The Law Office of

Andrew W. Twietmeyer

September 10, 2015

Via U.S. Mail and e-mail
Sara Dutschke Setshwaelo
Dentons US LLP
525 Market Street
26th Floor
San Francisco, CA 94105-2708
Sara.setshwaelo@dentons.com
Re:

Agua Caliente Tribe1 of Cupeo Indians of the Pala Reservation

Dear Ms. Dutschke Setshwaelo,

This letter responds to your letter of September 1, 2015 (attached hereto at Tab A). I
received the letter upon my return from the holiday weekend on September 8. There are number
of issues in the letter that my Client, the Agua Caliente Tribe of Cupeo Indians of the Pala
Reservation (the Agua Caliente Cupeo) finds troubling:
First, you identify yourself as counsel for the Pala Band of Mission Indians (hereinafter
the PBMI). As you should know, under the PBMIs Constitution, the General Council is
authorized to employ legal counsel pursuant to federal law and subject to the approval of the
Secretary of the Interior. See PBMI Constitution Article III, Section 2.B. In case you were
unaware of that requirement, a copy of section 2.B is attached hereto for your reference. See Tab
B. My Client is unaware of any such approval or authorization and believes it to be unlikely.
Therefore, as a courtesy, and to facilitate open and direct communication, please immediately
send me documentary evidence of 1) the PBMI General Councils and the Secretary of the
Interiors authorization and approval for you to represent the PBMI; and 2) when such
authorization and approval was effected. Until such time as I receive that documentation, I must
conclude that you represent Robert Smith in his individual capacityan engagement which, I
hope, Mr. Smith is paying for personally and not with tribal assets.
Second, The Proposed Settlement you repeatedly reference in your letter has only ever
been in draft form and was not, with my Clients knowledge or authorization, ever submitted to
1

Your September 1, 2015 letter refers to the Agua Caliente Band. Kindly note that my Client is not a band, it is
a tribe.
10780 Santa Monica Blvd., Suite 401, Los Angeles CA 90025
310.909.7138
awt@twietmeyerlaw.com

Letter to Sara Dutschke Setshwaelo

September 10, 2015
Page 2 of 5
the Bureau or any other U.S. Government agency. Indeed, I myself, as the Agua Caliente
Cupeos attorney, have not even been asked to provide any formal review or comment upon this
draft Settlement Proposal. On behalf of my Client, I demand to know where and how you
obtained the Draft Settlement Proposal that you reference in your letter. Please immediately send
me a copy of the document as well so that my Client may compare it with its own records.
Third, even if the Settlement Proposal had been transmitted to the BIA (and it has not),
your outrage at the Proposed Settlements contents is, in any case, without foundation. I should
hardly have to explain to a fellow member of the bar that a Proposed Settlement cannot
reasonably be interpreted as a representation of the positions and beliefs of all putative settling
parties. It is a proposal only. In other words, your contention that, my Clients Proposal that the
PBMI should agree to particular terms, somehow operates to misrepresent that the PBMI has
agreed to such terms is, quite frankly, absurd. Accordingly, I am decidedly unimpressed by your
threat of legal action for fraud or passing off against my Client. Please be advised that if you
pursue any legal actions against my Client on such bases, I will move for sanctions against you
under applicable federal or state law sanctioning frivolous pleadings.
While it was not my Clients intention to circulate the Draft Proposed Settlement, it is
now apparent that the Proposed Settlement has somehow been leaked to you and/or the PBMI.
Therefore, to ensure clarity, and since you have taken such a keen interest in the Settlement
Proposal, I have attached a copy hereto for your, and (now) the Bureaus, records. See Tab C.
Please have Mr. Smith convey to the PBMI that, if they have an interest in discussing the
Proposed Settlement Terms, my Client is amenable to such a discussion, and that PBMIs
authorized and approved counsel should contact me.
Your letter also makes reference to a January 7, 2015 letter. See Tab A at p. 2. My
Client sent that letter to the attention of Regional Director Amy Dutschke and her subordinates at
the Pacific Regional Office only. How did you or your client obtain a copy of that letter? I am
given to understand that Regional Director Dutschke is a relation of yours. Is that true? Did she
transmit the letter to you or your client? Please advise immediately as to where you obtained that
letter. The fact that you have cited my Clients private communications with the Bureau in your
letter is very troubling to my Client. If I do not receive an immediate explanation of who gave
you or your client that letter and when, then I must, reluctantly, assume some impropriety.2
Incidentally, there is nothing in that January 7, 2015 letter that misrepresents the facts or
positions of any party. A copy of the letter is attached hereto at Tab D.

The appearance of impropriety in this instance (whether or not impropriety, in fact, exists) starkly illustrates
why my Client believes it is unlikely that the Bureau has approved you to represent the PBMI. Accordingly, I
re-iterate my demand that you provide evidence of your authorization and approval as requested above.

Letter to Sara Dutschke Setshwaelo

September 10, 2015
Page 3 of 5
The balance of your letter is comprised of vague and unsupported pronouncements that
my Clients claims, and the rights my Client asserts, are all factually baseless. Nothing could be
further from the truth. There is ample historical documentary evidence showing that the Agua
Caliente Cupeo and the Pala Band of Luiseo Mission Indians (the Pala Luiseo) entered
independent government-to-government relationships with the United States over a century ago.
By contrast the association known as PBMI was formed no earlier than 1961, and the United
States has never recognized the PBMI as a tribe. Therefore, I must vigorously take issue with
your repeated, baseless, assertions that the Agua Caliente Cupeo are usurping any right or
entitlement of the PBMI. The historical record demonstrates quite the contrary. In that regard,
and since you appear to have access to my Clients private communications with the Bureau, I
direct your attention to my June 16, 2015 letter to Division of Indian Services Chief, Laurel Iron
Cloud and the voluminous Exhibits attached thereto.
As a final note, I have been advised that during last nights PBMI General Council
meeting, the PBMI purported to evict or banish Ms. Howard and Mr. Johnson from the Pala
Reservation based on the spurious allegations contained in your letter and their purported failure
to cease and desist their purportedly treasonous conduct. I wish to note that Ms. Howard and
Mr. Johnson were slated for banishment on the meeting agenda circulated almost a week before
your letter was even sent. See Tab E, see also PBMI Constitution Article III, Section 3.D
(requiring 14 days notice for all regular meetings.) That meeting notice provided no grounds for
the eviction. Therefore, even if Ms. Howard and Mr. Johnson were engaged in some improper
activity (and they were not) your Clients accusation that your September 1 letter (received by
me on September 8) gave Ms. Howard and Mr. Johnson adequate notice prior to last nights
meeting is transparent nonsense.
More importantly, my Client does not recognize, and in fact, strenuously objects to your
Clients claim of authority to bar any of the Agua Caliente Cupeo from lands that were
purchased for the benefit of the Warner Ranch Evicteesi.e. the Agua Caliente Cupeoat the
direction of Congress. See 32 Stat. 257 (May 27, 1902). Ms. Howard and Mr. Johnson are both
members of the Agua Caliente Cupeo, and, as such, have a right to enter upon, and benefit
from, those lands. Should Mr. Smith purport to bar them from entry, he will be acting in
violation of Ms. Howards, and Mr. Johnsons rights, and grossly in excess of his authority as
Chairman of the PBMI. Please be advised that the Agua Caliente Cupeo will respond as
necessary to preserve and ensure its rights and the rights of its individual members.
I have also learned that Mr. Smith announced at last nights meeting that that he intends
to take action to disenroll Agua Caliente Cupeo Tribal Chairman William Pink from the PBMI
based on Mr. Pinks enrollment in the Agua Caliente Cupeo. As your letter notes (see Tab A,
p. 4, para 2) such action is only Constitutionally-authorized if the Agua Caliente Cupeo are
federally recognized. See Constitution Article II, Section 3. Accordingly, please advise Mr.

Letter to Sara Dutschke Setshwaelo

September 10, 2015
Page 4 of 5
Smith that my Client will treat the PBMIs disenrollment of Mr. Pink as the PBMIs concession
that the Agua Caliente Cupeos claim to federal recognition is valid and proper.
I anticipate your prompt response to the requests I have made above not later than the
close of business on Monday September 14, 2015. If I do not receive them by then, I will be
forced to proceed under the understanding that you are not authorized or approved to represent
the PBMI and that you, or the PBMI, have been granted access to my Clients private
communications with the Bureau.
Yours Sincerely,

/s/
Andrew W. Twietmeyer
Attorney for the Agua Caliente Tribe of
Cupeo Indians of the Pala Reservation
cc:
Kevin Washburn, Assistant Secretary
Department of the Interior
Bureau of Indian Affairs
MS-3642-MIB
1849 C. Street, N.W.
Washington, DC 20240
Kevin.washburn@bia.gov

Scott Keep, Assistant Solicitor

Branch of Tribal Government & Alaska
Division of Indian Affairs, Room 6515
Office of the Solicitor, Mail Stop 6513
U.S. Dept. of the Interior
1849 C Street, NW
Washington, DC 20240
scott.keep@sol.doi.gov

Laurel Iron Cloud

Chief, Division of Indian Services
Bureau of Indian Affairs
1849 C Street NW
Mail Stop 4513 MIB
Washington, DC 20240
Laurel.ironcloud@bia.gov

Lee Fleming
Director, Office of Federal Acknowledgment
Assistant SecretaryIndian Affairs
1951 Constitution Ave. NW
MS-34B SIB
Washington, DC 20240
lee.fleming@bia.gov

[Continued on next page]

Letter to Sara Dutschke Setshwaelo

September 10, 2015
Page 5 of 5
Amy Dutschke
Pacific Regional Director
Pacific Regional Office
Bureau of Indian Affairs
2800 Cottage Way
Sacramento, CA 95825
Amy.dutschke@bia.gov
Dale Risling
Deputy Region Director, Indian Services
Pacific Regional Office
Bureau of Indian Affairs
2800 Cottage Way
Sacramento, CA 95825
dale.risling@bia.gov
Harley Long
Tribal Government Officer
Pacific Regional Office
Bureau of Indian Affairs
2800 Cottage Way
Sacramento, CA 95825
harley.long@bia.gov
Joginder Dhillon
Office of the Governor
State Capital, Suite 1173
Sacramento, California 95814
joe.dhillon@gov.ca.gov

Tab A

DENTONS

Sara Dutschke Setshwaelo

Sen ior Managing Associate

sara.setshwaelo@dentons.com
D +141588201 20

Salans FMC SNR Denton

McKenna Long
dentons.com

Dentons US LLP
525 Market Street
26th Floor
San Francisco, CA 94105-2708 USA
T +1 415 882 5000
F +1 415 882 0300

September 1, 2015

Andrew W. Twietmeyer
Law Office of Andrew W. Twietmeyer
10780 Santa Monica Blvd.
Suite 401
Los Angeles, CA 90025

Re:

Agua Caliente Band of Cupeiio Indians of the Pala Reservation

Dear Mr. Twietmeyer:

We write on behalf of our client, the Pala Band of Mission Ind ians (the "Tribe" or "Pala Band"),
concerning the efforts of your client, the "Agua Caliente Band of Cupeno Indians of the Pala Reservation,"
to usurp the identity of the Tribe and claim its assets and lands as its own.
It has come to the Tribe's attention that, in or around December 2014, your client purported to
form a new tribal entity, bearing the name "Agua Caliente Band of Cupeno Indians of the Pala
Reservation." We understand your client claims a right to federal recognition by way of the United States'
longstanding government-to-government relations with a different tribe, specifically, the Pala Band.
Putting aside the fallacy of this reasoning , your client is certainly free to seek federal recognition.
However, it may not purport to speak for the Pala Band in doing so. Nor may your client (or you) make
fraudulent statements and misrepresentations to the federal government or other third parties to achieve
your ends.
We note in particular a number of false statements made by your client. For example, your client
falsely claims the Pala Band is not a federally recogn ized Indian tribe. (See, e.g, 80 Fed .Reg. 1942, 1945
1
(Jan. 14, 2015).) In addition, your client erroneously claims the Pala Reservation is inhabited and
controlled by three separate tribal entities - including your client - and not solely by the Tribe. Your
client also falsely claims your client's members (and presumably their ancestors) adopted the Tribe's first
governing document (the Articles of Association), and that your client's members "allowed" the Pala
Band's leadership to participate in the Tribe's government. (See "Agua Caliente and San Felipe
Proposed Settlement of the division of Assets of the Pala Reservation" ("Proposed Settlement"), at 4.)
These are all patently erroneous statements. Even more troubling is the fact that your client attributes
these false statements to the Pala Band by, among other things, holding out the Proposed Settlement as
a document to which the Pala Band has apparently agreed.

That the Pala Band is presently listed in the Federal Register as the "Pala Band of Luiseno Mission
Indians of the Pala Reservation , California" is of no consequence. The Pala Band has used the "Pala
Band of Mission Indians" name for decades, including , without limitation , in its government-to-government
relations with the United States.

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September 1, 2015
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Based on these falsehoods, your client claims a right to compensation from the United States for
supposedly failing to recognize them as a distinct tribal entity, but it has offered to hold the United States
harmless for this supposed failure upon distribution of "the assets of the Pala Reservation." (Proposed
Settlement, at 6.) It would appear that both you and your client have communicated this position to the
United States through various letters, emails and meeting requests which , not surprisingly, exclude the
Tribe. This claim is patently spurious because there exists no factual foundation to support your case .
Moreover, your client may not purport to (1) challenge the Pala Band's legitimacy as a federally
recognized tribal entity; and at the same time (2) purport to claim thG Pala Band's assGts may bG dividGd
as assets rightfully possessed by three tribal entities. Your legal theory is not only contradictory and
nonsensical , but rests on political questions beyond the reach of any federal Indian case law you
apparently hope to enforce.
In the end, it is clear that this amounts to nothing more than the efforts of a disaffected splinter
group - consisting primarily, of disgruntled persons who are no longer members of the Tribe based on
their failure to satisfy the Band's membership criteria, and a few of their misguided relatives who remain
enrolled in the Pala Band. Their collective effort to form a new tribal entity on the back of the Pala Band ,
by claiming the Tribe's assets and federal recognition as their own violates both Tribal and federal law.
To be sure, your client admits that the effort to formally organize comes "after four very long years" of
attempting to "associate with the Pala Band of Mission Indians." (Letter to Pacific Regional Office from
Agua Caliente Tribe of Cupeno Indians of the Pala Reservation (Jan . 7, 2015) , at 2.) Not coincidentally ,
this timing coincides with the Tribe's determination that Margarita Brittain - the person through whom
certain of your clients claimed membersh ip in the Pala Band - had insufficient blood quantum to satisfy
the Pala Band's membership criteria, and the Tribe's subsequent and consequent action to disenroll some
of her descendants. As you also must know, several of your client's' members have spent the past fours
years fighting the Tribe's sovereign decision regarding their entitlement to membership, through suits
against the Tribe, its elected leadership, and the United States. Of course, their litigation efforts failed .
Your client's position with regard to the status and assets of the Tribe is similarly curious, given
the fact that many of your client's members reaped the benefits of Tribal membership for many years, with
certain of you client's members even serving in Tribal government and various other roles within the Tribe.
Indeed , some of your client's members still receive substantial benefits from the Tribe (including, among
other things , monetary distributions, healthcare, and education) as a result of their membership in the
federally recognized Pala Band. These are the same people who are claiming the Pala Band is not tru!y
or properly federally recognized. That, of course , would necessarily mean that the benefits they have
received , and that some continue to receive, are ill gotten and unlawful.
While we expect your client will try to hide behind the First Amendment, fraudulent statements, or
purporting to take positions for another (which could amount to passing off), are not protected First
Amendment speech. The Tribe has never authorized your client to communicate with the United States
on its behalf, or purport to take positions on its behalf, including, but not limited to , the manner by which
its assets may be held or divided. Nevertheless, your client has submitted the Proposed Settlement to
the United States, where it purports to represent that certain actions have been agreed upon by the Band,
to wit

the Tribe shall be governed by a federally-approved constitution and that the Tribe's
membership "shall be comprised of members of the San Felipe Village, Landless
Indians, Old Pala Allottees and Allotted Adoptees , Allotted Mexican Citizens, and

Allotted non-Landless Cahuilla Indians" (Proposed Settlement, at 6);

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Andrew W . Twietmeyer
September 1, 2015
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persons whose application for enrollment in your client's group are rejected "shall
remain a member of the Pala Band of Mission Indians" (id., at 7) ;

allotments received by members of the Tribe "shall be governed by the Pala Band of
Mission Indians (id.);

the Tribe agrees "to partition the lands" at Warner Ranch by way of cancellation of
current patents and the issuance of new patents "to both" the Tribe and your client (id.):

the Tribe "recognizes" that it will share equally with your client the responsibility to
maintain and upgrade the Tribe's own infrastructure, and that the Tribe will expend it's
own resources to that end (id.);

the Tribe agrees to "share equal representation" on the Tribe's Gaming Commission
with your client, for purposes of operating and regulating the Pala Casino Resort and
Spa (an enterprise wholly owned and operated by the Tribe, and to which your client
has no rightful claim to ownership) (id., at 8);

members of the Tribe and your client shall be "entitled to equitable distribution of
gaming revenues" from the Tribe's Pala Casino Resort and Spa (notably, in violation of
the Tribe's federally-approved revenue allocation plan) (id.) ;

the Tribe agrees to develop a "good neighbor" policy with your client with regard to
various issues includ ing , without limitation, "tribal jurisdiction" (id.);

the Tribe agrees to the establishment of a "dispute resolution board ," and submission of
disputes between the Tribe and your client to a federal arbitrator for resolution (id.);

the Tribe agrees to the designation of Tribal lands for purposes of the development of a
cemetery for your client, and that your client's members may be buried in the Tribe's
cemetery (id.); and

that the Tribe shall submit the "agreement" between it and your client for approval by
the Tribe's General Council (id.).

Your client's members are fully aware that the Tribe has not agreed to these provisions or
allowing your client to commandeer the Tribe's government, citizenry, lands, assets and relationship with
the United States. Accordingly, the Tribe demands that you and your client immediately cease and
desist all communications with the United States, and any other federal, state or local
governmental or non-governmental entity, wherein your client purports to be, represent, or act on
behalf of the Tribe.
The Pala Band will consider taking appropriate action against members of your cl ient who have
comm itted , and continue to commit, violations of Tribal law. The repercussions of continuing these
actions are very serious. First, through their actions to usurp the Tribe's government and assets for their
own benefit, several of your client's members - including Kenneth Johnson and Gina Howard, who
purport to serve as the Vice-Chairman and Secretary/Treasurer of your client - are engaging in actions
that subject them to permanent exclusion from the Pala Indian Reservation . To be sure, the Pala Band
can , and almost certainly will , immediately and permanently exclude any non-members who engage in

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September 1, 2015
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any activity that: interferes with the Tribe's government, by threatening persons and/or property on the
reservation; breaches the peace, causes public LJnrest; or, creates a nuisance or endangers the welfare
of the Tribe and Reservation residents. Mr. Johnson, Ms. Howard, and any other of your client's
members who reside on or visit the Pala Indian Reservation are guests of the Tribe and have no
entitlement to enter or reside upon the Tribe's land?. Accordingly, the Tribe may initiate eviction and
exclusion proceedings against them should their -unlawful actions continue.
The Tribe also notes that there are strict prohibitions against dual enrollment in the Tribe and any
other tribal entity. 2 Specifically, the Tribe's laws provide that any individual who is a member of another
Indian tribe shall be ineligible for membership in the Tribe. Individuals who enroll in another tribe after
enrolling in the Tribe must immediately notify the Tribe of such enrollment, and shall be deemed to have
relinquished membership in the Tribe on the effective date of enrollment in another tribe. Individuals who
fail to notify the Tribe of their dual enrollment status may be subject to disenrollment proceedings, at least
in the unlikely event your client at any point manages to gain federal recognition.
The unlawful efforts of a handful of people (including Tribal members) to divide the Tribe's
government and assets presents a grave risk to the welfare of the Tribe and its members. Should these
unlawful, and indeed treasonous actions on the part of Pala Band members continue, the Tribe's
government will have no choice but to take appropriate action through the authority of the Pala Band's
General Council.
Sincerely,

~
Senior Managing Associate

The Tribe is aware that at least two members of the Tribe claim membership in your client's tribe William J. Pink and Reyes "King" J. Freeman.