John et al v. Garcia et al

Filing 50

ORDER AFTER HEARING ON 35 MOTION TO DISMISS. Signed by Judge Alsup on 2/2/2017. Motion Hearing set for 3/16/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (whalc2, COURT STAFF) (Filed on 2/2/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ADRIAN JOHN, SR., et al.,

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For the Northern District of California

United States District Court

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No. C 16-02368 WHA

Petitioners,
v.

ORDER AFTER HEARING
ON MOTION TO DISMISS

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AGUSTIN GARCIA, et al.,

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Respondents.
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This petition for writ of habeas corpus is grounded in a long history of conflict and

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litigation between different factions of the Elem Indian Colony of Pomo Indians (the “Tribe”).

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The Tribe’s governing body is a general council composed of all qualified voting members,

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which delegates various powers to a biennially elected executive committee. Following a

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disputed Tribal election in November 2014, the results of which are still undergoing review by

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the Interior Board of Indian Appeals, respondents established themselves as the Tribe’s current

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executive committee.

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On March 28, 2016, respondents issued an “Order of Disenrollment” to petitioners and

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other Tribal members, accusing the recipients of “violating the laws of [the Tribe]” and stating,

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“If you are found guilty by the General Council of these offenses against the Tribe, you may be

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punished by . . . DISENROLLMENT - loss of membership” (Dkt. No. 30-1 at 12). Then, on

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June 2, 2016, respondents issued a “Disenrollment Notice of Default” that stated, “You are . . .

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found guilty of the offenses against the Tribe charged against you in the Complaint and your

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punishment for those offenses is . . . Loss of Membership: Disenrolled from the Elem Indian
Colony as of June 2, 2016” (Dkt. No. 14-1 at 5 (bold and underline in original)).

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Contrary to the plain text of the disenrollment order and notice of default, however,

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counsel and the current Tribal Chair for respondents represented at the hearing on their motion

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to dismiss today that not a single petitioner is currently disenrolled. Moreover, counsel and the

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Tribal Chair represented that the disenrollment order and notice of default are ineffective and,

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for all intents and purposes, dead letters; that no petitioner needs to do anything, including

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appear before the general council, in response to either document; and that no disenrollment

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proceedings are currently underway or pending against any petitioner. In short, respondents

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have unequivocally conceded away the entire disenrollment issue, and all collateral

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consequences thereof — including the prospect of permanent banishment that is the crux of this

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For the Northern District of California

United States District Court

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petition — have apparently evaporated.
The Court is thus inclined to dismiss this petition. The volatility of relations between

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the two sides, however, is such that the potential need for relief in the near future remains a real

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possibility. This action, moreover, has been plagued by evolving and shifting facts and

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narratives, and testimony elicited during the hearing today suggests some effects of

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respondents’ now-repudiated actions — such as the denial of medical services to petitioners

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based on their purported “disenrollment” — continue to reverberate.

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Accordingly, this order DEFERS ruling on respondents’ pending motion to dismiss. A

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further hearing on this matter is set for MARCH 16. In the meantime, petitioners shall issue

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subpoenas and take depositions as needed to discover evidence, if any, of the practical effects of

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respondents’ disenrollment order and notice of default on petitioners. By FEBRUARY 8,

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respondents shall submit a declaration, under oath, with an accurate list of all currently

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disenfranchised Tribal members, along with their terms of disenfranchisement and the dates of

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the general council meetings at which said disenfranchisements occurred.

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IT IS SO ORDERED.

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Dated: February 2, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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