ISSUES RELATED TO IONE BAND OF MIWOK

 

INDIANS PROPOSED OFF RESERVATION LAND

 

ACQUISITION FOR CLASS III GAMING

 

 

Prepared For:

Congressman Dan Lungren

January 24, 2006

 

 

 

By:

NO CASINO IN PLYMOUTH *

P.O. Box 82

Plymouth, Ca. 95669

209 245 6211

www.nocasinoinplymouth.com

 

 

 

 

 

* NO CASINO IN PLYMOUTH (NCIP) is a grassroots 501c4 corporation organized and supported by local concerned citizens who oppose the establishment of a large casino complex in the City of Plymouth. Note that this presentation deals with irregularities associated with the proposal and does not attempt to deal with the scope, extent, or costs of the impacts the proposed casino would have on the citizens of Plymouth and Amador County.

 

Issues Related to the Ione Band of Miwok Indians Proposed

Off Reservation Land Acquisition for Class III Gambling

 

How can we fight to uphold the rule of law if we break the rules ourselves?"

Admiral John Hutson

Introduction

The Indian Gaming issues that apply to our situation in Plymouth, California, apply across the country. Citizens and local governments are impacted by casinos with limited consideration of their rights and virtually "no voice on whether or not gambling is an accepted industry in their communities." [1] The American tax-payer is failed as legislative and administrative processes are corrupted and the federal government is failing to deal responsibly, via the Bureau of Indian Affairs, with its Native American citizens. Few Tribes benefit, many do not, and they are pitted against one another as well as their non-tribal neighbors.

Amador County currently has one operating casino, with two more proposed. Our county, with a population of approximately 35,000, will be overwhelmed by a daily influx of gamblers nearly equal to he number of full time residents. The proposed Plymouth casino alone is expected to draw approximately 9000 visitors a day. Amador voters expressed their opposition to any additional casinos in the special election of last November. With nearly 70% voter turnout, citizens voted 85.2% against "approving the establishment of any more casinos in Amador County."[2]

In early 2003, the Ione Band of Miwok Indians informed the City of Plymouth (City) that IKON (their out of state investor) held options on land in and adjacent to the City and they intended to build a small gaming" facility, just big enough to support the Tribe. (Only after the Scoping session results were published did we learn that actual plans called for a “World Class” casino complex.) They stated that the project was a done deal and there was nothing the City could do except enter into a Municipal Services Agreement (MSA) with the Tribe. Over the objections of the residents, the City signed the MSA under very questionable circumstances. Subsequently, three City Council members, including the Mayor and Vice-Mayor, were recalled and replaced with individuals opposed to the proposed casino.

In 2004, No Casino In Plymouth (NCIP) joined Amador County (County) in a legal action to require the City, within the context of the MSA, to comply with the requirements of the California Environmental Quality Act (CEQA). Amador County Superior Court found in favor of the County and NCIP. The City has dropped its appeal. However, the Tribe has intervened as a third party and the case is currently under appeal by the Tribe in the 3rd District Court.

From the beginning, by not conforming with the procedures established in government regulation, the processes used by the Regional Office of the Bureau of Indian Affairs (BIA) and the Tribe have been highly suspect. Investigations by NCIP since 2003 have revealed a host of irregularities associated with:

I. Tribal Recognition, Status and Leadership/Membership

II. Land status

III. Fee to Trust Process

There are substantial quantities of conflicting documentation which the Tribe and BIA selectively reference as the situation requires. In the following pages we present in some detail the inconsistencies and conflicting positions that beg for am impartial resolution.

We ask you to carefully consider the following information, help us to ensure that existing laws are followed, advise us of productive approaches to our problem, and act to correct the abuses of a failed policy.

 

 

Table of Contents

Introduction

I. Tribal Recognition, Status, and Leadership/Membership

A. Time line

B. Bureau of Indian Affairs (BIA) Impropriety and Congressional Inquires

C. Freedom of Information Act Requests

D. Summary

II. Land Status

A. Lands Current Fee Simple Status

B. Landless Claims

C. Request for Restored Status

D. Use of Historic Ione Land Base for Environmental Protection Agency (EPA) Grants:

E. National Indian Gaming Commission (NIGC) Misuse of 25 USC Sec. 2703 (4)(A)(B)

F. Freedom of Information Act (FOIA) Request Issues at BIA

G. Summary

III. Fee to Trust Process

A. Trust Process/ IGRA Issues

B. MSA / Tribal Misinformation

C. Scoping Irregularities

D. Summary

IV. Conclusion / Requested Actions Items

I. Tribal Leadership, Recognition, and Status

A. Time Line

1923 - The Reno Indian Agency’s annual report indicates that Ione is listed identifying forty six residents. The report states "As the office is aware, we have been considering the purchase of a tract for the Indians at Ione for the past several years, the property being a forty acre tract, which has been tied up in legal procedure."

1927 - The United States Department of the Interior Indian Field Service discusses the forty acre Ione tract to be purchased for the Ione Indians in his annual report to the Commissioner of Indian Affairs.

October 1972 - A letter from Commissioner for Indian Affairs, Louis Bruce to Mr. Nicholas Villa and Ione Band of Miwok Indians agrees to accept the forty acre tract in Ione in trust for the Ione Band of Miwok Indian. He also states, “Federal recognition was evidently extended to the Ione Band of Indians at the time the Ione land purchase was contemplated.” [Exhibit 1]

May 11, 1992 - Sacramento Area Director, Bureau of Indian Affairs declines to review an economic development agreement between appellant [IBMI] and the American Development Company, Ltd. on the grounds the appellant is not a Federally recognized Indian tribe.

August 4, 1992 - Interior Board of Indian Appeals (IBIA) appeal by the Ione Band declines their request for federal recognition citing the Federal regulations for acknowledgment, 25 CFR Part 83, as the necessary process for recognition.

In the Indian Bureau of Indian Appeals decision for docket no. 92-289-A, Chief Administrative Judge, Kathryn A. Lynn and Administrative Judge Anita Vogt file and order docketing appeal and affirming decision that the Ione Band of Miwok Indian is not a Federally recognized Indian tribe.

Contrary to IBMI insistence that they were not included on the first list of Federally recognized Indian tribes due to a clerical error, Judge Vogt explains that “instead, it [the Tribe] was included on a list of Indian groups whose petitions for recognition were pending at the time the regulation went into effect.” She further went on to state that “ the district court noted that [the] appellant had not pursued its petition through the acknowledgment process.” This, coupled with Mr. Louis Bruce’s use of the term “evidently” recognized lends a troubling air of doubt as to the reality of the IBMI being in fact recognized in 1972.

The IBMI would indeed have been required to comply with rules for Federal acknowledgment as “the court held that the appellant had failed to demonstrate that it was entitled to federal recognition through any mechanism outside the acknowledgment process in 25 CFR Part 83 and that appellant had failed to exhaust its administrative remedies by applying for acknowledgment in accordance with the regulations.”

March 22, 1994 - In a letter from Assistant Secretary Ada Deer to Honorable Nicholas Villa, Jr., Chief, Ione Band of Miwok, the Assistant Secretary reaffirms the Louis Bruce letter and states that the tribe will “henceforth be included on the list of “Indian Entities Recognized and Eligible to Receive Services from the United Sates Bureau of Indian Affairs”. [Exhibit 2]

May 24, 1994 - A letter from Hilda A. Manual, Director, Office of Tribal Services, Washington D.C., addressed to Chief Villa informs him that his name is now on the Tribal leaders list and that the relevant Bureau of Indian Affairs Offices have been informed that the Ione Band of Miwok is federally recognized. [Exhibit 3]

June 22, 1994 - A letter from Harold M. Bradford, Superintendent DOI / BIA to Mr. Dwight Dutschke recognizes “Mr. Nicholas Villa, Jr. as the Chief of the IBMI and the government he represents” and stating that the “Asst. Sec. will work with Mr. Villa in the reorganization process.” [Exhibit 4]

July 14, 1994 - A letter from Assistant Secretary Indian Affairs Ada Deer to the Sacramento Area Director clarifying her letter of March 22, 1994 by writing " It should be made clear that the intent of my letter was to recognize the entire group of Miwok Indians associated with the land in Amador County." [Exhibit 5]

July 28, 1994 - In a letter to Judge Peter Nowinski, United District Court, Sacramento stated “I am writing to provide the court with information on the status of the Ione Band of Miwok Indians. The Ione Band of Miwok Indians is a federally recognized Tribe.” [Exhibit 6]

January 3, 1995 - Summary Status of Acknowledgment Cases - Petitions Resolved; Ione Band of Miwok Indians Status clarified by other means i.e. status confirmed by Assist. Sec.

July 16, 1997 - A letter from Interim Tribal Chairperson Kathy Ramey to Mr. Dorson Zuni, Tribal Operations - BIA (Sac.) re: Tribal elections reads “As for the Franklin family, they could not prove that they were descendants of Captain Charley Maximo.” “All the board members voted to deny the Franklin’s applications.” [Exhibit 7]

1998 - The Historic Ione Band appeals to the IBIA to establish criteria for tribal membership in order to become organized to sign agreements citing the 1915 Ione Census.

B. BIA Impropriety and Congressional Inquiries

The core issue according to historic tribal members and based on available documents is interference by the Central and Regional BIA Offices in the internal Tribal affairs of the Historic Ione Band of Miwok. [Exhibit 8] The BIA Pacific Regional Office and BIA Central Office violated federal Indian Law and the Administrative Procedures Act when they interfered in an internal tribal issue and forced the Historic Ione Band of Miwok to reorganize, to open its tribal membership rolls, and to elect new tribal officers against the protests of historic tribal members.

The BIA, under signature of Scott Keep, BIA-Solicitor and the Assistant U.S. Attorney, Debra Luther, filed an amicus brief in Federal Court (See: Ione band of Miwok Indians v. Burris et. Al. CIV.90, 993 LKK. PAN) claiming the Ione Band of Miwok Indians was not a recognized Indian tribe until after 1994. In this brief, the BIA, ignoring Commissioner of Indian Affairs Louis Bruce's 1972 letter, argued that the Tribe had never been federally recognized and the BIA possessed the authority under the Auburn Rancheria Act to force the Historic Ione Band to open its rolls and reorganize under the Indian Reorganization Act (IRA) by developing an IRA constitution and holding an election. This highly contested reorganization process resulted in hundreds of new tribal members and the election of Matt Franklin as tribal chairman.

The IRA as amended, including amendments of June 1994 and January 2004, clearly states that the BIA does not posses the authority to force a federally recognized Indian tribe to open its rolls and reorganize.. Congressional concerns in 2004 about the actions taken by the Regional BIA caused the Department of Interior, Office of Inspector General (OIG), to look into the matter. The OIG investigation was less than comprehensive and the report is a disappointing whitewash. The OIG apparently ignored the IRA, the amicus brief, the historic tribal rolls and other pertinent documents available to the OIG and OIG attorney Roy Kime stated, “we didn’t look at the recognition issue. We relied on the BIA determination. We are not going to look at recognition unless we are requested to.”[3]

Ample documentation exists establishing the fact that the Ione Band of Miwoks was a federally recognized Tribe in 1972 and reaffirmed on March 22, 1994. This pre 1994 federal recognition is the reason the reorganization and elections forced on the Historic Ione Band of Miwok by the BIA are highly questionable and possibly illegal. The 2004 OIG investigation report acknowledges that the Ione Band of Miwoks was a federally recognized Tribe in 1972 and reaffirmed on March 22, 1994. [Exhibit 9] It is difficult to understand how this OIG investigation into the circumstances surrounding the creation of the Franklin led Ione Band of Miwok did not look into whether the BIA ignored Federal Law and the Administrative Procedures Act when it forced the Historic Ione band of Miwoks to open its membership rolls and forced a tribal election.

In 2001, Congressional concerns arose relating to the suspected illegal opening of the tribal rolls of the Ione Band of Miwok Indians which resulted in a contested leadership change. Not only did members of the Bureau of Indian Affairs, Sacramento Regional Office, become members of this tribe that they were administering, they then took seats on the Tribe's election committee and threw out an election protest filed by the Tribes ousted chairman. The BIA in Washington, in turn, relied on the Tribal election committee decision in refusing to probe its own employees involvement in the contested election. Despite requests by four Congressmen, the Interior Departments Inspector General Earl E. Devaney conducted no significant review of these irregularities, telling the concerned Congressmen that it was an internal tribal matter.

In February 2004, Congressman Frank Wolf (R-VA) renewed allegations of wrong doing and called for investigations by the General Accounting Office (GAO),the FBI, and the Interior Department's Office of the Inspector General (OIG). [Exhibit 10] The specific allegations were:

1. Acting against the protests of the historic tribal members, the regional Bureau of Indian Affairs office forced opened the tribe’s membership rolls.

2. The acting regional director, Amy Dutschke, who approved the tribal election was added to the tribal roll along with some of her relatives

3. A different BIA official who oversaw the election had three relatives added to the tribe.

 

Congressman Wolf's concerns and a widely circulated AP story [Exhibits 11/12] were instrumental in three separate investigations being undertaken.

1. Justice Department to initiated an FBI investigation.

2. The GAO informed Congressman Wolf that they were opening a probe.

3. The Department of Interior’s Inspector General was also instructed to investigate.

The results of the FBI and GAO investigations are not available to us. The Inspector General’s investigation did not uncover any evidence to support the allegations of misconduct in the 2002 Tribal election. However, the fraudulent election in question was the 1996 election, making the entire OIG report a meaningless whitewash.

In February 2005, in response to inquiries from the office of Congressman Dan Lungren, the BIA Pacific Regional Office continued to obfuscate the core issue surrounding the validity of the leadership of the Ione Band of Miwok by Chairman Matthew Franklin.[Exhibit 13] The reply to this inquiry again conveniently ignored the legality of the 1996 Tribal election which is really the election at issue. Congressman Wolf called it "a potential scandal" that officials of the Interior Department's regional BIA office opened the membership rolls of the Ione Band of Miwok Indians and authorized a new leadership election when they stood to personally gain from those decisions. The Congressman was right then and he is right today.

The question that the BIA refuses to address is whether the 1996 reorganization and subsequent elections were lawful which raises questions about Matt Franklin’s position as tribal chairman. The BIA steadfastly maintains this is an "internal tribal issue" but unnecessary and heavy handed BIA interference in the tribal sovereignty and tribal government of the Historic Ione Band by both the Central and Regional BIA offices have created the current situation.

C. Freedom of Information Act (FOIA) Requests

FOIA requests were submitted to the Regional Office of the BIA in Sacramento asking for numerous documents detailing the initial creation of the Ione Band of Miwok, tribal enrollment, basis for opening Tribal rolls, bands charter, etc. After three months, Carmen Fazio, Acting Regional Director on February 2, 2004, stated that no estimate of processing fees or volume of documents would be given and that without a “blank check” sent to the BIA offices, the FOIA would not be honored. (Personal communication - Elida A. Malick)

D. Summary:

The confusing and convoluted nature of events leading to the current situation are well documented. In the interest of and for the benefit of all parties now involved those events should be thoroughly investigated by independent agencies to assure that proper procedures and the law were followed in the Federal Recognition of the Historic Ione Band.

The unresolved legality of the 1996 tribal reorganization remains a critical issue and is one that the DOI has so far steadfastly refused to investigate. Congressional concerns are well founded and a more thorough investigation by an independent agency, a Congressional Committee, the U.S. District Attorney, or a Federal Grand Jury should be seriously considered.

Additionally, an administrative hold on all activities, applications, requests, legal actions, etc. of the Ione Band relating to the its proposed land acquisition for Class III gaming in Plymouth should be in place until all issues are independently investigated and properly resolved and the Franklin led Ione Band should not be allowed to initiate similar action elsewhere.

II. Land Ownership and EPA GAP Grants

A. Land’s Current Fee Simple Status:

The Historic Ione Band of Miwok Indians has resided in the Ione Valley and Jackson Valley area long before gold was discovered and settlers moved into the region. They own and reside on a forty acre parcel near Ione in the Jackson Valley area today. This forty acre parcel is owned fee simple by the Ione Band of Miwok.

In 1972 California Legal Services, on behalf of the Ione Band, initiated a quiet title action before the Amador County Superior Court, and a judgment was issued on October 31, 1972 that declared the forty acre parcel was owned fee simple. [Exhibit 14] A 1972 letter from Commissioner of Indian Affairs, Louis Bruce, states plainly that "Federal recognition was apparently extended to the Ione Band of Indians at the time that the land purchase was contemplated." There is in the Bruce letter a clear offer to take the Ione Band's land into trust and a description of the parcel is included in the letter. The March 22, 1994 letter from Assistant Secretary Ada Deer reaffirming Commissioner Bruce’s 1972 letter also agreed “to accept the parcel of land designated in the Bruce letter to be held in Trust as territory of the Tribe.” Action to take the land into trust has not been accomplished and Amador County records indicate the property is still held fee simple. However, the fact that this forty acre parcel was clearly recognized in 1972 and 1994 as the Tribe’s historic land base by high ranking DOI officials is undisputable. The ownership and status of the property was subject to further litigation in US District Court in 1996 and again in Federal District Court in 1998 and the Historic Ione Band’s ownership of the forty acres remains fee simple.

B. Landless Claim:

The Franklin led Ione Band of Miwoks has claimed to be landless at least since 2003. This landless claim is simply false. The Historic Ione Band of Miwok ownership of forty acres of land is recorded in both the tax records and property records on file with the Recorder and Assessor in Amador County.[Exhibit 15] A rather extensive record of litigation and appeals relating to internal Tribal disputes over ownership and status of the Ione Band's forty acres also exists in California Superior Courts and U.S. Federal Courts. The inability of the Tribe and the BIA to resolve internal Tribal disputes over the land and obtain title in form that would allow a trust application to be submitted should not be cause for the tribe to acquire lands in and near Plymouth away from their historic land base near Ione.

The Franklin led Ione Band's current landless claim is clearly at odds with both the 1972 Louis Bruce letter and the 1994 Ada Deer reaffirmation letter where two high ranking Federal DOI / BIA officials describe the Historic Ione Band's land base, and offer to take the land into trust.

Despite, the Franklin led Ione Band’s landless claims, the Franklin group has used the Historic Ione Band's land base as justification for receiving hundred of thousands of dollars of federal funds under the EPA General Assistance Program (GAP).

The current landless claims certainly have every appearance of being an attempt to bypass the Administrative Procedures Act and qualify them for restored lands and facilitate an off-reservation land acquisition for gaming purposes. The Historic Ione Band of Miwoks may be entitled to engage in Class III gambling under IGRA, but that gambling must take place on their forty acres in Ione after it has been taken into trust as defined at 25 CFR 151.9 and with subsequent approval of the trust acquisition pursuant to the requirements of the Indian Gaming Regulatory Act.

C. Request for Restored Status:

No Casino In Plymouth recently learned from a September 2004 memorandum addressed to NIGC Chairman Philip Hogan [Exhibit 16] and prepared for the Franklin led Ione Band by legal counsel for their out of state investor, IKON , that the Franklin led Band has requested a determination from the National Indian Gaming Commission as to whether the Ione Band qualifies for a restored lands exception under 25 USC sec 2719(b)(1)(B)(iii). This request is clearly a result of their three year long failed efforts to gain community support for a casino required under the two part determination process in 25 USC sec 2719(b)(A).

On page 10 of the IKON memo [Exhibit 16] we find "The Ione Band has identified and acquired a 228 acre tract of land....." This acquisition statement is simply false based on land sale records currently available for the September 2004 period. Current DOI regulations require the Tribe to own outright any land contemplated for Trust acquisition.[Exhibit 17] The 228 acre tract of land in question is merely optioned by the tribe’s investor, IKON. This same memo is filled with tribal and IKON's opinions concerning restoration and would have NIGC Chairman Hogan believe that the BIA can accidentally, inadvertently or perhaps intentionally drop a tribe from the Federally Recognized Tribes list and when the clerical error is realized and corrected the tribe should be afforded a restored status under 25 USC sec 2719(b)(1)(B)(iii). (The Federally Recognized Ione Band, because of an administrative oversight was accidently left off the Federally Recognized Tribes list and after years of work by Historic Ione Band members the Tribe was placed back on the list in 1994 by Ada Deer.)

This request for a restored lands determination from the NIGC Chairman comes 10 years after Under Secretary Ada Deer's action to place the Ione Band back on the Federally Recognized Tribes list. The OIG Gaming Checklist on page 7 states "Copies of the enabling acts or legislation such as the settlement act, the restoration act, ....the final determination of federal recognition and other documentary evidence must be included in the acquisition package. A legal opinion from the Office of the Solicitor concluding that the proposed acquisition comes within one of the above exceptions must be included." There is no documentation that we are aware of that demonstrates that the Ione Band is a federally restored Tribe eligible for restored lands status and the Franklin led group is now enlisting the tribe friendly NIGC to create the desired restored lands determination for 228 acres that is not owned by the tribe.

D. Use of Historic Ione Land Base for EPA Grants:

The Indian General Assistance Program Act of 1992 (42 USC 4368b) provides the authority for the Environmental Protection Administration to fund “the costs of planning, developing, and establishing environmental protection programs consistent with other applicable provisions of law and providing for enforcement of such laws by Indian tribes on Indian lands.” The General Assistance Program or GAP wording is very specific as to applying to Indian Lands. The EPA 40 CFR Part 35 Subpart Q of 1993 codifying the administrative requirements for GAP Grants also specifically refers to Indian Lands. The EPA 2001 revamping of CFR Part 35 removes the references to Indian Lands to “avoid the appearance of unnecessarily limiting its grant authorities” but states that the changes are “consistent with the Indian Environmental General Assistance Program Act 42 U.S.C. 4368b.” These EPA Grants are not general in nature but expressly tied to specific land parcels. Furthermore the law requires the BIA to oversee the program, which makes the Sacramental Regional Office aware of this land base recognition.

From 1999 through 2004, the Ione Band of Miwoks has received over $543,000 of GAP funding for environmental reasons. EPA documentation substantiates that the Ione Band of Miwoks lists the land in Ione as the area affected by the EPA Grants.[Exhibit 18] The Federal Government has acknowledged this land base by the authorization of a half million dollars in EPA GAP funding. How did the landless Franklin led Ione Band receive Federal Funds for use on private property under a law designating those grants for use on Indian Lands and Reservations? The Franklin led Ione Band's application and receipt of these monies using the Historic Ione Band's land base would make this BIA supported landless claims to the NIGC, State, County, and City governments fraudulent.

A visit to the Historic Ione Band's land base raises the further question as to how did Franklin use the EPA GAP funds? Unless the improvements are underground there is nothing visible to the eye to suggest that more than half a million dollars has been used on the property. If the EPA monies were not spent improving the property identified in the applications then how and where were the monies spent. A thorough investigation into this matter is needed to assure that the Franklin led Ione Band has not procured EPA GAP funds fraudulently, misused EPA GAP funds, or misrepresented itself as landless in order to fraudulently acquire lands away from the Ione Band's historic land base near Ione.

E. NIGC Misuse of 25 USC Sec. 2703 (4) (A) (B);

The September 2004 request to NIGC for restored status requires additional comment on potential issues with any opinion that might be received from NIGC related to the question of what lands are qualified under the IGRA for Class III gambling. Based on numerous opinion letters from NIGC concerning requests for a determination of whether rancheria lands or other lands owned fee simple by tribes and / or tribal members it became clear that our separate understandings of Section 2703 (4)(A)(B) are significantly different.

The NIGC writes opinions with interesting interpretations of what lands are eligible for Class III gambling based on their regulation clarifying 2703 (4)(A)(B). NIGC has demonstrated time after time their ability to “clarify” 2703 (4)(A)(B) and determine that non reservation, fee simple lands are eligible for Class III gambling. Such determinations simply cannot be reached if 2703(4)(A)(B) is not “clarified.” To understand what NIGC has done one only need carefully read and compare their clarification to what is written in the Indian Gaming Regulatory Act.

Section 2703 of IGRA provides definitions for purposes of this chapter and 2703 (4)(A)(B) reads as follows

The term "Indian Lands" means -

(A) all lands within the limits of any Indian reservation; and

(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental control.

NIGC regulations further clarifies the Indian lands definition:

Indian lands means

(a) Land within the limits of an Indian Reservation; or

(b) Land over which an Indian tribe exercises governmental power and that is either -

(1) Held in trust by the United States for the benefit of any Indian tribe or individual; or

(2) Held by an Indian tribe or individual subject to restriction by the United States against alienation.

Section 2703 is plainly written by the Congress and requires no clarification. The change of the and in (4)(A) to or in the NIGC regulation is a major change that allows the NIGC to issue land status opinions favorable to tribes that do not have lands within a reservation or who do not own trust ;lands. The NIGC has issued many favorable land status opinions using their “clarified” regulation as if it represented the law as written by Congress. This change in the 25 USC Sec. 2703 (4) by NIGC has been misused by NIGC to determine that the non reservation, non trust, fee simple rancheria lands of many California tribes are Indian lands eligible for Class III gaming under IGRA. Recently such an opinion was issued relating to the Buena Vista Rancheria. [Exhibit 19] If the IGRA is to perform as Congress intended then the NIGC and their “clarified” land determinations must be reined in so that the intent of Congress is realized.

F. Freedom of Information Act request Issues at BIA:

With the need to resolve this critical land base issue, Freedom of Information Act requests (FOIA) were submitted to both the Department of the Interior and the Environmental Protection Agency [Exhibit 20]. The law requires that FOIA requests be answered within 20 days. The EPA responded immediately and after an exchange of information to determine processing fees, provided the requested information. The Department of the Interior responded about a month after the initial FOIA request and forwarded the request to The Sacramento Offices of the BIA. To the best of our knowledge the Sacramento offices have not replied to the FOIA requests.

We believe that the failure of the Sacramento Offices of the BIA to respond to this FOIA request is a deliberate attempt to obfuscate both:

1. The fact that the Ione Band of Miwoks is not landless and its historical land base is located near Ione.

2. To hide the fact that the EPA grants to the Franklin led Ione Band were obtained under highly questionable circumstances.

The BIA is responsible for application of the EPA Grant process and requisite audit trail and most certainly had knowledge of the laws' requirements. If three of the four applications for federal Assistance lack even a specific GAP project description on the application, then it is very likely that the EPA reporting requirements of 40CFR part 31 and 40 CFR part 35 have not been met. As stated previously a visit to the historic land base near Ione which would raise questions as to what the EPA monies were actually used for as would the absence of any specific project descriptions on the applications. Unfortunately, the Sacramento Office of the BIA’s continuing disregard for FOIA requests make this information unavailable to NCIP.

G. Summary:

The Historic Ione Band of Miwok owns forty acres near Ione and the land is held fee simple. The Historic Ione Band of Miwok was recognized and a land base for them discussed as early as the 1920's and Commissioner Bruce recognized that in 1972. After accidently being left off the Federally Recognized Tribes list the Historic Ione Band was placed back on the list in 1994 by Ada Deer. These are facts that are documented.

The Franklin led Ione Band is a creation of the Regional BIA Office and their landless and restored claims are simply false. Their restored claim is based on nothing more than the unfortunate result of a clerical error that went uncorrected for 18 years, until Ada Deer corrected the error and placed the Historic Ione Band of Miwok back on the list of Federally Recognized tribes. The "landless" Franklin led Ione Band's receipt of