Disenrolled Pechanga members thwarted by appellate court

By: DEIRDRE NEWMAN - Staff Writer | Tuesday, August 9, 2005 11:23 PM PDT ∞

An appellate court has rejected the first of two lawsuits filed by former Pechanga tribe members seeking relief in state court after being disenrolled from the band 19 months ago.

An attorney representing the ousted tribal members said Tuesday that the 4th District Court of Appeal misinterpreted federal law in ruling that California courts do not have the jurisdiction to consider the lawsuit. The suit, filed by 11 disenrolled tribal members on behalf of more than 130 family members, accused members of the tribe's enrollment committee of violating the tribe's constitution with the disenrollments.

The disenrolled members will likely ask the appellate court for a rehearing and appeal the case to the California Supreme Court, which can be done simultaneously, their attorney Jon Velie said Tuesday.

The appellate court's decision, announced Monday, was based on the opinion that it's up to the Pechanga tribe, not the courts, to ascertain whether its own law has been violated. This decision leaves room for an appeal because a pertinent part of a relevant federal statute was not evaluated by the appellate court, Velie said. The statute, Public Law 280, enables individual Indians to sue other Indians in some states, including California.

"Part of Public Law 280 mandates that if there's tribal law, it must be given full force and effect," Velie said. "It wasn't analyzed. They didn't even give it two seconds."

In his reaction to the decision, Mark Macarro, chairman of the Pechanga Band of Luiseno Mission Indians, reiterated the tribe's right to sovereignty.

"As we have stated repeatedly, tribal governments have sole jurisdiction and authority to establish and enforce procedures to determine their own tribal citizenship," Macarro wrote in an e-mail. "The right to determine our tribal citizenship is central to Pechanga's identity as a distinct sovereign government."

He also said that tribal disenrollments predate casino gaming. Critics have contended that disenrollments are a direct result of the wealth gaming produces.

"Prior to casino gaming, the Pechanga government engaged in several disenrollment actions between 1988 and 1994, and did so with little fanfare," Macarro stated. "Over the last two years, there have been several enrollment challenges which have resulted in both (no change) and disenrollment decisions."

The 130-plus disenrolled members claim they were ejected in violation of the tribe's constitution, adopted in 1978, which delineated membership criteria. The plaintiffs are all direct descendants of Pablo Apis, according to their second lawsuit. Apis was a 19th century Indian widely regarded as chief of the Temecula Indians by whites and Mexicans living in the area.

The first lawsuit by the disenrolled members was filed in January 2004 in Riverside County Superior Court. The court granted jurisdiction, but that decision was appealed by the defendants.

The plaintiffs' second lawsuit, filed this past March, accuses some 30 tribal members of influencing the disenrollments. As part of this second lawsuit, the plaintiffs are seeking a minimum of $38 million in damages, based on the $15,000 monthly payments each adult member received while still in the tribe. That case is still in the early stages of the legal process.

The appellate court's opinion on the first lawsuit lacks "a detailed treatise on Indian law," stating that the plaintiffs' complaints should be addressed in a political forum, not a judicial one. As far as Public Law 280 is concerned, the court could find no precedent that the law applies to a tribal membership dispute, according to the court's written opinion.

"With some reluctance, we conclude that Congress did not intend the statute to authorize state courts to intervene in a case such as this," the opinion states.

Furthermore, Congress has for the most part chosen to invest the civil rights of American Indians to an "honor system" in which tribes are strongly encouraged to respect and apply American constitutional principles, but can't be forced to do so, according to the opinion.

This is an alarming interpretation, contends Velie, a specialist on Indian law and sovereignty.

"All this does is give a green light to any corrupt tribal official who says, 'I'm on my honor now,'" he said.

There are other flaws with the court's opinion, as well, Velie maintains. He believes it used precedent incorrectly by relying in part on a previous case that falls under the Indian Civil Rights Act, which is more limited than Public Law 280.

It also narrowed another precedent that required Indians who used sovereignty as their defense to prove they had the power in their official capacity and were acting within the range of their duties when they made their decisions, Velie contends.

"These enrollment committee members didn't prove they had the discretion to break the constitution of Pechanga and were not acting within the scope of their duties when they used arbitrary standards to make those determinations," Velie said. "We were looking for the chance for these acts to be analyzed by the court, which had the mandate from Congress to interpret tribal law. Did these people break tribal law or not?"

Contact staff writer Deirdre Newman at (951) 676-4315, Ext. 2623, or dnewman@californian.com.