SAN FRANCISCO (CN) – The Ninth Circuit on Monday heard arguments in a case brought by a California Indian tribe that claims the federal government unlawfully interfered in tribal elections, violating its right to self-government.
The Timbisha Shoshone Tribe, based in Death Valley, claimed the U.S. Department of the Interior and the Bureau of Indian Affairs cut off tribal council funding in 2011 and that Larry Echo Hawk – the assistant secretary for the bureau – ordered new council elections, allowing people who were not members of the tribe to vote and run for tribal office in violation of the tribe’s 1986 constitution.
According to the tribe, the bureau then ordered a vote on a proposed new constitution in 2013 that would illegally make many non-Timbisha individuals new tribal members.
The suit was brought the tribe and a faction of former tribal council members led by Joseph Kennedy, who say the U.S. government pushed them aside.
Arguing for the tribe and the eight “Kennedy group” members before the Circuit’s three-judge panel, Jeffrey Keohane said that his clients are not asking for a repeal of the 2011 election but for a “new recognition decision.”
Circuit Judge Diarmuid O’Scannlain asked him why the case was not moot.
“We’ve had three elections since the election at issue in this case,” O’Scannlain said. “There’s no way in the world, regardless of what we do, that we’re going to affect that first election.”
Keohane replied that every election after 2011 was “the fruit of the poisonous tree” – Echo Hawk’s original decision to hold a new election.
Senior Circuit Judge Clifford Wallace pointed out that the new 2013 tribal constitution seemed to moot the case, but Keohane contended that the constitution is not valid.
“This is a constitution adopted at the behest of a tribal council that we claim is not legitimate,” Keohane said. “And if this constitution made people members of the tribe, that’s admitting that they weren’t members of the tribe to begin with and couldn’t serve on the tribal council.”
U.S. District Judge Marilyn Huff, sitting by designation from the Southern District of California, asked how effective the plaintiffs’ requested declaratory and injunctive relief would be since Keohane seemed to be talking about only procedural changes.
“We’re not asking this court to place anyone in power,” Keohane said. “But the government places their arguments on a misunderstanding of federal and tribal law.”
He added, “Federal courts don’t have the ability to replace tribal governments – they have the ability to recognize them. And this procedural right is a real material right.”
Mary Sprague, arguing for the federal defendants, said that the case was moot because there have been regular tribal elections since the special election of 2011 – by 2012, she said, all five council members produced by the 2011 election had termed out.
“The current tribal council members were voted in during November 2013 and 2014,” Sprague said. “And the request for the constitution vote came from the November 2013 tribal council, which was the product of the 2012 and 2013 elections, not the 2011 special election.”
What “sealed the deal” and made the case moot, she said, was the Bureau of Indian Affairs assistant secretary’s decision accepting the adoption of the new tribal constitution in May 2014, “which in our view does resolve any membership dispute from 2011.”
Wallace noted procedural delays at the Department of the Interior might make a plausible argument for the Kennedy group.
“Don’t they have the argument that they don’t have a voice in this because it takes so long to get their argument up?” Wallace said. “It takes forever to get through the department. If we accept your rule, aren’t we going to silence the tribe’s ability to challenge, because there will always be more elections and we can say I’m sorry, it’s moot?”
Sprague assured the panel that the government would take care to react properly if a “systemic problem” emerged in the future. She also encouraged the Kennedy group to continue to participate in tribal government and challenge subsequent elections if they think there are systemic issues – something they did not do in 2012, 2013 or 2014, she said.
Arguing for the tribe’s elected council members, attorney James Birkelund said his clients believe the tribal members’ voices have been heard “not once or twice, but six times” since the 2011 decision by Echo Hawk.
“Ultimately if there’s no other way to resolve these disputes, it has to come down to a referendum – the voice of the entire electorate – and that’s what happened here,” Birkelund said. “That’s what happened here. Once that voice was heard, the Echo Hawk decisions no longer have any impact. The voice of the tribe trumps everything that happened before that.”
As for the “fruit of the poisonous tree” argument regarding enrollment put forth by the Kennedy group, Birkelund said it was an attempt by the group “to disenroll 25 percent of the tribe during a period of divided government.”
He added, “When you don’t have either faction recognized, no court nor the Interior should allow disenrollments to occur. If there are tribal election politics going on and there are two separate groups, neither should be able to disenroll members when no one is recognized. There would be no meaning to sovereign immunity if all a tribal faction had to do is say, ‘The existing council is not legitimate.'”
Wallace also asked Birkelund how he would solve disputes given the inherent delays at Interior.
“Sometimes it should avoid review by Interior and the courts – they can have their voice heard,” Birkelund said. “The Kennedy faction are members in good standing of the tribe; they can run for council, seek to recall existing council members, attempt to amend the new constitution and challenge the new constitution in court.”
He continued, “The courts and Interior should do everything they can to support sovereignty and self-determination. If you have one tribal faction that’s trying to control the tribe, the government should not get involved in a time of darkness when the tribe is fractured and there’s no political government recognized on either side.”
Wallace noted that the government needs to know “where they send the checks,” and there should be some way to “solve the problem better than we’ve done before.”
Birkelund said an Eighth Circuit case gave Interior and the Bureau of Indian Affairs authority to recognize one side in cases of tribal government disputes, “and Echo Hawk did that here.”
The panel did not indicate how it expects to rule.
Keohane’s office is in San Rafael, California.
Sprague is with the U.S. Department of Justice.
Birkelund’s office is in San Francisco.
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