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OR.3INAL Andrew W. Twietmeyer (SBN: 254436) THE LAW OFFICE OF ANDREW W. TWIETMEYER 10780 Santa Monica Blvd., Suite 401 Tel: (310) 909-7138 Fax: (323) 988-7171 email: [email protected]
Attorney for Plaintiff, WILLIAM PINK
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGO
UNLIMITED JURISDICTION
) CASE NO.: .37-2015-00032613-CU-BT-CTL WILLIAM PINK, )
) COMPLAINT_FOR: _ -- -- Plaintiff, ) 1) Breach of Fiduciary Duty
) 2) Unfair Competition vs. ) 3) An Accounting
) ROBERT SMITH (an individual); and
) DEMAND FOR JURY TRIAL DENTONS US, LLP (a limited liability
) partnership) and DOES 1 through 20 inclusive )
) Defendants. )
)
Plaintiff WILLIAM PINK hereby submits his Complaint in this action and alleges as
follows:
PARTIES
1) Plaintiff William Pink is an individual who resides in the City of Temecula in the County of Riverside California. Mr. Pink is, and at all time relevant to the events alleged herein, has
been a member of the Pala Band of Mission Indians (the "PBMI").
1
r iLE n Chit el Ill Supsrlior tort le
SEP 2 5 2015 By:J.Pascual, Deputy
CIVIL 81./5INLSS 6. FICE CENTRAL 131VISION
15SEP 25 PH 1: 19 CLERK - SUPEP.IOR COURT SAN DIEGO COUNTY. CA
COMPLAINT
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2) Defendant, Robert Smith ("Smith") is an individual who resides at 35961 Pala Temecula Rd., Pala CA 92059 in the County of San Diego, California. At all times relevant to the
events alleged herein, Defendant Smith has been the elected Chairman of the PBMI.
3) Defendant, Dentons US LLP ("Dentons") is a Limited Liability Partnership operating as a law firm in the state of California with offices in Los Angeles, Orange County, San Diego, San
Francisco, and Silicon Valley.
4) The true names and capacities, whether individual, corporate, associate, or otherwise of Defendants named DOES 1 through 20, inclusive, are unknown to Plaintiff, who, therefore, sues
such Defendants by such fictitious names. Plaintiff is informed and believes, and on that basis
alleges, that DOES 1 through 10 are in some manner responsible and/or liable for the wrongs and
injuries alleged herein as to the unlawful payment of attorneys fees using PBMI funds. Plaintiff is informed and believes, and on that basis alleges, that DOES 11 through 20 are in some manner
responsible and/or liable for the wrongs and injuries alleged herein as to the unlawful provision of legal services to the PBMI and acceptance of payment from PBMI funds. Plaintiff will seek leave of
this Court to amend this Complaint to allege the true names and capacities of DOES 1 through 20
once they have been ascertained.
JURISDICTION AND VENUE
5) This Court has subject matter jurisdiction over these proceedings pursuant to the general jurisdiction granted by the California Constitution as set forth in California Code of Civil Procedure section 410.10; and by 28 U.S.C. 1360.
6) This Court has personal jurisdiction over Defendants because they are found and are doing business in the State of California and/or have sufficient minimum contacts with California so
as to render the exercise of general or specific jurisdiction by the California courts permissible under traditional notions of fair play and substantial justice.
7) Venue is proper in San Diego County as against Defendants pursuant to Sections 394 and 395 of the Code of Civil Procedure because one or more of the Defendants reside in this County,
SUMMARY OF RELEVANT FACTS
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COMPLAINT
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8) The PBMI is a tribal organization formed pursuant to articles of association in 1961. 9) The PBMI is not listed on the list of Federally-Recognized Indian Tribes published
pursuant to 25 U.S.C. 479a-1. 10) Plaintiff is informed and believes, and on that basis alleges, that PBMI is not, in fact,
a federally-recognized Indian Tribethough it holds itself out to be one.
11) On information and belief, the PBMI governs itself by a Constitution, a true and correct copy of which is attached hereto as Exhibit "A."
12) On information and belief, the PBMI's Constitution was approved by the United States Department of the Interior, Bureau of Indian Affairs on or about July 25, 2000.
13) Article III, Section 1 of the Constitution provides that "The governing body of the PBMI shall be the General Council, which shall consist of all members of the PBMI who are
eighteen years of age or older."
14) Article III, Section 2.B. of the PBMI Constitution provides that "Subject to any limitations imposed by applicable law, the PBMI General Council shall exercise all powers allowed
by law and not otherwise restricted by this Constitution, including but not limited to the following
powers... .To employ legal counsel pursuant to federal law and subject to the approval of the Secretary of the Interior."
15) Article V, Section 1 of the PBMI's Constitution creates an Executive Committee consisting of a Chairman, a Vice-Chairman, a Secretary and a Treasurer and two adult members of
the PBMI.
16) Defendant Smith is, and at all times relevant to this Complaint has been, the elected Chairman of the PBMI.
17) Under Article V, Section 11, the Executive Committee has enumerated powers. Section 11 explicitly limits those powers both in its preamble and in subsection E which provides
that the Executive Committee "shall not commit the Pala Band to any contract, lease, or other
agreement unless specifically empowered to do so by the General Council, a tribal ordinance, or this
Constitution."
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COMPLAINT
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18) Plaintiff is informed and believes, and on that basis alleges, that on or after 2010, purporting to act on behalf of the PBMI, and using PBMI funds, Defendant Smith entered an
attorney-client contract or contracts with Dentons and/or DOES 11 through 20.
19) Plaintiff is informed and believes, and on that basis alleges, that Defendant Smith did not obtain (and still has not obtained) the authorization of the General Council to hire and pay Dentons and/or DOES 11 through 20.
20) Plaintiff is informed and believes, and on that basis alleges, that Defendant Smith did not seek or obtain the approval of the United States Secretary of the Interior to hire and pay Dentons
and/or DOES 11 through 20.
21) Plaintiff is informed and believes, and on that basis alleges, that, since hiring Dentons and/or DOES 11 through 20, Defendant Smith has caused payment of more than six-hundred-
thousand dollars in attorneys fees to Dentons and/or DOES 11 through 20 using PBMI funds that he
is not authorized to use without the PBMI General Council's authorization.
22) Plaintiff is further informed and believes, and on that basis alleges, that most, if not all of the attorneys fees paid to Dentons and/or DOES 11 through 20 were for legal services that
benefited Defendant Smith's individual interests in exacting retribution on PBMI political rivals;
intimidating would-be political rivals and the PBMI electorate; and in seeking to overturn or
depublish a judicial precedent that could be cited to expose Defendant Smith to suit in his individual capacity for his tortious and unlawful conduct exceeding the scope of his authority as Chairman of
the PBMIsuch as the conduct alleged in this Complaint.
23) Indeed, Mr. Pink is informed and believes, and on that basis alleges, that a substantial portion of the attorneys fees Defendant Smith caused to be paid to Dentons and/or DOES 11-20
were for legal research, advice, and counsel to Defendant Smith on his retaliatory disenrollment of
more that 160 members of the PBMI which disenrollment Defendant Smith purported to justify by brazenly and unilaterally changing a settled historical determination of the Cupefio Indian blood
quantum of Margarita Britten (1856-1925).
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24) Specifically, notwithstanding that the United States Department of the Interior Bureau of Indian Affairs conclusively determined in 1989 that Margarita Britten was a full-blooded
Cupeilo Indian, and notwithstanding that historical records contemporaneous with Ms. Britten's life
list her as a full-blooded Cupefio Indian, Defendant Smith unilaterally, and maliciously declared that
Margarita Britten was only 1/2 Cupefin Indian, and that, therefore, more than 160 of her descendants
were of insufficient blood quantum to qualify for membership in the PBMI. He then caused those
160 individuals all to be disenrolled on that fabricated basis.
25) Mr. Pink is informed and believes, and on that basis alleges, that Defendant Smith then caused Dentons to be paid with PBMI funds to research and defend a federal action brought by
the disenrollees in which Defendant Smith was a named defendant.
26) Plaintiff is further informed and believes, and on that basis alleges, that, in or about mid June 2015, Defendant Smith paid Dentons, to file an amicus brief in support of the
defendants/respondents' petition for rehearing in the case Cosentino vs. Fuller, 237 Cal.App.4th 790
(2015) (depublished September 23, 2015)--a case that held, like other California cases, that tribal sovereign immunity does not shield a tribal official from suit in his or her individual capacity for
conduct that violates the scope of his or her authority or acts undertaken out of an officer's personal
interest rather than for the benefit of a tribe that he or she serves.
27) Plaintiff is further informed and believes, and on that basis alleges, that on or about June 18, 2015, Dentons attorney Paula M. Yost, purporting to represent the PBMI despite having no
authorization from the PBMI General Council, and no approval from the United States Secretary of
the Interior, filed an Amicus Brief in the California Court of Appeal in Cosentino vs. Fullerthereby willfully appearing for the PBMI in Cosentino vs. Fuller without the PBMI's authorization.
28) Plaintiff is informed and believes that Yost and Dentons knew, or should have known, at the time of accepting payment for that amicus brief that there is no statutory or judicial authority for an amicus brief in support of a petition for rehearing, and that amicus briefs are, in fact,
only authorized or timely under if filed within 30 days of the close of briefing in the appeal. See CRC 8.520.
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COMPLAINT
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29) Plaintiff is informed and believes, and on that basis alleges, that briefing in Cosentino vs. Fuller closed on April 8,2014more than a year before Dentons squandered PBMI funds to file
the above-described amicus brief.
30) Plaintiff is informed and believes that when Dentons, through attorney Yost, appeared for the PBMI in Cosentino vs. Fuller, Dentons knew that it had not been authorized by the
PBMI General Council or approved by the Secretary of the Interior to represent the PBMI.
31) Plaintiff is further informed and believes, and on that basis alleges, that in or about mid June 2015, Defendant Smith paid Dentons, with PBMI funds, to file a request for depublication
of Cosentino vs. Fuller in the California Court of Appealdespite the fact that California Rule of
Court 8.1125 directs that depublication requests must be filed in the California Supreme Court.
32) Plaintiff is further informed and believes that, on or about June 12, 2015, without consulting the California Rules of Court, Dentons attorney Ian R. Barker (purporting to represent the PBMI despite lacking PBMI General Council authorization or approval from the Secretary of the
Interior) filed a request for depublication of Cosentino vs. Fuller in the California Court of Appeal thereby willfully making a second (albeit defective) appearance on the PBMI's behalf without the PBMI's authorization.
33) Plaintiff is informed and believes that Barker and Dentons knew or should have known that the Court of Appeal has no jurisdiction to consider a depublication request. See CRC 8.1125. Thus, Dentons squandered even more of the PBMI's money.
34) Accordingly, Plaintiff is informed and believes, and on that basis alleges, that Defendant Smith selfishly and unlawfully paid, and Dentons unlawfully accepted payment of, PBMI
funds that were for the benefit of Mr. Pink and other Indians with a beneficial interest in the Pala
Reservation, and which funds could not lawfully be spent by Defendant Smith, or accepted by
Dentons, without the PBMI General Council's authorization and the United States Secretary of the
Interior's approvalall for efforts that Yost, Barker, and Dentons (being lawyers) knew, or should have known, were entirely futile as a matter of law.
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COMPLAINT
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35) Plaintiff is further informed and believes, and on that basis alleges, that after the Defendants, thus, unlawfully squandered PBMI funds to pay Dentons to draft and file the above-
described defective Petition and Request, and to unlawfully appear on PBMI's behalf in Cosentino
vs. Fuller, Defendant Smith, in or about mid July 2015, then used PBMI funds to pay Dentons to file
another request for depublication of Cosentino vs. Fullerthis time in the California Supreme Court
which does have jurisdiction to consider such a request. 36) Dentons only filed that depublication request after attorneys for the Lytton Rancheria,
and the Viejas Band of Kumeyaay Indians had already shown the way by correctly filing their own depublication requests in the California Supreme Court.
37) Plaintiff is further informed and believes, and on that basis alleges, that on or about July 17, 2015, Attorney Yost (purporting to represent the PBMI despite lacking PBMI General Council authorization or approval from the Secretary of the Interior) filed that second Request for Depublication of Cosentino vs. Fuller in the California Supreme Courtthereby willfully appearing
for PBMI, without PBMI's authorization, in another proceedinga second willful violation of
Business and Professions code section 6104.
38) Plaintiff is informed and believes that Defendant Smith sought and received the legal services described in paragraphs 21 through 36 above for his own benefit and not the benefit of the
PBMI.
39) Indeed, Defendant Smith paid Dentons and/or DOES 11 through 20 to assist Defendant Smith in exacting political retribution against Margarita Britten descendant King
Freeman and his family, and to intimidate other would-be political rivals by inflicting a
reprehensible injury upon the descendants of Margarita Britten. 40) He then paid Dentons to defend his conduct by claiming that sovereign immunity
bars the federal courts from considering the Britten Descendants' claims for relief against him.
41) Moreover, Defendant Smith paid Dentons for Denton's wasteful and grossly incompetent efforts to overturn and depublish Cosentino vs. Fuller in the California Court of
Appeal. That was done not out of any interest of the PBMI, but, instead, to prevent the publication
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COMPLAINT
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of controlling judicial precedent that could be cited to subject Defendant Smith to suit in his individual capacity for tortious conduct that exceeds the scope of his authority or is undertaken for
his own benefitsuch as the conduct alleged in this lawsuit.
42) Accordingly, Defendant Smith's employment of Dentons and or DOES 11 through 20 was not only a violation of Defendant Smith's authority under the PBMI Constitution, the
employment was also undertaken to advance and protect Defendant Smith's personal interests rather
than to benefit the PBMI.
43) For its part, Dentons and/or DOES 11 through 20 knew or should have known that the PBMI Constitution prohibits Defendant Smith from hiring and paying Dentons and/or DOES 11
though 20 with PBMI funds until and unless he obtains the authorization of the PBMI General
Council.
44) Additionally, Dentons and/or DOES 11 through 20 knew or should have known that the PBMI Constitution prohibits Defendant Smith from hiring and paying any attorney with PBMI
funds until the United States Secretary of the Interior approves that attorney to represent the PBMI.
45) Plaintiff is informed and believes, and on that basis alleges, that Dentons and/or DOES 11 through 20 have always known that the PBMI General Council has never authorized
Dentons and/or 11 through 20 to represent the PBMI.
46) Plaintiff is informed and believes, and on that basis alleges, that Dentons and/or DOES 11 through 20 have always known that the United States Secretary of the Interior has never
approved Dentons and/or DOES 11 through 20 to represent the PBMI.
47) Attorneys Yost and Barker's signature and filing of papers in Cosentino vs. Fuller (Cal. Ct. App. Case No. 0050923) and Cosentino vs. Fuller (Cal. Supreme Ct. Case No. S227157) constitute "appearances" as that term is used in California Business and Professions code section
6104.
48) Accordingly, Plaintiff is informed and believes that Dentons (through attorneys Yost and Barker) corruptly or willfully and without authority appeared at least twice as attorney for PBMI in violation of California Business and Professions Code section 6104.
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COMPLAINT
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FIRST CAUSE OF FOR BREACH OF FIDUCIARY DUTY
(against Defendant Smith and DOES 1-10) 49) Mr. Pink incorporates by reference the allegations set forth in paragraphs 1 through
47 above as though fully set forth herein.
50) As the elected Chairman of the PBMI, Defendant Smith owes fiduciary duties of care, loyalty, and good faith to the PBMI and its members, including Mr. Pink. Defendant Smith's
fiduciary duties include obligations to exercise good business judgment, to act prudently and lawfully in the operation of the PBMI's business, to discharge his duties in good faith in accordance
with the PBMI Constitution, to act in the best interests of the PBMI and its members, and to the put
the interests of the PBMI and its members before his own.
51) Defendant Smith breached his fiduciary duty by hiring and paying Dentons and/or DOES 11 through 20 for legal services without obtaining the authorization of the PBMI General
Council in violation of Article III, Section 2.B, and Article V, Section 11.E of the PBMI
Constitution.
52) Defendant Smith breached his fiduciary duty by hiring and paying Dentons and/or DOES 11 though 20 for legal services without obtaining the approval of the United States Secretary
of the Interior in violation of Article III, Section 2.B, and Article V, Section 11.E of the PBMI's
Constitution.
53) Defendant Smith breached his fiduciary duty by paying Dentons and/or DOES 11 though 20 for legal services that benefited Defendant Smith rather than the PBMI or any tribe.
54) Defendant Smith breached his fiduciary duty by paying Dentons and/or DOES 11 though 20 for legal services that directly and grievously harmed members of the PBMI.
55) By hiring and paying Dentons and/or DOES 11 through 20 without the authorization and approval required by law, Defendant Smith violated the scope of his authority as Chairman of
the PBMI under the PBMI Constitution.
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COMPLAINT
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56) By hiring and paying Dentons and/or DOES 11 through 20 to assist him with the disenrollments and to seek reversal or depublication of Cosentino vs. Fuller, Defendant Smith acted
in his own self interests and for his own benefit rather than for the benefit of the PBMI.
57) As a member of the PBMI and an Agua Caliente Cupefio Indian, Mr. Pink has a beneficial interest in the collective assets of the PBMI, which assets exist for, and are to be used for
the PBMI and its members, including Mr. Pink.
58) It is precisely for that reason that the PBMI Constitution requires General Council approval for the use of PBMI funds.
59) Accordingly, Mr. Pink has been injured by Defendant Smith's breach of his fiduciary duty in unlawfully pilfering of those funds in violation of the PBMI Constitution and for Defendant
Smith's own selfish interests.
SECOND CAUSE OF ACTION FOR UNFAIR COMPETITION
(Cal. Bus. & Prof. Code 17200 et. seq.)
(against all Defendants) 60) Mr. Pink incorporates by reference and re-alleges each and every allegation contained
in paragraphs 1 through 58 above as though fully set forth herein.
61) Business & Professions Code section 17200 et. seq., also known as the California Unfair Competition Law, prohibits acts of "unfair competition," including "any unlawful, unfair or
fraudulent business act or practice."
62) Defendant Smith violated the UCL's bar on unlawful and unfair business practices by hiring and paying legal fees to Dentons and/or DOES 11 through 20 without the authorization of the
PBMI General Council and without the approval of the United States Secretary of the Interior in
violation of PBMI Constitution Article III, Section 2.B and Article V, Section 11.E.
63) By hiring and paying Dentons and/or DOES 11 through 20 without the authorization and approval required by law, Defendant Smith violated the scope of his authority under the PBMI
Constitution.
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COMPLAINT
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64) By hiring and paying Dentons, and/or DOES 11-20, Defendant Smith acted in his own self interests and for his own benefit rather than for the benefit of the PBMI.
65) Dentons and DOES 11-20 violated the UCL's bar on unlawful and unfair business practices by performing and accepting payment of legal fees from the PBMI without the
authorization of the PBMI General Council and without the approval of the United States Secretary
of the Interior in violation of PBMI Constitution Article III, Section 2.B and Article V, Section 11.E.
66) By purporting to represent the PBMI in multiple court appearances without the authorization and approval required by law, Dentons (through attorneys Yost and Barker) violated California Business and Professions section 6104.
67) As a direct and proximate result of Defendants' unlawful and unfair business acts, Mr. Pink has suffered economic damages in the amount of his per-capita interest in all of the
unlawful attorneys fees paid to Dentons and/or DOES 11 through 20.
68) All of those unlawful payments were made with funds that accrued from the Pala Reservation for the benefit of Mr. Pink and other individuals with an economic interest in the Pala
Reservation. Accordingly, Mr. Pink has suffered injury in fact by Defendants' unlawful and self-interested use of PBMI assets.
69) As a direct and proximate result of Defendants' unlawful and unfair business practices, Defendants have been unjustly enriched and should be ordered to make restitution to the PBMI account or accounts from which they unlawfully withdrew funds for Denton's and/or DOES
11 through 20's unlawful services.
70) Plaintiff is informed and believes, and on that basis alleges, that the unlawful and unfair business practices of Defendants described herein present a continuing wrong and threat in
that Defendants persist and continue to engage in these practices, and will not cease doing so unless,
and until, forced to do so by this Court. Defendants' conduct is causing, and will continue to cause
irreparable injury unless enjoined or restrained. THIRD CAUSE OF ACTION FOR AN ACCOUNTING
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COMPLAINT
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71) Mr. Pith incorporates by reference and re-alleges each and every allegation contained in paragraphs 1 through 69 above as though fully set forth herein.
72) As a result of Defendants' conduct alleged above, Defendants have wrongfully received and benefited from money that should be in the account or accounts of the PBMI where it
is to be used for the benefit of the PBMI and its members collectively--including Mr. Pink and,
which money should be restored to that account or accounts as alleged above.
73) The amount of money due from Defendants as a result of the above-described conduct is unknown to Mr. Pink and cannot be ascertained without an accounting of the
disbursements and receipts of the aforementioned transactions for legal services.
74) Mr. Pink is informed and believes, and on that basis alleges, that the amount due from Defendants is in excess of $600,000.00.
PRAYER FOR RELIEF
WHEREFORE, Mr. Pink prays for judgment against Defendants as follows: 1. For an order requiring Defendants jointly and severally to make restitution by returning to
the account or accounts from which they were withdrawn, funds equal to the full amount of
all legal fees paid to Dentons or DOES 11-20 at any time from September 18, 2011 to the
present with interest thereon;
2. For preliminary and permanent injunctive relief prohibiting the Defendants from using PBMI funds to pay any attorney fees for Dentons, DOES 11-20, or any other attorney who is not
authorized by the PBMI's General Council and approved by the United States Secretary of
the Interior;
3. For an accounting of all PBMI moneys Defendant Smith caused to be paid to Dentons or
DOES 11-20 or which Dentons or DOES 11-20 received, from September 18, 2015 to the present;
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4. For restitution to the account from which such funds were withdrawn, the full amount found
to be due from Defendants as a result of the accounting and interest on that amount from and
after September 24, 2011;
5. for costs of suit herein incurred; and
6. for such other and further,relief as the Court may deem just and proper.
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DATED: September 24, 2015 THE LAW OFFICE OF ANDREW W. TWIET1VIEYER
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DATED: September 24, 2015
Demand for Jury Trial
Plaintiff, WILLIAM PINK, hereby demands that this action be determined by trial by jury.
AiSer NIMNISS1.1
_ Andrew W. T etmeyer Attorney for PlMuff William Pink
THE LAW OFFICE OF ANDREW W. TWIETMEYER
Airs \awarAirtlra Andrew W. Twi tmeyer Attorney for Ph intiff William Pink
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COMPLAINT
Exhibit A
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CONSTITUTION of the
PALA. BAND OF MISSION INDIANS
Pala, California
PREAMBLE
We, the members of the Pala Band of Mission Indians, hereinafter referred to as the Pala Band, exercising our inherent rights as a sovereign, federally-recognized Indian tribe, do hereby adopt the following Constitution to supersede the Articles of Association which were approved by the Commissioner, Bureau of Indian Affairs, on March 7, 1969.
ARTICLE I - PURPOSE AND JURISDICTION
Section 1. PURPOSE
The purpose and powers of the Pala Band of Mission Indians shall be to protect and promote the welfare and best interests of the members of the Pala Band of Mission Indians; to protect and to exercise the Pala Band's inherent rights as a federally-recognized Indian tribe, whether said rights exist at present or are conferred at a later date; to promote economic development on the Pala Indian Reservation to improve the economic condition of the Pala Band and the employment opportunities for its members; and to further and achieve self-government and self-determination in all tribal affairs; provided, however, that no tribal rights shall be limited or relinquished by the adoption of whether in existence at present or later conferred, are hereby reserved by the Pala Band and included as if fully set forth herein.
Section 2. TERRITORY AND JURISDICTION
The jurisdiction of the Pala Band shall extend to all lands within the exterior boundaries of the Pala Indian Reservation and shall also extend to any lands which may be added to the Reservation in the future. Said jurisdiction extends to land held in trust by the United States of America, whether assigned, allotted or tribal lands. To any lands held in fee by the Pala Band, by members of the Pala Band, or by non-members including individuals, partnerships, corporations, or other business entities and to any mining claims and homestead within the exterior boundaries of the Reservation. This jurisdiction shall extend to all persons and entities within the exterior boundaries of the Reservation and to all lands, surface waters, ground waters, river beds, submerged lands, properties, air and air space, minerals, natural resources and any other resources. The Pala Band of Mission Indians retains the right to and shall exercise its inherent tribal
jurisdiction in all respects to the fullest extent allowed by law.
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ARTICLE II- MEMBERSHIP
Section 1. MEMBERSHIP REQUIREMENTS
The membership of the Band shall consist of:
A Those persons whose names appear on the Pala Allotment Roll as approved by the Secretary of the Interior on April 12, 1895, and November 3, 1913, who were living on the date of approval of the Pala Band's original Articles of Association by the Commissioner of Indian Affairs.
B All living descendants of persons on the Allotment Rolls covered in Section (1) above regardless of whether the original allottees are living or deceased, provided that they are direct lineal descendants and have one-sixteenth (1/16) or more degree of Indian blood of the Pala Band.
Those persons who have been adopted by the Band and such adoption has been approved by the Bureau of Indian Affairs.
Section 2. MEMBERSHIP ROLL
The Executive Committee shall keep the membership roll current annually by striking therefrom the names of persons who have relinquished in writing their membership in the Band and of deceased members upon receipt of a death certificate or other evidence of death, and by adding the names of children born to members who meet the membership requirements.
Section 3. MEMBERSHIP IN OTHER TRIBES OR BANDS
No person may be a member of the Pala Band who is a member of any other federally-recognized Indian tribe or band. If a member of another tribe or Band is eligible for enrollment in the Pala Band and applies for membership in the Pala Band, that person must relinquish his/her membership in the other Tribe or Band prior to being added to the membership rolls of the Pala Band and must present the Pala Band with evidence satisfactory to the Pala Band of having done so. Should a member of the Pala Band enroll in any other Tribe or Band, he shall immediately notify the Pala Band of such other enrollment and his/her membership in the Pala Band will be deemed to have been relinquished effective on the date of enrollment in the other Tribe or Band whether or not the required notice is given.
Section 4. LOSS OF MEMBERSHIP
Procedures for disenrollment, if any, will be established in an Ordinance or as part of the Enrollment Ordinance. Such procedures shall provide that the member receives due process and equal protection as required by the Indian Civil Rights Act.
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Section 6. MEMBERSHIP ORDINANCES
The Executive Committee may from time to time amend and/or replace its existing Enrollment Ordinance with an Ordinance governing adoption, loss of membership, disetutIlment, and future membership, provided that such ordinances are in compliance with this Constitution.
ARTICLE UT - GENERAL COUNCIL
Section 1. GOVERNING BODY
The governing body of the Pala Band shall be the General Council, which shall consist of all members of the Pala Band who are eighteen years of age or older.
Section 2. POWERS OF THE GENERAL COUNCIL
Subject to any limitations imposed by applicable law, the General Council shall exercise all powers allowed by law and not otherwise restricted by this Constitution, including butnot limited to the following powers.
A To manage all affairs relating to tribal lands, tribal economic development enterprises tribal assets, to include but not limited to review and approval of leases, contracts, and management agreements.
To employ legal counsel pursuant to federal Taw and subject to the approval of the Secretary
C To enact ordinances, not inconsistent with the Constitution, or to delegate this authority to the Executive Committee.
fl To assess fees for the payment of expenses of the Band or to finance any project which in its opinion is for the benefit of the Pala Band as a whole.
To establish its own rules of procedure for the conduct of its affairs and by appropriate ordinance or resolution delegate to the Executive Committee or any other committee any of the foregoing powers and duties.
To levy taxes, including but not limited to sales tax, possessory interest tax, mineral extracting tax, or other taxes as the General Council deems necessary.
To raise and address issues concerning the general well-being of the community.
jj To provide services and programs for tribal members and other reservation residents as necessary or appropriate.
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To establish a Tribal Court or other judicial system to adjudicate disputes and appeals involving the Pala Band, its members, and others within the boundaries of the Reservation and to enact ordinances to provide for the enforcement of such tribal court decisions, judgments, or orders.
The General Council will authorize the Executive Committee to remove members or non-members from the Reservation by taking the appropriate legal or other action of authorizing the Executive Committee to do so.
To appoint delegates to represent the Pala Band as part of such organizations as the Pala Band may join from time to time, provided however that if these delegates miss 3 consecutive meetings without a valid excuse, they will be deemed to have resigned, leaving the positions available for another appointment.
To take appropriate actions necessary to enforce the powers listed herein, pursuant to tribal and federal laws and tribal custom and tradition.
Section 3. MEETINGS
A. Regular Meetings. A regular meeting of the General Council shall be convened on the 2nd Wednesday of each month.
B.Special t_ain . Special General Council meetings may be called by the Executive Committee or by a petition signed by ten percent (10%) of the eligible voters stating the purpose of the special meeting andt_ proposed agenda for the special meeting.
C. Quorum. Actions taken at a regular or special meeting of the General Council shall not be valid unless a quorum consisting of at least 25 eligible voting members of the Pak Band, five of which must be Executive Council Members, have signed in at the meeting. If there is not a quorum present, the meeting may proceed for informational purposes, but no votes shall be taken.
D. Notice. All regular and special General Council meetings shall be publicly noticed for no less than fourteen (14) calendar days prior to the meeting by posting notices at the Tribal Offices ancUor at other appropriate places on the Reservation. In the case of an emergency, a meeting may be called on three (3) days advance notice and which notice shall also be posted in advance at the Tribal Hall and/or other appropriate places on the Reservation. Unless proper notice is given as required herein, any actions taken or decisions made during that meeting shall not be valid and binding.
Section 4. VOTING
Only duly enrolled tribal members who have slated in at the meeting may vote. The method of voting, either by show of hands or by secret ballot will be determined by the Executive
'ttee. No m-a bei vot on will become effective unless a ma'ort of voters vot in favor of the measure.
Section 5. MOTIONS
Once a motion is adopted by the General Council, no attempt to reverse that position for a period of one (1) year will be permissible.
Section 6. A El AND PARTICIPATION AT REGULAR AND SPECIAL MEETINGS
A Only enrolled members of the Pala Band shall attend Executive Committee or General Council meetings. Non-members may attend only if invited by the Executive Committee.
Only members of the tribe eighteen (i8) years and over may vote and participate in discussions at General Council meetings, unless otherwise authorized by the Executive Committee.
Tribal members must sign in at General Council regular or special meetings in order to vote or participate in discussions.
Section 7. CONDUCT OF MEETINGS
A Meetings shall be conducted in accordance with theprocedures set forth in Roberes Rides of Order such procedures conflict with tribal custom and tradition.
In such cases, custom and tradition shall take precedence,
Any member who is disorderly or disrupts the meeting shall be removed and excluded from the meeting.
Each member will be permitted live (5) minutes to speak but may be allowed additional time at the djcretion of the e utivetteemmi .
T members may sub 't agenda
_m_j .yJm_. lte.L.ms for discussion at a General COUNCIL Meeting no later than ten (10) days prior to the date of the meting
on a form provided by the Executive Committee. The Executive Committee may add agenda items at art in o he a /tin Kla.
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ARTICLE IV - ELECTIONS
Section 1. ESTABLISHMENT OF ELECTION ORDINANCE
All nominations and elections shall be conducted in accordance with an election ordinance adopted by e General Council or the Execu tive t as delegated. Said ordinance thall establish the following: milling places, establishment of the election committee and its duties, absentee ballots and other requirements as needed. .
Section 2. VOTING
Any member of the Pala Band eighteen years of age or older shall have the right to vote in all tribal elections or General Council Meetings.
ARTICLE V - EXECUTIVE COMMITTEE
Section 1. COMPOSITION
There shall be elected an Executive Committee consisting of a Chairman, a Vice-Chairman, a Secretary and a Treasurer, and two adult members of the Pala Band.
Section 2. QUALIFICATIONS
A To be elected to serve on the Executive Committee a member of the Pala Band must be twenty-one (21) years of older
before being nominated to run for office.
Before the names of a person who has been nominated can be put on that ballot, that person must complete a form provided by the Executive Committee and certify under penalty of perjury that he/she has not been convicted of a felony or any other criminal offense included above. The Executive Committee will verify that there has been no such conviction(s). The General Council may make an exception for vehicle related felony traffic offenses or for offenses which occurred more than ten years earlier.
Procedures will be contained in the Band's Election Ordinance.
Section S. ELECTION
All elections of Executive Committee members shall be by secret ballot Nominations shall
made at a general councltin d f r that so_g.__sk..im_suLdfantorninees certified ertif e as voters by the Election Committee shall have their names placed on the ballot.
Section 4. TERM OF OFFICE
All Executive Committee members shall be elected for a term of two years, or until their surrnsors are duly elected. The terms shall be staggered with the Chair, Treasurer, and one at-large Executive Committee member being elected in even-numbered years and the Vice-Chair, Secretary and the other at-large Executive Committee member being elected in odd-numbered years.
Section 6. VACANCIES
If an officer shall die, resign, be found guilty of a felony in any State or Federal court or be recalled for any other cause from his office, a vacancy in the office shall be automatically created. If an Executive Committee member resigns, he/she cannot be elected to office for five-years from
the date of the resignation. A seat on the Executive Committee will be deemed to be automatically vacated if any Executive Committee member misses more than three (3) consecutive Executive Committee meetings unless the absence is excused by the Executive Committee for good cause. All vacancies described in the paragraph shall be filled by the General Council at its next meeting and such replacement shall serve the unexpired remainder of the term of office.
Section 6. RECALL
Upon receipt of a recall petition stating the reasons for the recall of an Executive Committee member or members, which petition is signed by at least twenty-percent (20%) of the eligible voting members of the Band, the Executive Committee shall set and provide notice of a meeting to be held within (30) days after receipt of the petition. At this meeting the Executive Committee member or members being recalled shall have the opportunity to respond to any charges being made against him or her. Within ten days after that meeting, the Executive Committee shall muse a Recall Election to be held. A majority of those voting at the election shall govern, provided that at least thirty percent (30%) of those eligible vote in the election. Recall of elected officials will be limited to one 0.1,per term of office.
Section 7, REMOVAL
A Failure to attend three (3) consecutive meetings without a valid excuse, including regular. emergency and special meetings; Provided that the member has received notice of the meeting,
Gross misconduct in office;
.c Incapacity from physical or mental disability, to the extend that he/she is incapable of exercising judgment about or attending to the business of the Executive Committee.
D. Conviction of a crime under Federal, State or Tribal Law while holding office.
Section 8. EXECUTIVE COMMITTEE MEETINGS
The Executive Committee shall normally meet each week at such time as may be set by it. Special meeting shall be convened on call by the Chairman or a majority of the Committee members.
Section Q. QUORUM
A quorum shall consist of five (5) members and no business shall be conducted in the absence of a quorum.
Section 10. OFFICERS
The Executive Committee shall have the following officers whose duties shall be as follows:
A. Chairman. The Chairman shall preside at all meetings of the General Council and
Executive Committee and shall have general supervision of all other officers, employees, and committees of the Band and see that their duties are properly performed. When neither the General Council nor the Executive Committee are in session, the Chairman shall be the official representative of the Band. The Chairman shall vote only in the case of a tie vote in either the General Council or Executive Committee meetings.
B. Vice-Chairman. In the absence of the Chairman, the Vice-Chairman shall have the
power and authority of the Chairman. The Vice-Chairman, when authorized by the Chairman, assist the Chairman in the performance of his duties.
C. Secretary. The Secretary shall keep or oversee the keeping of the minutes of both
the General Council meetings and meetings of the Executive Committee and shall certify the enactment of all ordinances or resolutions of both the Executive Committee and General Council. The Secretary shall also receive on behalf of the Executive Committee all petitions provided for in this document.
D. Treasurer. The Treasurer shall oversee the care and custody of all assets for the
Band and deposit all money in an approved depository. The Treasurer shall disburse or oversee the disbursement of all funds as ordered by the General Council by check to be co-signed by the Chairman or the Secretary and shall maintain or oversee the maintenance of financial accounts, receipts, and records. All financial records shall be available for inspection by officers of the Executive Committee,
resentat've_ai_safEeralan's ier state or te agencies es which may
provide funding to the Pala Band of Mission Indians. All Financial records of the
Band shall be audited at least once each year and such other times as may be directed by the General Council or required by the Federal Government or any agency providing fimding to the Pala Band.
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E. Executive Committee Members at Large. The two Executive Committee members at Large shall have such duties as may be assigned to them from time to time by the Chairman or by the Executive Committee as a whole.
Section 11. POWERS AND DUTIES OF THE EXECUTIVE COMMITTEE
The Executive Committee shall have the following powers and duties, but shall not commit the Pala Band to any contract, lease, or other business agreement unless it is so empowered by a duly enacted ordinance or resolution of the General Council:
A Cause the effectuation of all ordinances, resolutions or other enactments of the General Council;
Represent the Band in all negotiations between the Band and local, State and Federal Government, their agencies and officers, and faithfully advise the General Council of all such negotiations;
Represent the Pala Band in all negotiations with individuals, private businesses, and any other entities seeking to do business with the Pala Band;
1) To advise Congress and representative of the Interior Department and other federal agencies on appropriation, projects, and legislation affecting the Pala Band;
E To manager all affairs of the Pala Band pertaining to tribal lands, money and natural resources provided that the Executive Committee shall not commit the Band to any contract, lease or other agreement unless specifically empowered to do so by the General Council, a tribal ordinance, or this Constitution.
E To apply for financial assistance from grant and contract programs for which the Pala Band may be an eligible applicant. Where a grant application requires the obligation of tribal finds, other than in-kind contributions, prior approval of the General Council is required.
To appoint committees and delegates to assist the Executive Committees. and delegates to assist the Executive Committee in carrying out business for the Tribe. These committees and delegates shall report regularly to the Executive Committee. No Committee shall make any binding decision for the Pala Band except to the extent that they are so authorized by a validly adopted Ordinance of the Pala Band.
if To enact ordinances to carry out any powers specifically conferred upon the Executive Committee by the General Council or by law.
To enforce and carry out all ordinances adopted by the General Council.
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To provide required notice of and post the time date, and place of tribal meetings and elections as required by this Constitution and any Ordinances of the Pala Band.
To regularly attend and participate in meetings of the Executive Committee and the General Council; provided however that the failure to attend three consecutive Executive Committee meetings or three consecutive General Council meetings shall be deemed an automatic resignations from the Executive Committee;
To represent the Pala Band to the best of the Executive Committee Member's ability with honesty, integrity, and fairness;
M To promote the health, safety, and general well-being of the tribe and to administer fairly and expeditiously all tribal ordinances of the Pala Band.
To review and propose ordinances for approval or modifications by the General Council.
To promote Indian preference in employment; and
To carry out any other functions of responsibilities delegated to the Executive Committee by the General Council or by applicable law,
Section J Ug. QUORUM AND VOTING
No member shall vote on any matter in which he/she or his/her immediate family has a personal interest or would receive personal benefit other than that provided for tribal members in general. For the purpose of this section, immediate family shall mean husband/wife, mother/father, son/daughter, grandfather/grandmother, grandchild, aunt/uncle, niece/nephew, and step-parent or step-child.
ARTICLE VI - MISCELLANEOUS PROVISIONS
Section 1. RIGHTS OF MEMBERS
The Pala Band shall provide all persons with due process and equal protection of the law required by the Indian Civil Rights Act (25 U.S.C. Section 1302).
ARTICLE VII- SAVINGS CLAUSE
All enactments of the Tribe adopted before the effective date of this constitution shall continue in effect to the extent that they are consistent with this constitution.
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ARTICLE VIII - SEVERABILITY
If any provision of this constitution shall in the future be declared invalid by a court of competent jurisdiction, the invalid provision or provisions shall be severed and the Leisprovisions force and effect
ARTICLE - AMENDMENTS AND EFFECTIVE DATE
Section. 1 EFFECTIVE DATE
This Constitution shall become effective immediately after its approval by a majority vote of the voters voting in a duly-called elections at which this Constitution is approved by the Bureau of Indian Affairs.
Section 2, FUTURE AMENDMENTS
This Constitution may be amended by a two-thirds (4/8) vote of the voting members of the Pala Band at an election duly-called for this purpose in which not less than half of the eligible members of the Pala Band cast their ballots.
Date
CERTIFICATE OF APPROVAL
Pursuant to the authority redelegated by the Assistant Secretary of Indian Affairs in 209 DM 8, Secretary's Order No. 3150, as amended, and 10 BIAIVI Bulletin 13, as amended and redelegated to me by Memorandum of Agreement dated August 16, 1994, the Constitution of the Pala Band of Mission Indians is hereby approved retroactive to the date of adoption on November 12, 1997; PROVIDED. that nothing in this approval shall be construed as authorizing any action under this document that would be contrary to Federal law.
Acting Regional Director
JUL 15Za[f
Sincerely,
Virgil Townsend Superintendent
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS SOUTHERN CALIFORNIAAGENCY
. 20M 10WAAVF-NUE,SUETE 101'
RIVERSIDE, CALIFORNIA 92507.2471 . PHONE (909) 276;6624' FAX (909) 276-6641
IN REPLY REFER TID:
Tribal Operations Pala
.
r. r ' r I t
OCT 042000 PaMi
Mr. Robert Smith, Chairman Pala Band of Mission Indians P.O. Box 50 Pala, California 92059
Dear Mr. Smith.. In preparation for the Pala per-capita we discovered that official notification bad not been
sent to the Band regarding the approval for the Constitution of the Pala Band of Mission ,
Indians. Enclosed for the tribal.records is a copy of the "Certificate of Approval." by the
Acting Regional Director, Pacific Region approving the document retroactive to the date
of adoption November 12 1997. We apologize for the delay in providing this official
notification.
Enclosure(s)
Certification of Minutes and Records for the two (2) Constitutional Amendments made in the year Two-Thousand and Three (2003).
I, Klima Sibimoat Latin, the duly elected Secretary of the Pala Band, in this year of 2006, hereby declare that, to the best of my knowledge, no certification page exists on
record for the two Constitutional amendments made by the General Council in November of 2003; however, the official minutes and records of the Tribe indicate that the above is
true and correct.
Ickapea S. Lattin Tribal Secretary
-Office of the Secretary-
AMENDMENTS TO THE CONSTITUTION OF THE PALA BAND OF MISSION INDIANS
AMENDMENT
WHEREAS:
1. The Pala Band of Mission Indians ("Tribe") is governed by a federally recognized Constitution 'mown as the Constitution of the Pala Band of Mission Indians; and
2. Pursuant to Article HI, Section 1, the governing body of the Tribe is the General Council; and
3. Pursuant to Article V, the elected representatives of the General Council are known as the Executive Committee; and
4. The Tribe may amend its Constitution in accordance with ARTICLE IX, Section 2; now
THEREFORE BE IT RESOLVED THAT:
1. During the November ballot in the year two thousand and three (2003), the General Council, pursuant to Article IX, Section 2, amended its Constitution; and
2. The amendment made was to Article V, Section 2, "QUALIFICATIONS"; and
3. The amendment was to add subparagraph, "D," which reads:
Any criminal conviction or adverse civil judgment having to do with theft, dishonesty or fraud, will exclude that person's name from being placed on the ballot and running for Executive Committee.
CERTIFICATION
We, the undersigned members of the Executive Committee, hereby certify that the above amendment to the Constitution of the Pala Band of Mission Indians was duly adopted during the November ballot in the year two thousand and three (2003), pursuant to Article IX, Section 2 of the Constitution, by a vote of 338 in favor and 37 in opposition.
Robert H. Smith, airman Leroy H. Miranda Jr., Vice-Chairman
'
Klima Sibi?netet Lanni, Secretary
Theresa J. Nieto, Treasurer
Annalee Yanez Committee Dion Perez, Committee
-Office GI the Secretar:r
AMENDMENT II
WHEREAS:
I. The Pala Band of Mission Indians ("Tribe") is governed by a federally recognized Constitution known as the Constitution of the Pala Band of Mission Indians; and
2. Pursuant to Article HI, Section 1, the governing body of the Tribe is the General Council; and
3. Pursuant to Article V, the elected representatives of the General Council are blown as the Executive Committee; and
4. The Tribe may amend its Constitution in accordance with ARTICLE IX, Section 2; now
THEREFORE BE IT RESOLVED THAT:
I. During the November ballot in the year two thousand and three (2003), the General Council, pursuant to Article IX, Section 2, amended its Constitution; and
2. The amendment made was to Article V, Section 4, "TERM OF OFFICE," which formerly read:
Section 4. TERM OF OFFICE
All Executive Committee members shall be elected for a term of two years, or until their successors are duly elected. The terms shall be staggered with the Chair, Treasurer, and one at-large Executive Committee member being elected in even- numbered years and the Vice-Chair, Secretary and the other at-large Executive Committee member being elected in odd-numbered years.
3. The amended language reads:
Section 4. TERM OF OFFICE
May serve only two (2) consecutive terms.
CERTIFICATION
We, the undersigned members of the Executive Committee, hereby certify that the above amendment to the Constitution of the Pala Band of Mission Indians was duly adopted during the November ballot in the year two thousand and three (2003), pursuant to Article IX, Section 2 of the Constitution, by a vote of 270 in favor and 106 in oppositio
(Rebell H. Smith, Chaiean Leroy H. Miranda Jr, Vice-Chairman
KirnirSibimopt Lattin, Secretary ThSesa J Nieto, Treasurer
Atnalee Yanez, Committee Dior. Perez, Committee -Office of the Secretary-
Earci :).? :ttif,e7zrz
74: R7 tlit 72
S -517C
AMENDMENT In
WHEREAS:
I. The Pala Band of Mission Indians ("Tribe") is governed by a federally recognized Constitution known as the Constitution of the Pala Band of Mission Indians; and
2. Pursuant to Article III, Section 1, the governing body of the Tribe is the General Council; and
3. Pursuant to Article V. the elected representatives of the General Council are known as the Executive Committee; and
4. The Tribe may amend its Constitution in accordance with ARTICLE IX, Section 2; now
THEREFORE BE IT RESOLVED THAT:
1. During the December ballot, in the year two thousand and six, (2006), the General Council, pursuant to Article IX, Section 2, amended its Constitution; and
2. The amendment made was to Article V. Section 4, "TERM OF OFFICE," which formerly read:
Section 4. TERM OF OFFICE
May serve only two (2) consecutive terms.
3. The new amended language reads:
Section 4. TERM OF OFFICE
Each Executive Committee member shall be elected for a term of two years, or until his/her successor is duly elected and takes office. Terms shall be staggered with the Chairman, Treasurer and one at-large Executive Committee member being elected in even numbered years; and the Vice-Chairman, Secretary and other at-large Executive Committee member being elected in odd-numbered years. There shall be no limit on the number of terms which an individual may serve in any Executive Committee position.
ro H. Miran a Jr., Vice-Ch an
Kama Sibimoat Lattin, Secretary
,,en fir
Ort H. Smi Cnalrman
Theresa J Nieto, Treasurer
CERTIFICATION
We, the undersigned members of the Executive Committee, hereby certify, on this 5 th day of December, that this amendment to the Constitution of the Pala Band of Mission Indians was duly adopted by the People of Pala during the December ballot, in the year two thousand and six (2006), pursuant to Article IX, Section 2 of the Constitution, by more than a two-thirds vote of more than 50% of the eligible voters of Pala, with 337 in favor and 150 in opposition.
Annalee Yanez, Committee
Dion Perez, Committee
-Office of the Secretary-
