Hoopa appendix supporting summary judgment - Schlosser Law Files

More documents

Recommendations

Info

43 C.F.R. § 4.318, which allows the Board to broadly exercise the inherent authority of the Secretary of the Interior “to correct a manifest injustice or error where appropriate.” 1 Manifest injustice results from the Special Trustee’s unlawful action and the subsequent denial of jurisdiction to hear this appeal, which could be referred by the Secretary, before tribal trust funds are released in contravention of the Trust Reform Act and the Hoopa Yurok Settlement Act. 2. Standard of Review 43 C.F.R. § 4.315 empowers the Board to reconsider its decisions in extraordinary circumstances upon receipt of a petition containing “a detailed statement of the reasons why reconsideration should be granted.” The Board has prudently exercised this authority and should do so in this instance. E.g., McKenzie v. Senior Awarding Official, 39 IBIA 242 (2004); Dragswolf, 31 IBIA 228 (1997). The Board’s very prompt ruling on this large and complex appeal overlooked facts concerning the unique and limited authority of the Special Trustee in this instance and evidence that jurisdiction exists under, at least, 25 C.F.R. pt. 1200 and the related provisions in 25 C.F.R. pt. 115, subpart G. 2 A manifest injustice will be done, and substantial 1 “Manifest injustice” or “manifest error” arise when the injustice or the error is obvious. Estates of Walter George and Minnie Racehorse George Snipe, 9 IBIA 20, 22-23 (1981); cf. Estate of Glenn Begay, 16 IBIA 115, 118 (1988) (the Board has authority “in extraordinary cases” to correct manifest error); Chitina Traditional Village Council v. Juneau Area Director, Bureau of Indian Affairs, 31 IBIA 100 (1997) (using authority in 25 C.F. R. § 4.318 to “modify the Judge’s procedural disposition” of the case because Judge erroneously relied on a prior Board decision). 2 The Board believes that Mr. Swimmer’s decisions “were made pursuant to the Department’s administration of the Settlement Act.” 44 IBIA at 212. This, however, is the ultimate issue on the merits: whether the Settlement Act authorizes the decisions by Mr. Swimmer. The Tribe believes the Settlement Act does not authorize Mr. Swimmer’s decisions. However, this issue on the merits has no bearing on whether the Board may exercise jurisdiction over this appeal of Mr. Swimmer’s egregious and very political decision that attempts to shrewdly deprive the Tribe of any forum for a remedy at law preventing distribution of the settlement funds. Griffith v. Acting Portland Area Dir., Bureau of Indian Affairs, 19 IBIA 14, 18 (1990) (Board serves to provide independent, objective administrative review of decisions of Hoopa Valley Tribe’s Petition For Reconsideration - 2
liability for the United States will arise, if the Board declines to exercise its jurisdiction here to prevent the unlawful distribution of tribal trust monies in violation of federal law. 3. Actions Governed by the Reform Act Are Within the Board’s Jurisdiction. Upon a thorough examination of the exhibits in support of the Tribe’s notice of appeal, together with the three additional exhibits provided herewith, 3 the Board should conclude that it has jurisdiction because this is a “dispute” within the meaning of 25 C.F.R. pt. 1200 and the related provisions in 25 C.F.R. pt. 115, subpart G. As explained below, the only lawful way the Special Trustee could have acted here is under the Reform Act, which makes his actions subject to review by the Board. No Secretarial Order or special delegation of authority to the Special Trustee applies here. Secretarial Order No. 3259, Amendment No. 2 (Mar. 31, 2006) temporarily redelegated all functions of the Assistant Secretary-Indian Affairs to the Associate Deputy Secretary during the time that the Assistant Secretary-Indian Affairs position remained vacant. The Special Trustee’s first decision, dated March 1, 2006, occurred just before Mr. Carl Artman was confirmed as Assistant Secretary-Indian Affairs on March 5, 2007. The second decision, dated March 21, 2006, came after the Assistant Secretary position was filled. Because the Special Trustee did not purport to be exercising either the authority of the Associate Deputy Secretary or the authority of BIA officials and to prevent the politicization of those decisions). The Board’s reference to the ultimate question on the merits is circular and cannot be used as grounds to deny jurisdiction. 3 The Tribe is aware that the Board ordinarily declines to consider arguments or evidence presented for the first time in a petition for reconsideration. Yeahquo v. Southern Plains Regional Dir., 36 IBIA 59 (2001). However, the new evidence could not have been presented at the time the notice of appeal was filed and was not relevant until the Board’s decision. This is particularly true concerning Exhibit HVT-17 which was dated March 21, 2007 and received by the Tribe on March 30, 2007, after the notice of appeal was filed. This newly available evidence, which could not have been presented earlier, should be considered by the Board upon reconsideration. Hoopa Valley Tribe’s Petition For Reconsideration - 3
Page 1 and 2:
Electronically Filed April 2, 2008
Page 3 and 4:
Exhibit 12 Notice to Convene Genera
Page 5 and 6:
Exhibit 37 Letter of Special Truste
Page 7 and 8:
2 Account 7153 - Proceeds of Labor,
Page 9 and 10:
App. 4
Page 14 and 15:
3 II 100TH CONGRESS 2D SESSION S. 2
Page 16 and 17:
5 3 1 (4) “Hoopa Valley Tribe”
Page 18 and 19:
7 SEC. 2. RESERVATIONS; PARTITION A
Page 20 and 21:
9 7 1 shall thereafter he held in t
Page 22 and 23:
11 1 SEC. 3. PRESERVATION OF SHORT
Page 24 and 25:
made pursuant to subsections (c) an
Page 26 and 27:
15 13 1 from applicants not include
Page 28 and 29:
1 can meet any of the enrollment cr
Page 30 and 31:
(4) Any person making an election u
Page 32 and 33:
21 19 1 (b) INTERIM CouNcn~EsT~LIsi
Page 34 and 35:
(5) Vacancies on the Interim Counci
Page 36 and 37:
25 1 merge with the Yurok Tribe and
Page 38 and 39:
27 25 1 SEC. 13. LIMITATIONS OF ACT
Page 194 and 195:
United States Department of the Int
Page 196 and 197:
REPORT TO CONGRESS HOOPA-YUROK, Pur
Page 198 and 199:
Subsequent to enactment of the Act,
Page 200 and 201:
IV. That Congress in coordination w
Page 202 and 203:
FINANCIAL INFORMATONA.L SHEET - “
Page 204 and 205:
—2— The balance due vas distrib
Page 206 and 207:
YIJROK TRII3E -- ~ ~ ~ ~ 15900 Hwy
Page 208 and 209:
BACKGROUND April 2, 2001 Page 3 rec
Page 210 and 211:
REPORT TO CONGRESS ON THE HOOPA-YUR
Page 212 and 213:
In 1892, Congress opened the Kiamat
Page 214 and 215:
esource management, and spending of
Page 216 and 217:
The HYSA established procedures for
Page 218 and 219:
Consistent with this reasoning, the
Page 220 and 221:
On April 18, 2000, a sharply divide
Page 222 and 223:
the funds. While the balance ofthe
Page 224 and 225:
DRAFT REPORT OF THE SECRETARY OF TH
Page 226 and 227:
the Kiamath River and Hoopa parcels
Page 228 and 229:
No. C 80 2908 TEH (N.D. Cal.). The
Page 230 and 231:
the Yurok Reservation on December 7
Page 232 and 233:
By memorandum to the Area Director,
Page 234 and 235:
United States, 982 F.2d 1312, 1321
Page 236 and 237:
claims brought pursuant to 25 U.S.C
Page 238 and 239:
secured under the Constitution ofth
Page 240 and 241:
After due consideration, the Secret
Page 242 and 243:
The existing governing documents of
Page 244 and 245:
On February 28, 2001, the Ninth Cir
Page 246 and 247:
S. HRG. 107-648 HOOPA-YUROK SETTLEM
Page 248:
C O N T E N T S Page Statements: Ca
Page 251 and 252:
2 STATEMENT OF HON. BEN NIGHTHORSE
Page 253 and 254:
4 ership and management of the Squa
Page 255 and 256:
6 The U.S. Court of Federal Claims
Page 257 and 258:
8 is not entitled to further distri
Page 259 and 260:
10 Mr. MCCALEB. Senator, I was hopi
Page 261 and 262:
12 never implemented. For example,
Page 263 and 264:
14 nues derived from one reservatio
Page 265 and 266:
Mr. Schlosser. 16 STATEMENT OF THOM
Page 267 and 268:
18 The committee said while it didn
Page 269 and 270:
20 big conference. In some places t
Page 271 and 272:
22 plus in timber revenues projecte
Page 273 and 274:
24 courts have said. No Indian trib
Page 275 and 276:
26 Be that as it may, we pray Congr
Page 278 and 279:
APPENDIX ADDITIONAL MATERIAL SUBMIT
Page 280 and 281:
31 Unfortunately for all concerned,
Page 349 and 350: 100
Page 351 and 352: 102
Page 358 and 359: II 108TH CONGRESS 2D SESSION S. 287
Page 360 and 361: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 362 and 363: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 364 and 365: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 366 and 367: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 368 and 369: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 370 and 371: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Page 372: 1 2 3 4 5 6 7 8 9 10 11 12 15 18 mo
Page 386 and 387: the Assistant Secretary-Indian Affa
Page 388 and 389: Special Trustee’s letters make no
Page 390 and 391: In Short VI, plaintiffs pointed to
Page 411: CERTIFICATE OF SERVICE I hereby cer
show all

Hoopa appendix supporting summary judgment - Schlosser Law Files

Create successful ePaper yourself

Delete template?

Save as template?