San Francisco Chronicle
Tuesday, April 5, 2005
The Stunning Expansion of Indian gaming across the nation will finally come under the federal microscope today when a Senate committee holds a hearing on a congressional loophole that could have allowed a huge casino to be built in San Pablo.
It’s about time.
Legislation proposed by Sen. Dianne Feinstein, D-Calif., attempts to undo a glaring mistake by another member of the California delegation that allowed the Lytton Band of Pomo Indians to avoid rigorous federal and state-approved guidelines on Indian casinos. Feinstein’s bill, S113, comes up for a hearing at the Senate Committee on Indian Affairs today, an important first step in trying to rein in the runaway growth of Indian gambling in California and the rest of the country.
Feinstein’s legislation seeks to reverse an amendment in a 150-page bill that was rushed through Congress at the end of session in 2000. The amendment, authored by Rep. George Miller, D-Martinez, was a fanciful act that declared a 10-acre site along Interstate 80 to be part of the Pomo tribe’s ancestral land. Reality suggests that it was just a way to allow the tribe to cash in on their dream of building a casino — this one the first in a major urban center in this state.
Similar attempts at “reservation shopping” by tribes wishing to make their fortunes on gambling have generally gone unchecked by state and federal officials, who have enjoyed the political fruits of financial contributions from casino-rich Indian tribes. Feinstein’s bill would restore some oversight to the process and Congress would be wise to approve it.
Sen. John McCain, R-Ariz., chair of the Indian Affairs committee, has correctly noted that state and federal officials need to look at the whole issue of reservation shopping, which even many tribes oppose. Certainly, California voters never envisioned Las Vegas-style casinos being built near major cities when they approved Indian gambling several years ago — nor did lawmakers likely believe that tribal gaming would become a $19 billion national enterprise.
Elected officials have waited far too long to fold the bad hand that has led to the gambling proliferation. It’s time for a new deal.
Court Has Say in American Indian Case
By Juliana Barbassa, Associated Press Writer
August 17, 2004
FRESNO, Calif. – A federal judge has agreed to hear the case of two American Indian women who were banished from their tribe, taking on an issue that courts have largely avoided because of tribal sovereignty.
By deciding the tribe has to abide by the Indian Civil Rights Act, and follow its due process guarantees, U.S. District Judge Robert E. Coyle’s decision could potentially be a step in the direction of limiting tribal sovereignty, experts said.
Each of California’s more than 100 federally recognized tribes have councils and committees with nearly absolute power to determine tribal affairs, including who belongs and who doesn’t. But California tribes don’t have their own courts, which leaves little legal recourse for people like Charlotte Berna and Roselind Quair, lifelong Tachi-Yokut members, to appeal when the tribal leaders decide to cut them off from the tribe’s resources and keep them off tribal lands.
There are at least 1,160 people fighting to belong to 14 tribes in the state, according to an investigation by The Associated Press.
“There are people on Indian reservations that are afraid of their leaders, because their power is unchecked,” said Patrick Romero Guillory, the American Indian attorney representing the women who were expelled in June 2000.
Quair said she was targeted after she was sexually assaulted by a tribal member, and talked to a lawyer about the possibility of bringing suit. Berna, a formal tribal treasurer, said she was expelled when she called for an independent review of income from the tribal casino.
Since tribes are independent governments, the U.S. Constitution doesn’t apply to decisions made by tribal leaders. But the Indian Civil Rights Act, passed in 1968, does grant some of the same rights, though often with different interpretations.
For example, it gives plaintiffs a right to due process, but only in very narrow circumstances. Plaintiff must show they were was unjustly imprisoned before a federal court will agree to hear the case.
In this case, the court found that banishment — which forbids the women from visiting tribal lands — restricts movement, and is akin to imprisonment. So the Act applies, and the court agreed to look into whether the women got a fair hearing.
The court won’t take away the tribe’s ultimate right to make the decision, but will only examine whether the women’s right to due process was observed.
Because her brother was sick, Quair said she kept visiting the Santa Rosa Rancheria near Fresno even after she was told to leave. “They would stop me, and say, you know, you’re not supposed to be here,” she said. “It hurts me. I have family there. This is my heritage.”
Berna, who was elected treasurer in 1999, said some casino profits were unaccounted for so she asked for an independent audit. She was recalled in an election by people opposed to the audit.
Tribe chairman Clarence Atwell said in a statement the women’s membership was taken away because of “actions they were threatening to take against the tribe.”
“Our tribe, as part of our sovereignty, has always exercised our right to determine our membership,” Atwell said. “The lawsuit filed in this case is frivolous and a further waste of out tribal resources and judicial resources.”
State needs more power in Indian gaming agreements
January 21, 2003
The state of California is renegotiating its Indian Gambling Compacts, giving it a small window of time and some leverage to cut a deal that is more equitable than the giveaway Gov. Davis signed two years ago. Local governments need to be able to protect public safety, the environment and the rights of non-Indian citizens from the negative impacts of large gambling enterprises in their midst. The state needs the ability to force tribes to obey laws governing political contributions.
The state’s budget crisis is serious. But it is not so serious that Davis should trade away the chance to restore the authority of state and local government and the rights of non-Indian citizens to fair treatment.
The governor wants the tribes to contribute $1.5 billion to help solve the budget crisis. Make no mistake, that would change dramatically the state’s relationship with the gambling tribes.
The $1.5 billion represents about 30 percent of the estimated $5 billion in gross revenues California tribes rake in from gambling each year. (That is a very crude estimate because there has been no reliable independent audit of California Indian casino profits.) Neither Connecticut nor New York, two states the governor regularly cites to support his quest for more Indian gambling profits, takes in that much.
California receives just 2 percent, or less than $100 million annually — a far smaller percentage than Connecticut or New York. The money goes to the limited purposes laid out in the compacts — mainly to combat gambling addiction and in grants to local and state governments to mitigate off-
reservation impacts of Indian casinos. Under the terms of the 20-year agreements Davis signed in 1999, gambling tribes are not obligated to increase those payouts. To get the money from the tribes in the current round of compact negotiations, the governor will have to give something in return. Tribes want two things — the right to establish casinos in urban areas and more slot machines than the 2,000 maximum allowed for each tribe today.
Davis and all of California must weigh the risks here very carefully. California cannot sell its principles, its independence nor its sovereignty. It must not sacrifice the rights of non-Indian citizens to equality and fair treatment under the law. It must not give away the rights of local governments to protect public safety and the environment. It must not allow rich gambling tribes to ignore campaign finance laws. Those things must not be for sale — not for $1.5 billion, not for any amount of money.
Commentary: California Must Hedge Its Bet
By Brett D. Fromson
November 25, 2003
State should demand a new deal on its Indian casino agreements.
Californians are beginning to realize that casino gambling has not been a great bet for them. While more than 50 — and counting — casino tribes are grossing an estimated $5 billion a year, they contribute less than 5% to government coffers or to noncasino tribes. Yet everyone in California is burdened with the increasing social costs of tribal gambling: from traffic control to crime fighting, environmental degradation and liability suits.
In light of this, Gov. Arnold Schwarzenegger must renegotiate the gambling compacts struck between the tribes and the state so that they serve not only the interests of the tribes but all 34 million Californians.
Schwarzenegger should take a warning from my home state, Connecticut. We charge our two casino tribes 25% of their slot machine revenues to do business in the state. That’s close to $400 million a year. But even so, Connecticut is working to curtail Indian gaming and grappling with the damage the casinos are inflicting on surrounding towns and cities. We have seen a significant rise in pathological gambling among men, women and teenagers, in gambling-related suicides, bad debts and petty and major crimes, to say nothing of traffic congestion, loss of local tax revenue, loss of zoning and environmental control and declining residential property values.
Indian casinos were allowed in Connecticut for much the same reason they were let into California — historical guilt. Citizens and political leaders felt empathy for the downtrodden and thought gambling was an easy fix.
In Connecticut, officials mistakenly believed that by giving the Pequots a monopoly on slots, in exchange for 25% of the winnings, the state could limit the spread of gambling. Under the terms of the deal, if the state allowed non-Indian casinos, the Pequots could stop payments. This has, so far, kept non-Indian gambling illegal, but meanwhile, tribal casinos are proliferating. Today, the Pequots’ Foxwoods Casino has been joined by the nearby Mohegan Sun Casino — they are, respectively, the two largest in the world — and another 13 or so Indian bands are seeking a piece of the action.
The state government seems to be permanently on the defensive against those increases — and against the law of unintended consequences. As one of the Pequots’ lead attorneys told me: “Never underestimate the ignorance of your opponents. People can be real stupid sometimes.”
Particularly disturbing to people in Connecticut has been the erosion of state and local control. Newly emboldened with gambling money, the tribes have aggressively sought to expand their reservations by petitioning the federal government to take more land into trust for them. Long before California’s Lt. Gov. Cruz Bustamante got a dime from his state’s tribes, the tribes in Connecticut were showering campaign contributions on politicians and hiring as lobbyists just about every former federal, state and local official of any consequence. In Connecticut, people have learned that the phrase “sovereign rights” translates to “special interests.”
Sadly, the social costs of Indian gambling in California will be even greater than in Connecticut, if for no other reason than that California has so many more tribes and so many more casinos. The good news is that the potential revenue is larger as well.
The new pacts that are negotiated with the tribes should increase state and local governments’ share of revenue until it matches the actual costs of law enforcement, regulation and environmental mitigation at the casinos themselves and covers harder-to-quantify costs — the effect on local schools, highway repair and even the creation of programs to deal with problem gambling.
But how to get the tribes to negotiate, given that the primary compacts have 18 years to run? There is talk of an initiative, backed by friends of the governor but not directly tied to him, that would force the tribes to come back to the table or face competition in the form of slot machines added to racetracks and card clubs in California. Or the governor could immediately propose an even broader legalization of gambling in the state.
Either approach should do the trick. The last thing the tribes want is competition, whether it comes from slot machines at the horse tracks or new non-Indian casinos managed by the same folks who brought you the Bellagio and the Venetian in Las Vegas.
Once the tribes come to the table, Schwarzenegger needs to make sure that the public understands that the costs of gambling are real and significant — after all, the state’s voters approved tribal gaming. That support has given a negotiating advantage to the Indians.
And the governor has to put the right person in charge of making a deal. He has one good candidate: Warren Buffett — investor, consultant, dealmaker and part-time Californian. No one is savvier than Buffett. He once told me that if you are playing poker and you don’t know who the patsy is, you’re the patsy.
California, get to the table, and don’t be a patsy.
Settlement Act: If Only The Towns Knew In 1983 What They Know Now
By Wesley J. Johnson, Sr., Robert Congdon and Nicholas Mullane
October 26, 2003
When President Reagan signed the Mashantucket Pequot Settlement Act on Oct. 18, 1983, little notice was taken of it in the three towns of Ledyard, North Stonington and Preston since most of the work involving the land issue had been done in Washington, D.C.
This act provided recognition of the Mashantucket Pequots as a federally-recognized tribe, gave them an 800-acres reservation within the boundaries of Ledyard, and $900,000 for the purchase of land within the reservation boundaries and for economic development.
Little did the residents of these three towns realize the impact this legislation would have on their lives in the coming years.
Initially, no impact was felt; then came the announcement of the construction of a 1,200-seat bingo hall on the reservation. The bingo hall gave the towns our first glimpse of the potential impacts of Native American gaming on our communities. The passage of the Indian Gaming Regulatory Act led to a lawsuit by the tribe against Connecticut, claiming charities’ ability to conduct “Las Vegas Nights” provided the tribe the right to conduct Class III gaming.
The vast wealth generated by the casino provided the tribe the financial resources to purchase land outside the settlement area. When, in 1993, the tribe submitted an application for annexation of land outside the settlement area, it made residents angry in all three towns and continues to flavor their feelings toward the tribe to this day. The towns’ opposition to the annexation of land is warranted for several reasons: it erodes the towns’ tax base; it removes all local land use controls, such as planning and zoning; and it provides the tribe many sovereign rights, at the expense of civil rights and protects the tribe from litigation in Connecticut courts.
The development of the casino created many impacts for the surrounding towns without the benefit of local tax revenue to mitigate these impacts. While Ledyard, North Stonington and Preston are considered the host communities for the casino, its impact reaches across all of Southeastern Connecticut. Fire, police and ambulance services in the host towns have been severely impacted. Emergency calls have increased dramatically, causing both personnel and financial burdens. And other towns face casino-related burdens as well. For example, the Norwich school system has the burden of dealing with more than 30 languages within its system, mostly children of casino workers who have moved in from elsewhere. Housing throughout the region has been impacted. Currently, there is an identified shortage of more than 5,000 units of affordable housing.
Sovereignty has brought litigation. The tribe has tried to extend its sovereignty as a tax shelter to the vendors who have contracts to supply equipment to the tribe, feeling that tribal sovereignty extends to their companies since their equipment is located within the reservation boundaries. One case has already been settled by Ledyard.
Additionally, a recent court case involves a tribal member seeking a refund of her state income taxes paid while living in Ledyard, outside the reservation. The tribal member is claiming the area should be designated as “Indian Country” and given the same sovereign rights as lands within the reservation. If areas outside the reservation are granted “Indian Country” status, it would be devastating to not only local communities, but also the entire state. State and local tax revenues would be impacted as well as all of the land use and environmental issues raised with our opposition to annexation.
Several years ago, the tribe sought to gain the exclusive franchise right to distribute water in our towns. We were successful in retaining our exclusive service area through a public process, the Water Utility Coordinating Committee (WUCC). The tribe recently tried to overturn the WUCC determination through a back-door deal with the Department of Public Health. The actions of the tribe and Department of Public Health have forced the towns to defend our sovereign rights once again.
Probably one of the greatest challenges facing the towns and the tribe is to develop a working government-to-government relationship when the foundation is in question. Bret Fromson, author of “Hitting the Jackpot,” said in a recent interview, “The Pequots are essentially living a lie, and that is one of the fundamental problems facing these people.” “How do you become a tribe, when you are not a tribe . . .”
Improving our relationship with the tribe will be difficult until such time as the federal government has the courage to address U.S. Indian policy.
If we only knew then, what we know now.
Wesley J. Johnson, Sr., Robert Congdon and Nicholas Mullane are first selectmen of Ledyard, Preston and North Stonington respectively.
Casino Builders Demand Payment Unpaid Subcontractors Filed $7m in Liens Against Chukchansi
By Lisa Aleman-Padilla, The Fresno Bee
October 26, 2003
Unpaid subcontractors have levied nearly $7 million in liens against the new Chukchansi Gold Resort and Casino near Coarsegold, which could take in more than $130 million a year just from its slot machines.
One subcontractor says that the tribe’s failure to pay has killed his company.
“We’re out of business,” says Scott Holley, manager of Hopkins and Son, a Fresno construction company. “I’m the only one working on the payroll. It’s totally because of this.”
Holley says his creditors and vendors are suffering, too: “We’re hurting a lot of people.”
Holley and other subcontractors have filed liens as a last-ditch effort to stay in business. Holley filed for more than $606,000.
No one is taking responsibility for the subcontractors’ failure to get paid.
Chukchansi attorney John Peebles says the payments are held up by Cascade Entertainment, the resort’s Sacramento-based management company. He says the tribe is working with Cascade to see that all the bills are paid.
Cascade President Russell Pratt acknowledges some subcontractors haven’t been paid, but says delays are common at the end of a large project.
That position is backed by Raymond Cheesman, a senior vice president with the investment bank Jefferies & Co. Inc. “I don’t believe the tribe or Cascade are doing anything wrong,” he says. “I really don’t. These projects are very complex.”
Although the casino and resort is reported to have cost about $150 million, Cheesman, who was not involved with the project or its finance bonds, says the total cost could be around $180 million.
Many of the subcontractors agree that repairs and changes at the end of a project can delay payment but say Cascade’s delay has gone well beyond the industry norm.
Usually, all payments are made within 35 days of a large project being completed, says Peter Stravinski, president of Industrial and Commercial Contractors in Madera, which was not involved with the casino construction.
“Is it possible to go to 60 days? Yes. If it stretches to 90, there’s a serious problem.”
It has been more than two months since the hotel opened Aug. 22, and four months since the casino opened June 25.
Hanging over the payment debate are questions about the legal status of the land beneath the casino.
Most Indian casinos in California are on federal trust land, which confers several advantages to the casinos and the tribes that own them. The tribes don’t have to pay property taxes to the county, since one government entity doesn’t tax another. There also are limits on steps subcontractors can take to ensure they get paid for work on trust land projects.
Peebles, the tribe’s lawyer, says the casino is not on trust land, but an application to acquire trust status has been submitted to the federal government. The Madera County assessor’s office also says it’s not on trust land and wants the tribe to pay property taxes.
But one of the subcontractors’ biggest complaints is that Cascade officials told them when construction began that the casino land was in trust.
That led most subcontractors not to file pre-liens, which add clout to mechanic’s liens should subcontractors have to take legal steps to get paid.
Now, they fear, their worst dreams have come true: The casino appears to be on nontrust land, they have not been paid and they have filed no pre-liens.
Adding to the subcontractors’ frustration is the apparent success of the project.
Northbound traffic on Highway 41 was so heavy on the casino’s opening day that it backed up for a mile and a half. Once gamblers reached Lucky Lane, the casino’s main entrance, it took 90 more minutes to reach a packed parking lot.
Two months later, nearly all of the hotel’s 192 rooms were booked during the first weekend they were open.
The casino’s estimated 1,800 slot machines could take in more than $130 million a year if daily revenue hits what one gaming expert says is normal for an Indian casino in a good location.
While many of them struggle to survive, the subcontractors have found someone in their corner who used to work in a management role on behalf of Cascade and the tribe.
David Hayden is a former field superintendent for Dawes Construction LLC, which oversaw the project for Cascade. Hayden says Cascade told subcontractors the land was in trust to reduce protection the workers would have if Cascade failed to pay at closing time. He says the $150 million project is about $15 million over budget.
Normally, contractors will file pre-liens, which give notice to a project’s construction lender, contractor and owner before work begins to ensure payment.
“Right up front, Cascade lied to everybody and told them it was a sovereign nation in trust, therefore you couldn’t pre-lien it,” Hayden says. “Come to find out, when the job’s over and no one’s getting paid, they should’ve pre-liened.”
Some of the subcontractors working on the Chukchansi resort, such as Hopkins and Son and Valley Glass out of Fresno, ignored Cascade and continued their normal business pattern by filing pre-liens. But most did not.
Mechanic’s liens, which are sought after work is complete, are legal claims for unpaid work or materials. A lawsuit must be filed within 90 days of filing the mechanic’s lien, making it costly, time consuming and unrealistic for most smaller subcontractors, Hayden says.
Hayden says he quit Dawes Construction to become a full-time advocate for the workers he believes were defrauded by Cascade. He is currently unemployed.
Scott Dawes, owner of Dawes Construction, confirms that Hayden resigned from his company on Sept. 12.
Hayden says, “My whole deal is to get these guys paid. Then, I’ll go back to the planet where I came from. If they don’t get paid, I’m going to turn the world upside down.”
Kris Koontz, owner of Koontz Construction in Coarsegold, says he got to know Hayden over the six months the men worked together on the casino. He says Hayden is an honest man who, in light of the pay issues, regrets having pushed the subcontractors to hurry and finish the job on Cascade’s timeline.
Hayden says Cascade became responsible for payments last spring, when it took over financial control from Walton Construction, the project’s general contractor.
“They directly started paying all of the subcontractors and paying the overhead for Walton,” he says. “Then the money just sort of dried up. Once they got the hotel opened and the casino opened, the money was slim to none, and then none.”
So far, subcontractors have filed nearly $7 million in liens against the project, and nearly $600,000 in additional liens have been discussed, Hayden says.
Fourteen subcontractors are owed a combined total of nearly $3 million, although not everyone waiting for payment has come forward or filed liens.
Mark Contreras Tile filed a lien for more than $103,000. Mark Contreras says Cascade paid him $59,000 on Sept. 22, with a warning that he needs to stay away from Hayden if he wanted the remaining $44,000.
Koontz, of Koontz Construction, says he received the same warning when he was paid about $16,000, also on Sept. 22. He is still owed $124,000, he says.
Some of the subcontractors say they may file a class-action suit against Cascade, Walton Construction and possibly the tribe.
Pratt, Cascade’s president, says his company did not mislead anyone into believing the land was held in trust to avoid pre-liens. “It’s on trust land,” he says, despite the tribe and the county agreeing that it is not.
John Short, vice president and owner of Quantum Mechanical Contractors, a Clovis firm that interprets building plans, says his company is owed about $630,000. The company filed an additional claim in October for more than $530,000 because of the poor treatment the company says it received on the project.
Short says that he and about 50 other subcontractors were told at a pre-bid meeting with Walton Construction that the project had trust protection and offered tax advantages.
Dennis Thompson, senior vice president of Walton’s business development, says the company believed the land was in trust. He says the tribe owes Walton more than $2 million for the project.
“We’re gone from there; our work is complete. Now, we just need to get paid,” he says. “Walton is actually a subcontractor in this project, too. We’re kind of stuck between [Cascade] and the tribe.”
Thompson says Walton is putting pressure on Cascade to give the money to the subcontractors.
Short, of Quantum Mechanical Contractors, says he has talked regularly with the tribe, Cascade’s Pratt and Walton, but with no success. He says he never has experienced such a payment delay in 30 years of business.
“We’re just getting the waltz. We’re just getting a dance,” he says. “We’re not getting anywhere.”
Sacred Lands Bill is a Minefield
Mercury News Editorial
July 26, 2003
Protecting land that is sacred to Native American tribes is a high-minded goal. Unfortunately, the bill introduced in the California Legislature to accomplish it is a minefield — and efforts by the governor and others to rush it through this year are contemptible.
Senate Bill 18 is nowhere near ready for a final vote. It should be tabled until next year at the soonest, so it can be thoroughly debated in a less politically-charged climate.
The idea is to prevent development of places with spiritual or ceremonial importance to California’s 100-plus tribes by giving the sites the same status as historical and archaeological sites. Builders would have to ask the Native American Heritage Commission whether a proposed development falls on — or even within five miles of — a sacred site. If so, then mitigation would have to be pursued. Disputes would go to court.
Problems? For starters, the list of sites will be kept secret to stop looters. That’s understandable, but imagine the challenge for developers and property owners who may have no idea their plans involve sacred land. Builders have to get access to the list and negotiate mitigations, which may or may not be acceptable — all the while facing a $10,000 fine and even jail time if the location leaks out.
There are about 1,500 sacred sites now. More could be added. Sites can be distinct places, such as the Bay Area’s many shell mounds, but others are amorphous, such as bodies of water or general locations where ancient trails crossed.
Bills are supposed to be introduced early in the legislative session to allow for public discussion. This one crept in the back door. But the easy passage Gov. Davis hoped for was thwarted by adamant opposition in the Assembly Natural Resources Committee, coming from utilities, miners, loggers, real estate agents and builders.
And that was just the private sector. Counties with many tribes — San Diego County has 18 — need time to analyze the bill. Imagine trying to hold hearings on a town’s general plan while not revealing sacred sites that could get in the way — or even admitting they might exist.
The politics surrounding the Davis recall are further clouding this issue. The governor needs the newly-wealthy gambling tribes on his side. He vetoed similar legislation last year, which makes his support now even more suspect.
There must be ways to help protect sacred lands, but this bill is a nightmare. It requires serious debate. It must not be railroaded into law this year.
Editorial: “No Justice In Casinos”
By Bill Lynch, Editor
July 24, 2003, Sonoma County Index Tribune
When spokespersons for Miwok Indians respond to critics of their casino proposal, they fall back on their claim that virtually all of the land in Sonoma and Marin counties, including the land at Highway 37 and Lakeville Road where they plan to build a casino, was stolen from them at some time in the past.
Similar claims can be made by the descendents of almost every Indian tribe in the Americas. In addition, Mexicans have some claims on Texas, California and other parts of the Southwest (although their ancestors probably “stole” it from the Indians). The descendents of conquered and displaced people of many nations could make a case for reparations as well. Dare we mention the slave trade? Man’s inhumanity to man is well documented.
But who today must be accountable for the alleged crimes of their ancestors?
Who gets to decide how much is paid, where, when and to whom? How do the citizens of this age balance a scale of justice that goes back centuries when the rules and standards were different?
Finally, how would it be done fairly so the burden of the debt does not fall on a few, while others, presumably equally responsible, pay nothing?
The Miwok tribe spokespersons are saying they decide these questions here in Sonoma County. The “guilty” in the tribe’s eyes are local residents who are not of Miwok descent.
Having declared that non-Miwok local residents are responsible, they’ve announced our penalty – that they (the Miwoks ) can carve out a choice spot in Sonoma County and build a casino. They do not have to follow the laws that we have established through our elected representatives for the safe, civil, healthy and orderly operation of our society. They are not bound by our planning and environmental regulations and they do not have to pay local taxes. They, the gambling corporation, and the politically well-connected land speculators who put this deal together will make some big money, and our region will be the worse for it.
That is their idea of justice.
In a fair trial, we would have our day in court. Unless Congress acts in our defense, we will not get that chance. Having been declared guilty without a trial, neither will we have an opportunity to argue in a court of law that the penalty is unequal, unfair and unwise. And although we live in a representative democracy and have the right to vote, we don’t get to vote on this.
The Miwoks may make the charge that someone terribly abused their ancestors, but they can never prove their case that the current residents of this region or this state are in any way responsible. None of us was there, and we are not responsible for the laws and morality of the distant past.
Were the Miwoks really there first, or did they push out some earlier indigenous group? Did Americans steal the land or did the Mexicans? Isn’t this just another example, repeated throughout the ages, of one group of people conquering another?
The list of potential claimants for war reparations is as long as history itself.
But our accusers say someone must pay them and have pointed the finger at us. Having made the innocent guilty, their proposed punishment is equally unjust. The idea of placing a separate sovereign nation, funded by gambling, in the middle of well-established, civil, local government, is as stupid and illogical as it is harmful.
This precedent will lead other tribes, backed by other corporate gambling interests, to “leap-frog” ever closer to lucrative high-traffic locations, leaving earlier and more rural Indian casino enterprises to wither and die. It is a shell game that will never lead to real economic independence for the majority of Native Americans in the 21st century.
This is not justice. It is one group of people using others and a loophole in the law for personal gain. Call it what it is – a scam.
Tribe Must Report Political Donations
By Erica Werner, Associated Press Writer
Feb 27, 2003
LOS ANGELES – In a case seen as an important test of Indian sovereignty, a judge ruled Thursday that a Southern California tribe is subject to the same state campaign-finance laws that apply to other political contributors.
Superior Court Judge Loren McMaster said exempting the tribe from the law’s reporting requirements would subvert California’s electoral system.
“The court rejects the assertion that the doctrine of tribal immunity applies here to insulate the tribe from the jurisdiction of California state courts to enforce state laws designed to protect the integrity of state legislative and electoral process,” McMaster said.
The ruling came in a lawsuit by the state Fair Political Practices Commission against the Agua Caliente Band of Cahuilla Indians, one of California’s wealthiest and most influential Indian tribes.
The commission alleged that the Agua Caliente band was late in disclosing more than $8 million in donations to candidates and causes between 1998 and 2002. The FPPC sued the tribe and demanded it pay fines equal to the amount improperly reported.
The Agua Caliente band, which operates two casinos in and around Palm Springs, argued that because it has tribal sovereignty, it was not bound by the state’s campaign finance rules.
“It’s a slam dunk,” said FPPC chairwoman Karen Getman. “The court agreed with us that tribal sovereign immunity really was not the issue here, it was California’s state sovereignty that was at stake.”
Tribal attorney Art Bunce said the ruling was wrong and the tribe will probably appeal.
“Other states have attempted to sue tribes on equally compelling grounds and have failed. I don’t understand why the result is different in this case,” he said.
Indian tribes have become some of California’s top political contributors in recent years. The Agua Caliente donated more than $5 million to support a proposition that legalized Indian gambling in California in 1998. They were also the third-largest donor to legislative races in the state that year.
“This is the clash of the sovereigns,” said Joseph Wiseman, who teaches American Indian law at Empire State Law School in Sonoma. “It’s potentially a groundbreaking case because it does effectively change the dynamics of sovereign immunity.”
He added: “If this case is upheld on appeal it will raise the power of any individual state to enforce its laws on any entity including another sovereign.”
More Oversight on Casinos
San Jose Mercury News
December 26, 2002
Picture a few dozen small gambling casinos on relatively remote tribal land, pulling Native Americans out of poverty.
That’s what Californians had in mind when they approved Proposition 1A in March, 2000.
Now picture tribes buying up land in major urban areas and opening Las Vegas-style casinos over the objections of local residents.
That’s not what Californians had in mind.
But that’s what they’re starting to see, along with a never-ending litany of disputes over water rights, traffic congestion, fire safety and environmental degradation.
The poorly written initiative that passed, with Gov. Gray Davis’ blessing, to legitimize tribal gambling also included a requirement that the state-tribe compacts be reviewed in 2003. During January, the state can initiate discussions on complaints that gaming activities have harmed the off-reservation environment. And during March, either side can open negotiations on the type and number of gaming activities whether to expand the cap on slot machines, for example, or allow sports betting and Internet wagering.
Although tribal gambling in California is a $5 billion business, it’s still in its infancy. There’s no shame in regarding the first couple years under the compacts as a learning experience, awakening the state to the need for more definitive language and a better balance of power between on-reservation and off-reservation officials and residents.
No one can fault the tribes for running casinos on otherwise worthless land. Poverty-stricken Native Americans were ignored in Sacramento until semi-legal casinos brought in enough money to support sizable campaign contributions (the only way, apparently, to get attention in the state capitol).
But if gaming is to be an asset for both the tribes and the state, Davis must renegotiate the compacts, and this time the negotiations should be open to public debate. Whatever the Legislature ratifies should continue building an economic foundation for the tribes, without tearing down the quality of life for other Californians.
Congress gave governors significant power over tribal compacts. Davis should insist on stronger regulatory oversight, limits on gambling expansion to urban areas and better enforcement of revenue sharing requirements. It’s essential these issues be worked out quickly, as tribes are planning casinos in major urban areas including Richmond, San Pablo, Vallejo and West Sacramento on land that is only tribal because a tribe bought it.
If California must grapple with casino gambling that is within reach for millions of people, it needs to have more control over what is built. California shouldn’t have to learn the hard way the lessons Nevada learned about gambling’s association with crime, bankruptcy, addiction and other problems.
Editorial: Get a Handle on Casinos
November 4, 2002
Indian casino gambling generates a huge amount of cash, but it also has opened the door to a host of new problems for California, including controversy throughout the state over the uncontrolled effects of casino construction and expansion on local communities.
In 2000, Indian tribes gained the right through a voter-approved ballot initiative to operate Las Vegas-style blackjack and poker tables, as well as thousands of new slot machines on tribal lands throughout California. The casino operators claim that tribal sovereignty makes them immune from state and local laws and rules. In their view, that means they don’t have to pay taxes and observe regulations like other businesses in the state, although larger casinos do pay some fees. It’s a murky legal area that needs to be clarified in the courts. The next governor should use his power to negotiate new casino compacts to give state and local governments more authority over the casinos.
In the meantime, the deal that Yolo County officials negotiated with the Rumsey Band of Wintun Indians last month over expansion of its gambling casino is the best any local government has done. The Rumsey Band runs the Cache Creek casino, with 1,130 slot machines and blackjack and poker tables, in Yolo County’s bucolic Capay Valley about 50 miles west of Sacramento. Fearing competition from other tribal casinos, the tribe proposed to triple the size of the casino and build a six-story hotel and a 4,900-space garage. Area residents, echoing statewide complaints about expansion of casinos, protested that the project would cause environmental damage and clog roads. The Wintuns tried to be good neighbors. They cut the casino expansion by about a third. There will be a hotel of four stories, not six. But the casino can expand again after 2008.
The tribal compacts negotiated with Gov. Gray Davis in 1999 say tribes must make a good-faith effort “to incorporate the policies and purposes” of environmental laws “consistent with the tribe’s governmental interests.” Atty. Gen. Bill Lockyer says he has no authority to enforce the 62 existing tribal compacts, leaving it up to the tribes themselves and a state commission with questionable powers. The state should have a vigorous enforcement agency.
The next governor has the power to seek more state and local control over casinos when the tribal compacts automatically come up for renegotiation early next year. He should clear up ambiguities and limit further extension of casino gambling. Davis promised there would be no major expansion of gambling, but there are now 50 tribal casinos in the state pulling in roughly $5 billion a year in slot machine revenue alone. That’s only a guess, because, believe it or not, the tribes say they don’t have to report how much money they make — another flaw that needs to be fixed in the new compact talks
Two Lines Longer Clash of Cultures, Religions
By Bill Horn
September 12, 200
The cultural heritage and sacred sites of Native American tribes in California is an important part of our history and should be preserved for future generations to cherish. But current legislation being considered by Gov. Gray Davis to expand these rights simply goes too far, and puts the future quality of life in San Diego County at risk.
Senate bills 1828 and 483 by state Sens. John Burton and Byron Sher establish broad new guidelines that give Native American tribes an unfair advantage over other Californians when it comes to making land-use decisions in the state.
If enacted, these bills could and would be used to block necessary infrastructure improvements, such as roads, bridges, energy and water facilities, seismic improvements, and commercial and residential development on private property – all on the grounds that they will impact Native American sacred sites. Put simply, SB 1828 and SB 483 give Native American tribes in California de facto veto power to strike down public and private development projects throughout the state.
The California Environmental Quality Act is widely recognized as being the toughest land-use law of any of the 50 states. CEQA already includes provisions to protect cultural resources, including sites that Native Americans consider sacred. There are many ways that CEQA can be changed to increase the protections afforded Native American sacred sites.
But standing the time-tested CEQA environmental review and approval process on its ear should not be one of them and that is exactly what SB 1828 and SB 483 does.
SB 1828 and SB 483 also would establish an entirely new process that says projects that impact sacred sites can only be approved if they have environmental, public health or safety benefits.
Very few developments, including highway expansion, school construction, hospitals or low-income housing will be able to overcome this prohibitive hurdle. And that puts Native American tribes in a position of being able to veto a broad range of land use decisions.
Other provisions are equally troubling to local governments and private businesses. The legislation requires that tribes be notified of proposed developments and infrastructure improvement projects that fall within 20 miles of any reservation or sacred site. If you draw a 20-mile circle around every reservation and sacred site in San Diego County, it covers virtually the entire county. And a tribe can claim that areas far removed from their sacred site or reservation are sacred and therefore in need of protection.
Perhaps most troubling, this legislation contains a wide-open invitation for mischief that could be extremely costly to California. These two bills automatically give sites that have been recorded with the Native American Heritage Commission sacred status. But the Native American Heritage Commission’s inventory of sacred sites is kept secret. The commission allows any Native American to record a site as sacred simply by filling out a form. There are no hearings held or historical records or documents checked for verification. Once on the inventory, those locations can be used to block or delay projects across the state. Proof of sites as sacred is extremely loose including oral histories as adequate to establish properties as “sacred”.
Also, these bills favor Native American religions over others seeing as how only Native American sacred sites are given this additional level of protection clearly promoting one religion over another. The ramifications of this point alone demands these bills be vetoed.
The problems associated with Sen. Burton’s SB 1828 and Sen. Sher’s SB 483 represent an unfortunate clash of cultures and religions.
Our present land-use laws are designed to carefully measure and weigh the positive and negative impacts of projects on specific parcels of land and balance them against the impacts on communities.
The religious beliefs and practices of many Native Americans are not confined by property lines or local government jurisdictions. Entire mountain ranges are considered sacred in some cases.
The vast expanse of Mount Shasta in Northern California plays a key role in many Native American creation myths and is considered sacred in its entirety. Many of the river systems in the Central Valley of California have religious significance to Native Americans and could be considered sacred. Unfortunately, the needs of our present-day communities and the demands of contemporary society cannot easily accommodate these expansive belief systems.
SB 1828 and SB 483 must be vetoed by Gov. Davis. Local government is the right place for crucial land use planning decisions to be made as these entities are best equipped to provide the necessary balance between competing land use interests, including the importance of sacred and religious sites to California Native Americans.
Horn is a member of the San Diego County Board of Supervisors.
Easy OK for Sacred Land Bill Indians Given Power Over Developments
By Greg Lucas, Sacramento Bureau Chief
August 29, 200
Sacramento — The Assembly easily approved a bill Thursday that gives California’s politically powerful Indian tribes greater say over development on land they consider sacred — both public and private — that lies outside their reservations.
The bill pitted tribes against a long list of business groups that said the measure would give tribes the power to hold up or stop commercial and residential development.
Scaled back substantially from when it was first introduced, the bill, SB1828 by Senate leader John Burton, D-San Francisco, no longer gives tribes veto power over projects on lands they consider sacred but makes it far harder for development to be approved on such areas.
“We cleaned it up a lot,” Burton said.
With less than 90 hours to go to act on hundreds of bills, Assembly members debated the measure for over an hour Thursday, eventually passing it by a wide bipartisan margin to the Senate, where it faces a final vote before being sent to Gov. Gray Davis.
Burton, a liberal, used conservative GOP Assemblyman Bill Leonard to carry the measure in the lower house.
Before Leonard presented the bill, he placed a photograph of a huge oak tree held sacred by the Pechanga Band of Luiseno Indians into the computers of the Assembly’s 80 members.
Sempra Energy plans a power line the tribe opposes that would cross their land near the tree.
The Pechanga Band is one of the most politically active tribes in the state,
using the cash and clout from California’s approval of Nevada-style casinos on Indian lands to help make their case in the Legislature.
Since January 2000, tribes have generously contributed to the election campaigns of state officials of all political stripes. Burton has received at least $485,000 from tribes. Davis, who has final say on the bill, has gotten more than $840,000.
Despite being watered down, the bill still would place some tall hurdles in front of projects touching lands tribes define as sacred sites.
It creates a process to identify and catalog sites and requires local governments to protect them when a development is proposed.
Although a local government can overrule a tribe’s objection to a project that affects a sacred site, the only way to do so is to prove that all feasible mitigation of damage to the site has been taken and there are overriding environmental, public health or safety reasons to build.
“This bill takes the environmental quality act into an entirely different realm that I think will prove intensely problematic,” said Assemblyman Roy Ashburn, R-Bakersfield, who voted against the bill.
Other opponents say the bill does not have a tight enough description of sacred sites and could allow Indians to influence land-use decisions throughout much of the state.
Saying he supports historic preservation, Assemblyman John Campbell, R- Irvine, noted: “We don’t save every place that George Washington slept or walked. Not every Civil War battlefield has been saved as a historic monument.”
Campbell said if the bill were applied to the Judeo-Christian tradition, “we would have to preserve every site where anyone ever prayed.”
But supporters, like Leonard, said that tribes had received short shrift from the state — dating back to 1850 — and that giving them greater control over lands they consider culturally important was simple fairness.
“It’s real hard to protect your land claims, it’s real hard to protect your religion if you’re persecuted to the brink of extinction,” Leonard said, after recounting a brief history of treatment of Native Americans.
The genesis of the bill is a dispute between the Quechan tribe and Glamis Gold Ltd., which already has spent $14.7 million to try to build an open pit gold mine on the federal land 20 miles from the tribe’s reservation in the Imperial Valley.
Opponents said the bill’s attempt to thwart the project was too broad and would block all open pit mining in the state.
Leonard said that the parts of the sacred sites bill affecting open pit mining would be eliminated and that another bill would be narrowly written just to block the Glamis gold mine.
Davis has publicly taken no position on the bill.
©2002 San Francisco Chronicle. Page A – 19
Indians Prevail on Every Gaming Issue
August 5, 2002
It has been quite a year so far for the state’s Indian casinos. To say that they’ve been on a roll is putting it mildly, kind of like calling Barry Bonds’ record 73 homers last year an “OK bit of hitting.” Let’s review a few of the casinos’ recent victories:
In March, the state Board of Equalization announced that it no longer would enforce state law by collecting sales taxes at reservation restaurants or gift shops. Not that it was being done anyway – the Indians simply refused to collect it – but the action could be the springboard to a future refusal to collect sales tax revenues at reservation outlet malls or other business enterprises.
In April, after private negotiations with the tribes, Attorney General Bill Lockyer’s office agreed to exempt potentially thousands of casino employees from securing state approval before they could be hired.
In June, a state Senate committee took up an Assembly-passed measure that would ban Internet gambling in California. The bill never even had a chance to make it out of committee. Reason: the California Nations Indian Gaming Association submitted a letter of opposition, thus acknowledging its interest in Internet betting.
Also in June, a bill carried by Senate President Pro Tem John Burton started whisking its way through the Legislature. It would prohibit the state from issuing a construction permit to any project that a tribe declared would have an adverse effect on its religion. Since the tribe would be the sole judge of that impact, the bill would give the Indians virtual veto power over any public or private construction project in California.
Last week, a District Court judge rejected a series of suits by four card rooms challenging the monopoly status of the tribes on slot machines and house-banked card games such as blackjack.
Now, two of the state’s major casino tribes, the Pechanga and San Manuel bands, are seeking a meeting with Gov. Gray Davis to clarify the state’s slot-machine licensing authority. “I firmly believe that in the compact negotiations, we were able to win the issuing of licenses,” says Pechanga chairman Mark Macarro. “Maybe they didn’t understand what they gave away, and now they’re trying to wrest some control back.”
Macarro stops short of saying that the state has no control over the 50-plus casinos now operating in California, nine of them in San Diego County, adding that the tribes are seeking some sort of “shared” control. And, if Davis is unwilling to concede this, they’ll go to court to settle it. That’s not a comforting thought.
The Indians already are richer than the state, thanks to their casinos. They’re well on the way to proving they’re smarter than the state. And, the next thing you know, they may turn out to be more powerful as well.
Copyright 2002 Union-Tribune Publishing Co.
Indian tribe with only eight members set to open casino in Southern California
July 17, 2002
AUGUSTINE INDIAN RESERVATION, California – This tiny reservation will soon have more card tables than tribal members.
With a population of eight, the Augustine Band of Mission Indians will open a casino on Thursday, offering 349 slot machines, 10 card tables and a 24-hour coffee shop.
Nestled in the Coachella Valley about 130 miles (200 kilometers) east of Los Angeles, the reservation sat uninhabited for years after various diseases, including smallpox, diminished the tribe’s population to just 11 members in 1951.
The tribe nearly disappeared with the death in 1986 of Roberta Augustine, its only federally enrolled member. But Maryann Martin, Augustine’s granddaughter and the tribe’s only adult member, decided to move to the reservation after learning of her heritage.
Martin lives on the reservation with her three children and her brothers’ four children.
“Now this place really has an opportunity,” said Diana Bennett, president of Paragon Gaming, the Las Vegas company that developed the casino and plans to manage it.
The $16 million casino may add an additional 351 slot machines in November.
Native tribes can apply to federal authorities to run gambling facilities on their reservations.
Tiny Tribe’s Clash Stretches 67 Acres Across the Nation Influence-Peddling Is Alleged in Casino Plan
June 23, 2002
By Ellen Nakashima, Washington Post Staff Writer
In Northern California’s Amador County, on a hilltop 40 miles southeast of Sacramento, two factions are battling fiercely for control of the Buena Vista Rancheria tribe of Me-Wuk Indians. One faction has three members. The other has one.
The Buena Vista Rancheria is a tribe so tiny that the federal government once almost knocked it off the tribal register, but the struggle has attracted high-powered lawyers and lobbyists, allegations of influence-peddling, an FBI investigation and an inspector general’s probe. Last month, the No. 2 official at the Bureau of Indian Affairs, who had been drawn into the controversy, was fired.
At issue is a 67-acre plot of land that belongs to the rancheria, a California Indian term denoting a tribal entity. Right now, the land is occupied by cattle, a double-wide trailer and a forlorn cemetery.
One faction wants to keep it the way it is. The other has signed an agreement to build a $150 million, 200,000-square-foot casino. Now the Interior Department has to determine who has the right to organize a tribal government on the land.
With Indian casinos breaking revenue records — bringing in $12 billion nationwide and $3 billion in California alone last year — the Buena Vista struggle shows how charged the politics of tribal recognition have become since Indian gambling was legalized 14 years ago.
“It’s just about money. It’s really that simple,” said Wayne R. Smith, who was deputy assistant secretary of Indian affairs before he was fired amid questions about how a former business partner was using his name to solicit Indian lobbying business. Smith has said he had nothing to do with his former partner’s solicitations, and insisted that he resisted undue pressure, from the White House, to intervene on behalf of the pro-casino faction.
The conflict is certainly about money, but it is hardly simple.
A $10 Million Stake
Two women have laid claim to the tribal leadership. One, Donna Marie Potts, is in her sixties and lives in the trailer on the land. She considers herself and her two children the only recognized members of the Buena Vista Rancheria. Her attorneys say her only job is that of tribal spokeswoman. She wants to build the casino to raise income for her tribe and for homeless Native Americans in Northern California.
Her rival, Rhonda Morningstar Pope, 31, a physician’s bookkeeper who is paid $30,000 a year, has never lived on the rancheria land. But her father, her grandmother and her great-grandparents, the tribe’s matriarch and patriarch, are buried in the cemetery, and she is dead set against any plan to develop the land.
The casino project took root in 1998, when Cascade Entertainment LLC, a Sacramento firm, signed a deal with Potts to build a gambling emporium that would offer 1,800 slot machines, blackjack tables, four restaurants, a 1,200-seat theater, a 250-seat cabaret theater and a 2,000-car garage.
Cascade has already lent Potts $10 million for the project, to cover environmental studies, architect’s fees, lawyer’s fees and public relations consultants. Potts has also installed running water and electricity in her trailer.
Cascade’s plans were progressing in September 2000 when Pope learned about them. She petitioned the BIA’s Central California office in Sacramento for a new tribal election, on the grounds that she was the Buena Vista Rancheria’s only surviving adult descendant. She also challenged a 1994 tribal constitution that named Potts a historical member and, Potts contends, gave her the right to form a tribal government.
Last December, fearing that Potts and Cascade would proceed with the casino project before the BIA ruled, Pope filed suit in federal court in Sacramento to halt construction.
“The rancheria is the last piece of existence of my family,” Pope wrote in a declaration to the court. “It is what my ancestors have left behind for me to care for the way they did.”
The question of tribal membership, however, centers on a series of somewhat contradictory legal proceedings.
In 1958, the Buena Vista Rancheria of Me-Wuks was disbanded under a federal law, and its members were given land in compensation. Pope’s great-grandparents, Annie and Louie Oliver, were the only two people who received Buena Vista land. In 1983, as the result of a federal lawsuit, the Buena Vista Rancheria was federally recognized again.
Potts has spent most of her life on the Buena Vista Rancheria land, and says she was raised by Lucille Lucero, the Olivers’ daughter. It is unclear from documents who her birth mother was, or how she came to live with Lucero, Potts’s attorneys say. In 1986, Lucero willed her 75 percent interest in the land to Potts, who later bought the remaining land from other Oliver family members and in 1996 deeded all the land to the tribe.
Pope never lived on rancheria land. But she was able to provide a birth certificate and a Social Security form showing she was a lineal descendant of the Olivers. According to the BIA, rancheria membership belongs to those who received rancheria land in the 1950s, their dependents or their lineal descendants.
Potts and her attorneys say a 1983 federal court ruling made it clear that rancheria membership belongs to “any Indian heirs, legatees or successors in interest” to the families that lived on the rancheria land — such as Potts.
In December, the BIA’s Central California superintendent, Dale Risling, issued his decision: Potts could not prove that she was a dependent or lineal descendant of the Olivers, and had not lived on the land before it was distributed to them. Moreover, he ruled, the 1994 constitution was invalid because the interior secretary had not approved it. Pope was entitled to organize a Buena Vista government.
In January, the federal court in Sacramento issued a preliminary injunction halting the casino project until the BIA proceedings run their course.
On May 6, the BIA acting regional director, Ron Jaeger, upheld Risling’s ruling.
But before then, Wayne Smith’s phone at the BIA had started to ring.
An Unexpected Guest
It was in February, Smith said, that he began to receive calls from Potts’s lobbyist, Scott Reed, a well-connected Republican in Washington. As the BIA’s No. 2 official, Smith could recommend that the Washington office take control of the decision over who could form the tribe’s government, and Reed wanted him to hear Potts’s case.
Reed acknowledged making the calls: “My point was, the federal government’s been recognizing her eight years now,” or since the signing of the 1994 constitution. “There can’t just be some willy-nilly decision without a proper review.”
Reed said he also arranged for Smith to meet Potts and her attorney, John Peebles, at breakfast in Sacramento on Feb. 19 so they could state their case. Smith says that the meeting was never confirmed but that when he arrived in Sacramento on the 19th, he got a call on his cell phone from Reed associate John Fluharty, who said they were in town and where was the meeting? So anxious were they to see him, Smith said, that he agreed to meet at a local restaurant.
Whatever the case, Potts, Peebles and Fluharty met with Smith at a Peppermill Restaurant that day.
Also at the table was an unexpected guest: Philip M. Bersinger, Smith’s former partner in a consultancy on Indian gaming issues. Smith said Bersinger’s presence was a coincidence; he had had plans to breakfast with Bersinger earlier at the same place.
Soon Bersinger’s name would be at the center of allegations of influence-peddling, and Smith would be on his way out of the BIA.
At the meeting, Smith said, he listened to Potts’s arguments but did not commit to taking action. And after checking with Jaeger and the solicitor for Indian Affairs, Smith said, he notified Reed that he would decline to intervene.
In April, Time magazine reported that shortly after the Sacramento meeting, Bersinger approached a Buena Vista lawyer in search of business. Bersinger told Peebles he could “solve the Buena Vista tribe problems at the BIA” for a fee of $25,000 a month, Potts’s spokeswoman said in an interview with The Washington Post.
Time also reported on two letters that Bersinger wrote, making a similar business pitch to two other California Indian tribes. In both, he mentioned his “tremendous access and influence” at BIA through Smith, and offered to help the tribes for fees of $1,000 and $5,000.
Bersinger has acknowledged writing the two letters, but he did not return phone calls from The Post seeking comment. Smith, for his part, said that he had no knowledge of any offer Bersinger might have made to Peebles, but that he had admonished his former partner for using his name without his permission. “There’s no question that my ex-partner had a terrible marketing plan,” Smith said, sarcastically.
A third letter, which Time obtained but did not report, led Smith to suspect that someone was trying to frame him. Addressed to William G. Worfel, vice chairman of the Coushatta Tribe of Louisiana, it showed Bersinger touting his access to Smith and seeking a $250,000 payment for help with BIA business.
Bersinger has issued a written declaration denying that he wrote that letter. Worfel, in an interview, said that he had never received it and that he had never had any communications with Bersinger. Smith, after obtaining a copy of the letter, asked the FBI and the Interior Department’s inspector general to investigate.
By then, Smith was having troubles of his own. According to his attorney, Nancy Luque, he wrote his superiors a letter saying that the White House had been pressuring him to pull the decision from Sacramento. She declined to say who in the White House Smith was referring to. White House spokeswoman Anne Womack dismissed his allegations and referred queries to the Interior Department.
About a week after he wrote the letter, Luque said, Smith was fired. She declined to provide a copy of his letter.
Smith has sought protection under the federal whistle-blower law, though it is unclear whether he is eligible for it. The FBI and the inspector general are still investigating.
In the meantime, the leadership of the Me-Wuks remains unsettled.
Potts has appealed the court decision to the 9th U.S. Circuit Court of Appeals and asked the Interior Department’s Board of Indian Appeals to reconsider the BIA decision.
If she loses her appeals, Cascade says it fears it will lose its $10 million.
Staff researcher Madonna Lebling contributed to this report.
Lawsuit in California Asks, Whose Tribe Is It, Anyway?
By Timothy Egan, NYTimes.com
April 10, 2002
IONE, Calif., April 4 – The Me-Wuk Indians disappeared from this part of the Sierra Nevada foothills not long after
people began scraping gold from the streams and charging a day’s wages for whiskey. They left without much of a trace 150 years ago, leaving a land that would be known for Zinfandel and long weekends.
But now the Buena Vista Me-Wuks have reappeared – at least on paper – and are going after a mother lode of their own: a $150 million casino and resort on a cow pasture 35 miles from Sacramento. The casino has been approved, and
construction was to start this month.
The only problem is, the group calling itself the Buena Vista Rancheria of Me-Wuk Indians are not who they say they
are, according to the Bureau of Indian Affairs. That group consists of a 58-year-old woman, Donnamarie Potts, and her two adult children – none of whom, the bureau recently concluded, have any blood lineage to the little band of
people long ago recognized as the Buena Vista Me-Wuks.
Indeed, Ms. Potts is being challenged by another woman who says she is the last surviving member of the tribe.
This creates a problem. As a federally recognized tribe, the Buena Vista Me-Wuks may be a sovereign Indian nation,
but for now they are a nation without people. A federal district judge issued the latest injunction last month, halting the casino’s construction until the government can figure out who – if anybody – is a rightful member of the tribe.
There is good reason to want to be a Me-Wuk. As with other tribes across the country, the right heritage can be worth
a fortune in gambling revenue, particularly in California.
With 108 federally recognized tribes, and 46 Indian casinos, California has more Indian nations and brings in more tribal gambling revenue than any other state and, in fact, the entire Northeast.
By 2004, about a third of the $15 billion made nationwide by tribal gambling will come from California, industry
analysts say, even though Indians constitute only a tiny percentage of the state’s population. That growth, some
forecasters say, may mean that California could eclipse Nevada, which generates about $10 billion a year in
gambling revenue, by the end of the decade.
For the most part, California’s tribes are nothing but small, extended family groups living on a few acres, called
rancherias. One tribe, the Sheep Ranch Sierra Rancheria, consists of an elderly man living on less than an acre.
Another, the Augustine Band of the Coachella Mission Indians, is a single mother living in a trailer in the desert. Both have plans to build casinos, and both may grow their tribal populations.
When tribes like these are reconstituted as nations seeking gambling compacts, the fights can sometimes amount to one lost cousin battling another, with billions of dollars at stake. The willingness of outside investors and large corporations to finance the tribal ventures can further inflame the situation.
For this reason, critics say that tiny tribes are vulnerable to exploitation.
“You’re talking about one or two people using the shield of tribal sovereignty to promote gambling that otherwise would never be allowed in these areas,” said Cheryl Schmit, director of Stand Up for California, a Sacramento-area
group fighting the expansion of Indian casinos.
Tribes disagree, saying that the economic renaissance that has come with legal gambling should not be denied California Indians simply because the tribal units are small.
“The reason some of these tribes have only one or two people left is because Indians were exterminated – that was the intent of the State of California,” said Susan Jensen, a spokeswoman for the California Nations Indian Gaming Association, which represents tribal casinos.
The Buena Vista casino would be one of the biggest, and one of the closest to a large population center – an hour from
Sacramento, a few hours’ drive from the Bay Area.
The Indian land is a 67-acre rectangle of rock, oak, pine and grass on a rise just across the road from the rusting detritus of an abandoned coal mine. Wood stakes mark the boundaries of the proposed casino.
It seems an unlikely place for a resort. But a similar lonely dell, just up the road near the Gold Rush towns of Sutter Creek and Jackson, was transformed into the modern version of a gold mine a few years ago by the small Jackson Rancheria. Now, buses roll into the Jackson casino, and its parking lot is so full at midday that people have to take a shuttle to the entrance.
Before the latest injunction on the Buena Vista project was issued in March, the Cascade Entertainment Group, a Louisiana-based corporation, had already sunk more than $10 million into the project on behalf of the family that calls itself the last of the Buena Vista Me-Wuks.
Like other small tribes, the Buena Vista Me-Wuks were given a parcel of land by the federal government in the early 1900’s. On this land in Amador County lived the Oliver clan, led by Louie Oliver, and they called it the Buena Vista. It was a hardscrabble life of raising pigs, chickens and a few head of cattle.
In the late 1950’s, as part of a government initiative to take trust status away from the tribes, the Me-Wuks were officially terminated, as were other rancherias.
The property was transferred from tribal ownership to private ownership – to the Olivers. Their three children
held the land until 1983, when the tribe’s status was restored as part of a lawsuit on behalf of numerous small tribes.
The families drifted away, and by the 1990’s, only one Oliver descendant was living on the land, Lucille Oliver Lucero. She was joined by Donnamarie Potts, a niece by marriage. The two formed a tribal government. When Mrs. Lucero died, she left the land to Ms. Potts, who then formed a tribal government with her two grown children, and
won recognition from the Interior Department as the tribal leader.
It was not until casino plans were announced two years ago that another woman came forth, claiming to be the great-granddaughter of Louie Oliver, an assertion that the Bureau of Indian Affairs supported in its most recent ruling. The woman, Rhonda Morningstar Pope, said her father, who died of a gunshot wound when she was 4, and other relatives were buried on the Buena Vista rancheria.
She opposed building a large casino. It was her lawsuit, saying the Indian nation had been stolen from her family, which led to the court injunction.
To support her claim, Ms. Pope’s lawyers produced birth certificates showing that Ms. Potts – the woman who claimed to be the last of the Buena Vista Me-Wuks – was the daughter of a Hispanic woman and an Indian man from another tribe. They also produced evidence that Ms. Potts had tried to join another tribe, the Maidu.
In her defense, Ms. Potts said that she was the illegitimate daughter of an Oliver descendant and that her birth certificate was misleading.
“I am frankly uncertain about the circumstances of my birth,” Ms. Potts said in an affidavit. Neither Ms. Potts nor her lawyers returned telephone calls requesting comment.
But a spokeswoman for Ms. Potts, Jean Munoz, said that blood lineage was irrelevant in determining the rightful Buena Vista Me-Wuks. She said Donnamarie Potts had lived much of her life on the land and was brought into the tribe legally by the late descendant of an Oliver. Ms. Potts is the only tribal member who lives on the rancheria, Ms. Munoz said; the two adult children, listed as members, live elsewhere.
Ms. Munoz also questioned the timing of Ms. Pope’s lawsuit. “Rhonda Pope had no interest in becoming a member of the tribe until the casino was announced,” she said.
Ms. Pope’s lawyer, Timothy Grieve, said his client wanted to restore her family’s claim to the sliver of ground the
government gave the Olivers a century ago.
“She wants her heritage back for herself and her children,” Mr. Grieve said. “She wants to be able to be on the land where her family is buried.”
When asked if Ms. Pope – should she win control of the Buena Vista Rancheria – planned a casino of her own, Mr. Grieve said he did not know.
Vote Exempts Tribes from Some Taxes
Reservations Won’t Collect the Levy at Restaurants and for Some Retail Goods.
By Gary Delsohn, Bee Staff Writer
March 28, 2002
To American Indians, it’s powerful affirmation of their sovereign status.
But to California’s worried cities and counties, a state tax board’s action Wednesday may rob local governments of millions in sales tax revenues by encouraging reservations to build auto malls and shopping centers on their land.
What sparked such divergent views was Wednesday’s 5-0 vote by the state Board of Equalization to exempt Indian reservations from having to collect sales tax at restaurants and for a category of retail products critics say is sufficiently vague to invite economic disaster.
The unanimous vote overruled a recommendation from the board’s staff that called for no change in current state policy that says non-Indians or anyone living off a reservation should pay sales tax on items bought on Indian land.
To cities and counties, which depend on sales tax revenues for a huge slice of the services they provide, Wednesday’s vote was seen as a potentially devastating economic blow.
“These sales tax sanctuaries could create a very strong economic incentive to do that kind of development,” Pat Leary, a lobbyist for the California State Association of Counties, told the board.
“This is sort of the beginning of what we see as a potential, significant loss down the line. It’s one of these things where you have incentive on one side of the street and not on the other. There’s no good reason why you should have that.”
Board member Dean Andal, a co-sponsor of the new regulation, said the fears are exaggerated. Despite current state tax policy, Andal said reality is that the state rarely gets sales taxes from its Indian reservations.
On the occasions that the state has gone to court to collect, it has lost, he said, because federal tribal and constitutional law take precedence. The new regulations simply recognize the day-to-day status quo and would save state resources spent trying to collect money it rarely receives anyway.
“It’s part of a circular event without any purpose. That’s why we did it,” Andal said of the board’s action.
Even so, Ralph LePera, an attorney for the Bishop Paiute Tribe, who spoke for the regulation, said afterward that critics are missing the big picture.
“How much tax does the state of California collect from Nevada, and vice versa?” he said. “You have to start with the overall concept that you are dealing with a sovereign nation. Who are you attempting to tax?”
But Leary and other local government activists fear the regulation could open a dangerous door — and they take issue with board logic that says since the state doesn’t collect Indian sales tax anyway, the new rules carry no economic impact.
“This substantial change in policy is better suited to debate in the legislative arena, especially in light of the considerable budget crisis faced by the state,” David Jones of the California League of Cities told the board in a written statement.
“Not only will the alternatives put forward result in a significant competitive advantage over non-Indian retailers, approval of such a change will undoubtedly result in a flood of similar requests for exemption from other local tax collection responsibilities.”
How much impact the regulations have may ultimately come down to how they’re interpreted in the courts. The board voted to amend a section of the state tax code that deals with tax collections from federal entities.
That section now says that items sold on reservations to non-Indians and to people living off the reservation are subject to state and local sales tax.
The new regulations exempt property and products with “reservation-based value.” The Indian retailer must make a “substantial contribution” to the product or the products sold must have a “substantial connection” to the retailer through financing, manufacturing or marketing.
Such terms are too vague, Leary and others have complained, and there’s no guarantee the regulations will protect cities and counties in ways the board has assured them it would.
But Andal said the language is clear: If it’s built off the reservation and shipped in and sold, it’s taxed. If American Indians make or create it, it’s not.
“I don’t view this as a consequential change,” he said. “We don’t collect much sales tax on the reservations. The tribes won’t pay it.”
Study: Casino Could Cost state Up to $55 million in Taxes
By Alan Sayre, The Associated Press
February 21, 2002
If the Jena Band of Choctaws opens a second reservation casino in southwestern Louisiana, the state stands to lose up to $55 million in taxes per year, while the Lake Charles region could see up to 800 jobs evaporate, according to an economic study.
Following secret negotiations, Gov. Mike Foster last month signed a compact with the 241-member tribe for a reservation casino at Vinton. Foster has said he had no choice but to negotiate with the tribe.
The Lake Charles region is a stronghold of legalized gambling with four riverboat casinos, another reservation casino run by the Coushatta tribe at Kinder and a slot-machine casino at the Delta Downs race track. The Jena Choctaws want to build a Las Vegas-style complex with a casino, golf course, hotel and convention facilities.
The impact study was put together by McNeese University professors Michael M. Kurth and Daryl V. Burckel for government bodies in Calcasieu Parish.
On Wednesday night, the Calcasieu Parish Police Jury and the Lake Charles City Council voted to oppose the Jena Choctaw project, which has to win approval from the federal Bureau of Indian Affairs.
Calcasieu Parish’s legal counsel, Allen Smith, said he believes the governor “exceeded his legislative authority” in signing the compact because state law allows him to only sign compacts with Indian tribes that were recognized and held land as of July 1990. The Jena Choctaws were recognized in 1994 and have no reservation.
However, federal law allows a tribe to have a casino on its initial reservation, which the Jena Choctaws plan to use the Vinton land for.
In a statement issued Thursday evening, the Jena Choctaws said the compact signed by Foster is good for the state and the tribe. “The Jena Band of Choctaws is the only federally recognized group that does not have a casino. It is illegal and would be terribly unfair to deny us what has been allowed for the other tribes,” the statement said.
The Choctaw’s statement blamed much of the opposition to its casino on gambling interests that fear more competition. And it said some people are trying to gain political advantage at the expense of the tribe.
Much of the McNeese study indicates that another reservation casino in the region would displace gambling revenue from other casinos, cutting jobs from the riverboats, as well as the Coushatta casino.
The land casino also could imperil Pinnacle Entertainment Inc.’s plans for a $225 million riverboat casino resort in Lake Charles, the study said.
The loss in tax money would occur because state government would get far less of each dollar lost by gamblers, the study said.
Riverboats pay a 21.5 percent tax on gross gambling revenue — the amount of money won at the tables and in the slot machines before any expenses are computed. The Jena Choctaw compact calls for the state — through a contribution — to get 15.5 percent of casino profit, while 6 percent would go to local governments. Federal law does not permit direct taxation of Indian casinos.
The study calculated that the state might not see any more than 4.5 percent of a Vinton reservation casino’s gross gambling winnings, if the casino won $290 million per year.
The state likely would lose $32 million to $55 million annually in taxes, while local governments would take a tax hit of $7 million to $17 million annually, the study said.
The proposed location of the Jena Choctaw casino, at the second exit on Interstate 10 coming in from Texas, would give the gambling hall an enormous advantage over other casinos, the study said.
Because of its location, a large number of its employees would be expected to live and spend much of their incomes in southeastern Texas, rather than Louisiana. Many of the spinoff jobs likely would be based in Texas, the study said.
“To allow the Choctaws to operate a casino on the border with Texas where it would also enjoy significant locational advantages over the Lake Charles riverboats and the Coushatta casino would choke development of the gaming industry in southwestern Louisiana, with no apparent benefit to state or local governments,” the report concluded.
California Tribes’ Push for Full Police Powers is Shelved
By James P. Sweeney, Copley News Service
January 13, 2002
SACRAMENTO — A bid by California Indian tribes to secure much broader powers for reservation police officers has collapsed after nearly two years of negotiations.
A measure outlining the tribes’ proposal was quietly shelved last week as tribal support appeared to be waning, several of those involved said.
In the end, the state’s sheriffs also said they were unwilling to give tribal cops full police powers unless tribes were willing to accept the same level of accountability demanded of local police and deputies.
“The public ought to be breathing a collective sigh of relief here because of the intransigence on issues like accountability, liability and training,” said Nick Warner of the California State Sheriffs’ Association.
“Giving anybody full peace officer power, a gun and a badge is real scary — and clearly we weren’t making progress on the issues that would have affected real people.”
Others thought the sides had been fairly close to an agreement.
“We were under the impression that we were almost there, and things started to unravel after the first of the year,” said Marla Marshall, a special assistant to San Diego County Sheriff Bill Kolender.
The legislation, SB 911 by Sen. Richard Alarcon, D-San Fernando, would have given tribal police equal status to other peace officers in the state, including the ability to enforce state laws. It specifically authorized tribal police to carry arms and to have access to the state’s criminal database.
Alarcon introduced the bill at the request of the Cabazon band of Indio, which has been in a dispute with Riverside County Sheriff Larry Smith, president of the sheriffs’ association.
Cabazon, which has an 18-member police force, complained that Riverside deputies were arresting their tribal cops and charging them with impersonating police officers.
Cabazon organized a coalition of more than 70 tribes to support the legislation. Backers included San Diego’s Barona band, which also has a police force.
The legislation split California tribes, and few participated in the months of negotiations. Late last year, Cabazon persuaded federal officials to recognize their tribal officers as federal agents, providing most of the police powers the tribe wanted.
When talks resumed after the holidays, San Diego County’s Marshall said Cabazon’s representatives appeared to back away from commitments to adhere to state guidelines that define the scope of authority and code of conduct for local police and deputies.
“At the 11th hour, we were basically told that we had misunderstood,” Marshall said. “They wanted to have law enforcement authority, but not be subject to the penal code that every other law enforcement officer in the state is subject to.”
Tribes were unwilling to accept unlimited liability, which would have required a waiver of their sovereign immunity.
Sally Palmer, one of Cabazon’s representatives in the talks, said the sheriffs’ refusal to budge on unlimited liability scuttled the legislation.
Palmer and Greg Cervantes, a spokesman for the tribe, said other tribes in California, such as the Quechan Nation of Imperial Valley, have agreed to limited liability and have been cross-deputized by local law enforcement agencies.
Neither Palmer nor Cervantes would predict whether Cabazon will attempt to revive the legislation.
“The bottom line is greater public safety,” Cervantes said. “We have reached out to try to provide that, and we will continue to do that.”
Copyright 2002 Union-Tribune Publishing Co.