[00:00:00] Speaker 00: Case number 24-5231. [00:00:02] Speaker 00: California Valley Uwoke Tribe et al. [00:00:06] Speaker 00: at balance versus Douglas Bergen, U.S. [00:00:08] Speaker 00: Secretary of the Interior et al. [00:00:10] Speaker 00: Ms. [00:00:11] Speaker 00: Walker spreading the balance. [00:00:12] Speaker 00: Ms. [00:00:12] Speaker 00: Bray spreading the balance. [00:00:15] Speaker 00: Face the court. [00:00:16] Speaker 05: Morning. [00:00:17] Speaker 00: Morning. [00:00:21] Speaker 03: CBMT seeks reversal of the 2024 District Court cop decision for two primary reasons. [00:00:28] Speaker 03: First, the lower court did not follow the remand, what we refer to as CVM three three decision or the remand decision that found ASIA Epahawks decision unreasonable and allowed for the reorganization of the tribe. [00:00:45] Speaker 03: And two, claims ASIA Newland's decision failed to protect the tribe's political integrity when it allowed a 1929 Indian census of all Calaveras Miwoks to establish the tribe's membership criteria. [00:01:00] Speaker 03: Felix Cohen, a scholar of federal Indian sovereignty law, wrote courts have consistently recognized that one of the Indian tribes most basic powers is the authority to determine questions of its own membership. [00:01:14] Speaker 03: A tribe's right to define its own membership for tribal purposes has long been recognized central to its existence. [00:01:22] Speaker 01: I don't quite understand how that squares with the litigation position of your clients when there were other tribal members trying to exclude them from the group that would write the Constitution for this tribe. [00:01:33] Speaker 03: Got it. [00:01:35] Speaker 03: There's a long history in this case, but our position is the 1915 descendants, which is about 11 people, they stood for when they were fighting the Sylvia Burley faction that they had a larger community. [00:01:52] Speaker 03: They had developed a community of folks and had identified them. [00:01:56] Speaker 03: So it was a misinterpretation of Judge Cobb that the descendants wanted to create this very small tribe. [00:02:06] Speaker 03: No, they stood in the earlier cases for her faction of three or four people was not the tribe that they wanted to go back to the historical community and they had identified them. [00:02:18] Speaker 01: I understand that. [00:02:19] Speaker 01: But if what you just led with were [00:02:24] Speaker 01: the rule, then those three or four people who wanted to define the tribe would have been able to exclude your clients when your clients were on the outs, as you just said they once were. [00:02:39] Speaker 03: Tribal enrollment's not easy to understand, but I've created some tribal enrollment ordinances, and I kind of know how it works. [00:02:46] Speaker 03: And basically, it's not off of one particular role. [00:02:50] Speaker 03: Federal or state census roles are just inherently an error. [00:02:55] Speaker 03: It's up to the tribe to look at what they consider a base role of the community, and sometimes that includes direct line lineal descendants, and sometimes it includes collateral descendants. [00:03:05] Speaker 03: This is where I think the Cobb Court got confused, and it is confusing. [00:03:09] Speaker 03: because when you start to look at a collateral, uh, descendant, for example, I'll just use another tribe, but the Nansman in Virginia were founded on the Bass family and they had like seven children and four of those brothers went off to North Carolina and established other tribes. [00:03:27] Speaker 03: Are they direct line lineal descendants of a, of a base family role? [00:03:32] Speaker 03: Yeah. [00:03:32] Speaker 03: But they, the other collateral members that left and went to other tribes are not part of the group. [00:03:37] Speaker 01: I guess my question is a little bit kind of a step one question, step two. [00:03:43] Speaker 01: You're going to the question of who should or should not be in this tribe or in the group that writes the constitution for this tribe. [00:03:52] Speaker 01: But my question is, before that, my question is, does the government have a role in saying [00:04:02] Speaker 01: This group is too small a group to write the constitution that will define membership in the tribe. [00:04:14] Speaker 01: And you seem to start your argument today by saying, no, the government doesn't have a role. [00:04:19] Speaker 01: That's something special for only tribes to do. [00:04:22] Speaker 01: But if that had been the rule, then... Yeah, I see what you're saying. [00:04:26] Speaker 01: Your clients would have lost their earlier losses. [00:04:29] Speaker 05: I mean, there has to be a baseline somewhere, and the government is called on to set it. [00:04:35] Speaker 05: So either, there's federal involvement either way. [00:04:39] Speaker 05: If we vacate the Nolan decision, if we affirm, there's court involvement and there's federal involvement. [00:04:46] Speaker 03: I know. [00:04:47] Speaker 03: I'd like to make the distinction. [00:04:49] Speaker 03: All right. [00:04:50] Speaker 03: With the organization process, where the federal government was charged after what we call CVMT-3, [00:04:59] Speaker 03: to form an organizational process. [00:05:03] Speaker 03: Mr. Washburn, who's quite a scholar and had just recently revised the 2015 revisions to the federal acknowledgement rules, he defined what the government had identified as historical members of the tribe. [00:05:19] Speaker 03: He wrote in his decision [00:05:21] Speaker 03: that if those initial members, which could include some members off the 1929 census, but he knew that that census was too broad. [00:05:33] Speaker 03: So he was allowing the initial historical members to decide who could be the initial putative group, the families that had been connected to that community. [00:05:43] Speaker 03: That is what they stood for. [00:05:44] Speaker 03: And they had it in their affidavits that they had a community around Sheep Ranch. [00:05:49] Speaker 03: So it was a misunderstanding that the court below thought that they were only talking about only had to be them. [00:05:57] Speaker 03: It didn't have to be them. [00:05:58] Speaker 03: They identified other families. [00:06:01] Speaker 03: And that's why I'm saying in most every tribe, there are direct [00:06:05] Speaker 03: direct descendants they know of, and there's family groups that have been maybe a collateral relatives that have been in. [00:06:11] Speaker 03: Now, I just want to go through the numbers on these census. [00:06:15] Speaker 04: Before you do that, I just wanted to make this distinction. [00:06:19] Speaker 04: The BIA looks to constitutional issues, election issues, and supposedly should draw that line of demarcation in that governance piece. [00:06:32] Speaker 04: But then when you come over to the tribe and potentially tribal courts, that's when they determine who should be the membership and the citizenship. [00:06:40] Speaker 04: And I look at this as kind of an election boards where if the local legislator says, oh, we need a certain type of ID for voter registration, then that's what they can look at and say, you've either met that or not. [00:06:53] Speaker 04: But they don't generally go behind it to see if that actual membership was legal or not. [00:06:59] Speaker 04: I mean, the registration was legal or not in terms of your ID. [00:07:03] Speaker 04: Is that correct? [00:07:04] Speaker 03: Well, elections, generally when tribes are enrolled in the tribe, they get a federal ID that we're a member of the tribe. [00:07:13] Speaker 03: And not all tribes, the federal government has the authority to come in and do a secretarial election. [00:07:18] Speaker 03: Most tribes now have done away with that, having the government come in and certify an election. [00:07:25] Speaker 04: But what I'm really getting at is that BIA should be governance. [00:07:30] Speaker 04: the tribe should be looking at its actual membership, citizenship. [00:07:35] Speaker 04: Yeah. [00:07:36] Speaker 04: And I feel like in this decision, then what we're grappling with is that under the Washburn decision, there was some misinformation with respect to the whole Jeff Davis, John Jeff descendant piece. [00:07:50] Speaker 04: Newland then goes ahead and revises the decision to go back and include all of that. [00:07:57] Speaker 04: But I'm not sure if when you're asking that the Newland decision get reversed, are you asking us to accept the Washburn decision, which had kind of some misinformation about the genealogy piece to Jeff Davis and John Jeff? [00:08:14] Speaker 03: Judge Charles, I want to address the misinformation. [00:08:19] Speaker 03: Kevin Washburn and his decision had attachments that he reviewed. [00:08:23] Speaker 03: He reviewed the burly deposition and he reviewed an important attachment that was left out of the administrative record by the government. [00:08:30] Speaker 03: That's what we call attachment L. In the new appendix, they agreed to include it. [00:08:35] Speaker 03: attachment L Washburn had which was director recently had reviewed this early constitution when they were trying to organize the tribe and he got a solicitor's opinion back that said the nineteen twenty-nine census was too general to be legally sufficient criteria for membership and he wrote that back and said this constitution is not going to fly. [00:08:59] Speaker 03: Kevin Washburn had that. [00:09:01] Speaker 03: Also, he had the deposition of Sylvia Burley where she was claiming to be a Jeff and [00:09:05] Speaker 03: And she wasn't saying she she was but she was lobbying very hard that the Jeffs should be part of these eligible groups where the failing was by the Department of Interior was their due diligence to do the genealogy which was not hard to find that John Jeff was not the son of Jeff Davis. [00:09:26] Speaker 03: uh and so if they had done that, uh that would have been where you go. [00:09:32] Speaker 03: So now, I just wanna say, I know it sounds like unfair to people to go and let one group or another decide membership criteria but there's a process and the court articulated it on the remand. [00:09:45] Speaker 03: It said they had to identify [00:09:47] Speaker 03: whether the tribal, you know, the group represents members of the tribe and before invoking the principle of self-government. [00:09:53] Speaker 03: It's incumbent on first to determine where a duly constituted government actually exists. [00:09:58] Speaker 03: So you have to go to historical documents identifying who is historical to get that. [00:10:04] Speaker 03: And then the secretary must ensure that they deal with the tribal government that actually represents members of a tribe applying the trust obligations. [00:10:13] Speaker 03: So, there's a point where they, the BIA is facilitating the organization and facilitating an initial group that would sit down with the genealogy and with the history and determine, it could be the initial putative group, people that they know are families connected to Sheep Ranch with the historical connection to then set membership criteria and then move forward with the constitution. [00:10:40] Speaker 01: That's the step that got confused. [00:10:43] Speaker 01: What criteria would you use to differentiate sidewalks who deserve membership from those who do not? [00:10:50] Speaker 03: Well, I'd have to be speaking for them, but from everything I've read, it comes down to this. [00:10:57] Speaker 03: Calaveras County is a large county, thousands of a thousand acres. [00:11:02] Speaker 03: And there were me walks in all different parts of that county and the ones around this mining town called Shee branch. [00:11:09] Speaker 03: There was a group of families that live there and still around that area and they know each other and there's a history there and so they know they know it and that's what you would base it on. [00:11:20] Speaker 03: You base it on history. [00:11:22] Speaker 03: not whether you appeared on a 1929 census. [00:11:26] Speaker 03: And the numbers are, I'll just give it to you quick. [00:11:28] Speaker 03: In 1915, they identified 13. [00:11:31] Speaker 03: In 1927, they identified 25 members of the Sheep Ranch Transferia. [00:11:40] Speaker 03: And then in 1929, they did a Calaveras County census of all the Indians in Calaveras County. [00:11:46] Speaker 03: That was 147. [00:11:47] Speaker 03: 137 were Miwoks. [00:11:51] Speaker 03: Minus out those 25 that they identified two years earlier as sheep ranch Indians. [00:11:57] Speaker 03: And you got 100 Miwoks that they identified that didn't have the historical connection to that. [00:12:03] Speaker 03: ranch area. [00:12:04] Speaker 05: I'm having trouble still distinguishing between your position on what would be appropriate for your clients to write into a constitution about who belongs and the people who even sit down to make those determinations and it would still be open [00:12:24] Speaker 05: if under the Newland decision, it is still open to all the people who are invited to the table to frame the Constitution to say, you know, we've gone off, we have other tribes, you, you know, 25 are really the ones that we all understand have this connection. [00:12:48] Speaker 05: That's not what happened. [00:12:51] Speaker 05: But it hasn't happened yet. [00:12:53] Speaker 03: Well, what happened when this group challenged the secretarial election, it was because they were so overshadowed by the people that came in, all claiming to be related to Jeff, John Jeff, that their opinion wasn't heard. [00:13:06] Speaker 03: And that's why they challenged the secretarial election, and they won. [00:13:10] Speaker 03: And that's when the superintendent, Amy Duxkey, came back and said, sorry, we got to go back to the washburn. [00:13:17] Speaker 03: Three years later, that's when the whole thing was. [00:13:21] Speaker 03: uh in the Jeff family and boy you can get lost in Jeffs and there's a lot of Jeffs in the Miwok community in all of California. [00:13:29] Speaker 03: Um the John Jeff and Tilly Jeff had nine children and they were in West Point and they were in [00:13:37] Speaker 03: the CCO, if I say it right. [00:13:40] Speaker 03: And that's where they lived, and that's where they're buried. [00:13:42] Speaker 03: And some of their children had offspring that ended up around the Sheep Ranch community. [00:13:48] Speaker 03: Maple Hodge was one of their grandchildren, and she married a hodge, and that's how she ended up in that community. [00:13:54] Speaker 03: So there were some that migrated into that community, but not all nine children did. [00:13:59] Speaker 03: I guess I'm not understanding. [00:14:00] Speaker 05: Yeah, just because you're really answering my question, which is, [00:14:07] Speaker 05: Why doesn't it make sense to have an overbroad group of people of potential? [00:14:13] Speaker 05: ultimate members be part of the group that's discussing that? [00:14:18] Speaker 03: Yeah, because you have people that want to be a member as opposed to people that have the historical connection to be a member. [00:14:24] Speaker 03: And if you have more of those people that want to be a member than ones that have the historical connection, the people with the history connection get wiped out. [00:14:32] Speaker 03: And that's what happened. [00:14:32] Speaker 03: There's no review of that. [00:14:34] Speaker 05: Tell me, you contend repeatedly in a brief that the Newland decision violated the district court's remand [00:14:41] Speaker 05: decision in the CBMT-3. [00:14:47] Speaker 05: Why do you think that? [00:14:49] Speaker 05: What is it that violates the remand? [00:14:52] Speaker 03: Specifically was, he said, first you have to establish a historic tribe existed. [00:14:58] Speaker 03: And the federal acknowledgement process that would be looking at around the turn of century and back, was there a historic tribe that continued to exist? [00:15:06] Speaker 03: This had been identified in some early 1915 census 1906. [00:15:11] Speaker 03: There was an 1827 identifying me walks around that mining town. [00:15:16] Speaker 03: So you have that early identification. [00:15:19] Speaker 04: And so there are multiple me walk tribes. [00:15:22] Speaker 04: Right. [00:15:23] Speaker 04: And we're supposed to be distinguishing, you know, for this purpose, the California tribe. [00:15:29] Speaker 03: Right. [00:15:30] Speaker 03: But there's in that county, there were multiple over that hundred years, multiple Miwok communities. [00:15:36] Speaker 03: And we're trying to identify the ones of the history to sheep ranch. [00:15:40] Speaker 03: So what I'm saying is you think about the great Sioux nation, great Sioux nation, six chiefs, they split up and they all like have different tribes within her. [00:15:49] Speaker 03: interrelations, but you can't be a member of just any Sioux tribe. [00:15:54] Speaker 03: You have to go to the history of that tribe. [00:15:56] Speaker 03: That's what we're saying here. [00:15:57] Speaker 03: And I've done it. [00:15:59] Speaker 01: And I know if we were trying... I understand from what you just said that you think the group that will write the constitution should be limited to those with a connection to sheep ranch. [00:16:10] Speaker 01: Did I hear that correctly? [00:16:11] Speaker 01: Yeah. [00:16:11] Speaker 01: Okay. [00:16:13] Speaker 01: Is that group [00:16:15] Speaker 01: any bigger than the 1915 census descendants? [00:16:22] Speaker 01: Yes, and that's- Okay. [00:16:25] Speaker 03: That's identified in the affidavits that were submitted, and they're part of this record of people that the group I work with- Is that group bigger than the 1927 census? [00:16:39] Speaker 01: Not the 29, but the 27. [00:16:41] Speaker 01: You seem to like the 27. [00:16:42] Speaker 03: Well, no. [00:16:44] Speaker 03: Well, the 1915, what I'm saying is the modern descendants in 1915, basically that 25 that were identified in 1927 were off those same families. [00:16:56] Speaker 03: But it didn't turn into 147 two years later. [00:17:00] Speaker 01: So the descendants of the 1927 census, is that a smaller group than people who are descendants from [00:17:12] Speaker 01: uh, American Indians with a connection to Sheep Ranch. [00:17:18] Speaker 03: Oh, there's more, there's, you know, as time moves on, you know, uh, you trace the families that connected into Sheep Ranch as part of the community. [00:17:30] Speaker 05: There's also, I mean, in the Newland decision, one of the observations is that the [00:17:40] Speaker 05: 1915 descendants actually were no longer there since 1940. [00:17:47] Speaker 05: And descendants of the 1929 census were there and had the connection. [00:17:55] Speaker 05: So there's a question also of the time for the historical inquiry. [00:18:00] Speaker 05: And you're insisting on a time, I mean, understandably, that [00:18:05] Speaker 05: includes your clients and doesn't include a large number of other people whose views might outweigh. [00:18:13] Speaker 05: But what is the principle on which you rest that choice? [00:18:19] Speaker 05: You say it's the connection to Sheep Ranch, but that connection's been lost for 80 years, no? [00:18:25] Speaker 03: No. [00:18:26] Speaker 03: the Hodges, that family and other families collateral to the Hodges that were known to have been involved in that community over 75 more years. [00:18:37] Speaker 03: Let's take Sylvia Burley. [00:18:38] Speaker 03: We're not trying to case on her, but the reason this controversy came up was she didn't connect in to Sheep Ranch until 1998. [00:18:46] Speaker 03: And I have the list of places she lived since she was born and none of them were at Sheep Ranch and she wasn't connected in. [00:18:52] Speaker 03: Um, and so that's, and she defrauded them. [00:18:56] Speaker 03: You know, she disenrolled Yakima and ran off with the money. [00:19:00] Speaker 03: So that's what they're fearing. [00:19:02] Speaker 01: Does Mabel Dixie have a connection to Sheep Ranch? [00:19:04] Speaker 01: Did who? [00:19:05] Speaker 01: Mabel Dixie? [00:19:06] Speaker 03: Yeah, she lived at Sheep Ranch. [00:19:08] Speaker 03: She was living there. [00:19:11] Speaker 01: Would her heirs be in the group that you think should be the group? [00:19:16] Speaker 03: Yeah, but her, her last heirs died. [00:19:19] Speaker 03: That was Yakima Dixie, that he lived there. [00:19:22] Speaker 01: I meant her descendants. [00:19:26] Speaker 01: I'll come back to mine. [00:19:29] Speaker 04: That's okay. [00:19:29] Speaker 04: Go ahead. [00:19:30] Speaker 04: Finish the thought. [00:19:31] Speaker 01: Well, when Mabel Dixie's descendants, or the descendants of her heirs, would they be in the group that you think should write the Constitution? [00:19:46] Speaker 03: Well, Yakima Dixie was her son. [00:19:49] Speaker 03: She had four children, her son, last son that died. [00:19:52] Speaker 03: She was Maple Hodge Dixie. [00:19:55] Speaker 03: She married married the son of John Hodge, Joe Hodge, and John Hodge was the brother of Patterson Hodge, which was on the 1915 list. [00:20:07] Speaker 03: But [00:20:08] Speaker 03: His brother, John, died in 1913. [00:20:11] Speaker 03: So he wasn't on the 1915 list. [00:20:13] Speaker 03: But she married into that Hodge family, that Hodge community. [00:20:17] Speaker 01: Did Mabel Dixie have any heirs at the time she died? [00:20:21] Speaker 01: No. [00:20:21] Speaker 01: No heirs at the time she died? [00:20:22] Speaker 01: No. [00:20:22] Speaker 01: And no descendants at the time? [00:20:23] Speaker 03: No, she had Yakima. [00:20:24] Speaker 03: I'm sorry. [00:20:25] Speaker 03: Yakima was alive, and he lived at the thing. [00:20:27] Speaker 01: Yeah. [00:20:27] Speaker 03: OK. [00:20:27] Speaker 03: And then he did not. [00:20:29] Speaker 01: No. [00:20:29] Speaker 01: Yakima had no descendants. [00:20:30] Speaker 01: No. [00:20:31] Speaker 03: But she goes back to the Hodge line. [00:20:34] Speaker 04: And how big was the sheep ranch area in 1915? [00:20:38] Speaker 04: I guess I'm trying to get to the point that it seems like there can't be many people on the land and that some of these tribes will start very small. [00:20:46] Speaker 03: Yeah, it was two acres. [00:20:48] Speaker 03: And it remained two acres in these different reports, the Kelsey Report, the Lips Michael Report, all the way up until 1960 when it was identified as 0.9 acres. [00:20:58] Speaker 03: Government sort of misrepresents that because they say it was always 0.9. [00:21:01] Speaker 03: No, it was identified as two acres. [00:21:04] Speaker 03: What they believe happened is Lena Hodge, that line, was living on one park and there was some folks on another small shack. [00:21:12] Speaker 03: These were like just one bedroom places. [00:21:16] Speaker 04: And are you saying that Washburn in his decision reviewed and decided not to include the 1929 census because it was too broad? [00:21:26] Speaker 03: Yes, because it was not, you have to have specific membership criteria, not general. [00:21:31] Speaker 03: And the Solicitor's Office had given an opinion to Dale Riesling, the regional director, that it wasn't legally sufficient. [00:21:38] Speaker 01: I still don't understand your specific membership criteria, though. [00:21:42] Speaker 01: You said earlier in answer to my question, sort of. [00:21:45] Speaker 01: You know, maybe the people who are out there will know it when they see it. [00:21:48] Speaker 01: But what is the specific? [00:21:50] Speaker 03: No, when you get into history, you see families and some of them like Maple, Hodge, Dixie was a collateral relative in a way because her [00:22:02] Speaker 03: her descendancy up through the hodge line did not appear on the 1915 census, but she was connected. [00:22:11] Speaker 03: So what you see is people that are identified in those affidavits that came and lived there were part of that Miwok community. [00:22:19] Speaker 03: and they participated in it. [00:22:22] Speaker 03: And there's history there. [00:22:23] Speaker 03: It's not that old where they go back and they know what families were part of that sheep ranch community. [00:22:30] Speaker 03: Indian people are about that. [00:22:31] Speaker 03: They're about family, they're about community. [00:22:34] Speaker 04: But who should decide about these citizenship questions? [00:22:38] Speaker 04: Is that the tribe itself or does this go to a tribal court? [00:22:42] Speaker 04: We're getting so into the weeds of the land, I'm just trying to figure out [00:22:47] Speaker 04: should BIA be making these types of determinations or is that for the tribe itself? [00:22:52] Speaker 03: That's what we're here to stand for, is that like Felix Cohen, it's the Martinez case, is that only a tribe, only someone with a historic connection. [00:23:02] Speaker 03: So Kevin Washburn, who knew well how tribes get their federal acknowledgement and he knew well this process is, I know it sounds [00:23:13] Speaker 03: nebulous but they basically they start with a role like and they try to go as early at the turn of the century roles that come in after World War one and two aren't considered as reliable because everybody spreads around after the world wars but those early censuses identify an historic tribe and then from there you look at the community that built around that historic tribe and there's history to that but that's not for the BIA to wave a wand and say this is your history that's a no-no [00:23:40] Speaker 01: But you do think it was for Washburn to wait around and say that was your mistake. [00:23:43] Speaker 05: Yeah, no, Washburn was BIA. [00:23:44] Speaker 05: He was a representative. [00:23:45] Speaker 05: You're just saying you think the substance of his decision was more in keeping with what the tribes would have decided had they been empowered to so decide without any BIA involvement. [00:23:58] Speaker 05: But either way, there is federal involvement. [00:24:03] Speaker 05: And so your argument that this is about who decides [00:24:08] Speaker 05: It just seems to me neither here nor there because either way, it's the same institution. [00:24:15] Speaker 03: I know, but this is a big distinction in federal Indian law because of Indian sovereignty and it's hard to grasp. [00:24:22] Speaker 05: The BIA is involved in the exact same way with different substantive reasoning. [00:24:28] Speaker 05: whether we rule that the Newland decision survives review or whether we rule that it doesn't and default back to Washburn. [00:24:37] Speaker 05: So I'm just not following the arguments that the Fed should stay out of it. [00:24:42] Speaker 05: I understand that as an historical, as an institutional perspective, but I don't think that is a choice before this court. [00:24:51] Speaker 03: what Washburn was doing was the process and that's why I was quoting from the remand decision about how they identified a process and organization of a tribe process is different than when you declare them federally recognized. [00:25:08] Speaker 03: This tribe was already identified as a federal community [00:25:12] Speaker 03: And the BIA was on our side fighting the faction that was defrauding the tribe. [00:25:18] Speaker 03: They were definitely supporting us. [00:25:20] Speaker 03: I was one of the people that went and we had the BIA funds withheld and the trust funds because she had run off with it and disenrolled Yakima. [00:25:28] Speaker 04: So the point of this- Can you explain then how the IRA works here? [00:25:32] Speaker 04: I'm thinking that we need to start back with that intent. [00:25:36] Speaker 03: right. [00:25:38] Speaker 03: The IRA defines what is a member and it says the member and this is in the organizational process as it has to be a member that's enrolled pursuant to tribal criteria established by the tribe. [00:25:55] Speaker 03: So what we're talking about here here splitting the hair is you have [00:25:59] Speaker 03: Kevin Washburn was identifying who was part of a historic community and then those people part of the historic community can add the people they had on affidavits that they said were collateral relatives that were part of that Miwok community to sit down among themselves and decide, you know, the historic criteria for membership and then once they get those criteria, they can then enroll the future membership to vote on a constitution. [00:26:28] Speaker 03: That's how it works. [00:26:29] Speaker 03: So he was not crossing. [00:26:31] Speaker 03: I know this sounds. [00:26:32] Speaker 03: vague, but he was not crossing the line of the BIA comes in and tells the tribe, this is the role you use to establish membership. [00:26:42] Speaker 03: This is the criteria you use to establish membership. [00:26:45] Speaker 03: He clearly said that is to be left to the tribe, not the government. [00:26:50] Speaker 03: So there's a role. [00:26:51] Speaker 03: The BIA had a role in verifying that genealogy. [00:26:54] Speaker 03: You bet they did. [00:26:56] Speaker 03: They didn't do their due diligence, and that messed this whole thing up. [00:26:59] Speaker 04: Okay, so why is your desire to revive the Washburn decision? [00:27:04] Speaker 04: It's not revive, it is what stands, because it was the... And in saying that it stands, it had in there, when we go back to the genealogy piece, you know, that was later an error in its assumption about the descendants of Jeff Davis and the John Jeff matter. [00:27:25] Speaker 04: So do you take that to mean that all of that swath of people would be in or do you take that to mean that because there was an error that we left with only Jeff Davis who was the only person in the 1935 IRA voters list for the ranch area? [00:27:41] Speaker 03: I've been trying to say the opposite. [00:27:43] Speaker 03: I'm trying to say the opposite. [00:27:46] Speaker 03: The court thought that that's what our group stood for was we didn't like the five with Burley and we're the five or whatever. [00:27:55] Speaker 03: It's not about that. [00:27:56] Speaker 03: It's about they were the historic descendants that then can look at who would be the other collateral members. [00:28:03] Speaker 03: Tribes are made up of [00:28:05] Speaker 03: of members that might have direct line descendancy or members that have been so connected to the community, they're collateral descendants. [00:28:11] Speaker 03: They have these interrelations. [00:28:14] Speaker 03: That's almost in every tribal community. [00:28:17] Speaker 03: So they sit down and then they decide what is the base role we want to use and what's the criteria for membership. [00:28:22] Speaker 03: And that's a big distinction. [00:28:24] Speaker 03: It's not the government's place. [00:28:26] Speaker 03: And again, our group stood up to the last secretary election because their view wasn't [00:28:31] Speaker 03: being considered at all. [00:28:32] Speaker 03: The people that wanted to be part of that tribe were dominating, not the people that had the connection. [00:28:38] Speaker 04: OK, be real clear about your remedy. [00:28:41] Speaker 04: Are you asking reversal of summary judgment, vacating of a particular order, things like that? [00:28:46] Speaker 03: Yeah. [00:28:47] Speaker 03: What we are asking for is that now that there is some genealogy that's verified about that, then it's about people coming forth to decide who the, we call them putative group because even the descendants aren't members yet. [00:29:04] Speaker 03: They're part of a [00:29:05] Speaker 03: an organizing group. [00:29:06] Speaker 03: They're not officially members until the criteria are set and they become members. [00:29:10] Speaker 03: So that's why you call it an organizing group. [00:29:13] Speaker 03: You have a putative organizing group and the BIA and the tribe can sit down and look at the [00:29:20] Speaker 03: history that shows what families had a connection into that tribe historically. [00:29:25] Speaker 03: And it can be because of their participation in the community. [00:29:28] Speaker 03: And they're identified. [00:29:30] Speaker 03: We identified them in those early affidavits. [00:29:32] Speaker 03: They were lying. [00:29:33] Speaker 04: Okay, but I'm still trying to get to legal terms in terms of what is the conclusion of an order supposed to say. [00:29:39] Speaker 03: So, so the order would remand back consistent with the Washburn decision to organize the BIA to assist with organizing which they were going to start to do based on the history of the tribe and the connection to Sheep Branch. [00:29:54] Speaker 03: So, there I go where we had a family like Burleigh, not until 1998, any of the Miwoks connected to Sheep Branch knew of her and she got in and then she took it. [00:30:05] Speaker 03: That's what they don't want. [00:30:06] Speaker 04: Again, on the remand, are you saying that [00:30:08] Speaker 04: It goes back to the tribe to determine its membership. [00:30:12] Speaker 03: Membership criteria. [00:30:13] Speaker 03: Yes, exactly. [00:30:14] Speaker 04: And then the BIA looks at all of that. [00:30:17] Speaker 03: Yeah, well, right. [00:30:19] Speaker 03: The BIA in organizing this tribe, you know, has a role because they had a role before. [00:30:25] Speaker 03: But they come in now, they've got the genealogy and they put out a notice like some have refused to submit a blood certification form. [00:30:33] Speaker 03: Why? [00:30:33] Speaker 03: Because they can't show that connection. [00:30:36] Speaker 03: So they have the people that want to be in the tribe come forward with their evidence [00:30:40] Speaker 03: that they had any kind of historical connection to the community. [00:30:44] Speaker 03: Then you come up with a group, an organizing group that sets the membership of the tribe and then there's a vote on a constitution around an organizing group. [00:30:54] Speaker 03: We're not saying it's only the 1915 descendants. [00:30:59] Speaker 03: We're saying there's collateral relatives or the relatives that have a connection in the sheep ranch. [00:31:04] Speaker 03: Maple Dix, Hodge Dixie was collateral. [00:31:08] Speaker 03: But there's a number of them that work [00:31:10] Speaker 03: into that community. [00:31:11] Speaker 01: Does the BIA have a proper role in approving the organizing group? [00:31:18] Speaker 03: Yeah, I think if they go back, that's what I'm saying. [00:31:22] Speaker 03: We're not trying to go back to five people. [00:31:25] Speaker 01: So I think that's right. [00:31:27] Speaker 01: And I think there is consensus between you and the government. [00:31:32] Speaker 01: And I agree with you both. [00:31:33] Speaker 01: The BIA has a role in approving the organizing group. [00:31:39] Speaker 01: And that just means the question, I think the only question is, [00:31:43] Speaker 01: Did the BIA carry out that role appropriately when it issued the Newman decision? [00:31:51] Speaker 03: And my answer is no, because it didn't protect the political integrity of the tribe, which is what the remand decision said. [00:31:59] Speaker 03: Said the secretary must ensure she deals or he only with a tribal government that actually represents. [00:32:05] Speaker 01: So our role and our only role, we read that Newland decision and we answer the question, did it protect the integrity of the tribe? [00:32:13] Speaker 01: And we do that under arbitrary and capricious review with a lot of deference to the Newland decision in terms of facts. [00:32:21] Speaker 01: Right. [00:32:22] Speaker 01: That's where you go. [00:32:23] Speaker 03: And we, one thing is we feel the court, this was before the [00:32:29] Speaker 03: Loper decision gave Newland too much deference. [00:32:32] Speaker 03: He didn't follow the section 80 part 81 reorganization rules where the membership criteria is set by the tribe. [00:32:40] Speaker 01: What um statutory text do you think the Newland decision interpret it incorrectly? [00:32:49] Speaker 03: I have it right here. [00:32:50] Speaker 03: Let me grab it. [00:32:51] Speaker 03: It's um um [00:32:55] Speaker 03: Okay, I assume the was an historic tribe without applying 1981 regulations and then it went, I have a definition of what a member is. [00:33:06] Speaker 03: I'm fumbling around but but basically under part 81, the regulations state what a tribal member, the definition of a tribal member and that is a member. [00:33:19] Speaker 01: Is that a regulation? [00:33:20] Speaker 03: Yeah, it's a regulation. [00:33:21] Speaker 01: Well, I haven't heard. [00:33:22] Speaker 03: Under a regulation under the IRA. [00:33:25] Speaker 03: Under the IRA. [00:33:26] Speaker 01: A provision of the IRA? [00:33:28] Speaker 03: Yeah. [00:33:30] Speaker 03: Under the part about organizing a tribe. [00:33:33] Speaker 03: And they're saying a member for the purpose of organizing a tribe is someone that applies to the membership criteria, that satisfies the membership criteria and the tribe feels can be enrolled. [00:33:45] Speaker 01: And there's a disagreement between you and the government about whether that definition means what you just said it means? [00:33:52] Speaker 03: I don't know. [00:33:52] Speaker 03: I haven't seen that in their arguments here. [00:33:55] Speaker 01: I guess what I'm saying is I don't think you and the government disagree about the meaning of the statute. [00:34:01] Speaker 01: And if that's the case, Loper is irrelevant. [00:34:05] Speaker 01: Loper goes to whether the government gets deference when it's interpreting the statute. [00:34:09] Speaker 01: I think where you and the government disagree is while you agree about the meaning of the statute, you disagree about how it's being applied to the facts of this case. [00:34:17] Speaker 01: Exactly. [00:34:18] Speaker 01: So Loper is irrelevant. [00:34:20] Speaker 03: Well, a court, in her opinion, gave Newland's decision. [00:34:24] Speaker 03: She called it. [00:34:25] Speaker 03: She was going along with his urgency to do this as giving him deference. [00:34:33] Speaker 01: Yeah, under arbitrary and capricious review in the AP. [00:34:38] Speaker 01: Yeah. [00:34:38] Speaker 01: And not the only one. [00:34:39] Speaker 01: It seems like every time we get a case that has nothing to do with statutory interpretation, but it calls an agency, the challenger thinks loper means they win. [00:34:47] Speaker 03: Well, interpretation is [00:34:50] Speaker 03: about how to carry out the statute in terms of organizing the tribe. [00:34:56] Speaker 03: And so we would say that she gave him too much deference. [00:34:59] Speaker 03: Again, our position is that the group that was showing up trying to be in this process were totally overshadowed by the people that wanted to be a member and they knew did not have the historic connection. [00:35:11] Speaker 03: And that's why they wanted the process to show more integrity. [00:35:15] Speaker 03: So we stand on that side. [00:35:17] Speaker 04: Are you arguing that the Newland decision was arbitrary and capricious because there was evidence before Assistant Secretary Newland that the Miwoks in the 1929 sentence were not necessarily members of the California Valley Miwoks? [00:35:33] Speaker 03: right? [00:35:34] Speaker 03: In other words, there was good evidence in the record that first of all, Sylvia Burley was a Jeff but was clear she wasn't part of that. [00:35:43] Speaker 03: So not every Jeff that's on the 1929 census that they claim were related to Jeff Davis was part of that tribe. [00:35:52] Speaker 03: Number one and number two, [00:35:54] Speaker 03: They had a decision from the solicitor's office looking at whether to use in the constitution, I think it was in 2013, the 1929 census. [00:36:04] Speaker 03: And the solicitor's office says, no, the census is too general. [00:36:08] Speaker 03: It's not specific enough. [00:36:09] Speaker 03: It's not legally sufficient as a membership criterion. [00:36:12] Speaker 03: It didn't identify [00:36:14] Speaker 03: who was who it didn't even identify it had some of the sheep ranch people on it but they didn't identify people as tribe few were identified as with the Ptolemaic tribe but it was just a general list that general list was not accepted by any anybody as these are the members of our tribe and calaveras is a huge county thousand acres uh a lot of indian people judge shells you have further questions yeah sorry i'm getting too adamant i know all right we've [00:36:43] Speaker 05: We've gone over time, but we'll give you a limited amount of time for rebuttal. [00:36:46] Speaker 05: Thank you, Ms. [00:36:46] Speaker 05: I appreciate it. [00:36:47] Speaker 05: And in the meantime, we'll hear from Ms. [00:36:51] Speaker 05: Sprague. [00:36:57] Speaker 02: May it please the court, Mary Gabrielle Sprague for the Department of the Interior. [00:37:01] Speaker 02: Your Honors, the essential question, as you point out, is whether the Washburn and Newland decisions properly fulfilled [00:37:11] Speaker 02: the government's role to guide the electoral process. [00:37:17] Speaker 02: The court's decision, as you noted, is under arbitrary and capricious review. [00:37:21] Speaker 02: And we submit that the decisions were well-based in the law and in the facts of this case and should be upheld as reasonable. [00:37:34] Speaker 01: You said you want to uphold the wash and new decisions. [00:37:39] Speaker 02: I don't think you mean that the wash firm decision as revised by the new decision. [00:37:44] Speaker 02: Correct. [00:37:46] Speaker 02: The basic principles of the. [00:37:49] Speaker 02: Washburn decision was that there was a larger tribal community. [00:37:57] Speaker 02: He rejected the organizing effort, which had included about 200 people in the process, but found that there was insufficient outreach to the community, which had been repeatedly identified by members of the community as about 250 people. [00:38:19] Speaker 02: And Washburn was also responding, as did Newland, to the precedent of this court and other courts that held that the larger tribal community should be included in the organizational process. [00:38:39] Speaker 04: When you're talking about the larger tribal community being included, to me that's a different kind of [00:38:46] Speaker 04: thought process about the greater community being involved in the tribal decisions as opposed to determining its membership? [00:38:55] Speaker 02: Correct. [00:38:55] Speaker 02: I mean, Your Honor is correct that the process is that interior gathers in what is understood to be the larger tribal community, which is the term they typically use. [00:39:13] Speaker 02: it's left to those people to decide in the Constitution what membership criteria they wish to propose. [00:39:21] Speaker 02: And they can propose a smaller group or a larger group. [00:39:27] Speaker 05: But at the outset, and this is clearly... And you're talking about before, you're not talking about the choice in the Constitution, but you're talking about they can choose a larger or smaller group to be the framers of that Constitution. [00:39:44] Speaker 02: Our interior's duty is to gather in the larger tribal community as this court recognized in his 2008 decision. [00:39:54] Speaker 02: Although the court there was not addressing a secretarial election process, it was addressing a constitution that was offered to interior for approval without a secretarial election process. [00:40:06] Speaker 02: But in either case, [00:40:09] Speaker 02: that the majoritarian principle to bring in the larger tribal community, among those people, they write a constitution which will have membership criteria, and then that group votes on the constitution. [00:40:26] Speaker 02: So the people, once they're gathered together, it's up to them to define the category of membership. [00:40:36] Speaker 02: Plaintiffs continually assert that the 1915 census descendants have a greater historical connection to this community than the other people. [00:40:50] Speaker 02: And that is simply not borne out by the record. [00:40:54] Speaker 02: Washburn recognized that [00:40:57] Speaker 02: The Rancheria, when you have a small parcel of land like that, that not all the members of the community could reside on the parcel. [00:41:07] Speaker 02: And so he said that potential residents are potential members. [00:41:12] Speaker 02: And again, he was not deciding membership, but the potential members would guide the view of what the larger tribal community is. [00:41:23] Speaker 05: When you talk about community, you mentioned the community, the community, you mean the community of this potential membership community, the community that we are sort of a rough draft of who might actually be members of this. [00:41:37] Speaker 02: That's correct, because of their known kinship ties with each other. [00:41:41] Speaker 05: That was just a terminology clarification, because obviously there are people who live in the geographic community who may have zero. [00:41:48] Speaker 02: That's correct. [00:41:50] Speaker 02: Community and and they identified themselves as me walks continually. [00:41:58] Speaker 02: When Indian agent Terrell went to Calaveras County in 1915, he was sent to look for land in Sheep Ranch because it was a failing mining community. [00:42:11] Speaker 02: There was property to be sold. [00:42:12] Speaker 02: The government was looking for properties to buy. [00:42:15] Speaker 02: It was relatively close to employment. [00:42:18] Speaker 02: And so Terrell went there. [00:42:21] Speaker 02: to see about buying land. [00:42:24] Speaker 02: And in his short time there, he identified 12 people who were either in Sheep Ranch, the town, or the Hodges were two and a half miles north of Sheep Ranch. [00:42:37] Speaker 02: But he specifically said that this is a fluid group that includes other communities [00:42:50] Speaker 02: that were to some extent interchangeable in their relations. [00:42:59] Speaker 02: I would like to point out that this distinction that plaintiffs are making between lineal descendants and collateral descendants just depends on like what generation it is you focus on. [00:43:13] Speaker 02: If you go one generation [00:43:16] Speaker 02: older in time, these people are likely all lineal descendants because of these these marriage relationships and accompanying social relationships. [00:43:35] Speaker 05: relates to a question that I had, which is about the mistaken premise that John Jeff was descended from Jeff Davis. [00:43:45] Speaker 05: And in correcting that, why was it reasonable for Mr. Newland to conclude that all the 1929 descendants should be part of the eligible groups rather than just the descendants of John Jeff? [00:44:03] Speaker 02: Right. [00:44:03] Speaker 02: And Your Honor, [00:44:05] Speaker 02: There were, when the BIA looked at the genealogies of people who had stepped forward around 2007, I believe, raising their hand that they wished to participate in the organization of the tribe, BIA identified about 17 people [00:44:26] Speaker 02: who were 1929 census descendants other than the John Jeff descendants. [00:44:34] Speaker 02: So it's a small group of people. [00:44:38] Speaker 04: So wouldn't including the 1929 census include Miwoks descendants who are now potentially members of other Miwok tribes? [00:44:46] Speaker 02: Your honor, there are no other Miwok tribes in Calaveras County. [00:44:52] Speaker 02: There are rancherias and recognized tribes some further miles away in the surrounding counties. [00:45:02] Speaker 02: On the 1929 census, it did identify [00:45:05] Speaker 02: some Indians as Tuolumne, and they were not included as part of the organizing group. [00:45:13] Speaker 02: And also BIA decided that people listed as Miwok Tuolumne would not necessarily be included as part of the eligible group to organize, although it could be left to the members. [00:45:27] Speaker 02: Uh, once the, uh, in the organizing group and drafting the constitution, they could potentially have decided to include, uh, mixed me walk to all of nay. [00:45:38] Speaker 04: Um, but, but anyway, it was, it wasn't necessary to include the John Jeff descendants in this first instance, or is that something that could be decided later on after our tribe is organized? [00:45:50] Speaker 02: No, because by excluding the John Jeff descendants, you ended up with 10 people. [00:45:57] Speaker 02: And that clearly is by no account the larger tribal community. [00:46:03] Speaker 02: Whenever this tribe has been asked to participate in 2007, as I said, when BIA announced we're going to hold an organizing meeting, please indicate if you're interested. [00:46:16] Speaker 02: They got about 250 responses. [00:46:19] Speaker 02: When the tribe organized in 2013, and it was not through a secretarial election, they gathered together a list of 200 participants in 2018 as it turns out. [00:46:35] Speaker 02: When the tribe organized after the Washburn decision, I think there were 279 people on their list that they recognized as this broader tribal community. [00:46:51] Speaker 02: In the 2011 affidavits that were submitted in connection with the CVMT3 litigation, people described the activities [00:47:02] Speaker 02: the tribal activities that they engaged in together. [00:47:05] Speaker 02: So that the evidence throughout, whenever the Miwoks in Calaveras County were asked to raise their hands and say, do you consider yourself a part of this community, they have 250 people or so raising their hands. [00:47:20] Speaker 02: And that guided the decision. [00:47:23] Speaker 02: And that is why your specific question about the few people who were 1929 census descendants, but not John Jeff descendants, Washburn could have gone either way. [00:47:39] Speaker 02: the Interior has significant discretion in its management of Indian affairs. [00:47:46] Speaker 02: Washburn said, well, I'm going to leave it to the tribe to decide about those people. [00:47:53] Speaker 02: But he said it could be proper. [00:47:56] Speaker 02: It wasn't precluded. [00:47:57] Speaker 02: It could be proper. [00:47:58] Speaker 02: And Newland was guided by the fact, when he looked, as I said, at the 2013 organizing effort and the 2018 organizing effort, [00:48:09] Speaker 02: In both cases, the tribal community, including plaintiffs in this case, accepted this group of 250 or so people to come together to draft the Constitution. [00:48:24] Speaker 04: But when people are raising their hands to be included, is the BIA at that time checking to see if they are indeed members of the California [00:48:31] Speaker 02: Yes, they absolutely were. [00:48:35] Speaker 02: So you raise your hand and you submit a genealogy that shows how you're connected to Miwok ancestors and that is [00:48:46] Speaker 02: reviewed. [00:48:48] Speaker 02: So it was considered, the 1929 census was preceded by the 1920 census, the 1910 census. [00:48:57] Speaker 02: These were comprehensive censuses of Indians in Calaveras County. [00:49:03] Speaker 02: And these names continually appear. [00:49:06] Speaker 02: They were known to the government. [00:49:10] Speaker 02: After Jeff Davis passed away in 1940 and the land on the Rancheria was available, members of the community would contact BIA and say we'd like to live there and consistently through the 40s, 50s, 60s when the [00:49:30] Speaker 02: the land was disposed of to a 1929 census descendant. [00:49:36] Speaker 02: The BIA recognized 1929 census descendants as eligible to live on the Rancheria, giving no preference to 1915 census descendants. [00:49:47] Speaker 02: So the notion that somehow to have an ancestor, a lineal ancestor on the 1915 census [00:49:55] Speaker 02: gives you a special right or a special knowledge as plaintiffs seem to be claiming now either as a right to be the members or as special knowledge to give them a special status in organizing simply isn't supported by the record and both and Newland well documented his reasons for revising the Washburn decision as he did. [00:50:27] Speaker 02: I think your honors covered a lot of the material I would have covered in your questioning and if you have further questions. [00:50:38] Speaker 01: The government is not asserting a right. [00:50:43] Speaker 01: to decide the ultimate membership of this tribe. [00:50:46] Speaker 01: That's correct. [00:50:47] Speaker 01: The government is asserting a right to approve the organizing group or larger tribal community that will write a constitution and itself decide membership of the tribe, correct? [00:51:03] Speaker 01: Correct. [00:51:04] Speaker 01: And years ago, these plaintiffs or these petitioners [00:51:11] Speaker 01: agreed that the government plays that role, correct? [00:51:17] Speaker 01: Correct. [00:51:17] Speaker 01: And in fact, they brought legal challenges to the government's, to make sure that the government played that role correctly. [00:51:27] Speaker 01: That's correct. [00:51:28] Speaker 01: Okay. [00:51:29] Speaker 01: Then this, so that's very big picture. [00:51:31] Speaker 01: And then I have a very in the weeds question. [00:51:33] Speaker 01: There's a line in your brief, it says, [00:51:36] Speaker 01: The U.S. [00:51:36] Speaker 01: currently holds the land in trust, I assume that means the Rancheria, for the benefit of the descendants of Mabel Dixie's heirs who are not 1915 census descendants. [00:51:48] Speaker 01: And then Ms. [00:51:50] Speaker 01: Walker said that Mabel Dixie's heirs have no descendants. [00:51:54] Speaker 02: That's correct. [00:51:59] Speaker 02: There is one descendant of Merle Butler, who was her common law husband. [00:52:06] Speaker 02: And she would be included under the third eligible group. [00:52:16] Speaker 01: Okay. [00:52:17] Speaker 01: Under the Newland decision under both. [00:52:23] Speaker 02: Yes, as you pointed out, Your Honor, it took me a long time to figure this out. [00:52:28] Speaker 02: It's Mabel Hodg-Dixie, her heirs and their descendants. [00:52:34] Speaker 01: But her heirs' descendants are not 1915 census descendants. [00:52:39] Speaker 01: Right. [00:52:42] Speaker 02: Yes. [00:52:47] Speaker 02: If that's all the questions, thank you very much, Your Honors. [00:52:55] Speaker 00: Thank you. [00:52:57] Speaker 03: Oh, I have to respect the spread, but I have to disagree with how she's [00:53:09] Speaker 03: categorize the me walks in Calaveras County is all having the right to be a member of sheep ranch. [00:53:15] Speaker 03: That is just not correct. [00:53:19] Speaker 03: Tribes, you can have a lot of Sioux people in North Dakota. [00:53:22] Speaker 03: They're not all member of the same tribe. [00:53:25] Speaker 03: They have a lot of the same names. [00:53:27] Speaker 03: I represented Henry Jeff of the Troy Numbi and he's on the coast of California. [00:53:31] Speaker 03: There's a lot of Jeffs, a lot of me walks in California. [00:53:34] Speaker 03: But they don't all belong at Sheep Ranch. [00:53:37] Speaker 03: And not all the Miwoks in Calaveras County have that connection. [00:53:41] Speaker 03: For example, this is why you have to be a genealogist to get into this. [00:53:47] Speaker 03: And I've done a lot of it. [00:53:48] Speaker 03: But basically, what happened with Sheep Ranch is Michael Malimbez identified in his affidavit. [00:53:58] Speaker 03: And this is what we stand on. [00:54:00] Speaker 03: He was fighting. [00:54:02] Speaker 03: to overcome a woman that was trying a rogue leader run off with their heritage. [00:54:07] Speaker 03: And they said they pulled together and they had a list of people that they were all part of this community over a number of years had lived there like Velma White Bear, Ms. [00:54:16] Speaker 03: Carson. [00:54:17] Speaker 03: And they were related to one of the Jeff families. [00:54:20] Speaker 03: It was the Hattie Jeffs, because Maple's mother was Hattie Jeff, and that was the daughter of Tilly and John Jeff. [00:54:28] Speaker 03: But Hattie Jeff's relatives had a connection, some of them into Sheep Ranch, and her oldest sister, Laurel, they were close. [00:54:37] Speaker 03: line had a connection in the sheep ranch. [00:54:40] Speaker 03: But the other seven children of John Jeff did not. [00:54:44] Speaker 03: So not every John Jeff descendant has a right to be at sheep ranch. [00:54:49] Speaker 03: And what happens is in America, tribes find out the reason why they don't just blanket bring in anybody that has Sue blood or anybody has me walk blood into their community is because people marry out. [00:55:03] Speaker 03: They marry out and they go into other communities. [00:55:05] Speaker 03: whether they go into a white culture, a black culture, another culture, they don't come back. [00:55:11] Speaker 03: They're not part of the political community. [00:55:13] Speaker 03: And that's what we're talking about when you say political integrity. [00:55:16] Speaker 03: So no, I disagree strongly that every Miwok on that 1929 census would have had a descendancy or historical connection. [00:55:25] Speaker 03: So that's why I don't want you to get held up. [00:55:28] Speaker 01: I understand that in your view, [00:55:31] Speaker 01: The 1929 census descendants would be over inclusive. [00:55:36] Speaker 01: If we, if we did not allow the 1929 census descendants to be part of the organizing group. [00:55:45] Speaker 01: Would that mean the organizing group is under inclusive? [00:55:49] Speaker 03: No. [00:55:50] Speaker 03: What Kevin Washburn said, and this is on JA266. [00:55:54] Speaker 01: If the answer is it's under-inclusive, you say it's not under-inclusive. [00:56:00] Speaker 01: It's not going to be under-inclusive. [00:56:02] Speaker 03: Because it's not going to be limited to nine people or five people. [00:56:07] Speaker 03: Washburn said, whether the descendants of the Miwoks identified in the 1929 census shall be included in the organization of the CVMT is an internal tribal decision and shall be made by the individuals who make up the eligible groups. [00:56:21] Speaker 03: And he drops down the footnote and he talks about the controversy over Burleigh. [00:56:25] Speaker 03: And he says, well, she can prove that she's got that connection, then they can decide to bring her in and use the 20 and she shows up on the 29 census. [00:56:34] Speaker 03: the point is not every Miwok came into there. [00:56:38] Speaker 03: They may have married out, they may have gone to other tribes in the other parts of California. [00:56:43] Speaker 03: So that's why to just list those on that 29 census without any trace and I again disagree. [00:56:50] Speaker 05: But that very paragraph seems to [00:56:53] Speaker 05: recognize the reasonableness of the not yet made Newland determination broadening Washburn's baseline decision. [00:57:06] Speaker 05: He said in the previous sentence, including the descendants of the Miwok Indians identified on the 29th census as eligible to take part in the organization of the tribe may be proper. [00:57:15] Speaker 05: in light of Agent Terrell's conclusion that to some extent the Indians of Sheep Ranch, Murphy, Six Mile Avery, and Angels are interchangeable in their relations. [00:57:26] Speaker 05: So he made a decision, as you point out, that would lead to the narrower group [00:57:33] Speaker 05: the ultimate membership criteria reflected in the Constitution. [00:57:37] Speaker 05: And if they wanted to encompass more of those people, Newland took a different default and said, let's have more people in the organizing group. [00:57:49] Speaker 05: And they could go the other way. [00:57:51] Speaker 05: They could recognize, well, I belong to a different tribe or, you know, they have to do some kind of genealogical discussion and connection [00:58:02] Speaker 05: to the region, the area recognition of different, you know, maybe independent New York tribes. [00:58:10] Speaker 05: But it seems like Warfarin himself recognizes that a reasonable alternative route for BIA would be to do precisely what Newland then does. [00:58:22] Speaker 03: The reason he came down with the three eligible groups was because the government's role was to identify that history. [00:58:30] Speaker 03: And then the tribe's role is to identify its members. [00:58:33] Speaker 03: So he was saying that he's identifying history. [00:58:37] Speaker 03: Does the tribe exist? [00:58:39] Speaker 03: Like the Remand Decision demanded, you have to determine a tribe exists. [00:58:43] Speaker 03: He looked at historical roles to say, yes, Sheep Branch was identified, and there are descendants today, the tribe exists. [00:58:50] Speaker 03: then he's distinguishing. [00:58:52] Speaker 03: This is the point I'm trying to make and I don't know if I can possibly be clear enough, but there's a big distinction in saying with Washburn, look, sure, we have a general Calaveras County census of 1929 that identifies people that have interchangeable history, just like the Sioux, just like the Virginia tribes. [00:59:12] Speaker 03: They have interchangeable ancestors, but [00:59:14] Speaker 03: that but they have to then decide of those ancestors which one come in and like Michael Melendez did and the others in their affidavit, there were some that had the Jeff descendancy and their ancestor, John Jeff was on the twenty-nine role but he was showing the history and they were showing the history of their connection to sheep ranch whether they had lived there, been part of a cultural cultural things with them but there is that history. [00:59:40] Speaker 01: Can I just run down the actual dispute that the government had? [00:59:44] Speaker 01: They have this line in their brief. [00:59:45] Speaker 01: U.S. [00:59:46] Speaker 01: currently holds land and trust for the benefit of the descendants of Mabel Dixie's heirs, who are not 1915 census descendants. [00:59:53] Speaker 01: You heard Ms. [00:59:54] Speaker 01: Sprague's explanation for why she thinks that's accurate. [00:59:56] Speaker 01: Do you also think it's accurate? [00:59:58] Speaker 03: The land was held in trust like a reservation, we know, in trust for this tribe. [01:00:03] Speaker 03: It was designated, they were doing land purchases for the homeless Indians in California. [01:00:09] Speaker 03: And that two acres they identified for the community around that sheep ranch area. [01:00:14] Speaker 03: Because I think they knew that sheep ranch mining town. [01:00:17] Speaker 01: Is the US currently doing whatever that is for the descendants of Mabel Dixie's heirs? [01:00:24] Speaker 03: Well, [01:00:26] Speaker 03: That .9 acres just isn't like a residential community. [01:00:30] Speaker 03: It never really was. [01:00:32] Speaker 03: Yakima was on there. [01:00:35] Speaker 03: Maple was on there. [01:00:35] Speaker 03: Different people were on there. [01:00:36] Speaker 03: But that is not like being a resident of a big reservation like Crow Agency or something. [01:00:45] Speaker 01: Whatever the US is doing with that land, it's doing it for the benefit of some group of people. [01:00:53] Speaker 01: And is it currently doing it for the benefit of Mabel Dixie's heirs' descendants? [01:01:02] Speaker 03: No, because she has that deed. [01:01:04] Speaker 03: What they did is they transferred to Mabel the deed to the property and then her heirs [01:01:11] Speaker 03: and she left it to Yakima, who left it to Thelma White Bear, who lived at Sheep Ranch, who their grandmothers were sisters. [01:01:22] Speaker 03: And so she was a cousin and she was in the rancheria, the Sheep Ranch Rancheria community. [01:01:28] Speaker 03: That's an example. [01:01:29] Speaker 01: Mabel Dixie's heirs have the deed you just said, right? [01:01:32] Speaker 01: Uh no. [01:01:34] Speaker 03: Okay. [01:01:34] Speaker 03: Maple, the deed to Sheep Branch is with Velma White Bear who is a cousin of Yakama because Velma's grandmother and Maple's mother were sisters. [01:01:46] Speaker 03: And so, what Yakama did is he got the land and it was deeded to him and then he passed his rights on to Velma, his cousin, who was a Sheep Branch Miwok because she was in the community. [01:01:59] Speaker 03: So, that's why this the [01:02:01] Speaker 03: In fact, the government is saying you can take all of the walks that descend from the 29 census that had no connection or their later generations connection back into that thing and then let them have the tribe. [01:02:14] Speaker 03: That violates the political integrity of the tribe and that violates the remand. [01:02:18] Speaker 01: Okay. [01:02:18] Speaker 01: Did Ms. [01:02:19] Speaker 01: Sprague say anything at oral argument about that sentence that was inaccurate? [01:02:26] Speaker 01: I don't remember if she. [01:02:28] Speaker 03: You know, I just, that's what I know. [01:02:30] Speaker 03: And I have, you know, I know that Velma's heirs have it. [01:02:35] Speaker 04: Anything further, Judge Schatz? [01:02:36] Speaker 04: Yeah, because of the, going backwards, because of the IRA and the allotment era of the land that we were just talking about on the Sheep Ranch Rancheria, is that held in trust the same way a reservation is? [01:02:50] Speaker 03: No, it never was put in trust like a regular reservation. [01:02:55] Speaker 04: Okay. [01:02:56] Speaker 04: And then earlier when we're talking about the broader community broader me what community reflected in, for example, Calaveras County. [01:03:04] Speaker 04: Is there a difference on utilizing a broader community for purposes of your organization. [01:03:12] Speaker 04: That it is for when you're actually determining self citizenship for yourself for your self determination and self governance purposes. [01:03:20] Speaker 03: Yes, and that's a good question because what we claim new Linda where he overreached was he designated this 1929 census to designate membership. [01:03:31] Speaker 03: and that's where again there's in Washburn's had it in his attachments, attachment L by director Rissling had a solicitor's opinion that said you cannot use the 29 census as a membership criteria, it's too general. [01:03:47] Speaker 03: And so that and Washburn's can't could have but he didn't because he said that is for the tribe to determine whether somebody on that census has the right to membership in the tribe. [01:04:00] Speaker 03: Not me to say that everybody in the nineteen twenty-nine census should be in membership. [01:04:05] Speaker 03: Now, when you come to the putative group or the organizing group, what our position is, when you look at the affidavits of Malin and the group that he was with, they were identifying people that have had that [01:04:17] Speaker 03: history. [01:04:17] Speaker 03: So when the BIA sits down, if you all go back to the state, Newland went too far, overreach, that's arbitrary and capricious decision making, then what the BIA was starting to do was sit down with this group and look at [01:04:34] Speaker 03: people that requested to be part of the tribe and see if there's documentation that shows historical connection, not only in name, but how they connected to that Miwok community in that area. [01:04:49] Speaker 03: It's just like, you know, I use Virginia because I know those tribes so well. [01:04:53] Speaker 03: The Pamunkey do not have land interests. [01:04:55] Speaker 03: They have an old state reservation. [01:04:57] Speaker 03: A few miles away is the they have an old state reservation. [01:05:00] Speaker 03: Neither one of those pieces of property are in and those properties aren't big enough to hold everybody that has heritage or heritage. [01:05:10] Speaker 03: So they have membership with people both on that live there on that old state reservation people off and that is so common but they trace it back to who has a connection to that tribe. [01:05:21] Speaker 03: So it's not like everyone and they have interrelations. [01:05:24] Speaker 03: They have people with the same last name and those two tribes. [01:05:28] Speaker 03: So it's not about that. [01:05:30] Speaker 03: That's why I think the government overreached and I know I'm beating the same drum. [01:05:34] Speaker 04: And then the last question I had was just. [01:05:36] Speaker 04: there was a discussion in the district court's order about plaintiffs have been here several times challenging things that they're now taking a different position on. [01:05:46] Speaker 04: So I just wanted you to speak to that. [01:05:48] Speaker 03: No, I think it's very consistent. [01:05:50] Speaker 03: What they were fighting for in the beginning is they had a rogue leader come in and took the tribe and took the money. [01:05:56] Speaker 03: And they were fighting that. [01:05:58] Speaker 03: And they were on the side of we want a legitimacy. [01:06:02] Speaker 03: And they won. [01:06:03] Speaker 03: And then they had to challenge again, three, because she challenged again. [01:06:10] Speaker 03: And then they won. [01:06:12] Speaker 03: They got the remand, which said that the government had to go back and show, number one, a historic community existed. [01:06:19] Speaker 03: And then they had to honor, with their trust responsibility, the political integrity of the tribe. [01:06:24] Speaker 03: And that's the part I'm fighting over. [01:06:26] Speaker 03: you know, it's it's um gosh, it's nothing's harder than figuring out tribal membership. [01:06:33] Speaker 03: So, I appreciate you all indulging with this conversation but it's it's a very big difference in Indian country between um [01:06:41] Speaker 03: being over inclusive and and setting up the situation where the right people and I mean people with historic connection uh come into the tribe and the BIA can be a mediator and all that because they can have the documents. [01:06:56] Speaker 03: What they failed at was they didn't do their due diligence and now they're trying to use that lack of due diligence against these folks that I represent that definitely have been fighting to have a broader community. [01:07:07] Speaker 03: That's what they fought for if you look at those early cases exactly. [01:07:10] Speaker 03: They said, we don't want our tribe being hijacked by Sylvia and her two children. [01:07:15] Speaker 03: Yeah, you've heard me enough, but thank you very much. [01:07:18] Speaker 03: I appreciate you. [01:07:19] Speaker 05: And the case is submitted.