brian c. leighton, ca bar # 090907

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO

DISMISS; PLAINTIFFS’ OPPOSITION TO GOVERNMENT

DEFENDANTS’ MOTION TO STAY THE CASE PENDING AN

APPEAL IN ANOTHER CASE

BRIAN C. LEIGHTON, CA BAR # 090907Attorney at Law701 Pollasky AvenueClovis, California 93612Telephone: (559) 297-6190Facsimile: (559) 297-6194E-mail:[email protected]

Attorney for Plaintiffs

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

PEARL ALVARADO, et al., ) CASE NO.: C-05-00093 MHP)

Plaintiffs. )v. ) (Directly related to Civil Case No.

) C-80-4595-MHP))

TABLE MOUNTAIN RANCHERIA, et al., ) PLAINTIFFS’ OPPOSITION) TO DEFENDANTS’ MOTION

Defendants. ) TO DISMISS; PLAINTIFFS’__________________________________________) OPPOSITION TO GOVERNMENT

DEFENDANTS’ MOTION TOSTAY THE CASE PENDING ANAPPEAL IN ANOTHER CASE

DATE: May 2, 2005TIME: 2:00 p.m.CTRM: 15JUDGE: Hon. Marilyn Hall Patel

Case 3:05-cv-00093-MHP Document 42 Filed 04/11/2005 of 32

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APPEAL IN ANOTHER CASE i

TABLE OF CONTENTS

PAGE

I INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III PERTINENT FACTUAL ALLEGATIONS OF THE COMPLAINT RESUBJECT MATTER JURISDICTION AND GIST OF CLAIMS . . . . . . . . . . . . . . . . . . . . 3

IV ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Government Defendants have no sovereign immunity . . . . . . . . . . . . . . . . . . . . . . . 4

1. Title 28 U.S.C. § 1331 and 5 U.S.C. § 702 provides DistrictCourt jurisdiction to entertain this action because no moneydamages are sought against the government . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. This court has continuing jurisdiction over all of the Defendants hereinunder this court’s orders and judgment, and the stipulated judgmententered in that 1980 action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Defendants have disingenuously rewritten the Watt action,what was pled, the class action certification, the stipulatedjudgment and the court order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. This court has continuing jurisdiction to enforce the terms of thestipulation, class certification, orders and judgment inTable Mountain V. Watt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

D. Neither Santa Clara Pueblo v. Martinez, nor its progeny areauthority for Defendants’ claim of lack of subject matterjurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

E. The tribe and its officials are not immune from suit . . . . . . . . . . . . . . . . . . . . . . . . 24

V CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26


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APPEAL IN ANOTHER CASE ii

TABLE OF AUTHORITIES

FEDERAL CASES

Adams v. Morton581 F.2d 1314 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Augustine v. United States704 F.2d 1074 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Beller v. Middendorf632 F.2d 788 (9th Cir. 1980), cert denied, 425 U.S. 905 (1981) . . . . . . . . . . . . . . . . 5

Blue v. Widnall162 F.3d 541 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Center for Biological Diversity v. Veneman335 F.3d 849 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Chemehuevi Indian Tribe v. California State Board of Equalization757 F.2d 1047 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Commodities Export Company v. United States Custom Service888 F.2d 431 (6th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Confederated Tribes etc., v. White139 F.3d 1268 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19

Donovan v. Coeur d'Alene Tribal Farm751 F.2d 1113 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Guerrero v. Stone970 F.2d 626 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Hallett v. Morgan296 F.3d 732 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hook v. Arizona972 F.2d 1012 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Jeff D., etc., v. Kempthorne365 F.3d 844 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

King County v. Rasmussen299 F.3d 1077 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Kokkonen v. Guardian Life Insurance Company of America511 U.S. 375 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

McClendon v. United States885 F.2d 627 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 25


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APPEAL IN ANOTHER CASE iii

McGraw v. United States281 F.3d 997 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Neitzke v. Williams490 U.S. 319 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Norton v. Southern Utah Wilderness Alliance542 U.S. 55, 124 S. Ct. 2373 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9

Ordinance 59 Association v. U.S. Department of Interior Secretary163 F.3d 1150 (10th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Pareto v. F.D.I.C.138 F.3d 696 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pit River Home Agriculture Cooperative Association v. United States30 F.3d 1088 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Presbyterian Church v. United States870 F.2d 518 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Puyallup Tribe, Inc. et al v. Department of Game of Washington433 U.S. 165 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Quileute Indian Tribe v. Babbitt18 F.3d 1456 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 25

Roberts v. Corrothers812 F.2d 1173 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Santa Clara Pueblo v. Martinez436 U.S. 49 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Scott v. Breeland792 F.2d 925 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Shermoen v. United States982 F.2d 1312 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Smith v. Babbit100 F.3d 556 (8th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Squaxin Island Tribe v. State of Washington781 F.2d 715 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Staton v. Boeing Company313 F.3d 447 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Stock West Corp. v. Lujan982 F.2d 1383 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Table Mountain v. Watt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Taylor v. United States181 F.3d 1017 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17


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APPEAL IN ANOTHER CASE iv

United States v. Bruce394 F.3d 1215 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Oregon657 F.2d 10009 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19, 25

FEDERAL STATUTES

5 U.S.C. § 701 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5 U.S.C. § 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 5

5 U.S.C. § 704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

25 U.S.C. §163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

25 U.S.C. § 1301 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 6


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APPEAL IN ANOTHER CASE 1

I

INTRODUCTION

None of the Defendants (governmental or tribal) deny that Plaintiffs were represented by

named class Plaintiffs in that 1980 action proceeding before this court, nor do they allege that the

current Plaintiffs were not intended beneficiaries of the class certification request by the named

Plaintiffs, the class certification ordered by this court, or the stipulated judgment and judgment

issued in this case, which should unquestionably be described as a consent decree. No, they claim

none of those things. Instead they use the proverbial shotgun approach urging the court to ignore all

the previous litigation in that 1980 case, to ignore the court orders issued in that case, to ignore the

representations made by the herein Defendants and their attorneys representing them as Plaintiffs in

that 1980 action but instead in the most disingenuous attempt to claim no jurisdiction in this case.

Greed by the tribal Defendants in this case have kept Plaintiffs as being “recognized” members of

the tribe when indeed the herein Plaintiffs tribal membership is inherent, they were born into the

tribe, and as soon as the government Defendants and the tribal Plaintiffs in that 1980 action agreed to

the class certification and agreed to the stipulated judgment and judgment, the herein Plaintiffs were

just as much members to be recognized by the class Plaintiffs in the 1980 action and the government

as were the named class members in that 1980 action and the “chosen” few “recognized” members.

As will be pointed out below, this court has continuing jurisdiction to enforce its various

orders from that 1980 action, the tribe itself has waived sovereign immunity, the named tribal

Defendants have waived sovereign immunity, and/or the suit against them in their individual

capacity for which sovereign immunity does not apply, the government does not have sovereign

immunity in this case because no money damages are being sought from the government, the court

does have jurisdiction in this matter, and the other shotgun arguments raised by the Defendants are

not only meritless but disingenuous.

U.S. District Court Judge Karlton decision in the Eastern District is not binding on this court, dealt

with other issues and that court did not have continuing jurisdiction like this court does from the

Table Mountain v. Watt case.


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II

STANDARD OF REVIEW

The District Court and the Appellate Court must accept all uncontroverted factual assertions

in the complaint regarding jurisdiction as true. McGraw v. United States, 281 F.3d 997, 1001 (9th

Cir. 2002), amended, 298 F.3d 754; King County v. Rasmussen, 299 F.3d 1077, 1088 (9th Cir.

2002). Both defendants raise, pursuant to their motions to dismiss Rule 12(b)(1) of the Federal

Rules of Civil Procedure (no subject matter jurisdiction). It also appears that both Defendants are

raising a Rule 12(b)(6), dismissal based upon a failure to state a claim.

While Plaintiffs acknowledge that they have the burden of proving all facts necessary to

establish jurisdiction in the face of a motion to dismiss pursuant to Rule 12(b)(1) of the Federal

Rules of Civil Procedure (Scott v. Breeland, 792 F.2d 925, 926 (9th Cir. 1986) and that “the District

Court is ordinarily free to hear evidence regarding jurisdiction and the rule on that issue prior to trial,

resolving factual disputes where necessary” (Augustine v. United States, 704 F.2d 1074, 1077 (9th

Cir. 1983) but “where the jurisdictional issues and the substantive issues are so intertwined that the

question of jurisdiction is dependant upon the resolution of factual issues going to the merits, the

jurisdictional determination should await a determination of the relevant facts on either a motion

going to the merits or a trial.” Augustine, supra, at 1077.

In the instant case, jurisdictional issues and the substantive issues are so intertwined that the

court should await “a determination of the relevant facts on either a motion going to the merits or a

trial, unless the court declares, as it should that it has jurisdiction.” Id. An evidentiary hearing is

required if disputed factual issues are raised under Rule 12(b)(1). Commodities Export Company v.

United States Custom Service, 888 F.2d 431, 436 (6th Cir. 1989); Roberts v. Corrothers, 812 F.2d

1173, 1177 (9th Cir. 1987).

However, in this case, federal subject matter jurisdiction is affirmatively alleged in the

complaint, not only in paragraph 53 under the title “statement of jurisdiction and venue”, but

throughout the complaint, as well as the exhibits attached to the complaint showing this court’s

continued jurisdiction.


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Obviously, with respect to Defendants’ motion to dismiss for “failure to state a claim”

pursuant to Rule 12(b)(6) however, the court must accept as true all material allegations in the

complaint, as well as reasonable inferences to be drawn from them. Pareto v. F.D.I.C., 138 F.3d

696, 699 (9th Cir. 1998). No matter how improbable the facts alleged are they must be accepted as

true for purposes of the motion. Neitzke v. Williams, 490 U.S. 319, 328-329 (1989).

III

PERTINENT FACTUAL ALLEGATIONS OF THE COMPLAINTRE SUBJECT MATTER JURISDICTION AND GIST OF CLAIMS

Plaintiffs have a 30 page limitation in response to the Defendants motion to dismiss. That

would be 30 pages as to each brief filed by the Defendants, of which there were two. Plaintiffs are

attempting to file their response to both motions to dismiss the complaint in one opposition brief, not

two. With judicial resources in mind, therefore Plaintiffs request the court to review the detailed

allegations in the specifically alleged complaint filed herein and the exhibits attached to said

complaint. That specifically detailed complaint states exactly why this court has continuing

jurisdiction, states specifically why none of the Defendants have immunity, government or

otherwise, why the named Plaintiffs herein were alleged by the named Plaintiffs in the Table

Mountain v. Watt case to be represented by the named Plaintiffs including Table Mountain, and why

the class certification, the various orders entered by this court, the stipulated judgment and orders

regarding the judgment apply equally to these Plaintiffs, why the Defendants have breached that

consent decree/judgment/class certification in that Watt case, and why none of the issues raised by

the Defendants herein have merit, and what historically has occurred over the last 20 plus years,

depriving the Plaintiffs of the benefit and the agreements reached in the Watt decision.

Unless Plaintiffs made this two briefs, instead of one, page limitations do not permit a

detailed discussion of the specific allegations in the complaint.


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IV

ARGUMENT

A. Government Defendants have no sovereign immunity.

The government contends (brief at 9) that it has sovereign immunity and cannot be sued

without its consent – which it claims it has not waived. The government’s argument is without merit

as no money damages are sought from the government. The court has subject matter jurisdiction

pursuant to 28 U.S.C. § 1331, and 5 U.S.C. § 701 et seq.; the court has jurisdiction pursuant to §

1346 (and 5 U.S.C. § 702), the court has continuing jurisdiction to enforce the court’s judgment

pursuant to Rule 71 to compel the government to provide tribal membership recognition that the

government stipulated to in that 1980 action before this court, and the “intra tribal” membership

dispute argument is of no avail.

1. Title 28 U.S.C. § 1331 and 5 U.S.C. § 702 provides District Courtjurisdiction to entertain this action because no money damages aresought against the government

There is no claim in the instant complaint seeking money damages against the government.

Money damages are sought against the tribal Defendants, but not the government.

As stated by the Ninth Circuit in the Presbyterian Church v. United States, 870 F.2d 518, 524

(9 Cir. 1987) the District Court had jurisdiction under 28 U.S.C. § 1331 (federal question) becauseth

§ 702 of the Administrative Procedure Act (5 U.S.C. § 702) in 1976 was amended to add:

“‘An action in the court of the United States seeking relief other thanmoney damages and stating a claim that an agency or officer oremployee thereof acted or failed to act in an official capacity or undercolor of legal authority shall not be dismissed nor relief therein deniedon the ground that it is against the United States or that the UnitedStates is an indispensable party.’”

As this (Presbyterian) Circuit stated, supra, “§ 702 acquired its current form in 1976, when

Congress amended it to add the second sentence. The clear objective of the 1976 amendment was to

waive sovereign immunity as a defense in actions seeking relief other than money damages.

[Citations.] Congress was quite explicit about its goals of eliminating sovereign immunity as an

obstacle in securing judicial review of the federal official conduct.” Id.

The Ninth Circuit also held that 5 U.S.C. § 702 did not require “agency action” in the sense

of “an agency rule, order, license, sanction, relief, or the equivalent or denial thereof.” Id. at 525.


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The Court, instead, stated: “On its face, the 1976 amendment is an unqualified waiver of sovereign

immunity in actions seeking non-monetary relief against legal wrongs for which government

agencies are accountable.” Id. at 525. There have been other similar pronouncements by the Ninth

Circuit: Beller v. Middendorf, 632 F.2d 788, 796-97 (9 Cir. 1980), cert denied, 425 U.S. 905th

(1981); Guerrero v. Stone, 970 F.2d 626, 628 (9 Cir. 1992); Blue v. Widnall, 162 F.3d 541, 544-45th

(9 Cir. 1998) (the “APA waived sovereign immunity for actions against the United States and itsth

agencies brought under 28 U.S.C. § 1331 (i.e., federal question jurisdiction) to the extent that non-

monetary relief is sought”); and Pit River Home Agriculture Cooperative Ass’n v. United States, 30

F.3d 1088, 1097-98 and n.5 (9 Cir. 1994).th

Based upon the above, the government’s argument that § 702 of the APA limits waiver to an

agency rule, order, license, etc. (brief at 11) it is meritless given the Ninth Circuit’s pronouncement

in Presbyterian Church, supra. Based upon Presbyterian Church, supra the court has jurisdiction to

entertain this complaint against the government because it is a government’s failure to act when it

had a duty to do so, the duty being its obligation to fully comply with the class certification order, the

stipulated judgment and the judgment (basically a consent decree) issued in that 1980 action which,

if not expressly, then implicitly requires all of those defined in the class certification, which

Plaintiffs allege to include them, to be restored to their Indian status and as members of Table

Mountain and to be provided the government benefits that inure with such recognition – the same

recognition received by the named Plaintiffs in that 1980 action.

Despite Plaintiffs’ protestations to BIA to act in this matter, the BIA has, when it suits it, to

be much involved with Table Mountain (see Plaintiffs’ request for judicial notice), and stipulated to

all of those orders in the previous 1980 action which did not limit membership to any residency

requirements, but fully stipulated that it would include all distributees, descendants of distributees,

dependant members of distributees from the 1959 base roll and, the lineal descendants and heirs of

those dependant members and distributees. The federal Defendants did not comply, but instead

ignored, most of the court orders in that 1980 action. Thus, § 702, 704 and 706 of the APA, in

conjunction with 28 U.S.C. § 1331, as construed by Presbyterian Church precludes the government

from weaseling out as a Defendant in this action. Since there is no other “adequate remedy in a


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28 As further support for this argument, see the immediately succeeding arguments.1





court” (5 U.S.C. § 704) (government brief at 11) except for an action like this, this court does have

jurisdiction.1

Further, the government citation to Norton v. Southern Utah Wilderness Alliance, 542 U.S.

55, 124 S.Ct. 2373 (2004) for the proposition that the only agency action that can be compelled

under the APA is action legally “required” (emphasis in original) is of no avail here.

Contrary to the governments’ argument Plaintiffs are not seeking the federal Defendants to

“take any enforcement action” but to simply comply, and require Table Mountain to comply with the

Table Mountain v. Watt decision, to comply with the National Indian Gaming Regulations regarding

disbursement of tribal funds, and to comply with Part 290, 25 C.F.R., including the Revenue

Allocation Plan and requirements of Part 290, which also require Table Mountain to establish a tribal

court system, forum or other administrative process for resolution of disputes. The complaint was

one against the federal Defendants to follow the law and comply with th Courts ordered class action

and settlement in Table Mountain v. Watt. It was not a claim for the federal Defendants to take

“discretionary” enforcement actions. This is no different than a suit brought to require a federal

agency to comply with the APA or a court decision and judgment rendered in a case.

Title 25 U.S.C. § 163 states, in pertinent part:

“The Secretary of the Interior is hereby authorized, wherever in hisdiscretion such action would be for the best interest of the Indians, tocause a final roll to be made of the membership of any Indian tribe;such rolls shall contain the ages and quantum of Indian blood, andwhen approved by the said Secretary are declared to constitute thelegal membership of the respective tribes for the purposes ofsegregating the tribal funds as provided in § 28 of the IndianAppropriation Act approved May 25, 1918 (Fortieth Statutes at large,pages 519 and 592), and shall be conclusive both as to ages andquantum of Indian blood [certain tribes excluded – but not TableMountain].”

The Secretary has already engaged in the “discretionary” function of causing a final roll to be

made of the membership of Table Mountain through the approval of Table Mountain’s Constitution

and the Table Mountain v. Watt decision, and Plaintiffs are not seeking any other act “discretionary”

or otherwise from the Secretary because the Secretary has already performed the discretionary act,


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set the base roll, approved Table Mountain’s Constitution, which base roll, the Watt class action

decision decided, and Table Mountain’s Constitution necessarily include Plaintiffs as members of

Table Mountain – all according to Table Mountain v. Watt. This action against the federal

Defendants, (among other claims) was to have the federal Defendants comply with the base roll and

Table Mountain’s Constitution which the Secretary approved, and to comply with the basic consent

decree (stipulated judgment) which this Court in Table Mountain v. Watt enforced against the federal

Defendants which included as class members, the Plaintiffs herein.

As the Ninth Circuit stated in Stock West Corp. v. Lujan, 982 F.2d 1383, 1399-1400 (9th Cir.

1992) (describing the government argument there, and made here as well) that that is a very narrow

exception and is only “‘applicable in those rare instances where statutes are drawn in such broad

terms that in a given case there is no law to apply.’” Id. at 1400)

Here, the Government, Table Mountain and the named class Plaintiffs in that 1980 action

entered into a court sanctioned agreement in 1983 wherein the Government agreed to recognize

Table Mountain; and the Court, Table Mountain and the Government all agreed that the members of

the class that received a victory in that case included these Plaintiffs. The Secretary was required to

approve, and did approve (with changes) Table Mountain’s Constitution which also included

Plaintiffs as members. The Secretary of the Interior and the Bureau of Indian Affairs have rendered

“final agency action for which there is no other adequate remedy in a Court” by refusing, for two

decades, to comply with this court’s various orders in that 1980 action.

While the government must admit that “agency action also includes agency in-action”, and

must admit that a court “must redress agency action unlawfully withheld or unreasonably delayed by

compelling the agency to act” the Government’s circular argument is that there must be a statutory

right to the agency action that is alleged to be unlawfully withheld or unreasonably delayed but then

utterly ignores its obligation under Watt and its statutory duty under Part 290 of Title 25, C.F.R.

However, in a case cited by the Government, Center for Biological Diversity v. Veneman, 335 F.3d

849 (9 Cir. 2003) (government brief at 12): “‘Judicial review is appropriate if the plaintiff makes ath

showing of ‘agency recalcitrance. . . in the face of clear statutory duty or ... such a magnitude that it

amounts to an abdication of statutory responsibility.’” [Citation omitted.] Id. at 854.


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In this case, the agency had a clear statutory duty under Part 290 of Title 25 C.F.R., and

clearly had a duty as a result of the Table Mountain v. Watt consent decree, and since the Secretary

of the Interior has already exercised “discretion” to cause a final roll to be made of the membership

of the Table Mountain tribe (25 U.S.C. §163) the Secretary is required to insure that the tribal

members (and the should-be members) are not discriminated against with respect to disbursement of

Government funds and Indian gaming. This is not a matter that is “committed to agency discretion

by law, nor is the decision in Table Mountain v. Watt “discretionary”. Thus the federal Defendants

do not have sovereign immunity in the Court below, nor now. Plaintiffs were protected under the

Table Mountain v. Watt decision, and are protected under Part 290 of 25 C.F.R., and are protected

under the Indian Gaming regulations, and are protected under the Table Mountain Constitution,

which emanated solely as a result of this court’s Table Mountain v. Watt orders and judgment, and

Table Mountain’s Constitution could have no force or effect without the Secretary’s approval, which

also means the federal Defendants are required to enforce that Constitution and the Watt decision,

which means that Plaintiffs are inherently, members of Table Mountain required to be recognized.

Thus, the court has subject matter jurisdiction over the federal Defendants – and the tribal

defendants.

The government also relies on Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55

(2004) but that case is compelling for Plaintiffs’ argument, not the Defendants. As that court

described (124 S.Ct. at 2378-2379,) between Title 5 Section 551 (13), 702, 704 and 706, this court

has full authority to order the government to comply with this court’s order in that 1983 action,

because what the Supreme Court discusses in that case fully encompasses compliance with this

court’s previous order with which the federal Defendants agreed to comply in not only the

recognition of the Table Mountain as a tribe sanctioned by the government, but that its members

would consist of Plaintiffs herein. As that court explained (124 S.Ct. at 2379) agency action can be

compelled under the APA if the action is “legally required”, or agency action “unlawfully withheld”

(emphasis in original.) While the 1983 orders and judgment out of this court required the agency

action sought in this case, it is being “unlawfully” withheld. Thus, this court has jurisdiction to

entertain this complaint against the federal Defendants.


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B. This court has continuing jurisdiction over all of the Defendants herein under thiscourt’s orders and judgment, and the stipulated judgment entered in that 1980 action

Despite all of the Defendants protestations to the contrary, this court has continuing

jurisdiction to not only enforce its judgment but to enforce the class action certification. The tribal

Defendants disingenuous attempt to rewrite the case history from that 1980 action by spuriously

arguing that the case had nothing to do with tribal membership is outrageous. Likewise, the tribal

Defendants and the government’s citations of cases in a transparent attempt to throw this court off

focus speaks volumes about the lengths that they will take to prevent their relatives (Plaintiffs

herein) in sharing the victory that the tribe and the class actions named Plaintiffs received from this

courts orders in that 1980 action.

1. Defendants have disingenuously rewritten the Watt action, what was pled, theclass action certification, the stipulated judgment and the court order

Try as they might, the Defendants herein attempt to disguise what Table Mountain v. Watt

was all about by claiming that that case had nothing to do with tribal membership recognition, and

the Government Defendants simply ignore that issue but attempt to mislead the Court into believing

that the case had nothing to do with tribal membership status – and – disingenuously (explicitly by

the Tribal Defendants and implicitly by the Government Defendants) as to who was intended to

benefit from the 1980 Action.

Table Mountain Defendants claim that Plaintiffs herein are attempting to rewrite history to

suggest that the Watt Action adjudicated tribe’s membership and whom the tribe must recognize as

its members. (Tribal brief at 7.) Plaintiffs herein are correct; Defendants are not.

Indeed, the Class Action Complaint filed in Table Mountain v. Watt have far more to do with

establishing the “Indian status” of the tribe and tribal members of the Table Mountain Rancheria,

than anything regarding “who lived” at the Rancheria, as rewritten by the Tribal Defendants now.

(Tribal brief at 7-11.)

While it is very true that part (and only part) of the Table Mountain’s status as a federally-

recognized “tribal entity” (Tribal brief at 7; Government Defendants’ brief at 3-4) was part of the

19890 action, but a lot bigger part of the Table Mountain v. Watt case had to do with who would be

recognized as part of that tribal entity called Table Mountain and to protect the recognition of those


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distributees on the 1958/1959 base roll and their descendants, dependents, and offspring. The Court

will have several sources to confirm Plaintiffs’ contention herein. The first is the complaint filed in

Table Mountain v. Watt, (Exhibit “1” to the Tribal Defendants’ Request for Judicial Notice,

hereinafter “JN”): (Paragraph 1; “Jurisdiction”): “Plaintiffs bring this action on behalf of themselves

and all other persons similarly situated, to redress wrongs committed against and damages suffered

by them as a result of the premature and unlawful purported termination of the federal trust status of

the land and Indian status of the people of the Table Mountain Rancheria. . ..” (Emphasis added.);

(Paragraph 2, “Parties”); The Table Mountain Rancheria Association “is the governing body of the

American Indian Tribe, Band or Community consisting of the Indians and their descendants and/or

Indian successors in interest. . ..” (emphasis added); (Paragraph 3), “Plaintiffs [then] Clarence Jones,

Lester Burrough, E.B. Barnes, Lewis Barnes and William Walker are persons named in the final plan

for the distribution of the assets, suing on behalf of themselves (and Paragraph 4) “all other persons

named in the distribution plan as distributees of the assets of the Rancheria, or the Indian heirs,

assigns, executors, administrators, or successors in interest thereof. . .”); (Paragraph 5); Plaintiffs

(there) Aaron Jones, Carolyn Walker, and Twila Burrough sued on behalf of themselves and all

similarly situated persons as being dependent members “of the families of distributees, and who, for

that reason, were, are or have been deemed by the Government of the United States and/or another

entity to have lost their status as Indians; (Paragraph 6) and the “Plaintiff dependents” were acting on

behalf of themselves and all others “who were named in the Table Mountain Rancheria distribution

plan as dependents of distributees, and who, for that reason, were, are, or have been deemed by the

United States and/or another entity to have lost their status as Indians under the laws of the United

States” [and] “this Class also includes the offspring of said dependents [and] said Class of

dependents is so numerous that joinder of all members is impracticable,” and “the named plaintiff

dependents will fairly and adequately protect the interest of the class.” (Emphasis added.)

All of the Plaintiffs in the current case are/or were dependents of distributees and/or offspring

of said dependents of said distributees as alleged succinctly in the current complaint.

All of the current Plaintiffs are direct lineal descendants of the distributees, and thus direct

lineal descendants of the dependents of the distributees, and/or the lineal offspring of the dependents


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of distributees, and all of the named plaintiffs in that Table Mountain v. Watt case (who are

Defendants herein if they are still alive) all claimed that they “will fairly and adequately protect the

interests of the class.” (Paragraphs 4 and 6 of the Table Mountain v. Watt complaint.)

The next document the Court can refer to from the Table Mountain v. Watt case is the Court

Order of April 8, 1983, granting the motion for class action determination, certifying the class and

prescribing notice of the hearing on the settlement (which is Exhibit “3” to Plaintiffs’ Complaint

filed herein). The Government Defendants in that case agreed that class action status should be

granted (page 2 of the Court Order), and this Court found: (1) “. . .that the classes are so numerous

that joinder of all members is impracticable* * * that the claims of the representative parties are

typical of the claims of the classes; that the representative parties will fairly and adequately protect

the interest of the classes; and that defendants have acted or refused to act on grounds generally

applicable to the classes, thereby making appropriate final injunctive and corresponding declaratory

relief with respect to the classes as a whole. . .” (Page 2, lines 7-16 of Exhibit “3” to the instant

Complaint); (2) that the named class plaintiffs for the distributees “consists of all Indian persons

named in the distribution plan as distributees of the assets of the Table Mountain Rancheria, or the

Indian heirs, assigns, executors, administrators or successors in interest (Page 3, Paragraph 4); (3) the

class of plaintiff dependents were represented by those named as the class plaintiffs in that complaint

and “consists of all Indian persons listed as or otherwise considered to be dependent members of the

families of distributees of the Table Mountain Rancheria (Page 4, Paragraph 5); (4) “the parties in

these actions have entered into stipulations for entry of judgment under which the Indian distributees

and Indian dependent members of the families of distributees of the [] and Table Mountain

Rancherias, and their Indian heirs, assigns, executors, administrators or successors in interest would

be restored to their status as Indians under the laws of the United States, tribal lands of each

rancheria would be returned to federal trust status, individually-owned lands at each rancheria could

be returned to federal trust status, eligibility for certain federal services provided to Indians would be

restored, . . ..” (Pages 5-6); (5) that “members of the classes of plaintiffs in these actions will be

legally bound by the orders and judgments entered by the Court herein.” (Page 6)


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Thus, in the class certification order by this Court, and agreed to by the Federal Defendants,

Plaintiffs herein were members of that class to be recognized as Indians of the Table Mountain

Rancheria and eligible for certain federal services provided to Indians, and that the property once

belonging to Table Mountain Rancheria is restored as belonging to Table Mountain for the benefit of

all of the class members.

The next document the Court can refer to is the “stipulation for entry of judgment” entered in

Table Mountain v. Watt, which is Exhibit “1” to Plaintiffs’ complaint herein, wherein the Court

incorporated the “stipulation for entry of judgment” entered into by the parties as the actual court

order (Exhibit “2” to Plaintiffs’ complaint herein). That “stipulation for entry of judgment” again

relisted all of the named plaintiff class representatives representing those previously described [class

represented members; and which must include the Plaintiffs herein], “the status of the named

individual plaintiffs and class members as Indians under the laws of the United States is confirmed,”

“the Secretary of the Interior shall list the Table Mountain Band of Indians as an Indian Tribal Entity

pursuant to 25 C.F.R. Part 83.6(b),” exterior boundaries of the Table Mountain Rancheria were

described in particular [which are the same boundaries that now house Table Mountain’s lucrative

casino and very little other land], that the Government will hold the Table Mountain Rancheria

property in trust “for such Indian class members . . .,” that the Secretary of Interior shall “facilitate

the return of lands to trust status . . .,” that the defendants in that action “shall prepare and provide to

plaintiffs a list of federal services, benefits and programs and the eligibility criteria therefore which

were available to Indians, and that any Table Mountain Indians whose status had been terminated

and whose members had requested said services but were denied solely on the grounds that the

applicant status as an Indian had been terminated shall be entitled to reapply for the same benefits or

services and that “for the purpose of resolving any disputes which arise among the parties in the

course of implementing the judgment to be entered pursuant to this stipulation, the Court shall retain

jurisdiction over the matter for a period of one year from entry of judgment, or for such longer time

as may be shown to be necessary on a motion dully noticed by any party within one year from entry

of judgment.”


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As Paragraph 60 of the instant complaint pointed out, none of the instant Plaintiffs received

any of the required notices required by that 1980 Action, and as the Court can see from the date of

births of the Plaintiffs, more than half of the Plaintiffs were not even 18 years of age in 1983 when

the judgment was entered.

None of the Plaintiffs’ status as recognized Indians by the Government or Table Mountain

has occurred – now for 122 years. As the current complaint points out, none of the Defendants listed

in the instant complaint were anymore entitled to be members recognized by Table Mountain and the

federal government than are the current Plaintiffs, and some recognized are the Defendants listed in

the current complaint, and all other “recognized members” only achieved that status as a result of

said class action complaint, the certification of the class and the stipulated judgment and court order

thereon. Why such outrageous discrimination.

Thus, completely contrary to the current Tribal Defendants’ claims and the implicit claims by

the Government Defendants, that 1980 Table Mountain v. Watt Action had as its two centerpieces

the government’s recognition of Table Mountain Rancheria as a recognized Indian Tribe and

consisting of those named in that action, including Plaintiffs who were represented by the class

Plaintiffs as determined by the 1959 base roll of distributees, heirs and descendants of distributees,

dependents of distributees, and descendants of those dependents of the distributees. That includes all

of the Plaintiffs herein. Absolutely contrary to the Tribal Defendants’ claim herein, “residence” at

the Rancheria was not a condition of the claims in the lawsuit, the class certification or the judgment

– nor could it be, because many members “recognized” by the Tribe now never lived on the

Rancheria or trust property, but only the distributees under whom they claim entitlement to

membership and government benefits resided at one time on the Table Mountain Rancheria, but the

entire class consisted of all of the Plaintiffs herein, the named tribal Defendants now and their

“chosen” few. The Table Mountain Defendants herein claim that the Table Mountain v. Watt case

did not decide who were the “tribe’s members” but instead sought a ruling that the “their Indian

status” remained intact. (Brief at 10.) Table Mountain v. Watt determined much more than “Indian

status”; it determined the distributees, dependents of distributees, heirs, successors, and descendants

of those distributees were entitled to be recognized as a Table Mountain Rancheria Tribe and the


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Tribe to be recognized by the federal government as entitled to the benefits. Otherwise, there is

absolutely no reason for class status, there was no reason to divide up the class into distributees etc.

and dependents etc., and absolutely no reason whatsoever to have class certification if the land being

restored to the tribe but held in federal trust status and to recognize the distributees and descendants

of distributees, but instead only allowed a handful of “chosen” ones. Further, virtually every

“recognized” member of the Tribe of Table Mountain, have no more claim to “membership” in that

Tribe as the Plaintiffs do, and the named class action plaintiff representatives and their attorney owed

an absolute fiduciary duty to Plaintiffs herein so as to not gain anything individually than what the

represented members of the class received – but that is exactly what has occurred. It is clear that

named class plaintiffs and their counsel owe an absolutely equal obligation to members of the class

as they do themselves. Staton v. Boeing Company, 313 F.3d 447, 468-470 (9 Cir. 2002) (namedth

members of the class and their counsel cannot pursue self-interests and that there are strict

substantive and procedural rules “designed to protect the interest of class members.”) (Id. at 469)

The Table Mountain Defendants’ continued citation to United States v. Bruce, 394 F.3d 1215 (9th

Cir. 2005) regarding the Ninth Circuit’s decision that one can be an Indian irrespective of tribal

membership, is completely irrelevant, because that case had to do with a criminal complaint charged

under an offense that someone had to be Indian as a defendant, and who had the burden of proof of

Indian status or lack thereof, where “tribal membership” was not an element of the offense. Table

Mountain Defendants’ continued citation of the Bruce decision is irrelevant for all purposes herein.

C. This court has continuing jurisdiction to enforce the terms of the stipulation, classcertification, orders and judgment in Table Mountain v. Watt

Both the Federal Defendants and the Table Mountain Defendants declare that this Court no

longer has any continuing jurisdiction since the parties stipulated and the Court decreed that this

Court would maintain jurisdiction for a period of only one year following the date of the order of

judgment, unless some motion was brought within that one year period of time. All Defendants also

claim that this Court’s judgment was not a consent decree, but simply a judgment which terminated

under its own force.


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Both Defendants cite Kokkonen v. Guardian Life Insurance Company of America, 511 U.S.

375 (1994) for the alleged proposition that the Court does not maintain jurisdiction over a stipulation

and order of dismissal which did not reserve jurisdiction to enforce the settlement. The Table

Mountain Defendants contend, citing Kokkonen, supra., that

“‘Judge’s mere awareness and approval of the terms of the settlement agreement donot suffice to make them part of his [or her] order’ subject to subsequent enforcement. Id. at 381. Accordingly, the Court must either expressly ‘retain jurisdiction over thesettlement agreement’ or it must ‘incorporate the terms of the settlement agreement inthe order.’ Id. Absent either action, and without some independent basis for federaljurisdiction, there is no basis to proceed in federal court. Id. at 382.” (Tribal brief at27.)

Here, however, it is clear that this Court did incorporate the terms of the settlement

agreement in this Court’s order of June 16, 1983, which stipulation required jurisdiction for at least

one year, and the stipulation and the judgment did not just end the case then because the government

defendants in that action were required to fulfill a number of obligations, including publishing Table

Mountain as an Indian Tribe in the Code of Federal Regulations, and restoring the land to trust

status, and restoring the tribe to a recognized tribe all for the benefits of the plaintiffs in that class

action, which included the Plaintiffs in this instant action.

The parties in Table Mountain v. Watt, “stipulation for entry of judgment” stipulated that the

District Court there “shall retain jurisdiction over this matter for a period of one year from entry of

judgment, or for such longer time as may be shown to be necessary on a motion dully noticed by any

party within one year from entry of judgment.” That one year window should not be applicable in

this case, since there were class members that were represented by Table Mountain and other named

plaintiffs in that matter, which class members included Plaintiffs herein, were not notified of their

rights under the stipulation for entry of judgment, and who have not received the “benefits” accorded

to other members of the class, including the named Plaintiffs in that 1980 and their arbitrarily

“chosen” few. This Court has a special interest and continuing authority to protect members of the

“forgotten” class members which includes the Plaintiffs herein.

The Ninth Circuit has recently stated in Jeff D., etc., v. Kempthorne, 365 F.3d 844 (9 Cir.th

2004) that the District Court has continuing jurisdiction (in that case for over two decades) to

enforce a consent decree, stating, in part:


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“The defendants argue that there is no longer a federal interestinvolved in this case, but they overlook the strong federal interest ininsuring that the judgments of federal courts are meaningful andenforceable. * * * Thus, even assuming the defendants are no longer inviolation of federal law, the district court continues to vindicate federalinterests by insuring that its judgment is enforced. [Fn omitted.] Forthis reason, the defendants’ argument that the provision of certainservices is not mandated by the Constitution misses the point: After aconsent decree is properly entered, it is the defendants’ voluntaryassumption of an obligation to provide those services that requiresthem to comply.” Id. at 853.

Table Mountain and the named class plaintiffs took advantage of access to this Court, thus

waiving sovereign immunity, to receive recognition as an Indian Tribe, and claiming that the class of

plaintiffs to receive the benefits of that suit and victory of tribal status and tribal recognition included

these Plaintiffs herein. Table Mountain and the then named class plaintiffs received what they

wanted from the government. The Plaintiffs herein – all indisputable members of that class – have

received no government or tribal recognition or benefits.

The Ninth Circuit in United States v. Oregon, 657 F.2d 10009 (9 Cir. 1981) held that whereth

the Yakima Tribe intervened in a court action and became a party to a consent decree, and when

several years later an action was brought to enforce the decree, the tribe was held to have waived

their sovereign immunity by intervening in the first action. (Id. at 1014) As the court clearly held in

United States v. Oregon, supra., tribal entities that voluntarily join a lawsuit “enter the suit with the

status of original parties and are fully bound by all future court orders.” Id. at 1014. See also

Confederated Tribes etc., v. White, 139 F.3d 1268, 1270-71 (9 Cir. 1998). See also, Hook v.th

Arizona, 972 F.2d 1012 (9 Cir. 1992).th

In Hook, there was a suit that was never certified as a class action, prison reform orders were

adopted in that case, and over nine years later, new inmates filed suit to enforce the Court’s previous

judgment. The Court in Hook stated: “A district court retains jurisdiction to enforce its judgments,

including consent decrees.” [Citation omitted.] Id. at 1014. The government in that case argued that

since the previous case was not a class action case, and since the current complainers were not

parties to that previous judgment, they had no standing. The court, however, noted that even non-

parties, as intended third party beneficiaries, may enforce that judgment. Id. at 1014-15. The

judgment entered by this Court in the Table Mountain v. Watt case was a consent decree in that it


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formed a contract between all of the plaintiffs, including the class plaintiffs, and the government

where the government was required to act after the judgment was entered, and the named class

Plaintiffs were to fulfill their fiduciary responsibility to the named Plaintiffs herein to the same

degree they rewarded themselves to the judgment in their favor – but all of them have ignored the

Plaintiffs herein for over 20 years. Plaintiffs herein were definitely intended beneficiaries of not only

that contract and judgment, but were actual parties to that contract and judgment since they were

members of the class. The Table Mountain Defendants’ citation to Hallett v. Morgan, 296 F.3d 732

(9 Cir. 2002) and Taylor v. United States, 181 F.3d 1017 (9 Cir. 1999) are of no avail to the Tableth th

Mountain Defendants because those cases dealt specifically with congressional prison reforms, and

the court’s jurisdiction over prison reform suits, which are not applicable to the instant case.

In the present case, none of the Defendants dispute that the Plaintiffs herein were members of

that class in that Table Mountain v. Watt case and were to benefit from the class certification, the

stipulated judgment and all of the orders in that case. This Court’s continuing jurisdiction is even

stronger when it is a class action case, in order to insure that the attorneys for the class and certain

members of the class do not operate with their self-interests in mind, but operate to benefit the class

as a whole. This Court was very mindful of that when it granted class certification.

Indeed, the Secretary of Interior insisted at least two years after the judgment was entered in

this case that Table Mountain must comply with the Table Mountain v. Watt decision. There, Table

Mountain submitted to the Secretary of Interior Table Mountain’s proposed constitution, and

attempted to sneak in a “residency on the reservation” requirement for Table Mountain membership.

The Secretary flatly told Table Mountain it could not, but instead stated Table Mountain had to

follow Table Mountain v. Watt which would mean the distributees listed on the 1959 base roll and

their lineal descendants as members. (See Ex. “1” attached to Plaintiffs’ request for judicial notice).

Therein on March 22, 1985 the Bureau of Indian Affairs in Washington, D.C. issued a letter to the

BIA director in Sacramento advising him that the proposed constitution of the Table Mountain

Rancheria submitted on January 8, 1981 could not be approved as written because of the change due

to the Table Mountain v. Watt case necessitating “changes reflected in the enclosed version are to

make the proposal legally and technically sufficient and to conform to bureau policy” and


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Table Mountain’s disingenuous claim that there can’t be any continuing jurisdiction over an2

issue that never arose in Table Mountain v. Watt, i.e., membership, should be read for what it is: theiridea that once they receive that victory in Table Mountain v. Watt, it should be them (the Star Chamber),not this court that determines its import, effect and enforcement.





importantly regarding the tribes attempt to define membership including a residency requirement,

BIA rejected that and noted: “membership is too nebulous and the Rancheria may have problems

later defining who met the criteria for being considered a basic member. A specific role of the tribal

members should always be designated as the base roll. Consequently, we have used a list of

distributees and dependent members of distributees prepared in connection with the plan for the

distribution of assets of the Table Mountain Rancheria, approved by the Commissioner of Indian

Affairs on July 16, 1959.” (Id.) Further down in that letter the Department of Interior specifically

states:

“Section 3 has been modified to include secretarial approval of the enrolmentordinance governing future membership, loss of membership, and adoption ofmembers. Tribal membership is essential for access to tribal trust funds and to thebenefit, privileges and distributions which accompany the possession and use of thoseassets. The Secretary’s trust responsibilities for the proper and non-wasteful use oftrust assets is thus related to tribal membership. Thus, it has been the long-standingpolicy of this office that enrolment ordinances which could affect the substantiverequirements of membership are subject to secretarial approval.” (Id.)

So, from the time the Table Mountain v. Watt suit was filed before this court and continuing

thereafter through March of 1985, almost two years after this court’s judgment in Table Mountain v.

Watt (and still continuing today), some named class representatives and some unnamed class

members appointed themselves as the tribal council, and attempted to pick and choose who would be

members, despite the fact that the class action status in Table Mountain v. Watt precisely described

who would benefit from that court’s opinion – including Plaintiffs herein. This court’s decisions and

orders in Table Mountain v. Watt did not permit a “Star Chamber” mentality where some Table

Mountain people would appoint themselves to receive some of the benefits of Table Mountain v.

Watt, and others equally worthy for no benefits. Thus, this court has continuing jurisdiction.2


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D. Neither Santa Clara Pueblo v. Martinez, nor its progeny are authority for Defendants’claim of lack of subject matter jurisdiction

All of the Defendants contend that the U.S. Supreme Court’s case in Santa Clara Pueblo v.

Martinez and its progeny preclude this court from exercising jurisdiction into “tribal-membership”

disputes.

First of all, total independent of Santa Clara this court has continuing jurisdiction, as

described in the last argument, because the tribe, the named Plaintiff class representatives, and their

favorite relatives who are now occupying the “Star Chamber” waived sovereign immunity as to the

issues raised herein. United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981); McClendon v. United

States, 885 F.2d 627, 630-631 n.2 (9th Cir. 1989) and Conferated Tribes, etc. v. White, 139 F.3d

1268, 1270-1271 (9th Cir. 1998). In addition, Santa Clara Pueblo v. Martinez and its progeny do

not deprive this court of jurisdiction.

All of the Defendants herein heavily rely on the U.S. Supreme Court case of Santa Clara

Pueblo v. Martinez, 436 U.S. 49 (1978) and cases following, and contend that said cases require a

finding that there is no subject matter jurisdiction over this case because this case dealt with

membership disputes with a tribe.

In Santa Clara, the plaintiff sought an order holding the tribal membership ordinance to be in

violation of the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq. There, the Santa Clara Pueblo

accepted only the offspring of its male members (but not female members) to be eligible for

enrollment in the tribe, an ordinance that was adopted shortly before plaintiff’s marriage to a Navaho

Indian. 436 U.S. at 52. Despite her own tribal membership and her children’s residence on the

reservation, plaintiff’s children were barred from membership in the tribe because of the patrilineal

descent requirement. 436 U.S. at 52-53. Plaintiff attempted, unsuccessfully, to convince the tribe to

change its enrollment criteria, and when it did not, she sought relief from the federal court. The

court held that the tribe has a right to define its own membership. 436 U.S. at 71-73 and n. 32.

Thus, in Santa Clara, the plaintiff sought the court’s intervention to force the tribe to change its

constitution and enrollment ordinance, whereas in this case, Plaintiffs seek to have the Defendants

comply with the decision in Table Mountain v. Watt, and its own constitution recognizing Plaintiff as


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the class members of that suit and members of the tribe pursuant to that suit and Table Mountain’s

constitution.

As the Supreme Court stated in Santa Clara, the congressional “central purpose of the ICRA

(Indian Civil Rights Act) and in particular of Title I was to ‘secure for the American Indian the broad

constitutional rights afforded to other Americans, and thereby to protect individual Indians from

arbitrary and unjust actions of tribal governments. [Citations.] There is no doubt that respondents,

American Indians living on the Santa Clara Reservation, are among the class for whose especial

benefit this legislation was enacted. [Citations.] Moreover, we have frequently recognized the

propriety of inferring a federal cause of action for the enforcement of civil rights, even when

Congress has spoken in purely declarative terms. [Citation.] Santa Clara Pueblo, supra, 436 U.S. at

60-61.

Despite this pronouncement by the Supreme Court in Santa Clara Pueblo, it stated that the

District Court had no jurisdiction to entertain the claim because it was an attempt to change the

tribe’s constitution to allow female offspring as members, and since there was a “Tribal Court”

(presumably disinterested) available to the plaintiff’s claim, that was a sufficient remedy, without

invoking the jurisdiction of the District Court. Santa Clara Pueblo, supra, 436 U.S. at 65-66 and

fns. 20-22.

The “tribal court” forum discussed in Santa Clara is not available with respect to Table

Mountain. Thus there is no disinterested court available except for this District Court.

In Santa Clara Pueblo, the Supreme Court held that the Indian Civil Rights Act [Add. 2; §

1302(8)], which requires equal protection and due process to be applied by tribes to members and

nonmembers, could not be adjudicated in Federal Court because “tribal forums are available to

vindicate rights created by ICRA ... .” (Emphasis added.) As the Santa Clara Supreme Court stated:

“Moreover, contrary to the reasoning of the court below, implication ofa federal remedy in addition to habeas corpus is not plainly required togive effect to Congress’ objective of extending constitutional norms totribal self-government. Tribal forums are available to vindicate rightscreated by ICRA and Section 1302 has the substantial and intendedeffect of changing the law of which these forums are obliged to apply. Tribal courts have repeatedly been recognized as appropriate forumsfor the exclusive adjudication of disputes affecting important personaland property interests of both Indian and non-Indians. [Citationsomitted.] Non judicial tribal institutions have also been recognized as


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competent law-applying bodies. [Citation omitted.] Under thesecircumstances we are reluctant to disturb the balance between the dualstatutory objectives which Congress apparently struck in providing foronly habeas corpus relief.” Id. at 65-66; footnotes omitted. (Emphasisadded.)

Also, in footnote 22 of the court’s opinion (Id. at 66), the court stated:

“Many tribal constitutions adopted pursuant to 25 U.S.C. § 476,though not that of Santa Clara Pueblo, include provisions requiringthe tribal ordinances not be given effect until the Department ofInterior gives its approval. [Citation omitted.] In these instances,persons aggrieved by tribal law may, in addition to pursuing tribalremedies, be able to seek relief from the Department of the Interior.” (Emphasis added.)

In this case, the Department of Interior has insisted on the approval of the Table Mountain

Constitution (see Exhibit “1” to Plaintiffs’ request for judicial notice), the complaint herein has

alleged that neither the Table Mountain Council, nor the federal Defendant have provided any relief

despite incessant requests for them to do so, and therefore Santa Clara does not control for that

reason and/or all of the others.

Defendants also cite Smith v. Babbit, 100 F.3d 556 (8 Cir. 1996) (Court order at ER 109-th

110) regarding the issue of “tribal courts” but in Smith v. Babbit, the Court found that the District

Court had no jurisdiction over the Indian gaming revenue issue, because: (1) the tribe had the right to

change its constitution to allow even more people to be members, thus diluting their per capita

gaming revenue to each member; (2) the Secretary approved of that constitutional change; and (3)

the facts of this case further showed that the dispute needs to be resolved at the tribal level. “We

note that the Mdewakanton Tribe has expressly waived sovereign immunity from suit in tribal courts

for actions disputing an individual’s qualified status to receive per capita payments.” Babbit at 559.

(Emphasis added)

The Court in Babbit even noted: “Several of the appellants involved in this action have

previously brought similar actions in tribal court. In fact, at different stages of this action, suits of

this very nature were pending in tribal court.” Id. There is no tribal court available here. Smith v.

Babbit is also distinguishable because, there, members of the tribe claimed that changes in the

allocation of per capita distribution of gaming proceeds violated a number of federal statutes,

including the Indian Gaming Regulatory Act (“IGRA”), Indian Civil Rights Act (“ICRA”), and


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others. However, there, the tribe chose (through procedures) and BIA approval to change its tribal

membership criteria, broadening eligibility and, as a result, diluting the per capita distribution of the

gaming proceeds. The court affirmed the dismissal of plaintiff’s suit for lack of subject matter

jurisdiction because the tribe had the right, through its procedures, to broaden its membership

criteria. The court made clear that the tribe had membership requirements, then amended the

requirements to add additional people as members which received approval from BIA. Id. at 558-59.

This also shows here that BIA does have authority, particularly when it comes to disbursing gaming

revenue to members. The tribe in Smith v. Babbit simply amended the membership requirements

which increased the number of tribal members eligible for per capita payments, which amendment

was specifically approved by BIA. Id. at 558-59.

Here, on the other hand, Plaintiffs are members based upon Table Mountain v. Watt, and the

tribes constitution, which constitution required Secretary of Interior approval. Plaintiffs are not

seeking to have the tribe to “change” its constitution herein, but seeking the Defendants to obey the

Table Mountain v. Watt decree and its own constitution, and seeking money damages against the

named tribal Defendants for breaching their fiduciary obligation to the Plaintiffs as a result of the

refusal to comply with their fiduciary obligations as a named class Plaintiff and other tribal council

members who currently are operating the Star Chamber, who directly benefitted from Watt – but who

now ignore Plaintiffs herein.

The Defendants also heavily rely on upon the Tenth Circuit decision in Ordinance 59 Ass’n

v. U.S. Department of Interior Secretary, 163 F.3d 1150 (10 Cir. 1998) which had held that itth

lacked jurisdiction or authority to order the Secretary of the Interior to compel a tribe to enroll the

applicants as members.

However, that case is also very distinguishable. There, the plaintiffs sought an order from the

court to compel the federally-recognized Eastern Shoshone Tribe and the Bureau of Indian Affairs to

recognize them as duly enrolled members of the tribe. However, the tribe had a detailed membership

ordinance, Ordinance Number 59, under which the plaintiffs applied for membership. 163 F.3d at

1152. However, while their applications were pending, the tribe repealed Ordinance No. 59, and

then took no final action on plaintiffs’ applications. Id. at 1152 and n. 1. First, the case had nothing


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to do with the Gaming Revenue Allocation Plan which makes it extremely distinguishable from this

case. The court held that since the tribe had a right to change its ordinance, and once changed, left

the plaintiffs out in the cold as non members, it was a matter over which the court had no

jurisdiction. That is distinctly different from the instant case since Plaintiffs are not seeking to have

the tribe amend its Constitution to allow them in, or to change an enrollment ordinance to allow

them in, because Table Mountain’s Constitution–and Table Mountain v. Watt– specifically requires

that Plaintiffs to be recognized as members.

In addition, in Ordinance 59, the Court stated that one of the principal reasons for claiming it

did not have jurisdiction was precisely because of the fact that the tribe had a tribal court, and that

the tribal court was involved in the dispute already, and appellants should go back to the tribal court

to enforce the tribal court’s order protecting the appellants. Ordinance 59, supra at 1152-53, 1157-

59.

The court in Ordinance 59 described Santa Clara Pueblo as follows:

“We also observe that the Santa Clara court placed strong emphasison the existence of a tribal forum for the plaintiffs’ claim. Id. Further,we believe the Supreme Court’s decision to limit federal jurisdiction inSanta Clara was based on the nature of the dispute (a purely internaltribal matter) and the availability of an alternate remedy (a tribal courtsystem).” Id. at 1156. (Emphasis added.)

Apparently, the Tenth Circuit Court of Appeals is a busy court with respect to tribal matters,

because at pages 1158-59 the court discusses all of its previous cases that found no exception to

Santa Clara Pueblo because, citing a number of cases, that the exception to Santa Clara was not

applicable because plaintiff either failed to seek a tribal remedy, or because plaintiff had an action

pending before the tribal court–not the case here. Plaintiffs have no tribal court to go to because

none exists.

Thus, none of the cases cited by the Defendants (even some other sporadically cited cases by

the Table Mountain Defendants) are applicable under this fact pattern. Curiously, the government

cites (brief at 9) Adams v. Morton, 581 F.2d 1314, 1320 (9th Cir. 1978) and Donovan v. Coeur

d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985), but those cases had nothing to do with

tribal membership disputes at all as Adams dealt with the tribe making additional criteria for the


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distribution of congressional funds than what Congress described as to who should receive those

funds, and the court noted that the tribe cannot dictate to Congress who should receive the money;

and in Donovan, the Ninth Circuit merely held that a tribes commercial activities had to comply with

the Occupational Safety and Health Act.

For all of the foregoing reasons Santa Clara Pueblo and its progeny do not deprive this court

of jurisdiction.

E. The tribe and its officials are not immune from suit.

Tribal Defendants claim that the tribe and its officials are immune from suit, separately

depriving this court of jurisdiction over the tribal Defendants, because Table Mountain Rancheria

has never waived its sovereign immunity, the individual tribal Defendants also are immune from

suit, the tribal members possess immunity from Plaintiffs’ lawsuit, and irrespective whether the

individual tribal Defendants possess immunity, they cannot be sued because the tribe is a necessary

and indispensable party that cannot be joined. None of the tribal Defendants’ arguments have any

merit, whatsoever.

Defendant, Table Mountain Rancheria was a Plaintiff in that 1980 class action before this

court. Defendants Lewis Barnes, William Walker, Aaron Jones, Carolyn Walker and Twila

Burrough were also class-representative plaintiffs in that 1980 action. As such class plaintiffs, they

owed a fiduciary duty to the Plaintiffs herein. Contrary to the Defendants repeated assertion (as

though repeating it it can rewrite history), that suit had everything to do with who would be

recognized by Table Mountain, the class representatives and the government as members of the

Table Mountain tribe, which included the Plaintiffs. Thus, in that regard those Plaintiffs then, who

are Defendants now, have waived their sovereign immunity as to the issues now before this court,

including the separate money damage claims as a result of that breach of that fiduciary duty. United

States v. Oregon, supra, 657 F.2d 1009 (9th Cir. 1981); McClendon v. United States, 885 F.2d 627,

630 (9th Cir. 1989). Table Mountain Defendants’ citations of cases at page 19 of their brief are

clearly distinguishable. Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir. 1994) was a

case where the court held that unlike U.S. v. Oregon, supra, there was not a waiver of sovereign

immunity for a later filed court action, just because the tribe participated in an administrative


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proceeding with the government. “We cannot interpret Oregon, however, to hold that participation

in administrative proceedings waives immunity for subsequent court proceedings.” Id at 1459.

In Squaxin Island Tribe v. State of Washington, 781 F.2d 715, 723 (9th Cir. 1986) and

Chemehuevi Indian Tribe v. California State Board of Equalization, 757 F.2d 1047, 1053 (9th Cir.

1985), reversed on other grounds, 474 U.S. 9 (1985), involves tribes filing declaratory and injunctive

relief actions contending that certain state taxes did not apply to it, was not a waiver of tribal

immunity to the state’s counter claim to collect taxes, but in Squaxin, the court held that when the

tribe posted the bond for its injunction, it had consented to the liability to the amount of the bond,

and thus could not get it back.

The instant suit is not a suit over “collateral issues” (a point the tribal Defendants attempt to

make) as it goes to the very heart of the representation of the Plaintiff by the tribal Defendants – as

class plaintiffs in Table Mountain v. Watt, the fiduciary obligation owed by Table Mountain and

those plaintiffs in the Watt case, and it goes to the issue as to the scope of the very stipulated

judgment, class certification and other orders issued by this court in that matter. Thus, the Plaintiffs

in that Watt action waive tribal immunity with respect to the claims herein, and the new individual

tribal defendants sued herein also waived tribal immunity because they were also represented parties

in that action, and thus parties in that action.

In addition, as the U.S. Supreme Court said in Puyallup Tribe, Inc. et al v. Department of

Game of Washington, 433 U.S. 165, 171-172 (1977) that while a tribe (may have immunity)

individual members of the tribe do not. Thus the individual tribal members sued for money damages

in this case do not have immunity at all as to their individual capacity. Cases cited by the tribe (p.

22), first of all did not involve a waiver of sovereign immunity as was done in this case in Table

Mountain v. Watt, and secondly the cases applied only when the officials were sued in their

representative capacity.

Regarding the tribal Defendants citation to Shermoen v. United States, 982 F.2d 1312, 1320

(9th Cir. 1992), that case does not apply because of the waiver of tribal immunity in the Watt case,

other individually named defendants herein being the class representatives in that Watt case, and the

other named tribal defendants also being members of the class in that case who have received the


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benefits of that case, and were therefore parties in that case – and thus waived sovereign immunity

because they were parties – and had fiduciary obligations to Plaintiffs herein.

Finally, Table Mountain’s argument that it is an indispensable party in this action, but cannot

be sued because of its sovereign immunity, it is ludicrous given the fact that Table Mountain was the

lead plaintiff in the Watt action, Table Mountain and all of the named class plaintiffs were

represented by the same attorney and by the unremarkable fact that Table Mountain is listed as a

defendant in this current action and as shown above, it is already joined as a party as it has waived

sovereign immunity, this court has continuing jurisdiction, and Santa Clara Pueblo v. Martinez and

the cases following that decision are not applicable here.

V

CONCLUSION

Based upon the detailed allegations of the complaint, the exhibits attached to the complaint,

and this court taking judicial notice of the case file in Table Mountain v. Watt, Defendants’ motion to

dismiss must be denied, this court has jurisdiction and continuing jurisdiction to grant the relief

requested herein, and this court should expedite this matter because Plaintiffs have been denied relief

for over 20 years, the same relief that the “Star Chamber” crowd has received through government

benefits, casino benefits and “recognition” that the arbitrarily “chosen” ones have received for

decades. U.S. District Court Judge Karlton (Eastern District of California) previous orders in Lewis

simply do not apply to this court’s continuing jurisdiction. Indeed, Judge Karlton was outraged by

the decision Judge Karlton believed it had to make (given the fact that it had no continuing

jurisdiction). (See oral transcripts of the hearing before Judge Karlton which are attached as Exhibit

“2” to Plaintiffs’ request for judicial notice. Therein, Judge Karlton stated that the government’s

conduct and Table Mountain’s conduct was outrageous, extraordinary and bizarre. (That case in the


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Eastern District had very little to do with the causes of action in this complaint, since that court had

no continuing jurisdiction of this court’s Watt action in the early 1980’s, and did not at all involve

the tribal Defendants herein.

DATED: April 11, 2005

___/S/ Brian C. Leighton_________BRIAN C. LEIGHTON, attorney forPlaintiffs


brian c. leighton, ca bar # 090907

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