ALEXANDRA R. McINTOSH (CSB # 166304) Law Office of Alexandra R. Melntosh, APC. 2214 Faraday Avene Carlsbad, CA 92008 ‘Telephone: (760) 753-5357 Facsimile: (760) 753-4927 E-mail: alexandra meintosh@yahoo com “Attorney for Appellants UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS ‘801 NORTH QUINCY STREET, STE. 300, ARLINGTON, VA 22203, San Pasqual Applicant Descendants ‘Tammy Alvarado, Tiani Alvarado, [Nick Alvarado, Christopher Alvando, Jacob Alvarado, Mathew Alvarado, Julian Alvarado, Remedios Blanco, ‘Andre Peart, Ray Blanco, Theresa Moya, Lena Ortega, Lisa Chavez, Tony Alvarado, Eric Alvarado, Vincent Alvarado, Robert Alvarado, Antonia Torres, Laura Blanco, April Chavez, ‘Amanda Chavez, Joseph Chavez, ‘Tacians Chavez, Aubrina Chavez, Ann Ciebatah, Shonta Chaloux, Anthony Chaloux, Felicia Durkin, Melisss Chaloux, Nathan Chaloux, Julius Belardes, Thomas Cooper, (Christina Cooper, Samuel Contreras, Demet Contreras, Jonah Contrerss, Johnny Contreras, Andrew Contreras, Ricarde Contreras, Theresa Castellon, Rita Contreras, Paul Contreras 1V, Roseanne Contreras, Rochelle Contreras, Rudy Contreras Jr, Charles Contreras, Rose Delgado, John Ruben Delgado, IBIA NO. NOTICE OF APPEALBik Delgado, Armando Martinez Sty) ward Martinez, Gabriel Martinez, ) aana Martine, esse Martinez, ) Robert Ochoa, Kristene Martine, ) Thomas Murillo, Kim Muri ) Joseph Murillo, Hilario Martiniez, ) Peul Martinez, Angelina Martinez, ) Ruben Martinez, Roland Escacega, —) Felix Mendoza, Sara Esearcea, ) Stephanie Esearcega, Ramons Lucero, ) ‘Marcus Lucero, Mariana Lucero, d David Lucero, Dominique Perez, ) Anita Perez, Jermain Perez, Orth Perez, ) Juan Lucero, Virgil Lucero, ) d ) d ) ) ) ) ) ) ) Paricia Navarro, Jerry Villalpando, ‘Valerie Boyle, Robert Villalpando, Daniel Villalpando, Stephanie Ortega, Cameron Ortega, Evete Peart, Jamie Pear, Tisha Pear, Jon Renee Peart, Tonya Peart, Sarah Pear, Chas Peart, Denise Pear, Vilerie Martinez, Dolores Villalobos, Bridget Villalobos, Jesus Villalobos, David Villalobos, John Hughes, Keith Vasquez, Catherine Villalobos, Certine Biggs, Jose Luis Blanco, Joseph Villalobos, Tesa Flores, Libby Flores,) Eine Flores, Richard Flores, ) Femando Flores, Adam Flores, ) Ruben Gonzalez, Kristy Anaya, ) ‘Brian Lavigne, Katherine Lavigne, ) Jason Lavigne, Patricia Lavigne, ) Isabel Lavigne, Bernadette Johnson, ) Jefery Miler, Jamie Miller, Shianne Elam, ) Woatt Elam, Theresa Morales, ) Deserice Morales, Louis Morales, ) Joseph Morales, Daniel Morales Je, ) “Melissa Morales, Sabrina Morale, ) Ctristina Morales, Yolanda Ochoa, ———) James Vallez, Linda Vallez, d Lorraine Villalobos, Issac Villalobos, ) Naulie Villalobos, feremy Clay, ) Michael Alegre, Julian Cay, ) Brice Roy Clay, David Cardenas, d Jessica Clay, Virgil Zwicker, ) Pet Villalobos, Emest Blanco, )Yolanda Blanco, Brigete Ramirez, ) Tonya Villalobos, David Chavez, ) Michael Contre, Theress Reyonoso, —) Evelya Cunningham, Peggy Avila ) Lisa Quiroz, Ruby Zwicker, Rachel Zwicker) indy Galvez, Yolanda Alegre, ) Frankie Alegre, Melvin Cannon, 5 Cassandra Froning, Jeremy Cannon, ——) Paul Cannon, Renny Cannon, Jason Ranson, Nikea St Joha, Andrea Conters, ) ‘Andrea Armijo, Heather Rollins, ) Suan Blanco, Paul Murillo, Rico Murillo, ) Mary Martinez, Maurice Martinez, ) Shaun Villalobos, Louise Landavazo, ——) Herlindo Landavazo, William Landavazo, ) Roxann Vasquez, Mary Herrera, ) Carlos Banco, Beatrice Ochoa, ) ‘Adeean Villalobos, Paul Villalobos, ) Hazel Pitman, Vicki Ida Rawlins, ) Misty Gemmell, Jenifer Morales, ) “Amber Majel, Nicole Green, Charles Green, ) Megan Green, Catlos Aredando, ) Sally Aredondo, Derek Escalante, ) Rita Pea, Celeste Peat, Raylyn ) Belardes, Raymond Belardes, Jelena) Villalobos, Josiah Chaloux, Sarah Mendoza, ‘Theresa Blanco Murillo, Theresa Ochoa, ) Linda Manne, Brigette Pear. ) ) ) ) ) ) ) ) APPELLANTS, PACIFIC REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS RESPONDENT, EEE ESE) ‘NOTICE OF APPEAL AND‘The undersigned counsel for Appellants received the atached administrative decisions from the Pacific Regional Office in Sacramento, California, and Regional Cffice in Riverside, California, The San Pasqual applicant descendants appeal the decision made June 9, 2015, by ‘Acting Pacific Regional Director, Dale Risling, a copy of which is attached hereto as Exhibit 1 ‘In order to bring an appeal to the Board, appellants must demonstrate that they have standing, and standing must be established with respect to each separ claim. See 25 CPR. § 2.2 (definitions of "Appellant" and "Interested Party"); 43 CER. § 4.331 (Who may appeal); see also: Northern Cheyenne Livestock Ass'n v. Acting Rocky Mountain Regional Director, 48 IBIA 131, 136 (2008); DuBmy v, Great Plains Regional Director, 48 IBIA 1, 19 (2008); Skagit County Northwest Regional Director 43 IBIA 62, 70 (2006). More specifically, appellants must establish that they were "adversely affected” (ie, injured) by a Bureau of Indian Affairs (BIA) decision being appealed, and to be "adversely affected," within the mesning of the regulation, ‘one must have legally protected "interest that was or allegedly was adversely affected by the challenged decision. See 25 C.PR. § 2.2; 43 CER. § 4.331; Northern Chevenne Livestock Ass'n supra, 48 IBIA at 136, For appellants to show that they were injured "by" the BIA decision, the alleged injury must be causally connected with or fairly traceable to the actions of BIA and not ‘caused by the independent action ofa third party. See: Skagit County supra, 43 IBLA at 71 (citing Lujan u. Defenders of Wildlife, $04 U.S. $85, 560-61 (1992), Appellants can establish that their legally protected "interest" were disregarded and thereby “adversely affected” by the 2006 and June, 2015 decisions rendered by the Pacific Regional Office.Under sted principles of Federal Indian law, the Federal government usually bas litle ‘or no jurisdiction over mater of wal enrollment, except when related to the distribution of trust assets. Some tribes, however, have incorporated Federal review of tial membership decisions int tribal law. Tae San Pasqal Band is one such tribe. The Band's Constitution vests the Secretary wit the autcrty to approve or disapprove the recommendations of the Enrollment Committe. The Constitution diet incorporates the membership provisions of 25 C#ER.§ 48 (1960). The Bureau of fadan fairs jurisdiction to approve or disapprove the recommendation of the Enollment Committee ofthe San Pasqual Band are stout in relevant, part, at 25 CLF. §48.7 through §48.11 A copy of 2 CFR §48 (1960) i attached as Exhibit2 In 2005, the above-referenced, San Pasgual applicant descendants were approved for enrollment inthe San Pasqal tribe. Through extensive Freedom of Information Act requests it ‘as discovered the San Pesqual Enrollment Commitee, the San Pasqusl General Council, ni ‘even te then Superintendent, Southern California Agency, Bureau of Indian Affairs, Rivers, followed each of the mandates of25 CER. §48 regarding envlliment ofthe San Pasqual applicant descendants, However, the Pacific Regional Director, Sacrament filed to do so. The Pacific Regional Direttor appears to have fllowed the prescribed mandates of the enrollment regulations with respet to only twenty two (22) ofthe San Pasqul applicant descendants. The Pacific Regional Director fed to notify the above-eferenced San Pasual applicant descendants of her determination regarding ther enrollment and filed to give the San Pasqua! anplicant descendants the notice that they hada ight to sppeal her stemination within tity (30) days from receipt of the mandated notice. The failure to notify the San Pasqual applicant * San Pasqual Band of Mission Indians v. Pacific Regional Director, Bureau of Indian Affairs 2011)descendants of her determination and their ight to appeal is a violation oftheir due process rights. Rather the Pacific Regional Director, Sacramento, gave fll force and effect toa BIA. instruction memoranda, which was merely for internal use for Bureau employees when ‘constitutions or Federal statutes” do not exist. With respect tothe San Pasqual “specification Indians, 25 C.F.R. §48(1960) are the mandated regulations for entollment inthis tribe, and all offices ofthe Bureau of Indian Affairs are mandated by the protocols within the San Pasqual ‘enrollment regulation. Interal BIA instuetional memoranda are not regulations and do not hhave legal force and effect. Beard Oil 111 IBLA 191 ‘When after months of making demand on the Pacific Regional Director, Sacramento, to provide tothe above-referenced applicant descendants the legally mandated notice under §48.9, the applicant descendants filed a 25 C.F.R. §2.8 appeal with the Pacifie Regional Director, Sacramento, based on the continued inaction ofthis offical ‘The June, 2015 decision, the subject ofthis appeal, was a summary denial by the Acting Pacific Regional Director, Sacramento, California, The June, 2015 decision noted, as an aside ‘that pethaps the matter should be reviewed by a sub-regional office in Riverside, Califomia. Consequently, the Pacific Region Office's failure to explain its position on the threshold issue placed before iton appeal was a “required Federal action,” the absence of which is further ‘rounds for appeal before the Board, Coyote Valley Band of Pomo Indians. etal v. Acting asic Regional Disector, 54 BIA 320 (2012). The facts on the appeal will show i isthe Pacific Regional Director that is mandated to act, ‘When their appeal is docketed, the Appellants can show injury proximately caused to them by the Pacific Regional Office. Other issues raised, but not acted upon by the RegionalDirector inthe enrollment apeal wil be addressed shuld the Board issue an onder to Show Cause in this extremely significant mater involving the epidemic of unjust action taken by the Pacific Regional Directr, Sacramento, with respect tothe descendants ofthis historically important tbe “Therefore, Appellants respectily request thatthe Board issue a Notee of Docketng in this matter, and take further action as necessary. Dated July 10,2015 Respectfully Submitted, Al fel ‘Alexatra K. Mciatast Attorney for AppellantsUnited States Department of the Inte [BUREAU OF INDIAN AFFAIRS Pscife Regional Offee es "2800 Catage Way “Tribal Govertoat Services Sacramento, California 95825, JUN 0.8 205 CERTIFIED MAIL NUMBER: 7013 2630 0001 $857 7794 RETURN RECEIPT REQUESTED Alexandra R. Melntosh, Attomey at Law 2214 Faraday Avenue Carlsbad, California 92008 Dear Ms. Metntosh ‘This is in response to your April 8,2015, Notie of Appeal From Inaction of Oficial, filed in accordance with Tile 25, Code of Federal Regulations (CFR) §2 8, and received by this Office fon April 17.2015. By etter dated April 22.2015, this Office notified you that a esponseldecision would be issued on or before June 16, 2015, 60 days from the date your correspondence was received Based on review of your correspondence, you believe an action was submitted in April or September 2005, concerning your clients’ San Pasqual Band of Mission Indians Enrollment Applications. The substance of your appeal isthe alleged failure of this Office to take action on these enrollment applications and to provide notice to your cents as required by 25 CER § 48.9. ‘An exhaustive search of the records maintained by the Bureau of Indian Affairs. Pacifie Regional (Office, didnot yield any such applications. However, communication with the Bureau of Indian Affairs, Southern California Agency, has indicated that correspondence related to these applications may be found within the Ageney’s records. Therefore, by copy ofthis leter your appeal packet will be forwarded to the Acting Superintendent, Southern California Agency, who is hereby directed to issue a response or decision within 10-days of receipt ofthis letter, or within 10-days provide a tumetable for taking action or reaching a decision on your client's request ‘The timetable for the Acting Superintendent's response or decision shall not exceed 45-days, from the date of this ier. “This decision may be appealed tothe Interior Board of Indian appeals at 801 North Quincy Street, Arlington, Virginia 22203, in accordance with regulations in 43 CER § 4.310 4.349. ex. |‘Your Notice of Appeal to the Board must be signed by your or your attorney and must 2¢ mailed “within 30 days of the care you receive this deeision, It should clearly Identity the decison being appealed. If possible. attach a copy of the decision. You must send copies of your Notice of Appeal to, (1) The Assistant Secretary-Indian Affairs at 4160 MIB, U.S. Department ofthe Interior, 1849 C Street,N.W. Washington, D.C. 20240; (2) each interested party knowr to you: and (3) this Office. Your Notice of Appeal sent tothe Board of Indian Appeals must Coty that you have sent copies to these partes. IF you file @ Notice of Appel, the Board of Indian Appeals “will notify you of further appeal procedures. If no appeal is timely filed, this decision will become final for the Department ofthe Interior atthe expiration ofthe appeal period. No extensions of time may be granted fr filing a Notice of Appel. Sincerely. rolbed A ce: Acting Superintendent, Southern California Agency, wlattachmentssane creche ttn, a rau eee ome ere sacar maar faire oo eres peor na sae enh oe Serica ance uni SoASERE ates $47.16. Eletlliy for, enrollewnt of ‘lildren born after Asguat 21,1987 ousassing Ys or more de- ree astern Cherakee Indias Blood born After Aurust 141969 or whose applicey tons for enrollment were led after that aie maybe enroled as provided in Veta. (GT order for s child to be enzoled under paragraph (oF) of this tee: Tr on one “AM application to have the cenrolied must be fled én behalf of the child by the parent or recognized guards ‘Any member of the Eastern Band of Cherokee Indlans mey relingush his 85 EX.Z Tile 25—Indter ~ 1960 memberahip n the Band by ting na In-wttng that be no longer date ‘Band “@ ‘embers shal be stricen from te eenacered¢ zh fay ice eaaig PART 48—ENROLLMENT OF INDIA, ‘OF THE SAN PASQUAL BAND oy (MISSION INDIANS IN CALIFORN ania of ety an w pee ES appear at 28 FR. 1000, Ma 2.1960, Unter $481 Porpoce ‘Tg regulon tn tla part aba ge gn the enwllment of peraout in Dy ‘Stn Pasgual Bend of Mision Toda im Calfomis au of Jumaary 1 1399. 642.2. Detwitions a) “Secretary” means the Secreta oS Selones” means the Com smlaioner of indian Aiur “G)"Divelor” manna the Area Dine londacratets Arex 8 ) Seis Representative” mana ‘ree Pied Representative, Eiverse Califor. “ey Band means the San Pas Dad of Minion lane “@) “Enrollment Committee” meazs committer of three () members whe ‘amen sppenr on the June 20, 1810 Cex ‘tn Roll of the Gan Pasgund Bas. 0 Scat in eoraliment.(a) “Census Roll” means the June 30, exen parent ot we appucasiy m v1 vee | 190, Census Roll of the an Pasquali snrolied or afliaed an the names ard | inion Indians {kgGroces of any broshere ad asters of eopipraeeainaaeretn ‘the applicant who may bave Med appl 5483 Preps ‘cations for enrollment with the Band. For arora by We Screary trai aphoea tt Sinden eas (or approval by Tal approve ral sof Califor Gitsemenibr af the Bao. ite number thereon of the apseaat $484 Appiction fr enallmen, EA Me raced person vo Deleres that be or se, ech Rinor omental neampetest sx! €485 Perona tobe carole usdtsenealiment withthe Bead, ay, The namey of persons in any of the fin ninety G0) days trom the ele oliowing categories wie were alive on | Ste date ofthese recuatons Sle'with Sanuaryta eae shall oe faced oot oe Ge Ped Representative a writen meterstip fell sf the Baad provised picntion for" enrolinent” ttle he ls not ah enrol meaber st or ah. Band." Applkation forma may be ob: ied withuose other ite oy bund {ained ftom the Feld Representative or ““igy"indian’ whose ‘cinmacy copear a3 ‘member of ine Enrollment Commitice, member of the Bund on the Comes Roll ‘Tne form ‘of application ahall be pre- tp) Desvendants of dian whose ‘eriod by the‘ Birectar. "The execution names appedt as menberr of the Trond ‘tesen appliation shale witnessed by Gn the Census Tol, provided wuts de- two"(2)" disinterested persons who are Seendants, omens oue-aehth (2) oF ‘ol members of the household ofthe ap- more deste of indian Bisd of he Band, heant."“An applcation on Benalf ofa ""c) ‘dla not included im the ene” ‘ior or ‘mental incompetent shall be gories set out in paregrapha (a) and (0) ‘ekeced by a purest, legal fuardian, of Gf ile econ who cen furnish sielent ther person vesponsibe or hs eae. if proof to establish that they art He oF Seat big nowete of mins or owe dares indus lod of he Ban @) The burden of proof ree upon {ation nas mot een fled within the 80: ene\applicans to cetubeh ast he trad ay Period, he aball le an apelication the derree of indian bioed of the Bard for tint rach ad submit Ww tbe B- ty elated tthe sbpiicaion ‘Rlipent “Committee: ach application ““ce}"tf an Todian who applies for enc ‘bal contain te following information: roltment under the provisions of para (ay "The ame ‘and address of the graph (a). tb), of (o) ef tals section ‘spolleantandtf te applicant isa minor fas recelvéd tabs own HG tn alone grmeniai Inoampetent; the name ad- ment or is envoled ay a stember with ets represeiative capacity and blood fome other tribe OF band ad has act islonship "a the person executing Felingushed such aUotment or enzoll Le application on halt of the minor ment prior to January 1.1960, wich per= or menial ineompetent ‘on hall pot be enrotied. Ownership ("The date and place of birth of the Gran allotment’ or an interest in ay spplcant, ‘Miotinent nequired trou inbertance fo) The applicant's desres of Indian Shall not however, be 8 bar to tonal \Yooa and degre of Indios Sood ofthe Se," Band “>A parton who meets the requre- XG) Date ane number of land asslen- ments of puragraph (Oe ibd or eh [REN approved by the Bureau of indlan thie seston, bul whose ume bas beck ti farried on the eeoras fal of another {ey if tbe applicant, has ever been feservauon shail be declared bene sted, enoled gr elated with an for enrolment unless he'can casio ier reservation, Ge name ofthe reser= tht De tas been alla with the Sa Tallon where aloted, enrolled or alll. Paoqual ‘Bend for a eovunuou pened Ned and the dale of elingulshment of of at lest one gear immediately price Slotnent, enrollment or recervation to January 1. 186, evidenced By Tae lion ence on the seoervation through ae. (0 The name and derree of indian five purtpation In tibet alas sh ood of each parent of the applicant, ts aflencaioe at tribal meetings, ad ceo det Sear permitied to vote on matics ree . lhe degree of Traian blood of the Band, met tretsibe or band with which lating Yo the San Pauqual Heserveton 80Should an applicant exalish his elel- bilty for enrolment hs membership lado at the other recervation mst De Felingulahed in writing pret to approved of his enrollment with the an Pasaual Band, “Notice of relinguahment. must be submitted tthe trial representa: $48.6 Enrollment Commit lesion ‘person who is twenty-one (21) years of age or alder apd believes that he le 8 member of the Band, shal Be entitled io’ vote at ie ana place ann ‘abner Gedgnates by the Band or Die ecto, 10 eee! three (2) peraons, whose fame appear oo the Census Rall serve. as embers of the Envoizient {Committee and’ two (2) persone to" act As" aternates’ tothe: Committe. The {Siree G@) persons Feeeiving the highest ‘umber ‘of votes thal! constitute the ‘Enrollment Committee ofthe Band. a0 the persona receiving ‘ibe fourth aout Dinhest number af votes shall aetve Se aluernate members of the Comittee ‘The person receving the Nighert num ber of votes ahall’be the chairman te ‘person Yeesving the ext highest nom ber of votes abail be the acertary 848.7 _Rerdow of pplication by Frat! ‘The Freid Representative shall refs: fhe” Bnvoilment Committee The Ten rollment Commitice shall review each Suen “application tnd may requre an Applicant to furnish additions. infor ‘Bation in weir or in person to assist the Barolinent Commstter to inate» Fecommendttion. The Bnrotiment Com tltéee hall Bie “with the "Director hrousn the Pield Representative. thon applications which It approves and'mith tose ‘applications not approved. shall submit"a separate report (Go) days from receit of The epplice ‘ona by the Committee 548.8 Determination of clsiility and ‘enrollment by Director. ‘The Director shall review the reports tnd recommendations of the Envoliment Committew and shall determine tne a0: plleants who are elite for enrelimer {in Accordunco with the provisions >? $489 The Director shall tranenit for feview to the Comumlaniones sn for el determination by the Secretary, the ie = Doris und "recommendations "ef the Enrolment Commitiee relating Yo 89° ‘ports end recommendations ofthe 2. rlment ‘Committee relative to apot- ants who have Deen determined by te snd the Teoort and recommendation @ ne ‘Enrolinent Committee “on be sppiteation. 5.49.10 Aclom by the Commintonen ‘appeal with the Secretary. SRL Action by the Secretary val Ihe"appetant™ shall be ven writs hile of the decison. The Director sCthoried teeter on the tol the bastLh Chopter Bureau of indian Affoirs $494 $4812, Proparaion and spproml of ‘vpoo note from the Secretary that sul apoetis have been “determined the DBiretor shall prepare tn quintupllcate rol ef members of the Band, arranged in iphabetical ‘order. "The ‘rol shall Contain Tor each perkon: Name, sddess, ‘ex. date of Dir, and degree of Indian Deed of the Band The Director hall ‘brat the rol tothe Secretary for ab- broval, Four (4 copies of the approved feudal be returned tothe Birctor who Sal oak one (1) copy availabe toe Chairman of the Tribal Gounell and one a) copy available to the Chairman of ‘he Enralmtent Committee H6E13 Content, feet containe oniy the names ot ta dans ented to earollment with the PART 49_-PREPARATION OF A ROLL FOR THE DISTRIBUTION OF THE JUDGMENT AWARDED THE QUA- PAW TRIBE ST oraattans. pee $3 Site cor srcument Bf depts ores" SH Repel ates oe ru $12 Dinctors ewtcie. G2 Bpecin isirctions Avrworrr: The proven of sui Part 42 saited untae 1, Bek Be ME UA a ‘Som: The proiatons of tia Prt 48 apy pearan oCRar Oost sug. #2 1n0h as 649.1 Definitions (a) “Commissioner” means Commis- $ é i 3 § :