By Stephen Magagnini — Bee Staff Writer
April 6, 2003
On their land, tribes’ law is the last word
With court rulings that affirm their sovereignty, Indians are fighting off a variety of challenges
First of two parts
SAN DIEGO COUNTY — Bob Bowling jokes that he drinks beer all day because he can’t afford water — the Barona Indian tribe down the road has sucked it all up for its world-class golf course and 400-room casino resort.
Two dozen of Bowling’s fellow homeowners in the Old Barona Road Association have watched their wells — and their property values — dry up while their Indian neighbors consume nearly a million gallons a day. The association has pleaded with the tribe and complained to elected officials, only to run into a wall of sovereignty that protects Indian tribes from state and local laws.
“You can’t even believe what it is to be the little person going up against a sovereign nation — they blow us off,” said Bowling, a water delivery specialist for the city of San Diego.
Clifford LaChappa, chairman of the 500-member Barona Band of Mission Indians, claims the water belongs to his people, and that sovereignty — like water — is a birthright, a matter of economic and cultural survival. He remembers his dirt-poor childhood spent on the 6,000-acre reservation, where jobs were as scarce as cars. Today, instead of welfare checks, tribal members collect $5,000 monthly casino checks.
Throughout California, a growing number of people are battling tribes over land, water, traffic and a wide range of civil claims, including auto accidents, personal injuries, firings and broken contracts.
And these days, the Indians have the legal firepower. Armed with a series of federal laws and U.S. Supreme Court rulings that have affirmed their sovereignty — their status as autonomous nations — and backed by the best lawyers and lobbyists gambling revenues can buy, California Indians are racking up most of the victories.
California, with 107 federally recognized reservations and rancherias, has become the front line in the struggle over sovereignty. More Indians, more casinos and more tribes are here than anywhere else, including some of the richest, most politically savvy Indian nations in America. Two once-destitute California bands, Cabazon and Morongo, won the landmark legal decisions affirming Indians’ sovereign right to operate gambling nationwide.
Those who feel they’ve been wronged by tribes are turning to their usual remedies — the courts and government regulators — and coming up empty.
“It’s like trying to sue Bulgaria,” said one frustrated attorney, Victor Moheno, who sued on behalf of a Visalia woman who was crushed when a 350-pound man accidentally fell on her at an Indian casino. The case was kicked out because the tribe has sovereign immunity.
‘Not just another minority’
Although criminal matters in California Indian country are supposed to be handled through the usual law enforcement channels, this state has little civil jurisdiction over the Indian nations in its midst. The state’s top gaming cop, Harlan Goodson, likens himself to a diplomat whose job is to promote positive relationships with sovereign Indian nations. Goodson inspects casinos at the tribes’ convenience.
Some Indians say it’s payback time for the land, culture, resources and human rights robbed from them at gunpoint, or stolen with broken treaties. Tribes’ status as sovereign nations independent from states is spelled out in the U.S. Constitution, and affirmed in U.S. Supreme Court rulings dating back 170 years.
Now, whether they have one member or thousands, tribes expect to be treated as governments answerable only to the U.S. government, not the state of California or the cities and counties that increasingly are affected by Indian casinos and other businesses.
“We’re not just another minority,” said Cindy LaMarr, a California Paiute and Pit River Indian who is president of the National Indian Education Association. “We were the original people of this land. And since the land was taken from us basically by the federal government, we have treaty rights in exchange for the land, which include health, education, welfare and self-governance.”
Dottie Smith learned what sovereignty means firsthand. “It’s the most powerful word in the English language,” said Smith, a resident of Lake Havasu Landing in east San Bernardino County.
Smith said she was evicted from her lakeside trailer in 1999 and banned for life from the Chemehuevi Indian Reservation for challenging the tribe’s sovereign right to the land.
Tribal attorney Les Marston said Smith was evicted for trespassing on tribal land, “and her mobile home was attached by lawful order of the (federal) court and sold to satisfy her outstanding back rent that she refused to pay the tribe.”
The dispute landed Smith in federal court, where she became one of hundreds of Californians who have fought tribes and lost.
“You’re not on equal footing with them,” she said. “You can sue the president of the United States — it’s been done — but try and sue the chairman of an Indian tribe. You can’t. The federal court system was set up to protect them, not you.”
Charity, campaign donations
Conflicts over sovereignty have escalated since 1999, when nearly two-thirds of California voters approved gambling on Indian lands and millions of them began driving to reservations and rancherias they had barely known existed.
More than 100,000 people a day now pull slots, play cards or enjoy shows and meals at California’s 51 Indian casinos. Another 40,000 people, most of them non-Indians, work at those casinos.
California Indian gaming generates between $3 billion and $5 billion a year in revenues. With that money, the so-called “gaming tribes” have built hotels, museums, bowling alleys, malls, health clinics, schools and homes for tribal members. They are reviving dying languages and long-dormant customs, and providing full college scholarships to Indians whose ancestors had the nation’s highest high school dropout rate.
Some of California’s richest tribes have donated millions to the arts and charities. They’ve also become kingmakers, plowing more than $120 million into political campaigns in the last five years.
Two tribes, testing the limits of sovereignty, have claimed that as sovereign nations they’re exempt from the state’s campaign contribution disclosure laws. A Sacramento Superior Court judge recently ruled against one of the tribes. Just how far the tribes can fly above state laws has yet to be decided by the U.S. Supreme Court.
Not all the tribes are flexing their sovereign muscle in the face of local residents. A growing number are working with neighboring cities and counties to widen once-lonely country roads now jammed with casino traffic, and to pay for extra police, ambulances and fire response.
Yet even those tribes kick in because they want to — not because they have to.
This epic power shift has gone beyond what the voters, the governor and even the Supreme Court originally envisioned. Indians have long had the sovereign right to develop their land and water supplies as they see fit, they just didn’t have the means to do so, said UCLA law professor Carole Goldberg. “So non-Indians filled the vacuum and pretended the Indian rights didn’t exist,” she said. “Now they’re shocked — it’s understandable.”
‘Not a level playing field’
Skirmishes over Indian sovereignty have ignited grass-roots citizens groups throughout the West who believe their rights are being trampled.
Cheryl Schmit, director of the most influential group — Stand Up For California — says Californians are paying the price for sovereignty run amok. “It’s not a level playing field,” she said. “As tribal governments expand their gaming opportunities and land base, local governments have been robbed of their political power to protect their citizens.”
The Indians are exempt from local laws as long as they meet safety standards set by the state or federal government.
Schmit, called “the most powerful soccer mom in California” by one county fire marshal, runs Stand Up for California from her Penryn home in Placer County, peppers friends and foes with e-mails and news articles, and travels the nation defending citizens’ rights.
She’s become the champion of the anti-sovereignty forces — and a target of Indian outrage. The Pechanga tribe’s Web site recently ran a cartoon portraying her as the Wicked Witch of the West and her followers as monkeys. Deron Marquez, chairman of the newly rich San Manuel Band of Indians in San Bernardino, says those who challenge sovereignty are trying to wipe out the Indian way of life.
Schmit says she isn’t anti-Indian — she isn’t even against Indian sovereignty, as long as tribal governments recognize her rights as a California citizen.
“All the problems occur because of the lack of a relationship between the tribes and the state, and the unwillingness of the state’s constitutional officers to defend the state’s sovereignty,” she said. “Sovereignty was supposed to be a shield to protect Indians from settlers. It was never meant to be a sword against anyone.”
That sword has sliced the property values of Bob Bowling and his neighbors in the granite hills northeast of San Diego.
When the Barona Indians announced plans four years ago to build a golf course, the neighbors wondered where all the water was going to come from. “The tribe invited us down for a free lunch and said they were sitting on approximately 50 years’ worth of water,” Bowling said — citing an estimate from an environmental impact report commissioned by the tribe. The tribe refused to let the county hydrologist on its land, hiring its own hydrologist instead.
Then, two weeks after the golf course sprinklers went on in January 2001, 11 of the neighbors’ wells went dry. All have had their homes devalued by the county assessor, said Bowling, who got a letter from a bank saying no bank would loan money on his property because of the lack of water supply.
LaChappa, Barona’s chairman, has often spoken publicly about sovereignty but declined numerous requests for interviews for this story. The tribe has repeatedly maintained that it has nothing to do with the neighbors’ water woes because they’re tapping into a different water source. “If you’re not on the same (water) basin you’re not on the same planet, hydrologically speaking,” tribal attorney Art Bunce told a San Diego television station.
The homeowners found themselves faced with two choices: truck water six miles up a twisting canyon road or keep digging deeper wells. “My neighbors and I have spent $250,000 just chasing water,” Bowling said. “We’ve had people who spent $15,000 to drill down to 1,300 feet and got nothing.”
Then, last summer, the Baronas’ wells began running out, too.
The tribe urged the city of San Diego to declare a water emergency, saying it didn’t have enough water to fight fires.
The city advised the tribe to just turn off its golf course sprinklers, so the Baronas took matters into their own hands and began laying a pipeline from the reservation to the city’s San Vicente Reservoir. They were illegally grading a road through off-reservation creek beds until the county found out about it, issued a “stop work” notice and charged the tribe with illegal discharge, grading without a permit, inadequate erosion controls and causing a public nuisance.
The homeowners thought they’d won a round last November when county hydrologist John Peterson concluded, after examining water levels just outside the reservation because the Baronas wouldn’t allow him on their land, that “a very strong time correlation exists” between the Baronas’ water use and their neighbors’ dry wells.
Today, the Baronas are negotiating with the city of San Diego to tap into the reservoir legally, perhaps in exchange for water rights Congress promised them when they were forced off their original reservation 71 years ago.
Even if the tribe gets permission to run a pipeline from the city reservoir, San Diego County Supervisor Dianne Jacob said the tribe has no plans to give Bowling and his neighbors any water.
Spreading the blame
Attorney Bunce refused to discuss the tribe’s parched neighbors. He told The Bee that outsiders have been stealing the Baronas’ water for more than 150 years. In 1932 the tribe was moved off its reservation along the banks of the San Diego River to make way for San Diego’s El Capitan Reservoir.
“The Indians had lived there for at least 2,000 years,” Bunce said. “They were forced to dig up the bones of their ancestors and move them to the current reservation.”
Frances Gesiakowski, a social worker who lives a quarter-mile from that reservation, now pays $800 a month to truck in water for herself and her horses. Her home is worth a third of what she’s put into it, and she blames the tribe for mismanaging the environment and the county for “doing nothing to protect us.”
County officials say they’re helpless. “We have no legal recourse or standing,” Jacob said. The bitter irony, she added, is that if the county approved a water-gobbling golf course next to the reservation, the Baronas could sue the county and the golf course owner — as long as they waived their sovereignty immunity.
Others involved aim their blame higher: at Gov. Gray Davis, who negotiated the state’s compact with the gambling tribes, and the U.S. government.
The compact “has absolutely no provisions to protect people who bear the brunt of these off-reservation impacts,” said Bob Coffin, attorney for Barona’s neighbors. “They can defame you, they can dry up your wells, they can fire you without good cause, as long as they’re acting as tribal officers.”
Coffin said that Congress, by giving the Indians a monopoly on casino gambling, along with sovereign immunity and full access to state and federal courts, has “given them more power and influence than anyone else enjoys in America.”
Tribal leaders fire back that for years, local governments failed to consult them about the residential and commercial developments that sprouted around their reservations.
“They never came up here and said, ‘Here’s what we’re doing, what do you think?’ ” said Anthony Pico, chairman of the Viejas Band of Kumeyaay Indians, who like the Baronas were forced off the El Capitan Grande reservation in 1932. The Viejas now operate an outlet mall, a bank and a highly lucrative casino in east San Diego.
“Now they bitterly complain when Indians want to do something on our own land,” Pico said. “They don’t like having a double standard when they’re on the wrong end.”
Fight over river’s bank
From the Russian River to the Colorado River, disgruntled residents have attacked sovereignty by challenging the Indians’ ownership of the land — only to meet with defeat.
For years, Indians and local residents have been fighting over the desolate yet beautiful west bank of the Colorado River.
The residents, mostly vacationers from Los Angeles, Orange County and San Diego, have set up their mobile homes there and pay California taxes. The Indians say they’ve lived along the river since creation.
In 1969, U.S. Interior Secretary Stewart Udall decided that because the Colorado River had shifted eastward, 44,000 acres in California actually belonged to the Colorado River Indian Tribes (Mohave, Chemehuevi, Hopi and Navajo), whose reservation had previously bordered the east bank of the Colorado around Parker, Arizona.
The Indians gradually began taking over resorts on the California side of the river. When they raised the rents, some tenants refused to pay.
Two years ago, the Colorado River Indian Tribes — CRIT for short — took over Red Rooster, a mobile home park between Blythe and Needles run for 40 years by a crusty maverick named Bill Booth. The Red Rooster park’s mascot was an 8-foot-tall fiberglass rooster.
Booth, 79, said he developed the resort in 1959 from a patch of cactus and sagebrush he leased from the federal Bureau of Land Management. When the Indians gained the land in 1969, Booth said they wanted him out and kept raising his rent. Resenting the rent increase, Booth claimed the land didn’t belong to the Indians and stopped paying rent. The Indians began calling Booth and anyone else who withheld rent “squatters.”
Normally such disputes end up in county courts, with one side seeking an eviction order and the other defending its right to stay. Tribes, however, are immune from state civil courts and fight most of their legal battles in federal court.
In 1993 and again in 1995, the Indians got a federal judge to order Booth off their property. Booth, a decorated veteran of Iwo Jima, wouldn’t budge, telling friends, “They’ll have to drag me out.”
Trailer owners evicted
In November 2000, the Indians gave Booth and 40 other trailer owners at Red Rooster tribal eviction notices, even though they didn’t have a California court order to evict anybody except Booth. “The tribe showed up with four carloads of CRIT tribal police, four carloads of Riverside County sheriff’s deputies and a federal BIA investigator who told me, ‘You’re out of here’,” Booth said.
Riverside County Assistant Sheriff Gayle Janes said his officers were at Red Rooster in November 2000 to keep the peace — not enforce the tribe’s evictions. “Tensions were very high on both sides,” he said. “I don’t believe a tribal appeals process was ever offered to these people at all.” Janes added: “It’s like being in a separate country: If the tribal court evicts people, that’s none of our business.”
Then, on a rainy day the following January, about 20 trailers that hadn’t been towed out or were cemented down — including Booth’s — were bulldozed and set on fire, Booth said. The fiberglass rooster was found dangling upside down over the river.
Today, all that’s left of Red Rooster is a row of rusting metal trailer beds and a massive mound of concrete, broken glass and debris: vacuum cleaner parts, a sneaker, a recliner, a rusty bike, a water heater.
“That was my income, my livelihood, my only home,” said Booth, touring the wreckage. “It tore a lot of people apart. They were firemen, electricians, truck drivers. … They’d water ski, fish, do their barbecuing, drink a little beer, relax. No dopers, no prison people, just good solid American people.”
The Indians had lived on the river for centuries before the white man came and built the series of dams that ruined it, said Russell Welsh, the 70-year-old vice chairman of the 3,500-member reservation.
“Before the taming of the Colorado this reservation was a utopia, a paradise where you could gather herbs and basket-making material, fish and game,” he said. “The river’s been like a mother to us, and it’s been abused, it’s been polluted, everybody’s fighting for it.”
The Mohaves, largest of the four CRIT tribes, call themselves Aha Makavi, “People of the River,” Welsh said. The west bank includes several of their sacred sites, he said.
Priscilla Eswonia, a Mohave elder, remembers swimming in the river alongside giant salmon when she was a girl. Her uncle, a Mohave deer singer, told her the Indians originally came from the Pacific Ocean. “Our creator put the river down here for us to live,” Eswonia said. “That’s how all our songs begin.”
The tribe gets along fine with the many west bank tenants who abide by their leases, according to Welsh. But, he said, “There’s some radicals that don’t want to cooperate. I think we have every right to say ‘yah-hey, get off my land.’ ”
“We don’t want to fight those people, but they’re trying to make us losers,” he added.
Judge’s ruling stuns residents
The west bank residents feel CRIT has an unfair monetary edge over them: The tribe gets $1 million a year from California casino tribes for being a “non-gaming tribe” in this state, yet operates the Blue Water Casino Resort on the east bank of the river, in Parker, Ariz. That may change soon, however. CRIT plans to build a casino on the California side of the river.
Some 400 west bank tenants joined forces and raised more than $300,000 to fight the Indians in court. Last fall, U.S. District Judge John Walter ruled that because the Indians have sovereign immunity he wouldn’t even consider the legality of the evictions, or the tenants’ claim that the Indians don’t own the land.
The ruling stunned the residents. “It’s unfair for the tribe to hide behind sovereign immunity to maintain control of property they don’t own,” said weekender Tim Moore, noting that a judge appointed by the U.S. Supreme Court had found in 1993 that the land belonged to California, not the tribe.
“If you took the (2002) federal ruling to its absurd extreme, the Colorado River Indian Tribes could erect a toll booth on the Golden Gate Bridge and could not be removed because they have sovereign immunity,” said attorney Dennis Whittlesey, who represents the tenants. “If they can go one mile beyond reservation land claiming sovereignty, can’t they go 500 miles? Where does it stop?”
Where sovereignty stops is being debated not just on the west bank, but in Congress. Sen. Dan Inouye, D-Hawaii, recently said Indian tribes at the least “should be as sovereign as any state in the union” and said he will push for a bill giving them control of all law enforcement on tribal lands.
Jacob Coin, a Hopi Indian who is director of the California Nations Indian Gaming Association, argues that tribes already are more sovereign than states, and always have been. “If you allowed even one state law to govern tribal lands, a huge chunk of tribal sovereignty would be destroyed. Our founding fathers said the United States didn’t give them sovereignty, the Creator gave it to them.”
Monday: Most Californians don’t realize that when they enter California Indian territory, they check many of their legal rights as U.S. citizens at the border.