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Ronald D. Allen, Jr., et al v. Robert H. Smith; Leroy H. Miranda

March 11, 2013

RONALD D. ALLEN, JR., ET AL.,
PLAINTIFFS,
v.
ROBERT H. SMITH; LEROY H. MIRANDA, JR.; KILMA S. LATTIN;
THERESA J. NIETO; DION PEREZ, DEFENDANTS.



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

ORDER

The matter before the Court is the Amended Motion to Dismiss (ECF No. 17) filed by Defendants Robert H. Smith, Leroy H. Miranda, Jr., Kilma S. Lattin, Theresa J. Nieto and Dion Perez ("Defendants").

PROCEDURAL BACKGROUND

On July 3, 2012, twenty-seven former members of the Pala Band of Mission Indians ("Plaintiffs") filed a Complaint against Defendants, seeking monetary damages and declaratory and injunctive relief. (ECF No. 1). Plaintiffs assert the following claims for relief to remedy their disenrollment from the Pala Tribe: (1) conspiracy to interfere with civil rights, in violation of 42 U.S.C. § 1985(3); (2) deprivation of equal rights under the law, in violation of 42 U.S.C. § 1981; (3) conversion; (4) tortious interference with prospective economic advantage; (5) defamation; and (6) civil conspiracy. Id. at 56-61.

On August 30, 2012, Defendants filed the Amended Motion to Dismiss*fn1 (hereinafter "Motion to Dismiss") pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 12(b)(7). (ECF No. 17). On October 15, 2012, Plaintiffs filed an opposition. (ECF No. 18). On October 29, 2012, Defendants filed a reply. (ECF No. 23).*fn2

On March 1, 2013, the Court held oral argument on the Motion to Dismiss. (ECF No. 35).

ALLEGATIONS OF THE COMPLAINT

"Pala is located on a 12,000-acre reservation east of Interstate 15 and south of Temecula." (ECF No. 1 at 22). Plaintiffs are descendants of Margarita Britten, who was identified on the Pala Band of Mission Indians' ("Pala Tribe") original 1913 allotment roll as 4/4 degree Pala Indian blood. Id. at 23. The Pala Tribe "is supposed to be governed by its General Council, consisting of all adult members eighteen years and older. The General Council elects an Executive Committee comprised of six elected officials with two-year terms that includes the chairman, vice chairman, treasurer, secretary, and two council persons." Id.

On November 6, 1960, the Pala Tribe officially adopted the Pala Articles of Association, previously approved by the Commissioner of Indian Affairs on March 7, 1960. Id. Section 2(A) of the Articles of Association, which defined tribal membership, provided:

(1) Those persons whose names appear on the Pala Allotment Rolls as approved by the Secretary of the Interior on April 12, 1895, and November 3, 1913, who are living on the date of approval by the Commissioner of Indian Affairs;

(2) All living descendants of persons on the Allotment Rolls covered in Section 2.A(1) regardless of whether the original allottees are living or deceased, provided that such descendants have one-sixteenth (1/16) or more degree of Indian blood of the Band;

(3) Those persons who have been adopted by the Band and such adoption has been approved by the Bureau of Indian Affairs.

Id. at 22-23.

On November 26, 1961, the Pala Tribe enacted an enrollment ordinance which established "regulations and procedures governing the enrollment of members into the Tribe and to maintain the roll on a current basis (the 'Original Enrollment Ordinance')." Id. at 23. The Original Enrollment Ordinance "provided numerous safeguards regarding enrollment and membership in Pala." Id. Pursuant to the Original Enrollment Ordinance:

[A]ny person whose application for Pala membership had been rejected by the Executive Committee [of the Pala tribe] could appeal to the Area Director of the BIA. The Area Director shall forward to the Commissioner of Indian Affairs the appeal, supporting data, his recommendation, and the report and recommendation of the Executive Committee. If the Commissioner determines that the appellant is not eligible for enrollment, he shall notify the appellant in writing of his decision and the reasons therefor. If the application is rejected by the Commissioner, the appellant has 30 days from the mailing of the notice to file an appeal with the Secretary of the Interior, whose decision on appeal shall be final and conclusive.

Id.

"[I]n the 1980s, after a thorough and extensive investigation -- including a review of sworn statements, government records, family history cards, and other evidence -- the Bureau of Indian Affairs ('BIA') ... ruled that Margarita Britten was a full-blooded Pala Indian. The BIA has repeatedly reiterated its conclusion that this ruling was final." Id. at 9. In 1984, "Pala's General Council ... voted on and approved a resolution to correct Margarita Britten's blood degree to reflect that she was a full-blooded Pala Indian." Id.

In 1987, Defendant Robert H. Smith "became Chairman of the Pala Tribe." Id. Defendant Smith, as Chairman, "began to take actions to secure his power over the Tribe and its members, particularly as the Tribe became involved in Indian gaming and became wealthy from casino money." Id.

On November 22, 1994, the Pala Tribe "revised its Articles of Association into a constitution, as [Defendant] Smith convinced the Tribe that it was necessary to do so in order for Pala to participate in Indian gaming." Id. In June of 1995, the Bureau of Indian Affairs ("BIA") reviewed the proposed constitution, which it "returned with recommendations for consideration." Id. at 23-24. "On or about November 1997, a final draft of the revised constitution was completed." Id. at 24.

On November 19, 1997, Resolution 97-36 "was passed ... to 'adopt the Pala Tribal Constitution [hereinafter 'Constitution'] to supersede the Articles of Association.'" Id. Resolution 97-36 "was only approved by a vote of 27 'For' and 0 'Against' in a Special Meeting -- barely satisfying the quorum of at least 25 voters necessary to validate actions by the General Council." Id. at 25.

"[P]ursuant to the Indian Reorganization Act [of 1934 ('IRA')] and the Pala's Constitution itself, approvalby a majority of the voters in a duly called election was required for Pala's Constitution to become effective." Id. at 24-25 (quoting 25 U.S.C. § 476(a)). Prior to disenrollment of Britten's descendants, the Pala Tribe "had approximately 900 enrolled members." Id. at 22. "[A]pproval by at least 300 or so adult voters would have been necessary to ratify the Constitution." Id. at 25.

Since Pala's Constitution was not ratified by a majority vote of the adult members of Pala, it is invalid. Indeed, in response to a Freedom of Information Act ('FOIA') request to the BIA for any documents 'proving compliance with Section 476(a) described above, including the date a special election was authorized, called and conducted by the Secretary that resulted in the ratification of the Tribe's Constitution,' the BIA responded that it could not locate any such documents after having conducted a thorough search of its files -- thus confirming that no such election to ratify the Pala Constitution had occurred. Because a majority vote ratifying Pala's Constitution did not occur, the Constitution was not properly adopted by the Tribe and therefore is not the governing document of the Tribe. Instead, Pala is still governed by its original Articles of Association.

Id. "The fact that Pala's Constitution is invalid is substantiated by other evidence." Id. For example, "Pala's Tribal Gaming Ordinance enacted on February 14, 2000 states that the Tribe is governed by its Articles of Association, not by its Constitution...." Id. The Pala Tribe's website, "as recently as February 2012, ... stated that '[t]he tribe is organized under Articles of Association approved in July 1961 and later amended in 1973 and 1980,' instead of stating that it was governed by its Constitution." Id. at 26.

"Pala's new Constitution purported to give Pala's Executive Committee the power to 'amend and/or replace its existing Enrollment Ordinance with an Ordinance governing adoption, loss of membership, disenrollment, and future membership.' However, because the Constitution was not ...


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