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Alegre v. United States

United States District Court, S.D. California

May 18, 2017

CINDY ALEGRE, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA; DEPARTMENT OF INTERIOR; BUREAU OF INDIAN AFFAIRS; RYAN ZINKE, Secretary of the Department of Interior, United States of America; MICHAEL BLACK, Acting Assistant Secretary of the Department of Interior - Indian Affairs, United States of America; WELDON LOUDERMILK, Director Bureau of Indian Affairs; AMY DUTSCHKE, Pacific Regional Director, Department of Interior - Indian Affairs, United States of America; JAVIN MOORE, Superintendent of the Department of Interior Indian Affairs, Southern California Agency; DOES 1 through 200, inclusive, Defendants.

          ORDER GRANING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER (Doc. No. 6)

          Hon. Anthony J. Battaglia United States District Judge

         Plaintiffs, 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.[1]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.

         Background

         This 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 the Band.

         I. Historical Background and the Trask Descendants

         Plaintiffs' 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.)[2] 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.[3]

         Amos 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.)

         In the 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.)

         In or 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 as follows:

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.)

         After 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.)

         II. Plaintiffs' Denial of Enrollment in the 2000s

         Plaintiffs 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 ...


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