IN THE TRIAL COURT OF THE SHINGLE SPRINGS BAND OF MIWOK INDIANS TRIBAL COURT

SHINGLE SPRINGS, CALIFORNIA

IN RE THE MATIER OF:
May Cook Keola Family Descendants, et al.
PETITIONERS
v.
Shingle Springs Tribal Council
RESPONDENT
CASE NO.: EN-2014-01
DECISION
SHINGLE SPRIN
FIL
21
This court heard and considered an Appeal from Tribal Council's action of March 7, 2014 to disenroll
the Petitioners from the Shingle Springs Band of Miwok Indians. The Petitioners' , May Cook Keola
Family Descendants, et al., were represented by Attorney Thor Emblem. The Respondent, Shingle
Springs Tribal Council was represented by Attorneys Mary Kay Lacey and AmyAnn Taylor. The court
read the parties pleadings and heard argument regarding this matter on June 4, 2014.
SUMMARY:
Petitioners appeal the March 7, 2014 decision of the Tribal Council of the Shingle Band of Miwok
Indians ("Respondents") to disenroll members of the Cook Keola Family. Petitioners claim, through
various arguments, that Respondent's decision was arbitrary and capricious in violation of tribal law.
This Court is not persuaded by the Petitioners' arguments. The decision of the Respondent,
disenrolling the Petitioners, is upheld.
FACTS:
The Shingle Springs Band of Miwok Indians base membership roll is created from a United States
Department of the Interior census conducted in the year 1916 of the Indians at and near Verona in
Sutter County, California. In order to meet the membership criteria a person must be listed on the
1916 Census Roll or be a lineal descendant of an individual listed on the 1916 census roll. (Shingle
Springs Band of Miwok Indians Enrollment Ordinance Approved 9.4.13).
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IN THE TRIAL COURT OF THE SHINGLE SPRINGS BAND OF MIWOK INDIANS TRIBAL COURT
SHINGLE SPRINGS, CALIFORNIA
All of the Plaintiffs have been basing their eligibility for membership on one relative, May Cook Keola.
When May Cook Keola originally applied for membership in 1971, she stated her parents as being John
and Martina Cook who are both on the 1916 census. The controversy arose when it was discovered
that, while other children of John and Martina Cook are listed on the 1916 census, there is no mention
anywhere of a May Cook on the 1916 census. After an investigation and hearing before the Tribal
Council, Respondents disenrolled the Petitioners from the Shingle Springs Band of Miwok Indians
based on the Tribal Councii
1
S finding that there was insufficient evidence to conclude that it was more
likely than not that Petitioners are lineal descendants of a person on the Shingle Springs Band of
Miwok Indians' base roll.
ANALYSIS:
Under the Shingle Springs Band of Miwok Indians Enrollment Ordinance, the Tribal Court has
jurisdiction over appeals of Tribal Council decisions to disenroll individuals and,
"shall only review and set aside the decision of the Tirbal Council, if the Tribal Court Finds it to
be:
(i) Arbitrary, capricious and an abuse of discretion, unsupported by substantial
evidence, or otherwise not in accordance with Tribal law; or
(ii) Without observance of procedure required by this Ordinance."
Petitioners did not argue, nor did the court find any other evidence, that Respondent failed to observe
any procedure required by the Enrollment Ordinance. Therefore the only question the court was to
consider was whether or not the Respondent's decision was "[a]rbitrary, capricious and an abuse of
discretion, unsupported by substantial evidence, or otherwise not in accordance with Tribal law."
There were efforts by both parties to define the legal standard of review, "arbitrary and capricious",
however, the standard is well defined in the Enrollment Ordinance. "Arbitrary and capricious" is "an
abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with [Tribal]
law." Thus to overturn a decision of the Tribal Council on a matter of disenrollment the Court must
find the decision was an abuse of discretion, unsupported by substantial evidence or otherwise not in
accordance with Tribal law.
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IN THE TRIAL COURT OF THE SHINGLE SPRINGS BAND OF MIWOK INDIANS TRIBAL COURT
SHINGLE SPRINGS, CALIFORNIA
Petitioners claim that the Tribe's Articles of Association incorporates the "federal standard of due
process" by reference to the Indian Civil Rights Act. Petitioners further argue that the alleged
incorporation of the "federal standard of due process" means that the Court should weigh evidence
that supports the determination as well as evidence that detracts from it. The court disagrees that this
is what is meant by an incorporation of the Indian Civil Rights Act.
Due process, at its most basic, can be defined as notice and an opportunity to be heard. It is essentially
the foundation for creating a forum for a fair resolution to a dispute. The Shingle Springs Band of
Miwok Indians has adopted a process for determining enrollment matters that requires notice to the
individuals of potential disenrollment actions and the right to a hearing before the Tribal Council.
Further, the Enrollment Ordinance was amended in 1990 to add (among other edits) a procedure for
appealing decisions to the Tribal Court. In this case, as previously stated, Respondent complied with all
of these procedures. There is nothing patently unfair about using the "arbitrary and capricious"
standard for review of decisions on appeal. Therefore, if the Shingle Springs Band of Miwok Indians did
incorporate by reference the Indian Civil Rights Act due process standard, then the Court finds
Petitioners were afforded due process in this case.
Petitioners further claim that the Respondent's decision was arbitrary and capricious because there
was evidence that would support a decision contrary to the one made by Respondent. Petitioners
question the weight Respondents gave to certain evidence versus other evidence in reaching their
decision and ask the Court to assign some evidence different weight than Respondent did in order to
reach a different conclusion than Respondent. This is not the evidentiary standard for the Court's
review, as it is so clearly defined in the Enrollment Ordinance (and quoted above). The question,
before the court, as it relates to evidence, is not, whether or not the Tribal Council could have or
should have reached an alternative decision based on the evidence Respondent relied on. The
question is, whether or not the decision Respondent reached was unsupported by substantial
evidence.
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IN THE TRIAL COURT OF THE SHINGLE SPRINGS BAND OF MIWOK INDIANS TRIBAL COURT
SHINGLE SPRINGS, CALIFORNIA
The Respondent relied on all the evidence it had at the time of the hearing on the disenrollment which
is now reflected in the Administrative Record for this case which is 1371 pages long and reflects both
documents and testimony. While there may arguably exist evidence to support a different decision in
the administrative record of this case, there is certainly substantial evidence to support the
Respondents decision that there was insufficient evidence to conclude that it was more likely than not
that Petitioners are lineal descendents of a person on the base roll. Most compelling is the report from
the professional genealogy company that Respondents relied on. Petitioners contest the findings of
this report. Still, it cannot be deemed arbitrary and capricious, by any stretch of the imagination, to
rely on a professional report, prepared using considerable time and resources.
Petitioners question the ferocity of the investigation by the Enrollment Committee, the genealogy
company and the Respondent to discover evidence that would lead to a conclusion that Petitioners are
lineal descendents of a person on the base roll. Petitioners assert that there may be evidence, which
was not in the Administrative Record, which might have convinced Respondents to make a different
decision if only the Petitioners had more time to discover such evidence.
1
Further, Petitioners assert
that it is not their burden to prove that they meet the membership criteria but rather it was
Respondents burden to establish Petitioners did not meet the membership criteria.
The actual burden as described in the Enrollment Ordinance, is that the Enrollment Committee must
demonstrate to the Tribal Council that, "evidence in the Tribal records and member's files fails to show
the member satisfies the membership criteria" and, "before any final disenrollment action is
taken ... the affected individual(s) will have the right to submit evidence to the Tribal Council that is
probative of [their] lineal descent from a person on the Base Roll." (Enrollment Ordinance Section
(2)(c)). The Court finds no indication that Respondent refused to consider any evidence that was
probative of the Petitioners lineal descent that was available at the time of the Tribal Council hearing
on the matter. Additionally, Respondents have made a special exception to the Enrollment Ordinance
process for Re-Application for Membership in the Tribe. For this case only, Respondents have agreed
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Petitioners have discovered at least 2 documents since the Tribal Council hearing they feel are probative in this matter.
Additionally, Petitioners are seeking potentially probative evidence that is in the possession of the Department of the Interior,
which thus far, has been undiscoverable by the Petitioners even through the Freedom of Information Act process.
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IN THE TRIAL COURT OF THE SHINGLE SPRINGS BAND OF MIWOK INDIANS TRIBAL COURT
SHINGLE SPRINGS, CALIFORNIA
to allow any re-applications for membership with any and all new evidence even if DNA evidence
cannot be secured, as would normally be required under the Enrollment Ordinance for consideration
of a re-application.
CONCLUSION:
While the Court is aware of the large impact upholding the Respondents decision to disenroll
petitioners has on Petitioners and the Shingle Springs Band of Miwok Indians, Respondent's action of
March 7, 2014 to disenroll the Petitioners from the Shingle Springs Band of Miwok Indians was not
arbitrary or capricious, it was based on substantial evidence and is therefore upheld.
Petitioners will have the opportunity to re-apply for membership by submitting new evidence to the
Shingle Springs Band of Miwok Indians even without submitting DNA evidence. If any re-applications
are accepted by the Shingle Springs Band of Miwok Indians the re-admitted members will be
considered members as of the date their re-application is accepted and any rights and/or benefits
flowing from membership will begin on the date the re-application is accepted.
Finally, the Court encourages all parties to find their own peace and healing around this difficult
matter. Shingle Springs Band of Miwok Indians membership criteria is based on demonstrating lineal
decent from individuals named in a census roll created in 1916 by the U.S. Department of the Interior.
It is the Court's opinion that difficulty in demonstrating this connection through documents and
evidence did not begin in 1971, 1990 or 2013. Rather this difficulty has existed since the roll was
created. Further it is not Shingle Springs Band of Miwok Indians or the individual Petitioners who have
created this difficulty.
It seems to this Court that the difficulty stems from the Department of the Interior's system wide
failure to keep complete, clear records, and make those available to Indian individuals while
simultaneously imposing their own census rolls on tribes to use as the basis for their membership
criteria. The Shingle Springs Band of Miwok Indians was defined by this census in 1916 and must
somehow continue to determine its membership in contemporary times while considering the historic
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IN THE TRIAL COURT OF THE SHINGLE SPRINGS BAND OF MIWOK INDIANS TRIBAL COURT
SHINGLE SPRINGS, CALIFORNIA
tribal, traditional character of its membership. This is no easy task and the outcomes of this ongoing
self-determination are complicated at best.
SO ORDERED.
CHRISTINE WILLIAMS, CHIEF JUDGE DATED: 6/13/2014
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IN THE TRIAL COURT OF THE SHINGLE SPRINGS BAND OF MIWOK INDIANS TRIBAL COURT
SHINGLE SPRINGS, CALIFORNIA
CERTIFICATE OF SERVICE
I certify that the Parties received a copy of this order :
~ e m i l as agreed to by the parties.
Date
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