aoe 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 ‘Alexandra K. Rawlings Washington Bar No. 55706 NEVADA LEGAL SERVICES, INC. 204 Marsh Avenue, Ste. 101 Reno, Nevada 89509 Phone: (775) 883-3491 Fax: (775) 284-3497 Email: aawlings@nlslaw.net Attorney for Respondents IN THE COURT OF INDIAN OFFENSES: FOR THE WESTERN REGION WINNEMUCCA INDIAN COLONY WINNEMUCCA INDIAN COLONY, ee cn Petitioner, vs, CIV-19-WR16 MYRL AYER, et al., and ae KEVIN DICK, etal., and CIV-19-WRI18 ELENA LOYA, etal., and , LESLIE SMART, JR., et al., and CIV-19-WRI9 DWIGHT BROWN, et al, and -19-WR2 ALL PERSONS RESIDING AT 232 S. ST., CIN-AS-WR20 Respondents. RESPONDENTS’ ANSWERING BRIEF COME NOW, RESPONDENTS DOREEN BROWN, LOUELLA STANTON, ELDON BROWN, DWIGHT BROWN, GILBERT GEORGE, and BLENA LOYA (“Respondents”) and submit this Answering Bri in the above captioned consolidated cases. ‘This Answering Brief is based on the Indian Reorganization Act, 25 U.S.C. § 5101 et, seq.; the Indian Civil Rights Act, 25 U.S.C. § 1301, et. seq. established tribal custom of the Winnemucca Indian Colony; the attached Memorandum of Points and Authorities; the attached exhibits; the attached Declarations of Doreen Brown, Elena Loya, Eldon Brown, Dwight Brown, Gilbert George, Louella Stanton, and Vivian Leyva; all papers and pleadings filed herein; and any oral argument which the Court may entertain. W W 7 ul Pack 1 oF 25Soe oe u 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 a RESPECTFULLY SUBMITTED this 6" day of February, 2020, Nevada Legal Services, Inc. ‘Washington Bar No. 33706" Attorney for Respondents a 7 ‘The remainder of this page intentionally left blank. PAOR2 oF 25Cee MEMORANDUM OF POIN’ AND AUTHORITIES L INTRODUCTION On June 13, 2019, Petitioner Winnemucca Indian Colony (“Petitioner”) filed numerous Petitions to Evict which have since been consolidated.' Prior to reaching the merits of the instant case, Respondents challenged this Court’s subject-matter jurisdiction, As a result, this Court issued an order on October 10, 2019 requesting that parties brief several issues regarding land status and rights on the Winnemucca Indian Colony. After holding a status conference on December 4, 2019, this Court entered a briefing schedule. This Answering Brief is submitted in response to Petitioner’s Opening Brief filed Dec. 23, 2019, and pursuant to the briefing schedule ordered by the Court, Il, QUESTIONS PRESENTED 1, What agency/entity is the proper and legal owner of the property known as ‘Winnemucca Indian Colony, and what status of Indian Country is the property? 2. Whether there was a sale of assignment on the Winnemucca Indian Colony, and who or what ageney/entity benefitted from the sale? 3. How are land assignments on the Winnemucea Indian Colony titled? 4, Who or what agency/entity has authority to regulate the use of the property on the Winnemucca Indian Colony and how was that authority conveyed? 5. Ifthere is lawful cause and authority to remove residents of the Winnemucca Indian Colony, whether there is a necessity for compensation based upon a taking of real property? Ill. SUMMARY OF THE ARGUMENT During the 1910s and 20s, the federal government set aside lands in the vicinity of Winnemucca for use by homeless Indians. The Paiute and Shoshone Indians who established homesites on these lands organized under the Indian Reorganization Act in 1935 as the Winnemucca Indian Colony, and for decades governed themselves without a constitution. When a constitution was adopted in 1971, the Bureau of Indian Affairs violated federal law by failing to certify the voting eligibility of the Indians who passed the Constitution, The membership provision ' Without citation to the record, Petitioners allege that orders of eviction have already been entered. See Pet.’s Opening Brief at 4 and 9. Orders of eviction have not been entered in the instant case, PAGE oF 25oS oO Socwra)a ion included terms that dis jualified the Winnemucca Indian Colony residents from voting, and effectively divested nearly all of them of their ability to self-govern. When the Bureau of Indian Affairs learned of this mistake and of their own failure to certify the voters, the Bureau breached their trust responsibility to the Winnemucca Indian Colony residents by failing to rectify the situation, Instead, the Bureau of Indian Affairs set in motion a series of events that have resulted in the instant eviction actions. Residents are now threatened with eviction from the only tant to homes that they have, despite having lawful homesite assignments granted and titled pu custom, Because of the unresolved legal issues regarding the Constitution’s enactment and application, the Court must look to tribal custom and unequivocal federal action in order to determine the outcome of this case. Since the residents of the Winnemucca Indian Colony reside on land held in fee by the federal government and for the benefit of the residents, these residents have authority to self govern and regulate use of the lands according to custom. IV. STATEMENT OF FACTS In 1917, President Woodrow Wilson i cutive Onder No, 2639 ued B etting aside 160 actes of federally owned rural Nevada land for use by the “Winnemucca Band” of “homeless Shoshone Indians.”* The following year, President Wilson set aside an additional adjacent 160 acres by Executive Order “for the use of a band of homeless Shoshone Indians.” However, homeless Indians did not establish homesites on these 320 acres, and instead built homes on a nearby twenty-acre tract, which was in closer proximity to the town of Winnemucea and which had access to water.* At the time, this twenty-acre land tract was owned by the Central Pacific Railway and the United States Trust Company of New York. Rather than relocating the Indians residing on the twenty-acre tract, the U.S. Government sought to acquire the land for use by the Indians.’ In 1928, Congress appropriated $500 “for the purchase of land in the vicinity of Winnemucca, Nevada . . . to be used as an Indian colony.” After appropriation of the moni s, the United States purchased the twenty-acre tract, and Central 2 Bx, 1; see also Ex. 21. Bx. 2; see also Bx. 21 4 See Ex. 21 5 See id Bx. 3, Pact 4 0F 25Ole u 12 13 14 15 16 17 18 19 20 21 22 4 28 26 2” 28 Pacific Railway Company and United States Trust Company of New York deeded the land “unto UNITED STATES OF AMERICA.”? The deed makes no mention of the purpose for the land transfer, and 20 acres of land were never taken into trust by Congress,.* In 1934 the United States passed the Indian Reorganization Act (“IRA”), ostensibly for the purpose of encouraging “self-determination, cultural pluralism, and the revival of tribalism.” ‘The IRA provided that ‘Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for the common welfare, and may adopt an appropriate constitution and bylaws, which shall become effective when ratified by # majority vote of the adult members of the tribe, or of the adult Indians residing on such reservation, as the case may be, at a special election authorized and called by the Secretary of the Interior ..”!° In June of 1935, the Indians residing on the 340 acres of federally set aside lands (hereinafter, the “Winnemucca Indian Colony” or the “Colony”) voted to organize under the IRA." In 1937, a proposed Constitution and By-Laws was submitted to Bureau of Indian Affairs BIA”), but was rejected on the basis that the language of the documents needed to more accurately reflect the local Indian population,'? Rather than organizing as the “Winnemucca Band of Shoshone Indians” (language adopted from the 1917 Executive Order), the BIA suggested “Winnemucca Indian Colony.” ‘The BIA acknowledged that the Colony was located “wholly within traditional Paiute territory,” and that, at the time, the residents were composed of one- third Shoshone Indians and two-thirds Paiute Indians.'* In reviewing the proposed documents, the Carson Indian Agent proclaimed that, “these lands on which this Colony is established were purchased for the ‘landless Indians of Nevada. .. Under the law[,] any Nevada Indian of any tribe is eligible for a homesite assignment on that tract.”!® "Bx. 4. * See Ex. 21. ° Felix S. Cohen, Handbook of Federal Indian Law § 1.05 (Nell Jessup Newton, ed., 2012); see also EX. 5. Bx. 5 § 16. "See Bx. 6; see also Bx. 21 See Exs. 7-8. 8 Bs, 7-9, Ex, 9, 'S See Ex. 8, Ex, 9, Pao $ or 25Despite these efforts, a final draft of the constitution was never completed,!” and, for decades, the Indians at Winnemucca Indian Colony self-governed according to custom.'® The Colony residents! organized a Council among themselves composed of several individuals” The Council was responsible for holding and conducting regular meetings.”' Advance notice of these meetings was communicated verbally and through flyers, stating the time, date, location, and purpose of each meeting”? At the meetings, any disputes or problems arising on the Colony and/or between residents was resolved through discussion and consensus.”? Pursuant to the Couneil’s authority under custom, homesite assignments were made to the homeless Indians who came to the Colony." These Indians brought trailers, erected dwelling structures, and installed utiliti their assigned homesites.?° In 1968, the BIA renewed efforts to draft and ratify a constitution.26 In December of 1970, ‘8 Constitution and By-Laws was adopted by a vote of fifteen Indians then residing on the Colony.” In March of 1971, the Assistant Secretary of the Interior approved this Constitution (hereinafter the “Constitution”).”* It is unclear who initiated the adoption of the 1971 Constitution or for what purpose.”* The Constitution included within Winnemucca Indian Colony territorial jurisdiction all 340 acres of federally set aside land.>° In addition, under Article II of the Constitution, membership in the Winnemucca Indian Colony is restricted to “persons of at least one-fourth (1/4) See Ex. 10. "8 See id; see also Decl.’s of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown “Resident” is defined as an individual who has established a home and physical presence on the Colony for no less than one-year with an indefinite intent to remain, ® See Ex. 10; see also Decl.'s of Louella Stanton, Doreen Brown, Vivian Leyva, Blena Loya, Eldon Brown, Dwight Brown. 2 See i. % See Decl.’s of Louella Stanton, Doteen Brown, Vivien Leyva, Elena Loya, Eldon Brown, Dwight Brown, ® See id. See id; see also Exs. 23-25 % See Decl.'s of Louella Stanton, Doteen Brown, Vivien Leyva, Blena Loya, Eldon Brown, Dwight Brown; see also Ex. 13. % See Ex. 10. ® See Ex. 11. 2 See Constitution and Bylaws of the Winnemucca Indian Colony; see also Ex. 21 ® See Exs. 10 and 21 % See Constitution and Bylaws of the Winnemucca Indian Colony, at. 1 § 1 Pack 6 0r25ee coe oe lets) Ml 12 1B 14 15 16 17 18 19 20 2 23 24 28 26 2 28 degree Paiute and/or Shoshone Indian blood” who are named, or are descendants of those named, on the December 9, 1916 census of “Winnemucea Shoshone Indians.”*! Despite the adoption of this Constitution, residents continued to govern according to custom.? No membership ordinance was passed, and no membership rolls were created.°> No ordinances preseribing processes for homesite assignments were adopted. Instead, these and other aspects of Colony life continued to operate according to custom."* Life on the Colony was peaceful as any disputes continued to be addressed at meetings and resolved through consensus.®5 In May of 1986, the BIA’s Superintendent of the Western Nevada Agency wrote to the Phoenix Area Office to alert them of “problems” on the Winnemucca Indian Colony.* The Superintendent relayed that in preparation of the Docket 87-D Ft, MeDermitt Judgement Fund disbursements,” it became evident that 43 of the 62 Colony residents were formally enrolled in the Ft, MeDermitt Paiute Shoshone tribe and were eligible for the 87-D distributions, ® Further, the Superintendent determined that hardly any of the Colony residents were able to trace ancestry to the 1916 census as required under Article II of the Constitution. *® Though the Constitution does not prohibit dual enrollment, it does state that “[nJo person shall be eligible for membership in the Winnemucca Indian Colony who has received land or money as a result of having been enrolled as a member of some other tribe, band, or community of Indians,” ‘The BIA’s concern was that once the Docket 87-D funds were distributed, that the vast majority of residents on the Colony would be definitively excluded from Winnemucca Indian Colony membership eligibility per this provision of the Constitution! ition and Bylaws of the Winnemucca Indian Colony, art. IL. §1 » See Decl.’s of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown; see also Bx.23 3 See Ex. 16. ™ See Decl.’s of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown; see also Bx. 23, % See Decl.’s of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown, 58 See Bx. 13. » Indian Claims Commission Judgement Fund, Docket 87-D, 8 See Bx. 13. » See id, Constitution and Bylaws of the Winnemucca Indian Colony, art. IL § 2. 4 See Exs. 13-14, 5 Const PAGE T oF 25Se eo u 13 14 1s 16 17 18 19 20 21 22 23 24 25 26 27 28 Based upon this “membership problem,” the BIA chose to unilaterally “deny recognition of the Council,” stating that “[{Jhe Colony is without a Tribal Council since the [Council] members are not eligible for membership with the Winnemucca Indian Colony.™? The BIA stated further that “none of the people who voted in the Tribal Council can qualify for membership within the purview of the Constitution and Bylaws. The BIA identified three possible ways forward: 1) Declare the Winnemucea Indian Colony a part of the Ft, MeDermitt Paiute-Shoshone base. 2) Request that the Secretary of the Interior issue a Proclamation as to the residents of the Winnemucca Indian Colony. 3) Attempt to locate all eligible members of the Colony who could meet constitutional requirements." In July of 1986, the Superintendent of the Western Nevada Agency held a meeting at the Colony in order to “explain{]” “the membership problem” to Colony residents“ ‘The Superintendent declared that the “meeting was successful in that all in attendance felt that they ‘understood the problem of membership.™” However, the duly elected 1985 Council continued ® ‘There are no available documents to transact business and cary on Colony operations." establishing the number of residents who attended this meeting or how the Superintendent determined that the residents “understood.” At the same time, in addition to the “membership problem,” the BIA became aware of additional issues regarding the 1971 Constitution.*° The BIA determined that very few of the individuals who voted to adopt the Constitution and Bylaws on December 12, 1970 were qualified to vote because they could not be traced back to the December 9, 1916 census on the Colony. So it appears that the Bureau just accepted the 1970 vote as valid without certifying that the people who voted were eligible, Since that time [the Bureau has] been ‘assuming’ the people that resided upon the Colony were ‘valid." Bx. 13. Bx. IS. 45x16 Bx IS. id "id See Bx. 12. © See Ex. 17 Ex 16, 1d Pace 8 0F25eo eee oy et u 12 13 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 ‘Though the residents expressed an interest in more information regarding this matter, the BIA took no further action. ‘After the terms of the 1985 Council expired in 1987, there was no formal election for a new Council, Instead, the residents continued to self-govern despite the BIA’s destabilizing interference.*? ‘Then in 1989, the BIA “selected” Glenn Wasson, who moved to the Colony that ‘year, to lead an interim government on the Colony. * ‘The following year, the BIA certified this interim government as the Winnemucca Indian Colony Couneil.5> After Colony governance was disrupted by the BIA, and Glenn Wasson installed as Chariman, tensions on the Colony began to mount.‘ Residents were excluded from membership despite meeting the Constitution’s eligibility criteria, homesite assignments were rescinded unlawfully, the tribal administration building ~ the center of community life — was locked and Council meetings were conducted in secret, residents feared the Colony’s Indian Country status would be withdrawn, and residents were violently evicted from their homes. Residents repeatedly requested that the BIA become involved to address these concemns.** The BIA’s only response to residents was to decline intervention and suggest “redress in tribal court or whatever forum is available within the tribes [sic] processes.”" During the same time, the BIA issued a memorandum regarding jurisdiction on Winnemucca Indian Colony, stating that “[t]he lands [of the Winnemucca Indian Colony} . . . are held for the benefit of the colony residents. Glenn Wasson continued to govern as Chairman for the next decade while tensions and discord on the Colony continued to rise. ‘This conflict came to head in 2000 when Glenn Wasson ‘was murdered on the steps of the tribal administration building“! No one has ever been arrested 2 Seo Ex, 19, 2 Seid, Ex. 20; see also Ex. 13. 5 See Ex. 20 #6 See Exs, 20 and 22. 5 See id. 5 See id. 2 See Ex. 20. Bx. 21 at. 4 See Tribal Chairman found dead in Winnemucca, Las Vegas Sun (Feb 25,200) (availabe at: hitps:/lasvegassun.comnews/2000/feb/25ribal-chairman-found-dead-in-winnemcea); see also Bd Pearce, Murder om the Reservation ~ Three Parts, Kolo 8 News (Nov. 24, 2005) (available at: Page 9 oF 25Scwaaue W B 14 15 16 7 18 19 20 24 2 23 24 25 26 27 28 in connection with his murder. Shortly thereafter, Bank of America filed a federal interpleader action to determine who had rightful access to the Colony’s bank account funds. This court action initiated a series of federal, tribal, and administrative proceedings that have yet to resolve the question of who is the legitimate Winnemucca Indian Colony leadership under the 1971 Constitution. The Council led by Judy Rojo that filed the instant action to evict residents of the Colony claim authority pursuant to these various court actions and the 1971 Constitution, ‘These council members are unknown to Colony residents and have never resided themselves on the Winnemucca Indian Colony. In addition, while this litigation has been pending, the tribal administration building was allegedly burglarized, and crucial documents detailing decades of council meetings and tribal land assignments have never been recovered. Meanwhile, residents of the Colony have borne the brunt of the resultant instability and uncertainty, fearing that may soon be evicted from the homes. v. .RGUMENT, 1. The Winnemucea Indian Colony is a Dependent Indian Community, Federal law provides for three definitions of Indian Country: (1) Reservation, (2) Allotment, and (3) Dependent Indian Community. i, The Winnemucca Indian Colony Does Not Meet the Definition of a Reservation. A reservation is defined as land set aside for a tribe under treaty, executive order, or federal statute as tribal homelands, and where the federal government holds title to the land in trust on behalf of the tribe. While the Winnemucca Indian Colony lands are titled to the United States of hitps:/www.kolotv.com/home/headlines/1999887.himl). ® See Bank of Am. N.A. v. Bills, No. 300-CV-00450-BES-VPC, 2008 WL 682399, at *I (D. Nev. Mar. 6, 2008). © See eg., Magiera v. Norton, 108 F. App'x 542, 544 (Oth Cir. 2004); Bank of Am, NA. v. Bills, No. 300-CV-00450- BES-VPC, 2008 WL 682399, at * (D. Nev. Mar. 6, 2008), aff'd 400 F. Appx 159 (9th Cit, 2010); Winnemucca Indian Coiony v. US. ex rel. Dep't of the Interior, 837 F. Supp. 2d 1184 (D. Nev. 2011}; 38 IBIA 208; 38 IBIA 255; 39 IBIA 174; 42 IBIA 141; 52 IBIA 353; 50 IBIA 342, © See e., Michelle Cook, “Some Colony residents served with eviction notices,” Nevada News Group (July 16, 2019) (available at hitps://insidenorthernevada.com/MobileContent/NEWS-Homepage-Rotator-/NEWS-Homepage- Main/Article/Some-Colony-residents-served-with-evietion-notices/3 1/175/41834?s"1) © 18USC. § 11515 see also Alaska v. Native Vill of Venetie Tribal Gov't 522 U.S. $20, 527 (1998) (applying the federal eriminal jurisdiction Indian Country definitions tothe civil context) See eg., Arizona Pub. Serv. Co. v. E.P.A.,211 F.3d 1280, 1293 (D.C. Cir. 2000) (surveying various holdings defining “reservation”) Pace 100F25See oe ret 13, 14 15 16 7 18 19 20 21 2 23 m4 25 26 27 28 America, they ate not held in trust for a particular tribe or tribes." ‘The Executive Orders of 1917 and 1918 set aside 320 acres of land for use by “homeless Shoshone Indians,” and the 1928 congressional appropriation authorized the purchase the remaining twenty acres “to be used as an Indian colony.” ‘The deed itself is silent regarding the purpose of the land transfer. Because the ‘Winnemucea Indian Colony lands were not established pursuant to a treaty, are not held in trust, and were not set aside for the benefit of a particular tribe, the Winnemucca Indian Colony is not a reservation. ii, The Winnemucca Indian Colony Does Not Meet the Definition of an Allotment. Indian Allotments are defined as “parcels of land created out of a diminished Indian reservation and held in trust by the Federal Government for the benefit of individual Indians.”"° As described above, the Winnemucca Indian Colony lands are titled exclusively to the United States of America.’! The lands are not titled to individual Indians, and they are not held in trust, ‘Therefore, the Winnemucca Indian Colony is not an allotment. ‘The Winnemucca Indian Colony Meets the Definition of a Dependent Indian Community Under the Venetie Criteria, ‘Though the Winnemucea Indian Colony does not meet the definition of a reservation or allotment, it does meet the definition of a dependent Indian community under 18 U.S.C. § 1511 and Venetie, A dependent Indian community “refers to a limited category of Indian lands that are neither reservations nor allotments, and that satisfy two requirements—first, they must have been set aside by the Federal Government for the use of the Indians as Indian land; second, they must be under federal superintendence.” The 320 acres were explicitly “set aside” by Executive Order for use by “homeless Shoshone Indians.” Though the deed to the remaining twenty acres does not state the purpose © See Ex. 1,2,4. Bx. and 2, ORK. Venetie, $22 US. at $29. See BX. 1,2, 4 ” Venetie, 522 US. at $21. Ex, 1 and 2 PAGE I oF 25Sexwrxraueeun ih 12 13 4 16 7 18 19 20 a 2 23 4 25 26 27 28 for the land transfer, “lands were acquired pursuant to express authorization from Congress and are held for the benefit of the colony residents.” Since these lands were set aside for use by Indians, homeless Indians have established homesites on the Colony.”> Because the Winnemucca Indian Colony lands were set aside for and have been “occupied by an Indian community,” the first prong of Venetie is met.” In addition, the Colony residents have remained under federal superintendence such that “the land and the residents have been provided with the government services afforded to any other lands held in trust by the United States.”’ In effect, the Colony’s “Indian community is sufficiently ‘dependent’ on the Federal Government” to maintain concurrent federal and tribal jurisdiction, to the exclusion of the state of Nevada.”* Having satisfied both the set-aside and federal superintendence requirements of Venetie, the Winnemucca Indian Colony meets the definition of a dependent Indian community, 2. The Winnemucca Indian Colony Land Assignments Oceurred According to Custom and Benefitted the Colony Itself and the United States of America. Shortly after the residents of the Winnemucca Indian Colony voted to organize under the Indian Reorganization Act (“IRA”), the BIA determined that “[u}nder the law[,] any Nevada Indian of any tribe is eligible for a homesite assignment on that tract.” And, “the Tribal Council has a custom of allowing persons enrolled in other tribes or ftom other areas, including Lovelock, Battle Mountain, Wells, and McDermitt, to reside at the Winnemucca Indian Colony.”” For many decades, Indians received land assignments and established homesites by applying to the Council for approval." If a land assignment was granted, the Chairman directed the resident to their 81 homesite.*! For individuals whose families were already assigned a homesite, the Chairman Ex. 21 at, See Exs. 6 and 21; see also Decl.s of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown, ™ Venetie, 522 US. at 531 ” Bx. 21 at 4 see also Bx. 26, ™ Venetie, 522 US. at 531 ® Bx. 23 at 2 ' See Decl.’s of Louella Stanton, Doreen Brown, Vivian Leyva, Elens Loya, Bldon Brown, D\ Bx. 23 See Decl.’s of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown, ight Brown; see also Page 120F25W 2B 14 15 16 7 18 19 20 2 22 23 24 25 26 27 28 directed those individuals to join their families." According to custom, the land assignments conveyed by the Council extend to members of the Indian resident’s family. The Constitution provides that the Council has the power to “enact ordinances, which shall be subject to approval by the Secretary of the Interior, ... for the manner of making, holding, and revoking assignments of colony land.” ‘Though no ordinance regarding land assignments has been enacted and approved by the BIA, the Nevada Indian Court of Appeals has interpreted this Janguage to mean that such an ordinance might regulate assignments, but that an ordinance is not required in order for the Council to exercise its authority to assign land according to the above described custom. While there is no available evidence that monies were tendered to purchase these land assignments, some individuals were induced to move to the Colony for the purpose of maintaining Indian community, and thereby the Indian Country status of the lands.** Since many of the 340 acres were unused, some were concemed that the area could be declared surplus if they were not continuously and sufficiently inhabited by Indians.” In addition, the purpose of the setting aside the Winnemucca Indian Colony lands was to provide homes for landless Indians of Nevada." In assigning these homesites, the United States benefitted by the fulfillment of their trust responsibility which is owed to the “colony residents." 3. The Winnemucca Indian Colony Land Assignments are Titled According to Custom. Black’s Law Dictionary defines “title” as “the means whereby the owner of lands has the [just possession of his property. Title is the mean[s] whereby a person’s right to property is established.”® From time to time, land assignments on the Winnemucca Indian Colony were titled by recording the names of assignment owners onto a map of the Colony.”! These maps were often ® See Deel. of Eldon Brown, ® See Decks of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Bldon Brown, Dwight Brown. Constitution and Bylaws of the Winnemucca Indian Colony, at. VI § 1(8) See Bx, 23. * See Deel. of Eldon Brown, See id; see also Exs, 16 and 18, Ex. Bx. 21 at © Black's Law Dictionary 2d Ed, "See Decks of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown, Pac 13 0F 25Cwm rause 10 u 12 13 14 15 16 7 18 19 20 2 22 23 24 25 26 27 28 distributed at community meetings organized by the council, and could be produced upon request of a resident to the Council.” In addition, custom dictates that titling of assignments requires the community’s recognition of an individual’s ownership interest in the property and belonging in the Colony. This customary collective consensus is the primary means by which assignments are titled on the Colony, and relies on the residents’ personal and community relationships to function. 4, The Residents of the Winnemucea Indian Colony Have the Right to Self- Governance and Authority to Determine Use of the Winnemucca Indian Colony Lands Pursuant to Title Held by the United States, the Indian Reorganization Act, and Custom. The Indian Reorganization Act (“IRA”) provides that “aJny Indian tribe shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws.” Therefore, tribes organizing pursuant to the IRA have the option to enaet a constitution, but need not do so in order exercise their inherent right to self-govern as a tribal sovereign.%® In the absence of a constitution, the tribe will govern according to other “existing law,” including custom.” Authority (0 regulate the use of the Winnemucca Indian Colony Lands is held by the residents of the Colony, since the lands are titled to the United States of America, and “are held 2 Indians of Nevada”! These for the benefit of colony residents,” the formerly “landless residents organized as a federally recognized tribe, the Winnemucca Indian Colony, under the IRA in 1935." ‘The residents’ custom and their adopted governing documents inform the manner and scope of this authority, and will therefore each be addressed in turn. us a W ® See Deck.’s of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown, % See id: see also Bx. 22. » See id %25 U.S.C, § 5123(@) (emphasis added). % See ids see also 25 U.S.C. § 5123 (¢) and (h); Cherokee Nation v. State of Ga., 30 U.S. 1, 2 (1831). 25 USC. § 5123 (0) % See Ex. 4, Bx, 21 ata HO Bx, 9 1 See Ex. 6; se also BX. 21. Page 14 0525Be ogo ul 2 1B 14 16 17 18 19) 20 21 22 23 24 25 26 27 28 i, The 1971 Constitution has Questionable Force and Effect on the Winnemucea Indian Colony. Because the Constitution enacted in 1971 imposed membership requirements which divested the Colony residents of the ability to self-govern, it may be unenforceable in whole or in part for the following reasons: (1) this provision was likely included in the Constitution by mistake; (2) the BIA unlawfully approved the Constitution without sufficient review; (3) once the BIA Jearned of the Constitutional issues in 1986, it failed to remedy the tuation and protect the interests of Colony residents and thereby violated its trust responsibility; and (4) the membership provision was flagrantly ignored and unenforced by the Council and members for decades in order to avoid producing an absurd outcome. 1. Provisions of the Constitution Could be a Mistake. A mistake is defined as “an error in understanding facts, meaning of words or the law,” which causes parties to enter an agreement “without understanding the responsibilities or outcomes.” As such, when parties are mistaken as to a material fact in an agreement, then the agreement may be rescinded." In 1986, the BIA learned that “very few of the individuals who voted to adopt the Constitution and Bylaws on December 12, 1970 were qualified to vote because they could not be traced back to the December 9, 1916 census on the Colony." By approving a Constitutional membership provision under which they did not qualify, the Indians who voted on the Constitution legally excluded themselves from Colony membership and the ability to self-govern. However, the actions of Colony residents after passage of the Constitution are wholly inconsistent with the facial legal effect of the Constitution. ‘This is evident from the fact that the Indians who voted on the Constitution continued to reside on the Colony, continued to hold themselves out as unified los tribal community, and continued to participate in Colony affa Because of the lack of '%2 US Legal (available at: https//definitions.uslegal.com/m/mistakel); see e.g, Continental Cas. Co., a Div, of CNA Ins, Co. v. Didier, 301 Atk. 159 (1990); In re Partnership of Rhone and Butcher, 140 Wash. App. 600 (Div. 3 2007), "See Aetna Cas. and Sur, Co, v. Aniero Concrete Co, Inc, 404 F.3d 566, 585 (2d Cir, 2005); Sabine Corp. v. ONG Western, Inc, 725 F. Supp. 1157, 1189 (W.D. Okla, 1989); se also Badgley v. US., 31 Fed, Cl. 08, $12 (1994), Bx, 16. "8 See Decl.’ of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Bldon Brown, Dwight Brown; see also Ex. 23 Pace 1S 0r25ee ce) 10 ul 12 13, 14 15 16 7 18 19 20 2 22 23 24 26 27 28 available documentary evidence and living witnesses who were involved in the Constitution's adoption, it is unclear why the 1916 census was selected for inclusion in the Constitution’s membership provision. Regardless, since its passage, the actions of Colony residents demonstrate that the membership provision of the Constitution could be a mistake, and the residents’ actions could constitute a rescission of that provision, or the Constitution in its entirety. 2, ‘The BIA Unlawfully Approved the Constitution. Tribal constitutions adopted pursuant to the IRA must be reviewed and approved by the BIA prior to taking effect,'* The purpose of this review is to ensure that the governing documents and “any provision therein” is not “contrary to applicable laws." The IRA also requires that any “constitution adopted by [a] tribe shall . . . vest in such tribe or its tribal council the following rights and powers: To employ legal counsel; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local governments.”"* In addition, the BIA is required to compile a Registered Voters List for the ratification of all IRA constitutions!” This list is used to determine whether voter participation is in compliance with Federal law.!!° When the residents of the Winnemucea Indian Colony voted to approve the Constitution, “the Bureau just accepted [their] vote as valid without certifying that the people who voted were cligible.”""' And, as a result of the BIA’s failure to certify the eligible voters, “very few of the individuals who voted to adopt the Constitution and Bylaws on December 12, 1970 were qualified to vote” based on the Constitution’s own membership provision.'!? The BIA violated § 1523 of the IRA when it failed to review the substance of the Constitution, and when it failed to certify the bility of the voters. Had the BIA complied with the IRA and properly reviewed the membership provision of the Constitution and certified the eligibility of the voters, they would have discovered that the effect of the Constitution was wholly contrary to the requirements of the "0 See 25 U.S.C. § $123(¢) and (4). "25 US.C. § 5123(0). 1825 USC, § 5123(€). © See25 CFR. § 81.29, 0 See i. MY Bx. 16, maid. Pace 160r25Eee eee) ol M1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IRA. Rather than vesting the tribe with governing powers, the Constitution effectively divested the residents of the Colony fiom all powers of self-governance, This unlawful approval of the Constitution is susceptible to challenge,""> and casts doubt upon the enforceability of the Constitution at present. 3. The BIA Violated Its Trust Responsibility to Colony Residents by Continuing to Impose the Constitution, Centuries of federal case law and legislative action have established that the United States government “has charged itself with moral obligations of the highest responsibility and trust [with regard to Indians}. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.”!"* Pursuant to this trust responsibility, the BIA retains the authority “to interpret tribal law when necessary to carry out the government-to-government relationship with the tribe or when a provision, result, or interpretation may be contrary to Federal law.” "5 Once the BIA became aware that it had failed to perform its statutory obligation in approving the Constitution," it had a responsibility to protect the interests of Colony residents and to rectify the situation, Instead, the BIA ignored its own malfeasance,''” and insisted on the imposing the Constitution with full awareness that the Constitution was of questionable validity. ‘When residents requested additional information regarding the Constitution’s enactment, the BIA failed to address their concems.'"® Even further, the BIA took enormous steps to destabilize the ‘governance of the Winnemucca Indian Colony by effectively denying residents of their ability to self-govern, installing Glenn Wasson as chairman," and then refusing to act even though Colony "8 See25 CER. § 8143-45. Seminole Nation v. United States, 316 U.S. 286,297 (1942); see also Cobell v. Norton, 240 F.3d 1081, 1086-88 (D.C. Cir, 2001) (reviewing the history of the US government-indian trust relationship); Cherokee Nation v. State of Georgia, 5 Pet. 1, 8 L.Ed. 25; United States ¥. Kagama, 118 U.S. 375; Choctaw Nation v. United States, 119 US. 1; United States v. Pelican, 232 US. 442; United States v. Creek Nation, 295 US. 103; Tulee v. State of Washington, 316 US. 681, "25 CER. § 819, NS See Ex. 16, 4 See id: see also Ex. 19. 18 See Ex. 19. 8 See Exs, 13 and 20, Pace 17 0F25residents repeatedly requested their assistance.!2° In response to these requests, the BIA stated it is their policy not to become involved in intratribal matters.!2! However, policy is not law, and the law dictates (1) that the BIA owes a fiduciary duty to the Colony residents; and (2) that the BIA has the authority to interpret tribal law in order to fulfil this fiduciary duty in accordance with other federal law. When the BIA learned that the “membership problem” on the Colony was the result of its own misconduct," insistance on the continued application of the document that produced these issues was a breach of the BIA’s trust responsibility owed to Colony residents, And further, the BIA’s refusal to intervene when this course of action produced palpable harm to Colony residents! constituted an additional breach. Because the continued use of the Constitution constitutes a violation of the BIA’s trust obligation to Colony residents, the Constitution is of questionable validity and enforceability. 4, The Constitution’s Enforecability is Uncertain Due to Desuetude. “[DJesuetude describes the doctrine by which a legislative enactment is judicially abrogated following a long period of intentional nonenforcement and notorious disregard.”!?5 ‘When law is fragrantly ignored for years, there becomes a question of whether individuals have, in fact, received “fair notice” of the law, or “if it is void due to desuetude.”""> Law may become pia void when for many years there is “open, notorious, and pervasive violation” ”” of the law, as well as a lack of enforcement,”8 such that revivi ns git would “produce . . absurd results.’ From the time of the Constitution’s approval in 1971, up until the instant eviction action, the Winnemucca Indian Colony Couneil has never sought to enforce the membership or other provisions of the Constitution, After the Constitution was initially approved, Colony residents continued to manage membership and land assignments in accordance with custom, " Even after 1 See Exs. 20 and 22. 2 See Ex. 20, Ex, 15. 1 See Ex. 16, 24 See Exs, 20 and 22. ®® Desuetude, 119 Harv. L. Rev. 2209, 2210 (2006); of, Jackman. Rasenbaum Co, 260 US. 22,31 (1922) 2 Comm. on Legal Ethics of the W. Virginia State Bar v, Printz, 187 W. Va. 182, 188 (1992) a 11 See Poe v. Ullman, 367 US. 497, $01 (1961), °° Pryor v. Gainer, 177 W.Va, 218, 225 (1986). +98 See Decl.’s of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown; see also Pace 18 oF 25we en W B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 the BIA installed Glenn Wasson as Chairman of the Colony in 1989,!°! he continued to invite and assign homesites to Indians who did not qualify for Colony membership under the language of the Constitution.' Further, the BIA’s failed 1986 attempt to compel the Colony into strict adherence to the Constitution led to severe tension and discord on the Colony," producing precisely the “absurd results”! that the doctrine of desuctude is meant to avoid, Because the Constitution has been openly violated for decades without enforcement by the Council, the residents have not received “fair notice”** of its provisions, and the Constitution, or particular provisions of the Constitution, may be void due to desuetude, ii, The Unresolved Questions Regarding the Validity and Enforeeability of the Constitution Limit This Court's Authority to Apply the Constitution and the Challenged Constitutional Provisions. ‘The Constitutional issues raised in the preceding sections are fundamental to determining proper and lawful gov ming authority on the Winnemucca Indian Colony. No statute or treaty is available that controls, While these questions need not be resolved by this Court, they must be addressed through another legal process in order for this Court to reach the substantive issues presently before it, i.e,, whether the residents can and should be evicted, Such legal proc ss might take the form of federal legislative action, federal court adjudication, BIA mediation, or another such means, Without one of these processes to definitively determine the validity and enforceability of the Constitution and all of its provisions, this Court cannot apply the Constitution or its provisions challenged herein. In the Absence of Legal Processes Resolving the Constitutional Issues, Tribal Custom and Federal Action Control on the Winnemucea Indian Colony, and Convey Lawful Authority to Colony Residents to Regulate Land Use. Asa result of the above unresolved questions regarding the validity and enforceability of the Constitution, and in particular its membership provision, this Court must turn to the governing xs. 16 and 23. 5 See Exs, 13 and 20, © See Decl. of Gilbert George "8 See Bxs, 20 and 22, "4 Pryor v. Gainer, 177 W.Va. 218, 225 (1986). "3 Comm. on Legal Ethics ofthe W. Virginia Stare Bar v. Prints, 187 W. Va, 182, 188 (1992), Pace 19.0825Cm rIranneon 10 cr 12 13 14 15 16 7 18 19 20 24 22 23 24 25 26 27 28 tribal law that predates the Constitution, and whose usage has continued even after its approval: Custom, Custom is foundational to tribal life, and is at the core of tribal sovereignty and nationhood: ‘Tribal sovereignty is immersed in historic indigenous values that bind a community together; it consists more of continued cultural integrity than of political powers, and revolves around the manner in which traditions are developed, sustained, and transformed to confront new conditions and involves most of all a strong sense of community discipline, Tribal sovereignty utilizes peace-making, mediation, restitution and compensation to resolve the inevitable disputes that occasionally arise, and is founded in spiritual values and kinship systems that enabled each Native nation, and the individuals, families, and clans constituting those nations, to generally rest assured in their collective and personal identities." ‘Not only is custom the means by which tribal belonging, or membership," is effectuated, itis “an inherent right to belong to an indigenous community of nation, in accordance with the traditions and customs of the community or nation concerned.”"* Membership customs vary from tribe to tribe, though in many locales, including the Great Basin, “[mJembership in bands was by choice; by residing in a particular band, individuals could decide to count themselves as members of it. Children were considered to belong to the band of the father or mother, but residence, rather than descent, seems to have been the operative % Gabriel S. Galanda, Ryan D, Dreveskracht, Curing the Tribal Disenrollment Epidemic: In Search of A Remedy, S7 Ariz, L, Rev. 383, 444 (2015) (quoting David E, Wilkins, A Most Grievous Display of Behavior: Self-Decimation in Indian Country, 2013 Mich, St. L. Rev. 325, 328-30 (2013); Vine Deloria, Jr., Seif-Determination and the Concept of Sovereignty, Economic Development in American Indian Reservations (1979) (internal quotations omitted). 181 -This distinction between customary notions of “belonging” and the colonial concept of “membership” is addressed in depth by Gabe Galanda in Curing the Tribal Disenrollment Epidemic: In Search of A Remedy. ‘As opposed to belonging- or kinship-based notions of citizenship, the European colonizers of today's United States {generally defined the status of American Indian persons by bloodline, Degrees or percentages of “Indian blood” became the definitional standard for American Indians. Such was articulated in terms of “the number of generations from an unmixed Indian ancestor,” especially because that is how the early colonies limited American Indians’ rights; for example, “unmixed” American Indians were ineligible to testify in court proceedings or marry Euro-Americans. It was also held that those of mixed descent might serve asa “‘civilizing’ force.” “Mixed bloods” were thus define category of their own, because it was thought that they would more rapidly assimilate into what would become ‘American society ‘Notions of indigenous persons' “mixed blood” eventually became matters of their “blood quantum,” all by the colonial advent of a policy to further divide and negate American Indians. Under such @ policy, American Indians were deemed biologically inferior and required segregation (or sometimes extermination). As discussed below, the perpetuation of blood-quantum notions has only served to extend this Eurocentric philosophy, by subjugating American Indian notions of belonging and kinship, and replacing those indigenous norms with racialized criteria that serve “federal objectives for Native government dissolution and land dispossession.” 88 Jd, st 390 (quoting United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, Annex, UN, Doe, A/RESI61/295 (Sept. 13, 2007), at Art. 9) (internal quotations omitted) (emphasis in original). Pace 20 0F 25Sowa aun eoun M1 12 13 4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 category.” On the Winnemucca Indian Colony, such customs have prevailed through to the present day. Prevailing custom for the Winnemucca Indian Colony membership requires that, at a minimum, members (1) currently or previously reside on the Winnemucca Indian Colony lands for a substantial period of time; and (2) have Paiute and/or Shoshone ancestry." Further, the residents of the Colony have demonstrated that they understood themselves to members by participating in the Council, elections, and meetings; by holding themselves out as a unified community under the Winnemucca Indian Colony name; and through their mutual, collective efforts to invest in the Winnemucca Indian Colony and each other. In addition to using custom to determine matters of membership, custom is also the operative means by which land usage is governed. It is common knowledge on the Colony that the lands were set aside by the federal government for homeless Indians.'4! Though Colony lands are not held in trust, the federal government has repeatedly stated that the lands are held for the benefit of the Colony residents ~ the formerly landless Indians of Nevada." Residents have long relied on these representations and incorporated them into Colony custom.'? Consistent with this custom and with federal intent, the Council has allowed “persons enrolled in other tribes or from other areas, including Lovelock, Battle Mountain, Wells, and McDermitt, to reside at the Winnemucca Indian Colony.”!“4 Thus, the residents and customary members of the Colony, who organized as a sovereign under the IRA in 1935, and relied on the federal government’s assertions that the Colony lands are held for their benefit, have lawful authority to regulate land on the Winnemucca Indian Colony. i ® Galanda at 394 (quoting Raymond J. DeMallie, Kinship: The Foundation for Native American Society, in STUDYING NATIVE AMERICA: PROBLEMS AND PROSPECTS 331 (Russell Thornton ed., 1998). M® See Decl.'s of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown, 1 See id; see also Decl, of Gilbert George. 18 See Exs. 1,2, 3,9, 21 © See Decl.’s of Louella Stanton, Doreen Brown, Vivian Leyva, Blena Loya, Eldon Brown, Dwight Brown; see also Ex. 23, MBX. 23 at 2. 5 This authority is, ofcourse, concurrent with the United States government by whom title tothe land is held, PAGE2I 08 25VI. The Couneil’s Eviction of Winnemucca Indian Colony Residents and Deprivation of Lawfully Assigned Homesites and Dwellings is a Governmental Taking that Requires Just Compensation." Article VII of the Constitution and Bylaws of the Winnemucca Indian Colony states that “{nJo person shall be denied any of the applicable rights or guarantees as provided in Title II of the [Indian] Civil Rights Act of 1968.” ICRA mandates that “[n]o Indian tribe in exercising powers of self-government shall , , , take any private property for public use without just compensation.”"7 Petitioners do not contest that they are an Indian tribe exercising powers of self- government, '* and whose action is therefore subject to the limitations of ICRA. Nor do Petitioners contest that their actions are for public use. In addition, though Petitioners do not specifically address the character of their action, it is well established law that “a physical invasion of the real estate of the private owner, and a practical ouster of his possession” is a per se taking.'® “[A] 13) permanent physical occupation of real property”!S! as well as actual physical takings of property'®? are categorical takings. ‘Though no action has been taken yet, Petitioners seek to 3 remove Respondents from the Winnemucca Indian Colony entirely,'S? and to dispose of their trailers and dwelling structures in the Humboldt county landfill.'* The physical ouster of Respondents from their homes, the actual physical taking of their dwelling structures, and the 6 This argument is conditional on the existence of lawful governmental authority, as well as just cause with duc process of law to evict and deprive. These conditional questions of fact and law are outside the scope of this ‘Answering Brief and will not be addressed herein, These points are assumed for the purpose of answering the Court's questions, but are not conceded and have been specifically contested in the preceding sections of this Answering Brief, as well as Respondents’ pending Motion to Dismiss filed October 10, 2019. 425 USC. § 1302(a)5) 8 Numerous pleadings filed herein allege that petitioners are the “duly elected and recognized Council” and that “the recognized Council has every right to determine what is done with its lands.” Pet.’s Opening Brief at 1 and 9. 4° Petitioners seck to "move forward with housing, economic development and protection of their lands,” Pe.’s Opening Brief at 9. "® Loretto v. Teleprompter Manhattan CATV Corp., 458 USS. 419, 428 (1982) (quoting N. Transp. Co. v. City of Chicago, 99 US. 635, 642 (1878)) "5 fa, at 427. "5 Arkansas Game & Fish Comm'n v. United States, 133 S. Ct. 511, $18 (2012) "5 See eg, Pet.’s Response to Motion to Dismiss (filed Nov. 12, 2019). 'S See Michelle Cook, Winnemucca Indian Colony seeks approval to use local landfill, Nevada News Group (Nov. 1, 2019) (“MeNichols estimated the cleanup would involve removing approximately 18 house trailers, eampers, utility trailers and modular homes, He said there were at 32 vehicles that would be removed. The trailers would have the bboxes removed from the frame and the frames would be sent for recycling. He estimated 2,400 cubie yard of construction material and about 3,600 cubic yards of trash, He said some or all the construction material could be recycled.”) (available at: hitps:/insidenorthernevada.com/MobileContent/NEWS/NEWS- Headiines/Article/ Winnemucea-Indian-Colony-seeks-approval-to-use-local-landfill-36/348/42911) Page 22 0825permanent occupation by the Council of these homesites constitute a per se governmental taking under ICRA. ‘Therefore, the only matter in dispute is whether the property in question is private property requiring just compensation. Without citation to law, Petitioners contend that “[a] leasehold or an assignment is an interest in real property and must be in writing.”"S® Petitioners argue that without such a writing, “Respondents have no property right for which they can claim just compensation.”"* The contention that all real property interests must be reduced to writing is patently untrue, Numerous real property interests find recognition in law without a writing: adverse possession, implied easements, oral tenancy agreements, partially performed oral contracts for the sale of land, among others.'’” The assignments granted to Respondents as a matter of custom! and operation of law! are valid property interests, which require just compensation in the event of a taking,'® In ad ion, if Petitioners are evicted, not only will compensation be due for the taking of their homesite assignments, but also for the trailers, other dwelling structures, garage units, utility fixtures, fences, and landscaping fixtures, as well as monies for relocation.'*' Because evicting Respondents fiom their homes would permanently deprive them of their lawfully assigned homesites and dwelling structures, Petitioner’s action would constitute a per se taking for which just compensation is required, M! M M 155 Pet.’s Opening Brief at 16. 61d, "5 See generally, § 25 The Statute of Frauds: Contracts or Sales of Interests in Land, Williston on Contracts (4th ed.). 1% See Decl.’s of Louella Stanton, Doreen Brown, Vivian Leyva, Elena Loya, Eldon Brown, Dwight Brown; see also Exs, 24-26. 1 See Bx. 2 ° Petitioners? additional assertions that “no recognized Council issued an assignment,” and that Respondents" residency violates the Non-Intercourse Act are not plead with sufficient facts, specificity, or legal analysis to enable a response. See Pet.’s Opening Brief at 16 'S1 See Decl.’s of Louella Stanton, Doreen Brown, George; see also Ex. 26, ivian Leyva, Elena Loya, Eldon Brown, Dwight Brown, Gilbert PAE 23 0F 2510 ul 12 B 4 15 16 7 18 19 20 2 22 23 24 25 26 27 28 VI. CONCLUSION For the foregoing reasons, Respondents request that this Court find as follows: 1, That the Winnemucca Indian Colony is a dependent Indian community; that the United States of America is the proper and legal owner of the Winnemucca Indian Colony lands, and holds these lands for the benefit of Winnemucca Indian Colony residents; 2. That assignments on the Winnemucca Indian Colony occurred according to custom; that the Winnemucca Indian Colony and the United States of America benefited from these assignments; 3, That land assignments are titled according to custom; 4, That the United States of America and the Winnemucca Indian Colony residents have authority to regulate use of the property; that this authority was conveyed to the United States of America by deed; that this authority was conveyed to Winnemucca Indian Colony residents ‘through federal legislative action, 45 Stat. 618 and 25 U.S.C. § 5123, and through operation of law; and 5. That if there is lawful cause and authority to remove the Winnemucca Indian Colony residents, there is a necessity for compensation based upon a taking of real property. Based on these findings and the necessity of resolving the underlying Constitutional questions through additional legal process, Respondents respectfully request that the Court dismiss this case, with the instruction that it may not be refiled until such a time as the Constitutional questions have been addressed and resolved. RESPECTFULLY SUBMITTED this 6" day of February, 2020, NEVADA LEGAL SERVICES, INC. E : Alexandra Rawlings, Esq. Washington Bar No. 55706 Attorney for Respondents PAGE 24 0F 25person(s): CERTIFICATE OF SERVICE I hereby certify that on the 6” day of February, 2020, I served the foregoing RESPONDENTS’ ANSWERING BRIEF in the above captioned case upon the following Via Email Treva Heame Attomey for the Winnemucea Indian Colony Couneil trevahearne@gmail.com Via Email Benny Mills Advocate for Respondents tograyfox@yahoo.com DATED this 6" day of February, 2020. ‘Alexandra Rawlings, Esq. Washington Bar No. 55706 Attorney for Respondents Pace 25 0F25 ‘ADA LEGAL SERVICES, INC.