Elsie Lucero Affidavit Filing May 30 2012

UNlTED STATES DEPARTMENT OF INTERIOR BUREAU OF INDIAN AFFAIRS PACIFIC REGIONAL OFFICE

2800 COTTAGE WAY SACRAMENTO CA 95825

Ronald D Allen Jr Kelly L ) IN THE MATTER OF Peterman Charles Allen Jr ) Nikki Harris Mikki Graber ) APPEAL OF FEBRUARY 1 2012 Vikki Oxley Shawn Thomas ) DECISION OF EXECUTIVE Rogers Jeanne Durso Daniel ) COMMITTEEOFPALABAND Durso Robert J Morris Misty ) OF MISSION INDIANS TO Morris Ray Morris Monique ) DISENROLL APPELLANTS Early Melissa Hunter and Mary ) Montoya )

Appellants ) )

~vs- ) )

EXECUTIVE COMMITTEE ) Pala Band of Mission Indians ) May SO 2012

) Appellees )

)

AFFIDAVIT OF ELSIE H LUCERO CONFIRMING PELIGRINO ORTEGA AS FATHER OF MARGARITA BRITTAINmiddot

Appellants file the Affidavit of Elsie H Lucero dated May 24 2012 for

consideration as evidence or proof in the administrative record of this pending

matter on the dispositive issue of the identity of Margarita Brittains father One

year afterthe June 1 2011 wrongful disenrollments of eight (8) members of the

Pala Band of Mission Indians (Tribe) one fact remains clear Peligrino Ortega is

the father of Margarita Brittain

There is no evidence or proof cited by Robert Smith anywhere m this

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administrative record on appeal to overcome the 1989 Final Decision noted in the

Lucero Affidavit Therefore the Tribes actions invalidate without legal merit or

moral cause the historical entry on the 1913 Pala Allotment Roll verifying

Margarita Brittains 44 Indian blood status

For twenty-three (23) years the United States of America and all of the

unjustly disenrolled Pala members have acted in reliance upon the 1989

Department of Interior Final Decision Absent any factual justification for Robert

Smiths recent disenrollment actions historical baseline genealogical federal

records are altered all without lawful cause

RESPECTFULLY SUBMITTED this 30th day of May 2012

LAW OFFICES OF DENNIS G CHAPPABITTY

ennis G Chappabitty OBA16 7 PO Box 2050 Elk Grove CA 95759 (916) 682-0575 (voicefax)

Certificate of Service

I hereby certifY that a true and accurate copy of the foregoing was mailed by United States Postal Service First Class Mail this 30th day of May 2012 to

Amy Dutschke (Fax) Regional Director Pacific Regional Office Bureau of Indian Mfairs 2800 Cottage Way Sacramento CA 95825

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Del Laverdure Acting Assistant Secretary - Indian Affairs Bureau of Indian Affairs 1849 C Street NW Washington DC 20240

Mike Black Director United States Department of Interior Bureau of Indian Affairs 1849CStreetNW MS 4606MIB Washington DC 20240

Robert Eben Superintendent Southern California Agency Bureau of Indian Affairs 1451 Research Park Drive Riverside California 92507

James W Porter Attorney-Advisor Office of Solicitor (Email only)

Jeffrey C Nelson Assistant Solicitor Branch of General Indian Legal Activities (Email only)

Teresa Villa Secretary Pala Band of Mission Indians PMB 50- 35008 Pala Temecula Road Pala CA 92059

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AFFIDAVIT

State of New Mexico) ) ss

County of Bernalillo)

BEFORE ME the undersigned Notary on this vfIII day of May 2012

personally appeared ELSIE H LUCERO known to me to be a credible person

and of lawful age who being by me first duly sworn on her oath deposes and

says

1 I am a resident of the Isleta Pueblo New Mexico and make this

affidavit in support of the efforts of 162 members to challenge the decision of the

Executive Committee Pala Band ofMission Indians (Tribe) to disenroll them as

tribal members

2 I worked as the Enrollment Specialist at the Southern California

Agency Bureau of Indian Affairs (BIA) from September 1985 until I retired in

2005 As Enrollment Specialist I was the primary Agency staff person

responsible for researching historical documents and locating all supporting

documentary evidence sufficient to determine enrollment eligibility for the

disenrolled individuals who are direct descendants of Margarita Brittain

3 I have throughly read a number of documents two hundred and forty-

four (244) pages included in a package sent out by Robert H Smith Tribal

Chairperson dated March 29 2012 to all adult Pala Tribal members of the

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Tribe and make the statements and conclusions in this affidavit based on my

review of this recent information and my personal recollections and observations

of events and actions related the blood quantum of Margarita Brittain

4 After review of the package of documents sent out to all adult members

of the Tribe by Chairman Smith referred to above I do not see documents

anywhere in it related to the 1921 Probate of the Estate of Merced Nolasquez

the half-sister of Margarita Brittain Contained in this 1921 Probate hearing is

the sworn testimony of Carolina Nolasquez the daughter of the decedent

Merced Nolasquez It is my conclusion that this omission was intentional since

exclusion of this 1921 evidence gives the appearance that there is no reliable

evidentiary basis to conclude that Peligrino Ortega was the father ofMargarita

Brittain This is not true as I describe below I attach to my Affidavit three (3)

documents from this Probate that were excluded by the Tribe

5 My review of the entire record in this matter that resulted in me

executing a sworn affidavit on February 6 2012 failed to show any reasoning

from the Tribe upon which to base the June 1 2011 disrollments of Keith C

Denver Milton K Denver Anthony A Freeman ginal L Howard Luanne Moro

and Cheryl L Majel

6 The March 29 2012 Smith letter cites As a reminder for an individual

to be 44 both of their parents need to be specified as 44 Blood and as the

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records show the father of Margarita Brittain is unknown

7 After my review of his statement quoted above and the voluminous

documents attached to his letter I conclude that Smiths reasoning is

unsubstantiated because it is based on a confusing record that excludes key

documentation proving by a preponderance of the evidence that Pelegrino

Ortega was the father of Margarita Brittain Further this confusing record of

over 244 (two hundred and forty four) documents excludes key and relevant

historical BIA documents proving that the father ofMargarita Brittain is known

8 I was responsible for the research and drafting of letters that explain

the BIAs findings and conclusions in the 1980s that Margarita Brittain was 44

Indian blood and her father was Peligrino Ortega

9 In my direct professional involvement in the issues involving the blood

quantum and parentage of Margarita Brittain I used commonly accepted

standards principles and rules in establishing Indian blood quantum such as

burden ofproof preponderance ofthe evidence reliable evidence and most

good evidence

10 From my years of experience in balancing weighing evaluating

evidence or documents as proof to establish Indian blood quantum I conclude

that Robert Smiths statement that the records show the father of Margarita

Brittain is unknown is erroneous and totally fails to explain any legitimate

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basis for any of the one hundred and sixty two (162) disenrollments at Pala

Smith and the Tribes Executive CommitteeEnrollment Committee have not met

their burden of proof to substantiate this statement by use of commonly

accepted standards principles and rules for establishing Indian blood quantum

11 It is my opinion as based on the record available to me that Robert

Smiths recent distribution of the documents attached to his March 29 2012middot

letter to all adult tribal members is intended to fool those members into

believing that he has credible evidence to question the validity of those

Department of Interior findings conclusions and decisions made over twenty

three (23) years ago

12 Robert Smiths letter is nothing more than an expression lacking any

factual support or credibility My conclusion is valid with nothing in the record

at this time that the Tribe has officially filed any formal written position

supported by any evidence with the Regional Director during the appeal of the

disenrollments

13 It is my conclusion that if the Tribe believed its position on the matter

of the identity of Margarita Brittains father was the most correct position then

Tribe would have filed its position with the Regional Director Pacific Region

BIA

14 In support of my conclusions III this Mfidavit I make specific

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reference to a letter dated January 17 1986 signed by Ronald M Jaeger Acting

Area Director Sacramento Area Office BIA which states

3 In conformance with Carolina Nolesquezs July 1921

testimony a research of Margaritas half~brothers and sisters

1928 applications as follow indicate that Pelegrino Ortega 44

Agua Calients could have been Margaritas father

15 In support of my conclusion in this Affidavit I draw specific reference

in this Affidavit to part of the May 1 1989 Final Decision rendered by Donald

F Asbra Acting Assistant Secretary ~ Indian Affairs that has been placed into

the record on appeal to the Director Pacific Region BIA Sacramento CA

Based on the statement of Carolina Nolasquez that her mother

Merced Nolasquez and Margarita Britten had the same father

Peligrino (Saubel) Ortega the fact that Margarita used

Sauber as her maiden name the 1910 family history cards

that showed the children ofMargarita as possessing 112 degree

Cupa and 112 degree non~Indian blood and the united

Industrial Status Report prepared around 1910 which stated

that Margarita was a fullblood we have concluded that

Margarita Britten was a fullblood Indian Weare directing

that the blood degree of her descendants be reviewed and

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corrected accordingly

16 The Final Decision issued by Donald F Asbra in 1989 was the result

of an intensive methodical process of reviewing weighing and balancing

evidence and documents submitted by the appellants at that time to support

their burden of proof that Margarita Brittain was 44 Indian blood This same

kind of accepted methodical process using those commonly accepted standards

noted above are totally missing from the letter and documents sent out to all

adult tribal members on March 29 2012

17 It is my opinion that the Central Office BIA Washington DC based

their decision on the supporting documents in the original appeal for

descendants of Margarita Brittian and conclusively substantiated that

Margarita Brittian is 44 Cupa Indian The Pala Executive Committee failed to

abide by the Final Decision and ruling made by Mr Walter Mills Acting

Assistant Secretary by letter dated May 17 1989

18 It is my opinion that Margarita Brittians father is Pellegrino Ortega

based on the preponderance ofevidence originating from 1) the sworn testimony

provided by Carolina Nolasquez and 2) the individual family history card for

Merced Nolasquez identifying Margarita Brittian as 112 sister with same father

different mother

19 I would offer sworn testimony in a court of law or other tribunal to

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support the correctness of those statements conclusions and opinions made in

this Affidavit

Elsie H Lucero PO Box 524 Isleta New Mexico 87022

Subscribed and sworn to before me this~ay of May 2012

OFr lelA- SEAL ~LINE F lONTOYA

[Notary Seal] Noar~ rvblic nate of lit Mexico

5 )My Commission Expires

[signature of Notary] (

NOTARY PUBLIC

J ff d5 JMy commission expires _~_I______ 20LL

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~eBtimon~ of Carolina Rolasquez in the he1reb1p case of Merced lIola8ques deoeased Oupe lilela Bena) ~otteEl No 91 taken b~ Job B Anderson Exand ner of Inher1tanoo at Pala CleJJforma on JUly 22 1921

l~obn Ortssa sworn ae Interpreter)

Q What is ~our name age and plaoe of residenoe A Caroline LiIolaaquez I am about 41 years old and I l1ve at Pala 0911shyforma

ij fo wbat tribe dO JOu belong A Oupamp or nasion tr1be Q lgto you know l4eroed HolaslUes A Yes abe was ~ mother Q Is Ll$lced liolaaques lead A Yes Wbeo did abe dte A She diea on Ausust 2 1916 Q lo what trabe did She belo1l81 A Oupa Q Wbere did she die A Sbe d1ed neal R1ncooo Clal1foro1a but

her bo~ waa broUght to lIala for burial Q Bow old was l4eroea Bolesques bull ben sbs Ued A She was about

86 JfalS oU (boords allow 86) Q Did Merced Holasquez have an allotllleot of land A Yes abe

was allotted on the Pala Indian lieeervat1on Cal1forn1a ~ What 1f arq personal property did Jiereed llolasques have at

the time ot her death A bull lIo Q J)ld she execute a will prior to her death A 110 Q Was 1I1amprosd Iiolasquss msrried at the time 01 her death A

Bo she was aw1daw Q Row 1IlaD7 tiDies bad ahe been married 4 Just one time Q What was the name o~ her husb8ll4 A Sylverl0 Bolaequez Q Is Sylver10 Jolaeques dad A Yes Q When did he d1e A lie d1sd 00 J11ly n 1910 Q 1o bat tribe d1d be belong A Lea1on Q DO JOu lalow when lIeroed nolasques was marr1ed to ~ylvsr10

lfolaeques L lhey must have been marr1ed over 60 ~eers ago Q Row were they married A fbeV Vere lIIarr1ed Inllian custom at

firat but late WBre married by the lIl1est Q And you say Silverio liolasquez was the only buband that

1I8108d Bolaequez ever had A Yes he was tbe only one I( Rowmez1y oh11(btsD did lieroed Bolasquez bave 4 She ba4

11 ch1ldren SalvadOr JlOlasQU611 Ramon Boleeques Oeo111o Bolasquez IgnaGlo BOlasques Olaud1na Nolasques Baraal Bo1asquez Je4ro liolaeC11lez and tbree who died when they were babies I dOnt lalow their names and ~self

Q Who was the father of these oh1ldreo A Svlver10 Iiolasqaez Q Row many of tbese ohildren ere living Ii SlI Salvador Hamon

Oeo11io Olewlina Bafael and myseU Q When 41d Isnacl0 lIolasquez die A He died 00 February 11 1912 Q 110w Old 1rU he when he died A Be w about 35 yous 01d Q Did he have arq children A Bo Q Was he married A Jlo

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~ When did ledro lIolesquslZlil die A He died many veals before biS JIlO ther bull

Q Bow old was learo when he tied A Be was two or three veere olci

Q You ampav JOur motbel had three cbildren whose names you do not knOW all of wbom died wben they WEllS babies A Yes

Q Did they all three die before your mother A Yes Q lhen as I 1Wderetand it at th t~ rrt bor dR~ lferoed

lIoUsQllex baci su obilatan liv1ll6 ~vac1ro n Oeo1110 OlauMrla llafael eJ1d yourself A Yes that is right

Q JlO ou know the llEllents of Keroe liolasquezl A I c1on1 t knOW thei~ names the died long ago

Q Did Ileroe4 lIolasCJUez have anv brothers or sistelB A She had three haU-bro1iJJersl Ambrollio ortePt ~efmB Ortega and John Ortep ~y are amp11 living hevoaa same father but diffuent mothels Shelad five half-sieters ifarsarita Brlttenbull llafaela al1Dpish lIelv1na S1b1mlloat Ysa40ra ll1cbao and MaIoella Slb1mooat bybad same fa1iJJer but different mothers

Q Bow lD8lIY of these haJf-s1stera are J1vixI8 Abull [two are deeci Y8ac101a ll10hac and Haroelle Bib1mooat hey botb died before lrleroed lIolesques

lti Jl1ci lIeroed lIIolasquez ever 11va on her allotment A abe lived on my faiihers elloiment not on her CWll

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Subsorlbed and sworn to before

Wltness Carolina Dolasquez

Sex - Female Age - 41 18a1s Tribe - ll18sion Address - Pala Oalifornia Keane of knowledge - Daughtgr Of decedent Interest in case - Inherits llatt of eetate ~~1nerIB impression ~f ~tellisence

and oretibil1 tv of witll6as - Excellent