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Timbisha Shoshone Tribe, et al v. United States Department of the Interior; et al

May 16, 2011

TIMBISHA SHOSHONE TRIBE, ET AL., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiffs, Timbisha Shoshone Tribe ("Tribe"), Joseph "Joe" Kennedy, Angela "Angie" Boland, Grace Goad, Erick Mason, Hillary Frank, Madeline Esteves and Pauline Esteves filed this action on April 13, 2011, seeking declaratory and injunctive relief against Defendants United States Department of the Interior ("DOI"), Bureau of Indian Affairs ("BIA"), Larry Echo Hawk ("Echo Hawk"), Assistant Secretary of the Interior for Indian Affairs, Amy Dutschke, Director of the Pacific Regional Office of the BIA, and Troy Burdick ("Burdick"), Superintendent of the Central California Agency of the BIA, alleging injuries suffered as a result of a final agency decision issued by Echo Hawk on March 1, 2011 ("EHD").

Presently before the Court is Plaintiffs' Motion for Preliminary Injunction ("Motion") which came on for hearing before the Court on shortened time on May 12, 2011, at 2:00 p.m. For the following reasons, Plaintiffs' Motion is DENIED.

BACKGROUND*fn1

A. Tribal History

In 1983, the Tribe was formally recognized by the DOI as a sovereign Indian nation with whom the United States would maintain government-to-government relations. The Tribe is organized under a written Constitution that establishes the General Council as the Tribe's supreme governing body. The General Council has delegated some of its powers to a five-member Tribal Council.

The Tribe's Constitution limits tribal membership to persons "listed on the genealogy role prepared as of March 1978" and to certain of those members' lineal descendants. The Constitution and the Tribe's "Enrollment Ordinance" require that the Tribal Council "revoke membership status from any individual whom the enrollment committee has determined was erroneously, fraudulently or otherwise incorrectly enrolled."

General elections for the Tribal Council are held every November, and members serve two-year, staggered terms. The Tribe's Constitution requires that these elections be certified by an Election Board, the actions of which are governed by the Tribe's "Election Ordinance."

B. The Tribe's Leadership Dispute

The current lawsuit is the culmination of a long-standing dispute over the election and composition of the Tribe's proper Tribal Council. While it is undisputed that in 2006 the Tribal Council consisted of Chairman Joe Kennedy ("Kennedy"), Vice Chair Ed Beaman ("Beaman"), Secretary-Treasurer Madeline Esteves, and Council Members Virginia Beck ("Beck") and Cleveland Casey ("Casey") ("2006 Council"), since then multiple dueling factions have claimed to lead the Tribe.

The current fracture in the Tribe's governance began on August 25, 2007, when, at a Tribal Council meeting held by the 2006 Council, charges were brought against Beaman and Beck seeking their removal from office. Beaman, Beck and Casey left the meeting, though Casey returned at some point before eventually leaving once again. The remaining members of the 2006 Council determined Beaman and Beck had resigned, and they purportedly replaced Beck with another Tribe member (hereafter this group is referred to as the "2006 Kennedy Faction"). Beaman, Beck, and Casey (the "Beaman Faction") subsequently met separately and passed resolutions also purporting to take control of the Tribe's administration.

In November of 2007, both the 2006 Kennedy Faction and the Beaman Faction held general elections that resulted in the election of the "2007 Kennedy Council" and the "Beaman Council." On December 14, 2007, Burdick issued a decision declining to recognize the results of either election.

Kennedy subsequently called a General Council meeting, which was convened on January 20, 2008. Satisfied a quorum existed, the General Council adopted several resolutions purporting to ratify, as relevant here: 1)the general election resulting in election of the 2007 Kennedy Council; 2) the actions taken by the Tribal Council from August 25, 2007 onward; and 3) interpretation of the term "resign" in the Timbisha Constitution.

On February 29, 2008, Burdick rescinded his December 14, 2007 decision and purported to recognize the 2007 Kennedy Council. The Beaman Council appealed that decision, staying its effect.

During September and October of 2008, the 2007 Kennedy Council Enrollment Committee performed a review of the Tribe's membership rolls and determined seventy-four (74) people did not qualify for membership in the Tribe. The Enrollment Committee notified those members they were to be disenrolled and, when the time to appeal expired, the Tribal Council adopted resolutions confirming the membership revocations.

During this same timeframe, in September 2008, George Gholson ("Gholson"), a member of the Tribe purportedly disenrolled pursuant to the above 2007 Kennedy Council efforts, convened another General Council meeting.

At this meeting, Gholson allegedly recalled Kennedy and replaced him with both Gholson and another disenrolled individual. On October 17, 2008, based on the actions taken at that General Council meeting, Burdick issued a decision recognizing Gholson as the Chairman of the Tribe. Though Burdick's decision was not yet effective, Gholson allegedly used it to justify the removal of Tribal assets from the Tribal Office on the Death Valley reservation.

Just a few weeks later, on November 10, 2008, Burdick issued another decision recognizing the 2006 Council.

The following day, the 2007 Kennedy Council Tribal Election Board conducted a general election, resulting in the election of the "2008 Kennedy Council." ...


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