sierra Club, supra 916 F.Supp.2d at 1111-1112; Columbia Broad. Sys., supra, 454 F.2d at 1027; Freeman Eng’g. Assoc., Inc., supra, 103 F.3d at 178; Hansen, supra, 2013 U.S. Dist. LEXIS 40622 at *22; Los Angeles v. Shalala, supra, 192 F.3d at 1022; Muwekma # 2, supra, 452 F.Supp.2d at 115; Ursack, supra, 639 F.3d at 955. United States Courts of Appeal have defined “similarly situated,” to mean that the two classes being compared are “prima facie identical in all relevant respects, or directly comparable ... in all material respects.” Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 680 (7th Cir.2005); Grider v. City of Auburn, Ala., 618 F.3d 1240, 1264 (11th Cir. 2010); Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1212 (10th Cir. 2006); Neilson v. D’Angeles, 409 F.3d 100, 104 (2nd Cir. 2005) overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2nd Cir. 2008). 1. The Cupeño Tribe Is Similarly Situated to the Ione Band. As set forth in Section II(P) above, the BIA corrected the List to add the Ione Band in 1994. The BIA found that correction was necessary because, “[t]he Federal Government attempted to purchase land” for an Ione group of Indians that were Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 71 of 97 61 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 identified in a BIA census taken in 1915. [See PE-55 at AC-421 (emphasis added.)] The BIA’s account indicates that, from 1916 to 1994, the Ione Band’s government-to- government relationship with the United States was limited to a few instances, which Plaintiff respectfully submits, demonstrate only the federal government’s vague and wholly irresolute awareness of the Ione Band. Namely, in 1927, a DOI agent remarked in a report that the DOI had “been considering the purchase of a tract for the Indians at Ione for the past several years.” [See id.; see also PE-1 at AC-447.] But the United States made no such purchase. [See id.] Then, in 1933, another representative of the DOI “informed the Commissioner of Indian Affairs about the general ‘Ione situation’” [See id.] Clearly no action was taken in response to that vaguely described report. [See id.] Then, in 1941, the DOI considered, and apparently rejected, the Ione Band’s petition requesting the purchase of land. [See id.] Thus, even after it was explicitly apprised of the Ione Band’s existence and need of land, the United States did nothing for the Ione Band. [See id.] Instead it was CRILP (not the federal government) that helped the Ione Band in securing title to its lands. In January 1972, CRILP contacted the BIA requesting that land be taken into trust for the Ione Band. [See PE-56.] The BIA apparently did nothing, and CRILP filed suit on the Ione’s behalf to quiet title to the land in 1972. [See id.] When the BIA learned of that lawsuit, it wrote to the Ione Band agreeing to take the land into trust. [See id.] The Ione Band prevailed in its quiet title action less than two weeks later. [See PE-57.] Thereafter, despite the BIA’s Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 72 of 97 62 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 agreement, the BIA did not take the land into trust [see PE-54], and it did not include the Ione Band on its 1979 List. [See PE-15.] By comparison, the United States provided the Cupeño Indians with a reservation by executive order in 1875. [Ans. ¶ 21.] Moreover, even after the Cupeño’s reservation was cancelled in 1880, the United States maintained its awareness of the Cupeño and continued to administer services to the Cupeño. See section II(E) above describing the Atkins Report, his visits to Agua Caliente Village, and the school and legal counsel the BIA hired to the benefit of Indians at Warners Ranch. No such evidence existed for the Ione Band. [See PE-55 at AC-420 to 422.] The United States took a census of the Cupeño Indians in 1897, just as it did with the Ione Group in 1915. [See PE-12 compare PE-55 at AC-421 (Ione group identified by census in 1915).] Moreover, when the Cupeño Indians faced eviction, the Commissioner of Indian affairs reported to the U.S. Senate that the Cupeño had “an exceedingly strong claim on the Government for protection in their right to their lands.” [PE-13 at AC-1689.] The U.S. Attorney General then appealed to the United States Supreme Court on the Cupeño’s behalf. [See PE-25 at AC-1464 compare PE-55 at AC-422; PE-56; & PE-57 (CRILP, not the federal government, provided the Ione Band with legal assistance).] When the Supreme Court ruled that the Cupeño Indians had no right of occupancy at Warner’s Ranch, the Annual Report of the Commissioner of Indian affairs characterized that situation as “the most noteworthy and unfortunate Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 73 of 97 63 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 event that has…perhaps ever occurred in this agency….” [See PE-2.] The urgency of that report, and the federal government’s subsequent action starkly contrasts with the vague record of a 1933 report to the Commissioner of Indian Affairs about the general “Ione situation”—a situation that persisted for 60 more years. [See PE-55 at AC-421.] Unlike the Ione Band, the United States did not just talk about the Cupeño, it also acted to purchase land and relocate the Cupeño. [See Ans. ¶ 21.] The Cupeño Indians have lived on and benefited from that land for over a century during which time the United States has administered benefits and services to the Cupeño, the Pala Luiseño, and all of the other Indians in the PBMI. [See Amended Cmplt. ¶ 111; Ans. ¶ 111; see also, e.g. PE-52 (tracking federal employment assistance to the Cupeño and Pala Luiseño as separate tribes in 1969); PE-67 at AC-954 (directing the San Diego Archaeological Center to contact both the Cupeño and Pala Luiseño in 2008.)] Plaintiff respectfully submits that the record with respect to the Ione Band shows what can only fairly be characterized as a decades-long pattern of either disinterest, or deliberate non-action, on the part of the federal government. If that track record is evidence of an ongoing, un-lapsed, un-terminated government-to-government relationship between the United States and the Ione Band, then the facts cited herein showing the federal government’s concerted, successful, and ongoing actions to provide for the Cupeño require the conclusion that the Cupeño tribe’s government-to- government relationship with the United States has also persisted to the present. Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 74 of 97 64 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2. The Cupeño Tribe Is Similarly Situated to Lower Lake Plaintiff respectfully submits that the Cupeño tribe’s history of government-to- government relations with the United States is also more compelling than that of the Lower Lake Rancheria. The United States purchased uninhabitable land for the Lower Lake Rancheria in 1916. [See PE-64 at AC-408 & PE-65 at AC-1066.] That land was sparsely populated (if at all) for over thirty years. [Ans. ¶ 140.] Then, pursuant to the Lower Lake Act, it fee patented that land to four individuals who relinquished all but 41 acres of the land for use as a county airport. [See Ans. ¶¶ 143-144.] The Secretary of the Interior twice characterized the Lower Lake Act in the Congressional record as “in line with” Congress’s plan and policy of termination. [See PE-64 at AC-409.] Plaintiff respectfully submits that, far from indicating any intent to maintain government-to-government relations with the Lower Lake Rancheria, the Administrative Record instead supports the inference that the United States intended to terminate Lower Lake and simply failed to effectuate the termination. [See id.] Indeed, notwithstanding Defendant’s averment to the contrary, after the Act passed, and until re-affirming the Lower Lake in 2000, the BIA did consider the Lower Lake Rancheria to be terminated. [See PE-64 at AC-410; compare Ans. ¶ 148]. Despite all of the foregoing facts, according to the Administrative Record, when “Indian persons lineally descended from those having at one time a connection to the Lower Lake Rancheria” organized in or about 1995, [see PE-64 at AC-410; PE-65 at Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 75 of 97 65 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1147 to 1164], the BIA concluded that the United States had maintained a government- to-government relationship with the Lower Lake Rancheria that had never lapsed or been terminated because there was never any legislation explicitly terminating the Lower Lake Rancheria. [See PE-64 at AC-411; see also PE-1 at AC-448.] Just like Lower Lake, there is no federal legislation terminating the Cupeño tribe. [See Ans. ¶ 156.] But, unlike Lower Lake, Congress has not passed legislation to take away the Cupeño tribe’s land, or that could otherwise be interpreted as operating to terminate the Cupeño tribe. [See Ans. ¶ 153; compare PE-64 at AC-409 & 411.] In its Muwekma Explanation, to illustrate government-to-government interactions between the United States and Lower Lake, the BIA stressed the fact that “the Federal Government purchased land to establish the Lower Lake Rancheria on January 25, 1916.” [PE-55 at AC-421.] The same reasoning applies to the Cupeño tribe. See 32 Stat. 257 (1902); [compare PE-64 at AC-408 (citing 38 Stat. 582 (1914).] However, instead of purchasing an uninhabitable “rock pile”—as the federal government did for Lower Lake, [see PE-64 at AC-408]—the federal government conducted an exhaustive search and ultimately selected land for the Cupeño that it described in superlative terms. [See PE-35 at AC-1547.] Plaintiff respectfully submits that, having relied on the federal government’s purchase of uninhabitable land for the Lower Lake as evidence of Lower Lake’s ongoing government-to-government relationship, Defendant must concede that the federal government’s purchase of “the Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 76 of 97 66 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 best” reservation in Southern California is at least equally compelling evidence of the Cupeño tribe’s government-to-government relationship. [See id.] The BIA also stressed in 2006 that the existence of Lower Lake had been recognized by the federal government when the entry “Lower Lake Reservation, Calif.” was listed under the tribe heading “POMO INDIANS” in House Report 2503 in 1953. [See PE-55 at AC-421; see also PE-45 at AC-1623 to 1624.] That is the same House Report 2503 that lists the “CUPEÑO INDIANS” as a tribe. [PE-45 at AC-1608.] If Lower Lake’s entry as a reservation in House Report 2503 is evidence of the federal government’s acknowledgement of Lower Lake’s existence as a tribe, then the Cupeño tribe’s entry as a tribe in that same report is superior evidence of the federal government’s contemporaneous recognition of the existence of the Cupeño as a tribe. In supporting its 2000 Lower Lake decision in 2006, the BIA also stressed that it had “dealt with” the Lower Lake Rancheria in 1980 when the BIA “considered including the Lower Lake Rancheria on the list of federally recognized tribes, but did not do so.” [PE-55 at AC-421 (emphasis added).] The BIA’s citation of its 1980 decision not to list Lower Lake as evidence that Lower Lake’s government-to- government relationship with the United States never lapsed or terminated is striking in its implications. [See also id. at AC-418.] For the BIA’s reliance on its refusal to list potently illustrates that evidence of the federal government’s simple continuing awareness of the existence of a once-recognized tribe is all that is needed to Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 77 of 97 67 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 demonstrate the federal government’s un-terminated, un-lapsed government-to- government relationship with that tribe—both as a matter of BIA policy and published federal circuit precedent. See Muwekma # 4, supra, 708 F.3d at 214, 216-217 (identifying the 1980 determination not to list Lower Lake as “clear” evidence of an “interaction” with the federal government meriting Lower Lake’s addition to the List). As with Lower Lake, descendants of the original residents of the Agua Caliente reservation and the reservation later purchased at Pala pursuant to 32 Stat. 257 (1902) have adopted a Constitution and requested correction of the List to include the Cupeño. [See Admin. Rec.-4; compare PE-64 at AC-410.] Plaintiff respectfully submits that, by comparison to Lower Lake, Plaintiff has an exceedingly strong case showing the Cupeño tribe’s government-to-government relationship with the United States. 3. The Cupeño Tribe Is Similarly Situated to the Tejon Tribe. The Cupeño’s history also shows far more evidence of a persistent government- to-government relationship than the Tejon’s. In 1851, the Tejon signed a never-ratified treaty with the United States—just like the Cupeño tribe did a year later. [PE-14; compare Ans. ¶ 161.] Like the Tejon, the Cupeño tribe was granted a reservation by executive order in the late 19th century. [See Ans. ¶¶ 22, 162.] Then, both tribes effectively lost title to their reservations. See Barker v. Harvey, supra, 181 U.S. at 499 compare [PE-1 at AC-451, fn. 21 (citing U.S. v. Title Ins. & Trust Co., 265 U.S. 472 (1924); see also Ans. ¶¶ 163-168.] Moreover, the United States unsuccessfully Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 78 of 97 68 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 litigated on behalf of each tribe in the United States Supreme Court. [See PE-25 at AC- 1464 compare PE-1 at AC-453.] In contrast to the Tejon, after the Cupeño tribe was evicted, the United States promptly purchased habitable lands to relocate the Cupeño. [Ans. ¶¶ 13, 16, 177; see also PE-35 at AC-1547 compare Ans. ¶ 166.] Indeed, as late as 1968, the United States was still securing lands in trust for the Cupeño’s benefit. [See PE-6.] And in contrast to the Tejon, the Cupeño tribe actually occupied the Reservation that the United States secured for the Cupeño. [See Ans. ¶¶ 34, 38; compare Ans. ¶ 167.] As with Ione and Lower Lake, the BIA determined that the Tejon had an ongoing government-to-government relationship based on the federal government’s decades-long discussions, periodic monitoring, persistent failure, and finally complete abdication of efforts to secure habitable land for the Tejon from 1911 to 1962. [See PE-1.] Despite that track record of failure and neglect, Echo Hawk based his decision to reaffirm the Tejon on the fact that “[t]here is no evidence of any affirmative action or declaration by either Congress or the Department to terminate the Tejon Indian Tribe or to cease recognition of the Tribe.”)] Because the BIA relied upon the federal government’s knowing, decades-long failure to administer benefits or services to the Tejon as evidence of an un-lapsed, un- terminated government-to-government relationship, there simply is no rational basis for concluding that the Cupeño tribe, which has enjoyed the benefits and services of Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 79 of 97 69 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 the federal trust relationship continuously for over a century, has not also been in a government-to-government relationship with the United States. In each of the foregoing three instances of reaffirmation the BIA determined that an un-Listed tribe’s government-to-government relationship had never lapsed or been terminated even though the tribe had never been included on the List—accordingly the exclusion of those three tribes from the List was administrative error requiring correction. [Ans. ¶ 180.] That is how the BIA itself characterized all three decisions. [See PE-55 at AC-417 & 420; PE-1 at AC-446 & 453.] Part 83, simply did not apply to the Ione, Lower Lake, or Tejon because they were already recognized. Based on the facts set forth above, two showings have been crucial to the BIA’s determination that it should reaffirm a tribe through correction of administrative error. The first crucial showing, is evidence of a history of the federal government’s periodic awareness of the un-Listed tribe during the past century—even if that awareness was demonstrated by the BIA’s persistent failure or refusal to administer services to the un-Listed tribe. [see PE-1; PE-53; PE-54; PE-55; PE-56.] And, to be clear, the question turns on the federal government’s awareness during the period of absence from the List. The tribe’s affirmative engagement or non-engagement of the United States over extended periods of time does not appear to have ever been a relevant factor. [See, e.g., PE-64 at AC-410; PE-65 at AC-1147 to 1164 (descendants of those with an interest in Lower Lake Rancheria first organized and came forward in Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 80 of 97 70 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 or about 1995—after approximately forty years of the BIA considering Lower Lake to be terminated.) see also PE-1 (silent as to how or when the Tejon affirmatively engaged the United States for at least sixty years prior to re-affirmation).] The second crucial showing, is the absence of any legislation explicitly terminating the tribe in question. [See PE-64 at AC-411 to 412 (concluding that statements in the Congressional record that the Lower Lake Act was “in line with” the practice and policy of termination were not determinative because the Act, itself, did not expressly terminate Lower Lake); see also PE-1 at AC-449 to 454 (describing how the federal government failed to secure habitable land for the Tejon as far back as 1911 and declined earthquake assistance to the Tejon in 1952, but observing that the Senate was aware of the Tejon and that “Congress has never formally terminated the [Tejon] Tribe’s legal and political status.”)] The facts show that the United States has been aware of, and administered services to the Cupeño for more than a century. The United States negotiated a treaty with the Cupeño in 1852 [see PE-14]; thereafter it provided services to the Cupeño; [see PE-16 at AC-1445 to 1448]; in 1865, heeding the recommendation of its agent, it established a reservation for the Cupeño at Agua Caliente Village [see PE-16 at AC- 1449 & PE-17]; after cancelling that reservation in 1880, it continued to monitor and provide services to the Cupeño. [see PE-84; PE-26; PE-25; PE-13 at AC-1678 & 1689 to 1690]; from 1897 to 1901, it litigated on behalf of the Cupeño to stay at its Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 81 of 97 71 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 homeland [see PE-25 at AC-1464]; while that appeal was pending it tracked the Cupeño by census [see PE-12]; when the appeal failed it advocated purchasing, allocated money for purchasing, and purchased suitable land at Pala for the Cupeño in 1902 [see PE-27; PE-2; PE-28; PE-25 at AC-1462; 1467 & 1485]; it provided tools and services to the Cupeño at Pala, and it identified the Cupeño as distinct from the Luiseño in census records and other records for the first half of the twentieth century [see PE-29; PE-33; PE-34 & Admin. Rec.-111]; in 1953, it explicitly identified the existence of the Cupeño tribe and its reservation (as distinct from the Pala Luiseño) in House Report 2503 [see PE-45 at AC-1586; 1608; 1617 to 1618; & 1621]; in 1968, it exhibited its awareness of the separate existence of the Cupeño tribe when it recommended issuance of a trust patent for the benefit of the “Pala, Pauma, and Warner’s Ranch Indians,” and in 1969 when it updated its Reservation and Trust Land codes to ensure accurate tracking and reporting upon the administration of federal services to the Cupeño [see PE-6 & PE-52]; in 1989, it made a final determination that allottee Margarita Britten was a full-blooded Cupa Indian and that her great-great grandchildren were, therefore 1/16 Cupa Indians and were therefore entitled to benefit from the tribal assets at Pala [see PE-9]; in 2008 it identified the Cupeño independently alongside the Pala Luiseño and other federally-recognized tribes in a notice in the federal register [see PE-67 at AC-954 (italics added)]; it has continued to track Cupeño and Pala Luiseño population separately through the most recent national census in Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 82 of 97 72 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2010 [see PE-68 at AC-894 & 896]; and in 2012, it re-affirmed its final determination that Margarita Britten was a Cupeño Indian and recommended that the PBMI re-enroll her descendants based on that determination. [See PE-70.] Plaintiff respectfully submits that the foregoing instances of the federal government’s awareness of the Cupeño tribe are collectively far more compelling evidence of the Cupeño tribe’s un-terminated, un-lapsed, government-to-government relationship with the federal government than the BIA relied upon (or could rely upon) with respect to the Ione Band, Lower Lake Rancheria, or Tejon Tribe. Therefore the Cupeño tribe is similarly (indeed superiorly) situated to all three of the re-affirmed tribes. See Racine Charter One, Inc., supra, 424 F.3d at 680 (parties are similarly situated when they are “directly comparable ... in all material respects”). 4. Defendant Provided No Reasoned Basis for His Disparate Treatment of the Cupeño Tribe. a) The July 2015 Policy Guidance Does Not Address the Correction of Administrative Error. In his February 17, 2016 decision, Defendant quotes the July 1, 2015 Policy Guidance that the BIA published in the Federal Register six months after Plaintiff first requested correction of the List, and just two weeks after Plaintiff reiterated that request. [See PE-75 & PE-71 at AC-100.] The quoted Policy Guidance provides: [This Policy Guidance establishes] the Department’s intent to make determinations to acknowledge Federal Indian tribes within the contiguous 48 states only in accordance with the regulations established for that purpose at 25 CFR part 83 This notice directs any unrecognized group requesting that the Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 83 of 97 73 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Department acknowledge it as an Indian tribe, through reaffirmation or any other alternative basis, to petition under 25 CFR part 83 unless an alternate process is established by rulemaking following the effective date of this policy guidance…. Having worked hard to make the Part 83 process more transparent, timely and efficient, while maintaining Part 83’s fairness, rigor, and integrity, the Department has decided that, in light of these reforms to improve the Part 83 process, that process should be the only method utilized by the Department to acknowledge an Indian tribe in the contiguous 48 states…. The Department has determined that it will no longer accept requests for acknowledgment outside the Part 83 process. Rather, the Department intends to rely on the newly reformed Part 83 process as the sole administrative avenue for acknowledgment as a tribe. [PE-83 at AC-002; quoting 80 Fed. Reg. 37,538 (July 1, 2015) (emphasis added).] Defendant did not explain why he believes the Policy Guidance has any relevance to the Cupeño tribe’s request for correction of the List. The Policy Guidance is not relevant on its face. It does not state that the BIA will no longer correct the List to remedy its administrative errors. [See id.] It focuses entirely on the recent updates to Part 83 that purportedly make Part 83 more transparent, timely, and efficient. But none of the three re-affirmed tribes described herein was re-affirmed outside of Part 83 on the basis that Part 83 was flawed. On the contrary, they were each re-affirmed outside of Part 83 because Part 83 did not apply to them—because they were each already in a government-to-government relationship with the United States. [See, e.g., PE-1 at 446 & 453; PE-55 at AC-417 & 420; PE-69.] The recently re-vamped 25 C.F.R. Part 83 wholly accords with all of the foregoing precedents. The new Part 83 has no provisions that address the remediation Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 84 of 97 74 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 of the BIA’s administrative errors. Instead it states more explicitly than before that, “This part applies only to indigenous entities that are not federally recognized Indian tribes.” 25 C.F.R. § 83.3 (2016); [compare PE-1 at AC-446 & PE-69 at 1281.] A Federal Register entry from 2008 shows that the BIA fully embraced and publicly expressed its policy distinction between “acknowledgment” and “the correction of administrative errors” after it re-affirmed Lower Lake Rancheria in 2000, after it explained that reaffirmation in the Muwekma case in 2006, and before it reaffirmed the Tejon tribe in 2012. That 2008 Federal Register entry, publishes the BIA’s final rules implementing 25 U.S.C. § 2719 which governs gaming on lands acquired after 1988 and provides an exception for “restoration of lands for an Indian tribe that is restored to Federal recognition” See 25 U.S.C. 2719(b)(1)(B)(iii). In addressing public comments on its rules for that exception (which comments suggested that reaffirmation be included as a means of acknowledgment) the BIA responded, The only acceptable means under the regulations for qualifying as a restored tribe under IGRA are by Congressional enactment, recognition through the Federal acknowledgment process under 25 CFR 83.8, or Federal court determination in which the United States is a party and concerning actions by the U.S. purporting to terminate the relationship or a court-approved settlement agreement entered into by the United States concerning the effect of purported termination actions. While past reaffirmations were administered under this section, they were done to correct particular errors. Omitting any other avenues of administrative acknowledgment is consistent with the notes accompanying the List Act that reference only the part 83 regulatory process as the applicable administrative process. 73 Fed. Reg. 29,363 (May 20, 2008) (emphasis added). Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 85 of 97 75 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 In other words, the July 15, 2015 Policy Guidance has changed nothing. Since Part 83 was implemented, the BIA has consistently taken the position that Part 83 is the only administrative rule for “recognition” as a tribe. See id. However that has never stopped the BIA from reaffirming tribes to correct administrative errors. Such action has always been appropriate because Part 83 does not apply to tribes that are already federally recognized. [See PE-1; PE-69]; compare 25 C.F.R. § 83.3 (2016), supra. By relying on the July 1, 2015 Policy Guidance to deny the Cupeño tribe’s request to correct the List, Defendant has essentially taken the nonsensical position that, pursuant to the Policy Guidance, the BIA will no longer correct its administrative errors, because Part 83 (which had no application to such errors in the past) has now been updated and still does not apply. Stated otherwise, Defendant’s reliance on the July 1, 2015 Policy Guidance to deny the Cupeño tribe’s request to correct the List is arbitrary, capricious, and without any rational basis. “[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored….” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 853 (D.C. Cir. 1970); Ramaprakash, supra 346 F.3d at 1124. b) Even if the 2015 Policy Guidance Did Apply, Defendant Does Not Have Authority to Apply It Retroactively. Even if Defendant could articulate a rational basis for purporting to “change its policy” with respect to the correction of its administrative errors immediately after Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 86 of 97 76 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Plaintiff pressed for a correction; and even if Defendant could articulate how the 2015 Policy Guidance, by its own clear terms, operates in any way to bar Plaintiff’s request for a correction, Defendant does not, in any case, have the authority to retroactively apply the 2015 Policy Guidance to the Cupeño tribe without an express grant from Congress. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) (An administrative agency’s power to promulgate regulations is limited to the authority delegated by Congress. As a general matter, statutory grants of rulemaking authority will not be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by express terms.) “Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.” Id. at 208 citing Greene v. U.S., 376 U.S. 149, 160 (1935); Claridge Apartments Co. v. Commissioner, 323 U.S. 141, 164 (1944); Miller v. U.S., 294 U.S. 435, 439 (1935); U.S. v. Magnolia Petroleum Co., 276 U.S. 160, 162-163 (1928). Plaintiff first requested correction of the List in December 2014 [See PE-75]. Plaintiff then re-iterated the request with evidentiary support in the June 16, 2015 letter copied to AS-IA Washburn. [See PE-71 at AC-100.] Ten days later Washburn issued a determination that the BIA will “no longer accept requests for acknowledgment outside the Part 83 process.” [See PE-81 at AC-456 (dated June 26, 2015).] Then on July 15, 2015, the BIA published that decision as its Policy Guidance. [See PE-81.] Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 87 of 97 77 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Defendant can identify no express grant of authority to promulgate any rule or “policy guidance” and apply it retroactively to Plaintiff—whose request was made six months before the purported change in policy. Without such an express grant of authority, the BIA simply cannot deny Plaintiff’s request on the basis of either the July 2015 Policy Guidance, or the newly revised 25 C.F.R. Part 83 even if they did apply— and they do not apply. See Bowen, supra, 488 U.S. at 208-209, 215 see also Greene, supra, 376 U.S. at 160; Claridge Apartments Co., supra, 323 U.S. at 164; Miller, supra, 294 U.S. at 439; Magnolia Petroleum Co., supra, 276 U.S. at 162-163. c) Defendant Did Not Explain Why the Cupeño Withdrawal Resolution Is a Relevant Distinction. In his Decision, Defendant also purported to identify a significant “major distinction” between the Cupeño and the re-affirmed tribes. His decision states: the people now seeking Federal recognition as the Agua Caliente Tribe of the Cupeño Indians of the Pala Reservation are, or were until recently, members of the Pala Band of Mission Indians, a federally recognized tribe. Thus the Agua Caliente Tribe of Cupeño Indians is not similarly situated to the reaffirmed tribes as none of those tribes claimed to be withdrawing or dissociating from a federally recognized tribe. Accordingly, denying your clients’ request for reaffirmation and directing your client to exhaust administrative remedies by proceeding through the Part 83 process does not violate their equal protection guarantees. [PE-83 at AC-002] Defendant identified no other distinctions and provided no explanation or analysis as to why he believes the above-quoted distinction is relevant. [See id.] But, to Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 88 of 97 78 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 issue a considered and rationally based decision, Defendant must do more than simply identify a difference between the Cupeño and prior precedents. Defendant must provide a reasoned basis for why that difference supports a different result—i.e., why that difference is “material.” See Los Angeles v. Shalala, supra, 192 F.3d at 1022 (“an agency action is arbitrary when the agency offers insufficient reasons for treating similar situations differently”) accord Muwekma # 3, supra 813 F.Supp.2d at 189; Bowen, supra 476 U.S. at 626 (1986); Nat. Resources Def. Council v. U.S. Dep’t of Interior, 113 F.3d 1121, 1124 (9th Cir. 1997); Pyramid Lake Pauite Tribe v. Dept. of Navy, 898 F.2d 1410, 1414 (9th Cir. 1990). Also problematic is Defendant’s determination that the members of the Cupeño, “are, or were until recently, members of the Pala Band of Mission Indians.” [See PE-83 at AC-002.] Defendant knows only too well that it is not for Defendant (or any agent of the United States) to determine who is a member of the Cupeño tribe. See Santa Clara Pueblo, supra, 436 U.S. at 72 n.32 (“A tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.”) see also Aguayo v. Jewell, 827 F.3d 1213, 1229 (2016) (quoting AS-IA Washburn’s June 12, 2013 decision denying relief to dis- enrolled Britten descendants and identifying his reliance upon Santa Clara Pueblo as authority for “maintain[ing] a hands-off approach, treading lightly to ‘avoid[] unnecessary intrusion in tribal self-governance.’ ”) Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 89 of 97 79 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Thus, to the extent Defendant has denied Plaintiff’s request to List the Cupeño tribe because he has determined that Plaintiff and its members are not the Cupeño tribe, or that Plaintiff’s members are currently tribe-less, Defendant’s decision violates settled law. See Santa Clara Pueblo, supra. Accordingly, Plaintiff respectfully wishes to remind Defendant, and make clear to the Court, that the questions of who is and is not a Cupeño Indian, and who is or is not the leadership of the Cupeño tribe is not the federal government’s concern. Those questions are internal sovereign matters for the Cupeño tribe to determine. See Echo Hawk Decision re-affirming the Tejon tribe, PE-1 at AC-454 (“I did not attempt, nor am I now attempting, to decide who are the current citizens of the Tribe.”); see also Ada Deer letter of July 27, 1994 clarifying that in re- affirming the Ione Band “this Department has neither the authority nor the power to determine leadership of any Tribe or Band. That decision is decidedly for the membership of that entity.”) As for Defendant the only inquiry should have been (and the Court’s only inquiry should now be) the following: (1) whether the administrative record demonstrates that the Cupeño tribe has been federally recognized; and (2) whether the Cupeño tribe’s government-to-government relationship thereafter lapsed, or whether the Cupeño tribe was ever expressly terminated by Congress. d) Defendant’s Purported Basis for His Disparate Treatment of the Cupeño Tribe Also Contradicts the Facts. Even if Defendant had provided a reasoned basis for why the Cupeño Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 90 of 97 80 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Withdrawal Resolution permits disparate treatment of the Cupeño tribe, his characterization of the Cupeño tribe’s position grossly distorts the facts of this case. First, Defendant mischaracterized Plaintiff’s request as a request for “Federal Recognition.” As should be very clear at this point, Plaintiff is not seeking federal recognition. Plaintiff is seeking a correction of the List to reflect the Cupeño tribe’s ongoing federally recognized status. As set shown above, a tribe’s absence from the List is sometimes an administrative or bureaucratic error. [See PE-1 at AC-453; PE-55 at AC-420.] Such errors routinely persist for decades. [See PE-55, PE-85 & PE-1 at AC-453.] However, when descendants of the tribe come forward and request a correction, the BIA considers whether there is a historical record of the BIA’s periodic awareness of that tribe—even if that awareness is demonstrated by the BIA’s conscious and repeated failure to administer any services to the tribe, and irrespective of whether the tribe itself was affirmatively engaging the United States as a government during the period of its absence from the List. [See, PE-64 at AC-409 & 410] (forty years of apparent silence on the part of Lower Lake); see also PE-1 (sixty years of apparent silence on the part of Tejon).] Where the BIA finds a few such instances showing the federal government’s awareness of the Tribe, and there is no record of explicit termination of that tribe, the BIA “reaffirms” the tribe and corrects the List. [See PE-55 at AC-420 & PE-1.] Such is the nature of Federal recognition. It “permanently establishes a government-to-government relationship between the United Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 91 of 97 81 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 States and the recognized tribe.” H.R. Rep. No. 103-781, at 2 (1994). The BIA should have Listed the Cupeño in 1979 and in every List thereafter— just like it listed the Pala Luiseño.4 In other words, the Cupeño’s absence from the List is administrative error. Plaintiff is not seeking “recognition” of the Cupeño tribe. Plaintiff is seeking the correction of the BIA’s administrative error. Second, Defendant asserts that PBMI is one federally recognized Indian tribe. [See PE-83; see also Ans. ¶ 197.] As set forth above, other agents of the BIA seem to have reached the same passive and unexamined conclusion. [See PE-79.] But no facts or law support that conclusion. Defendant cannot reasonably dispute that the Cupeño and the Pala Luiseño each formed government-to-government relationships with the United States in 1852, when they each signed the Temecula Treaty and in 1875 when the United States granted each tribe its own reservation and thereafter administered services separately to each tribe. [See sections II(C)-(E), supra; compare, e.g., PE-54 (concluding Federal Recognition was extended to Ione when the United States only “contemplated” purchasing land.)] It is undisputed that The Pala Luiseno are Luiseño Indians, whereas the PBMI is comprised of all of the Indians of the Pala Reservations, including the Pala Luiseno, the Cupeño, and the descendants of other Indians who the Secretary of the Interior saw 4 That is, until the BIA glossed over its administrative error by cooperating with the PBMI’s usurpation of the identify of the Pala Luiseno and replacing the Pala Luiseno on the List in January 2016. See Section II(X) supra. Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 92 of 97 82 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 fit to locate at Pala pursuant to 32 Stat. 257. [See Amended Cmplt. ¶ 111; Ans. ¶ 111 (italics added).] It is undisputed that the Cupeño and the Pala Luiseño are culturally and linguistically distinct peoples. [Ans. ¶¶ 12, 73.] It is undisputed that the PBMI was not formed until 1959. [See Ans. ¶ 51.] It is thus undisputed that the PBMI and the Pala Luiseño are not the same. [See Ans. ¶ 110 (“Defendant avers that the PBMI includes the Pala Luiseno.” (emphasis added).] In sum, it is undisputed that the Cupeño, the Pala Luiseño, and the PBMI are three distinct entities. Defendant cannot identify any legislation that has terminated the Cupeño or the Pala Luiseño. Defendant cannot identify any facts showing that the Cupeño or the Pala Luiseño consented to relinquish their sovereignty and form a single tribe. It is undisputed that neither the PBMI Articles of Association nor the Constitution express such consent. [See Ans. ¶¶ 65-66 & 90.] And no law authorizes Defendant, or has authorized any of his predecessors, to consolidate the Cupeño and the Pala Luiseño into a single tribe--especially absent both tribes’ consent. See 25 U.S.C. § 63. Likewise, Defendant cannot identify any legislation that has ever unified the executive-order reservation of Old Pala with the congressionally mandated reservation at New Pala. See 25 U.S.C. § 398d (changes in the boundaries of reservations created by executive order may only be made by act of congress). There is no such legislation. Accordingly, even today, the Indians at Pala (depending on their descent) may have distinct and unequal interests in distinctly created reservations. Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 93 of 97 83 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 The status of executive order reservations can be summarized as follows: the Indians have the exclusive right to possession but title to the lands remains with the United States. Congress has plenary authority to control use, grant adverse interests or extinguish the Indian title. In these respects, executive order reservations do not differ from treaty or statutory reservations. The one difference is that so long as Congress has not recognized compensable interests in the Indians, executive order reservations may be terminated by Congress or the Executive without payment of compensation. U.S. v. Southern Pacific Transportation Co., 543 F.2d 676, 687 (9th Cir. 1976) Based on the above, Defendant cannot reasonably dispute that the PBMI is not a tribe. The PBMI is a band formed of two historic federally recognized tribes and other Indians with distinct cultures, distinct heritages, distinct interests, and even distinct rights. The PBMI is what Commissioner Babby described in 1994 as “a community of adult Indians…who reside together on trust land.” [See PE-38 at AC-948.] In June 2015, Cupeño Chairman William Pink asked the BIA to identify and produce “any correspondence or solicitor opinions, congressional acts, executive orders or Secretarial Orders establishing that the Pala Band of Mission Indians, (PBMI) is a tribe.” [See PE-80.] The BIA responded as follows: We find that there are not responsive documents in this office for which you have requested. We have checked the National Archives & Records Administration in Perris, CA and the American Indian Records Repository in Lenexa KS. This is not a refusal to disclose documents but rather a notification that there are no documents to disclose. [PE-80.] The record plainly shows two historic tribes and other Indians associating to form a band in or about 1959 under the coaxing hand of the BIA. [See PE-43, PE-47 & Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 94 of 97 84 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 PE-48.] As a matter of law, and longstanding BIA policy, that band is an inferior and less permanent organization than the historic tribes that associated to form it. To constitute a “band” we do not think it necessary that the Indians composing it be a separate political entity, recognized as such, inhabiting a particular territory, and with whom treaties had been or might be made. Those peculiarities would rather give them the character of tribes. The word “band” implies an inferior and less permanent organization, though it must be of sufficient strength to be capable of initiating hostile proceedings. Conners, supra, 180 U.S. at 275; accord Montoya v. U.S., 180 U.S. 261, 265 (1901); [see also PE-38 at AC-948 (distinguishing superior sovereign character of “historic tribes” from the limited powers of a “community of adult Indians” or “non-historic tribes.”)] In other words, as a matter of law and longstanding BIA policy, the PBMI is “an inferior and less permanent organization” than the Cupeño tribe. Conners, supra. Defendant’s breezy assertion that Plaintiff’s have withdrawn from a federally recognized tribe is simply wrong. It is unclear when or how Defendant Roberts believes that the PBMI became a federally recognized tribe. [See PE-80 at AC-103.] And Defendant’s determination that the Cupeño tribe’s resolution to withdraw from the PBMI somehow (for he has not explained how) renders the Cupeño tribe less appropriate for inclusion on the List than the Ione, the Lower Lake, or the Tejon tribes has no factual or legal support. The facts and law show that Plaintiff is not comprised of persons who have withdrawn from a federally recognized tribe. On the contrary, the Cupeño tribe is itself federally recognized; it has been since 1852. Because Defendant failed to provide any reasoned basis for disparately treating Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 95 of 97 85 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 the Cupeño, his decision not to List the Cupeño lacks any rational basis and is arbitrary and capricious on its face. See Massachusetts v. E.P.A., supra 549 U.S. at 535. The Court should reverse Defendant’s decision and order correction of the List. See Los Angeles v. Shalala, supra, 192 F.3d at 1021; see also 5 U.S.C. § 706. IV. CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests that the Court find that that Defendant’s decision refusing to List the Cupeño was arbitrary and capricious, lacked a rational basis, and, therefore, violated the APA and Plaintiff’s equal protection rights, and that the Court order Defendant to reverse his decision, promptly acknowledge the BIA’s administrative error, re-affirm the Cupeño tribe in writing, and further provide written assurance that Defendant will correct the next publication of the List by adding the Cupeño tribe’s name. RESPECTFULLY SUBMITTED DATED: February 7, 2017 FOR PLAINTIFF /s/ Andrew W. Twietmeyer______ ANDREW W. TWIETMEYER The Law Office of Andrew W. Twietmeyer 10780 Santa Monica Blvd., Suite 401 Los Angeles, California Tel: (310) 909-7138 Fax: (323) 375-1123 E-mail: awt@twietmeyerlaw.com Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 96 of 97 1 PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 CERTIFICATE OF SERVICE I, Andrew W. Twietmeyer, hereby certify that on February 7, 2017, I caused the foregoing to be served upon counsel of record through the Court’s electronic service. As a courtesy, I also send a bound hard copy of this brief by overnight delivery to counsel for Defendant, David Glazer at the following address: David Glazer, Esq. Natural Resources Section Environmental & Natural Resources Division United States Department of Justice 301 Howard Street, Suite 1050 San Francisco, CA 94105 I declare under penalty of perjury that the foregoing is true and correct. Dated: February 7, 2017 /s/ Andrew W. Twietmeyer Andrew W. Twietmeyer Case 2:15-cv-02329-JAM-KJN Document 22-1 Filed 02/07/17 Page 97 of 97 1 DECLARATION OF ANDREW W. TWIETMEYER IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ANDREW W. TWIETMEYER SBN: 254436 email: awt@twietmeyerlaw.com THE LAW OFFICE OF ANDREW W. TWIETMEYER 10780 Santa Monica Blvd., Suite 401 Los Angeles, CA 90025 Tel: (310) 909-7138 Fax: (323) 988-7171 Attorney for Plaintiff The Agua Caliente Tribe of Cupeño Indians of the Pala Reservation UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA THE AGUA CALIENTE TRIBE OF CUPEÑO INDIANS OF THE PALA RESERVATION (a federally-recognized but unlisted Indian Tribe) Plaintiff, vs. LAWRENCE S. ROBERTS, Acting Assistant Secretary of Indian Affairs, United States Department of the Interior (in his official capacity); and DOE Defendants 1 through 10, inclusive, Defendants. Case No.: 2:15-cv-02329-JAM-KJN DECLARATION OF ANDREW W. TWIETMEYER IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Date: May 16, 2017 Time: 1:30 p.m. Courtroom: 6 Judge: Hon. John A. Mendez Case 2:15-cv-02329-JAM-KJN Document 22-2 Filed 02/07/17 Page 1 of 4 1 DECLARATION OF ANDREW W. TWIETMEYER IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1. I am an attorney licensed to practice law in the State of California. I am counsel of record for Plaintiff, the Agua Caliente Tribe of Cupeño Indians of the Pala Reservation (the “Cupeño Tribe”) in the above-captioned civil action. I am submitting this Declaration in support of Plaintiff’s Motion for Summary Judgment. I have personal knowledge of the facts in this declaration and could and would competently testify to those facts if requested. 2. Filed concurrently with this declaration are Plaintiff’s Excerpts of the Administrative Record (“Plaintiff’s Excerpts”). Pursuant to Local Rule Plaintiff’s Excerpts are marked 1 through 85 and are comprised of relevant pages that Plaintiff has selected from the Administrative Record that Defendants filed in this action on January 25, 2017. 3. Preceding the Excerpts is an index which cross references the Excerpts with the Administrative Record document from which each excerpt was drawn. 4. I have highlighted relevant text in each Exhibit with brackets. Moreover, I have deleted all legacy highlighting and Bates labels, retaining only the “AGUACALIENTE” Bates labels. 5. Additionally, for ease of reading, Plaintiff’s Excerpt number 30 includes an enlargement of part of the page labeled AGUACALIENTE-001419. Case 2:15-cv-02329-JAM-KJN Document 22-2 Filed 02/07/17 Page 2 of 4 2 DECLARATION OF ANDREW W. TWIETMEYER IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 6. Plaintiff’s Excerpts are otherwise identical to their corresponding pages in the Administrative Record. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed February 7, 2017 at Los Angeles, California. __/s/ Andrew W. Twietmeyer____________ Andrew W. Twietmeyer Case 2:15-cv-02329-JAM-KJN Document 22-2 Filed 02/07/17 Page 3 of 4 3 DECLARATION OF ANDREW W. TWIETMEYER IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 CERTIFICATE OF SERVICE I, Andrew W. Twietmeyer, hereby certify that on February 7, 2017, I caused the foregoing to be served upon counsel of record through the Court’s electronic service. I declare under penalty of perjury that the foregoing is true and correct. Dated: February 7, 2017 /s/ Andrew W. Twietmeyer Andrew W. Twietmeyer Case 2:15-cv-02329-JAM-KJN Document 22-2 Filed 02/07/17 Page 4 of 4