United States District Court, S.D. California
ORDER GRANING PLAINTIFFS' MOTION FOR TEMPORARY
RESTRAINING ORDER (Doc. No. 6)
Anthony J. Battaglia United States District Judge
collectively referred to as the Martinez Descendants, seek
declaratory relief that their ancestors are full blood San
Pasqual Indians and that all Plaintiffs have no less than 1/8
San Pasqual blood, thereby satisfying the Band's
enrollment criteria.Currently before the Court is
Plaintiffs' ex parte request for temporary restraining
order. (Doc. No. 6.) Plaintiffs assert they gave notice to
Defendants of their intent to file the instant request. (Doc.
No. 6-2 ¶¶ 3-4.) Having considered Plaintiffs'
arguments, and for the reasons set forth below, the Court
GRANTS the request for temporary restraining order and
SCHEDULES a telephonic status conference for Monday, May
22, 2017, at 3:00 p.m. to set a briefing schedule and
hearing on a motion for preliminary injunction.
lawsuit centers on a century-old dispute over tribal
identity. Plaintiffs' grievances are two pronged. One
issue concerns Plaintiffs' ancestry and Defendants'
conduct. The other concerns the ancestry of other members of
Historical Background and the Trask Descendants
dispute dates back to the late 1800s and early 1900s. After
the Band was driven from its aboriginal land, the United
States government designated land in another township for the
Band. (Doc. No. 1 at 17.) Though the land was filled with rocks
and had little or no water, it was still valuable, and
squatters remained problematic. (Id. at 17-18.) To
deal with this issue, Amos Frank, then Indian Superintendent
of the Mesa Grande Tribe, hired a man named Frank Trask as a
“police private and judge” to preserve the San
Pasqual reserve. (Id.; Doc. No. 1-2 at 24-25.) Frank
Trask was the son of Rosewell Trask, a white man, and
Mattiana Martha Warner Trask, a Mexican woman. (Doc. No. 1 at
17.) Frank Trask married Lenora LaChappa, a Mesa Grande
Indian woman. (Id.) Accordingly, while Trask
descendants have some Indian blood, Plaintiffs allege they
have no San Pasqual Indian blood.
Frank relocated Frank Trask and his family onto the San
Pasqual reserve in 1910. (Id. at 18; see
Doc. No. 1-15.) Though Frank Trask's employment ended
within a year, the Trask family remained on the land as
squatters for the next 40 years and prevented the Band from
coming onto the reservation. (Doc. No. 1 at 18-19; Doc. No.
1-2 at 25.)
1950s, the Band started to formally organize itself. (Doc.
No. 1-2 at 25.) The Band worked with anthropologist Dr.
Florence Shipek to assemble the documentation necessary to
establish Band membership. (Id.) Dr. Shipek worked
with the Band's Enrollment Committee, which was then
comprised mainly of members who were unquestionably of San
Pasqual descent. (Id.) However, it also included two
members not of San Pasqual descent, including Florence Wolf
Trask, the daughter of Frank and Lenora Trask. (Doc. No. 1 at
17; Doc. No. 1-2 at 25-26.)
around 1959, the Band approved an enrollment statute, which
required that persons seeking enrollment in the Band must
possess no less than 1/8 blood of the Band. (Doc. No. 1 at
21; see Doc. No. 1-19.) Following the Band's
approval of the proposed regulation, and unbeknownst to the
Band, the rule that was ultimately codified and published at
25 C.F.R. § 48 on March 2, 1960, differed in a
significant respect from that which the Band approved. (Doc.
No. 1 at 21-22; Doc. No. 1-2 at 26-27.) The added section,
codified at 25 C.F.R. § 48.5(f), read in pertinent part
A person who meets the requirements of paragraph (a), (b), or
(c) of this section, but whose name has been carried on the
census roll of another reservation shall be declared
ineligible for enrollment unless he can establish that he has
been affiliated with the San Pasqual Band for a continuous
period of at least one year immediately prior to January 1,
1959, evidenced by residence on the reservation or through
active participation in tribal affairs such as attendance at
tribal meetings, and being permitted to vote on matters
relating to the San Pasqual Reservation.
(Doc. No. 6-11 at 3-4; see Doc. No. 1-2 at 26-27.)
25 C.F.R. § 48 was published, the Enrollment Committee
recommended that several Trask Descendants be denied
enrollment. (Doc. No. 1 at 22.) However, the BIA found the
Trask Descendants were eligible for enrollment.
(Id.) In 1966, the BIA had prepared and approved the
Tribal Membership Roll of the Band, which included several
non-San Pasqual people due to § 48.5(f) and a
secretarial construction of the phrase “blood of the
Band” as used in the C.F.R. to mean “total Indian
blood of a person named on the basic membership Roll dated
June 30, 1910.” (Id.; Doc. No. 1-2 at 23-24.)
The Band objected to the use of the 1910 census because it
included Frank and Lenora's children, even though Lenora
and her parents were listed on multiple census rolls for the
Mesa Grande Tribe. (Doc. No. 1-2 at 26, 29.) These actions
and interpretations resulted in the admission of Trask
Descendants to the Band. (Id. at 28-30.)
Plaintiffs' Denial of Enrollment in the
are the descendants of Jose Juan Martinez, Guadalupe
Martinez, and their daughter Modesta Martinez Contreras.
(Doc. No. 1 at 9.) On September 12, 2005, the Band's
Tribal Counsel and Enrollment Committee approved Plaintiffs
for enrollment in the Band. (Id. at 10; Case No.
16-CV-2442, Doc. No. 13-3 at 14-15, see Doc. No.
13-10.) Ten days later, the Enrollment Committee submitted a
letter to Superintendent James Fletcher of the Bureau of
Indian Affairs (“BIA”), requesting ...