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New Constitution Ends Tribe’s Fight With U.S.

SAN FRANCISCO (CN) — The Ninth Circuit on Friday dismissed a California Indian tribe's claims that the federal government violated its right to self-government by interfering with tribal elections, since the tribe's new constitution mooted its claims.

"This is a cautionary tale for all Indian tribes," Jeffrey Keohane, who represented the tribe, said in an email.

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 said the U.S. government pushed them aside.

Following a January hearing, the Circuit's three-judge panel dismissed the case as moot because the tribe's newest constitution, which it adopted in 2014, meant that there was no chance that remand to the Bureau of Indian Affairs would make any difference in the disputed election results.

Writing for the panel, Circuit Judge Clifford Wallace pointed out that the tribe has conceded that the validity of the 2014 constitution "is not before" the panel.

"Under the new constitution's membership framework, there is no dispute that the 74 disenrolled individuals qualify for tribal membership," Wallace said in the 14-page opinion.

"Thus, were we to remand for the Bureau of Indian Affairs to reconsider its decision, there would be no possibility whatsoever that the agency would change its reasoning as to the disenrolled individuals because those people clearly qualify for tribal membership under the new constitution."

Wallace rejected the tribe's argument that the new constitution is ineffective because unqualified individuals voted in favor of it.

"This argument ignores the fact that the new constitution received a substantial majority of votes in its favor, the Bureau of Indian Affairs certified it, and the Kennedy group has conceded that is validity 'is not before' us," he said.

"Given all of that, on what authority can we decide the new constitution is invalid?"

Keohane said the opinion allows the Bureau of Indian Affairs to "withdraw recognition of the tribe's leadership at any time, bestow it on another faction, and the courts will not interfere based on the doctrine that they must not meddle in tribal affairs — even to stop the BIA from meddling in tribal affairs."

James Birkelund, who represented the tribal council, called the case "dead on arrival" in an email.

"The tribe's government is healthy, governed by the will of its people, and immune to political attacks in the courts by a few disgruntled individuals," Birkelund said.

Keohane is with Forman & Associates in San Rafael, California.

Birkelund practices in San Francisco.

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