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Tiffany L. (Hayes) Aguayo, (691) et al v. Ken Salazar

March 29, 2012

TIFFANY L. (HAYES) AGUAYO, (691) ET AL., PLAINTIFF,
v.
KEN SALAZAR, SECRETARY OF THE DEPARTMENT OF INTERIOR - UNITED STATES OF AMERICA;
LARRY ECHO HAWK, ASSISTANT SECRETARY OF THE DEPARTMENT OF INTERIOR-INDIAN AFFAIRS - UNITED STATES OF AMERICA;
AMY DUTESCHKE, REGIONAL DIRECTOR DEPT. OF INTERIOR INDIAN AFFAIRS, PACIFIC REGIONAL OFFICE; AND
ROBERT EBEN, SUPERINTENDENT OF THE DEPARTMENT OF INTERIOR INDIAN AFFAIRS, SOUTHERN CALIFORNIA AGENCY, IN THEIR OFFICIAL CAPACITY; AND
DOE DEFENDANTS, 1 THROUGH 10, INCLUSIVE, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Ex Parte Application for Temporary Restraining Order. (ECF No. 2).

I. Procedural Background

On March 5, 2012, Plaintiffs initiated this action by filing the Complaint. (ECF No. 1). On March 5, 2012, Plaintiffs filed an Ex Parte Application for Temporary Restraining Order (ECF No. 2), Supplemental Briefing on the Motion for Temporary Restraining Order (ECF No. 10), and a Motion for Preliminary Injunction (ECF No.7).

On March 8, 2012, the Court held a hearing on the Ex Parte Application for Temporary Restraining Order. Counsel for Defendants appeared at the hearing, although Defendants had not been served with the Summons and Complaint. Plaintiffs' counsel also appeared. At the hearing, Defendants contended that this Court lacks subject matter jurisdiction. The Court requested briefing.

On March 13, 2012, Defendants filed an Opposition to the Ex Parte Application for Temporary Restraining Order. (ECF No. 13). On March 14, 2012, Plaintiffs filed a Reply. (ECF No. 15). On March 21, 2012, the Court heard oral argument.

On March 21, 2012, Plaintiffs filed Supplemental Briefing. (ECF No. 19). On March 26, 2012, Defendants filed a Reply. (ECF No. 22).

II. Background

In the Complaint, Plaintiffs allege that they are federally recognized tribe members of the Pala Band of Mission Indians ("Pala Band"). Plaintiffs allege in the Complaint that they are descendants of Margarita Britten who was identified on the Pala Band allotment roll in 1913 as 4/4 degree Pala Indian. Plaintiffs allege that on February 3, 2012, the Pala Band Executive Committee "acted outside the scope of their governing authority" by terminating their individual tribal membership rights and benefits. (ECF No. 1 at 3). Plaintiffs allege that they "are still tribal members until they are officially removed from the federally approved roll and until they have exhausted their appeal through the administrative process. The [Department of the Interior] and the [Bureau of Indian Affairs] has a fiduciary duty to protect them and preserve the status quo." Id. at 4.

Plaintiffs allege that on February 21, 2012, Plaintiffs filed a "Notice of Appeal from the Pala Band of Mission Indian's Executive Committee's February 3, 2012 Decision to Terminate Appellants' Tribal Membership" with the Regional Director of the Bureau of Indian Affairs -Pacific Regional Office. In the appeal, Plaintiffs allege that the letter informing Plaintiffs that their membership was terminated did not state the factual or legal basis for the action in violation of their due process rights provided by the Indian Civil Rights Act. Plaintiffs allege that the Pala Band is organized under Articles of Association which state that membership shall consist of all living decedents of a person on the allotment rolls with at least 1/16 degree of Indian blood, and that the Bureau of Indian Affairs has the final decision on enrollment matters. Plaintiffs allege that a 1997 Constitution, which purports to give the Pala Band General Council the authority over termination of membership, was never properly approved by a majority of voters in a duly called election. Plaintiffs allege that Margarita Britten's blood quantum was decided in 1989 by the Bureau of Indian Affairs and the Pala Band is collaterally estopped from challenging the agency's final decision.

Plaintiffs allege that on February 21, 2012, Plaintiffs filed a "Request to Take Immediate Action to Preserve the Status Quo" with the Assistant Secretary of Indian Affairs -Department of Interior, Defendant Larry Echo Hawk.*fn1 In the Request to Take Immediate Action, Plaintiffs allege that they "will suffer immediate and irreparable harm and request immediate action to restore their status quo and tribal membership benefits while their appeal of the Pala Band's Executive Committee's ultra vires actions are pending review by the Bureau of Indian Affairs." (ECF No. 1-4 at 3). Plaintiffs identify the "irreparable harm caused by the [Executive Committee's] action" as including "loss of [Plaintiffs'] tribal membership rights and benefits of being federally approved members of the [Pala Band] effective immediately ...." Id.

In the Request to Take Immediate Action, Plaintiffs request that "pursuant to the Department of Interior and Bureau of Indian Affairs' fiduciary responsibility, [the Assistant Secretary] take immediate steps and all government-to-government action necessary to restore the [Plaintiffs'] status quo while their appeal is pending administrative agency review." Id. at 4. Plaintiffs allege that the federal government has a duty to protect individual tribe members from their tribal government. Plaintiffs allege that the Indian Civil Rights Act requires disenrollment to be conducted with due process and equal protection under the laws. Plaintiffs allege that Plaintiff Annalee Trujillo was removed from her elected office on the Pala Band's Executive Committee so the Pala Band "is not acting through its official elected government."

Id. at 6. Plaintiffs assert that "the need for intervention is urgent" and they request "that official action to restore their status quo as federally acknowledged tribal members be taken immediately and/or at most within 10 days from the receipt of this Request to Take Action ...." Id. at 4.

To date, Defendant Echo Hawk has not responded to the Request to Take Immediate Action.

The Complaint assert claims: (1) for "preliminary injunctive relief to require the Department [of Interior] and [the Bureau of Indian Affairs] to take all action to restore the status quo while agency review is pending"; and (2) for "declaratory relief that the [Pala] Band's [1997] Constitution was never ratified by election and, as a result, the [Bureau of Indian Affairs] has been delegated final review of the enrollment issue."*fn2 (ECF No. 1 at 8, 13).

On March 5, 2012, Plaintiffs filed the Motion for Temporary Restraining Order.

Plaintiffs seek an injunction as follows:

1. That Assistant Secretary Echo Hawk, the

BIA's officers, agents, or employees, and attorneys, must take no action to remove Plaintiffs from the federally approved roll until review pursuant to the Administrative Procedures Act, and Plaintiffs' appeal of the Band's governing documents and the Band's disenrollment ...


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