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Joseph ("Joe") Kennedy, et al v. United States Department of the Interior; et al

May 9, 2012

JOSEPH ("JOE") KENNEDY, 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

The 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 ("Dutschke"), Director of the Pacific Regional Office of the BIA, and Troy Burdick ("Burdick"), Superintendent of the Central California Agency of the BIA (collectively, "Defendants"), alleging injuries suffered as a result of a final agency decision issued by Echo Hawk on March 1, 2011 ("EHD I").

On August 5, 2011, all of the original Plaintiffs other than the Tribe (hereafter collectively "Plaintiffs") filed a First Amended Complaint ("FAC") attacking both EHD I and a subsequent related decision issued by Echo Hawk on July 29, 2011 ("EHD II") (collectively with EHD I referred to as the "EHD"). Presently before the Court is Defendants' Motion to Dismiss the FAC. For the following reasons, Defendants' Motion is GRANTED with leave to amend for failure to join indispensable parties.*fn1

BACKGROUND*fn2

A. Tribal History.

In 1982, 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 1978 Base Roll and to certain of those members' lineal descendants. The Constitution requires that the Tribal Enrollment Committee "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." Because members of this Election Board may only be removed for specific, non-political reasons, the Board generally remains unchanged from year to year.

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 Joe Kennedy ("Kennedy"), who was elected as Chairman, Ed Beaman ("Beaman"), Madeline Esteves, 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"), while Beaman's seat was left to be filled at the next election. 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.

The 2007 Kennedy Council 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 is relevant here, the general election resulting in election of the 2007 Kennedy Council and the 2006 Kennedy Faction's 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 ("Beaman Appeal"), staying its effect.

On September 25, 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 2007 Kennedy Council performed the ministerial act of adopting resolutions confirming the membership revocations.

During this same time frame, 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 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." No other election was held at this time.

On December 4, 2008, Defendant Dutschke's predecessor, Regional Director Dale Morris ("Morris") nonetheless recognized Gholson as the Tribe's chairman. A few days later, on December 12, 2008, Gholson again allegedly removed Tribal property from the Tribal Office in Death Valley.

On December 22, 2008, Morris rescinded his December 4, 2008, decision recognizing Gholson. Gholson nevertheless refused to return any Tribal property.

On February 17, 2009, Morris reversed Burdick's decision, recognizing the 2007 Kennedy Council, and, on March 24, 2009, he reversed Burdick's October 17, 2008 decision recognizing Gholson, proposing in both decisions to recognize the 2006 Tribal Council.

The 2008 Kennedy Council appealed Morris's February 17 decision ("Kennedy Appeal"), and Gholson, among others, appealed his March 24 decision. These two groups will hereafter be referred to as the "Kennedy Faction" and the "Gholson Faction." Echo Hawk took jurisdiction over and consolidated these appeals.

In November of both 2009 and 2010, the Kennedy Faction and the Gholson Faction each purportedly held general elections resulting in the election of what will be referred to as the "current Kennedy Council" and the "Gholson Council." According to Plaintiffs, the Gholson Faction permitted disenrolled members to vote in its elections and to elect to its council disenrolled members or individuals who did not qualify for membership.

The Gholson Faction eventually withdrew its appeal of the March 24, 2009 decision, but nonetheless continued to work to freeze Tribe bank accounts.

On February 24, 2010, Burdick issued a decision determining no Tribal Council existed. The Kennedy Faction appealed the decision, and the BIA has not yet acted on that appeal.

Plaintiffs allege Burdick's latest decision was used to again freeze Tribal funds and to convince federal agencies to cease funding ...


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