No Casino in Plymouth

STATUS

The Status Page has been formatted to present a quick snapshot of the current situation and is intended to give you a synopsis of the latest developments regarding the proposed casino in Plymouth. More detail of specific issues are presented elsewhere on the website.

INDEX

1) Background Issues 25 Feb'09

2) Reversal of Restored Lands Opinion 25 Feb'09

3) Supreme Court Carcieri Ruling 11 Apr'09

4) 2008 Plymouth election results 8 Dec'08

5) Recent Tribal Actions of the Franklin Group 25 Feb'09

Status of Proposed casino in Plymouth as of 11 April 2009

Background issues

The basis of acquisition of land in trust is governed by a statutory process with Congress having the final say in determining whether to take tribal land into trust. The Department of the Interior has issued a general regulation, 25C.F.R. Part 151, to cover the multiplicity of other statutes and regulations governing this process. This regulation on land acquisition cites over 40 separate statutory authorities to which it applies. Note that 25 C.F.R also explicitly reserves to the Secretary the authority to waive or make exceptions to his regulations in all cases where permitted by law and the Secretary finds that such waiver or exception is in the best interest of the Indians.

The Indian Gaming Regulatory Act has two separate and distinct avenues for taking land into Trust for gaming purposes.
Section 20(b)(1)(A) requires a two-part determination that the gaming establishment will be in both the best interest of the Tribe and not detrimental to the surrounding community and the Governor of the State concurs with the Secretaries two-part determination.
Section 20(b)(1)(B) in part only requires that the land in question be the initial reservation of a newly recognized Tribe.

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Reversal of Restored Lands Opinion

The State of California, Amador County, and NCIP have always believed the factual data available refutes the restored landless claim of the Ione Band of Miwoks. Now apparently, so does the Department of the Interior. On January 16th, the Chief Solicitor for the Department of Interior, David Bernhardt, reversed the 2006 restored lands opinion for the Franklin-led Ione Band. In a memo to Acting Deputy Assistant Secretary for Policy and Economic Development, George Skibine, Solicitor Bernhardt stated that after reviewing the Artman opinion he concluded it was WRONG and it no longer represents the legal position of the Office of the Solicitor. Loosing their bogus “restored lands opinion” gives our community more input under what will certainly be a revised two-part determination.

Excerpt from the January 16, 2009 Bernhardt memo reversing the restored lands opinion. “.......I determined to review the Associate Solicitor's 2006 Indian lands opinion and have concluded it was wrong. I have withdrawn and am reversing that opinion. It no longer represents the legal position of the Office of the Solicitor. The opinion of the Solicitor's Office is that the Band is not a restored tribe within the meaning of IGRA.”

As soon as NCIP can obtain a copy of Solicitor Bernhardt's Legal Brief, we will post it on the website.

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In the Carcieri Decision, The Supreme Court Rules against Department of Interior and Tribes

On February 24th, the U.S. Supreme Court reached a 6-3 decision in the Carcieri case where the State of Rhode Island challenged the authority of the Secretary of Interior to take land into trust under the 1934 Indian Reorganization Act (IRA). Justice Thomas, writing for the majority found that the Secretary of the Interior does not have authority to take land into trust for tribes not under federal jurisdiction in 1934. The Ione Band was not on the list of 1934 tribes under Federal Jurisdiction.

Excerpts from the February 24th, 2009 Supreme Court Carcieri Decision
“The Secretary may accept land into trust only for “the purpose of providing land for Indians.” 25 U. S. C. §465.”
“Indian” is defined by statute as follows: “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. . . . The term ‘tribe’ wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. . . .” §479 (emphasis added).
“We hold that the term “now under Federal jurisdiction” in §479 unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934.”

The following link in PDF format, Snell & Wilmer will take you to a interesting explanation of the Carcieri Decision written by two lawyers from the Law Firm of Snell and Wilmer who specialize in Indian and Indian Gaming Law.It is well worth reading.

What do these two new developments mean to our community?

While the Fat Lady may not yet be singing; NCIP believes these recent developments may be the beginning of the end for the proposed casino in Plymouth. We are contacting numerous Federal and State Officials in order to determine exactly how this effects the Ione Band of Miwoks application to take land into Trust. We will keep you posted as we learn more.

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Plymouth City Council Election Results

The results of the November Plymouth City Council Election are tabulated below. Overall the main City issues in this election were the proposed casino and water. The firm “no Casino” candidates garnered @ 59% of the vote which can only be interpreted as the Citizens of Plymouth continuing their rejection of the proposed casino.

One of the loosing candidates, Maria Nunez, claimed in her campaign literature that she was against the casino and that may have contributed to her support and diluted the no casino results. In reality, she has on numerous previous occasions voiced support for the casino and is currently a proponent of negotiating with the Tribe. Any government to government relationship could be misrepresented to the Department of Interior as community support and this would strengthen the tribe’s position and therefore can only be interpret as a pro-casino position.

It worth noting that Amador County is firmly opposed to any negotiations with the Tribe until the land is taken into trust, which we feel is unlikely at this time. There are numerous issues relating to the restored landless claims that will require resolution in Federal Court before and status change on the land can take place.

PLYMOUTH ELECTION RESULTS

Candidate Election Day Absentee Total Votes Percentage

Jon Colburn 143 121 264 21.93

Pat Shackleton 131 109 240 19.93

Greg Baldwin 107 94 201 16.69

Maria Nunez 110 88 198 16.45

Darlene Estey 79 71 150 12.46

Gary Colburn 87 54 141 11.76

Total votes 660 544 1204 --------

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Recent Tribal Actions of Franklin Group

As of August 2008 what has the tribe accomplished:
- Filed an incomplete application with the Department of the Interior (DOI) based on a Municipal Services Agreement (MSA)
that was ruled invalid by California Third district Court.
- Been unable to convince the City of Plymouth to negotiate a new MSA
- Filed an error filled Draft Environmental Impact Statement with the DOI that that can only be described as inadequate.

There are two fundamental problems for the Tribe. The first revolves around the Tribe’s claim of being a restored landless Tribe.
The second is a lack of a MSA with the City of Plymouth.

Landless Claim:
As previously mentioned the Official position of the Department of the Interior is that the Ione Band of Miwoks are not a restored landless Tribe. Unless the DOI reverses themselves a third time, the Bernhardt Opinion shuts the door on this section of IGRA leaving only the avenue of a two-part determination which will require an MSA with both the city of Plymouth and Amador County.

MSA
Current DOI regulations requires - “agreements between tribal and local governments regarding jurisdictional and land use issues to be submitted as part of the acquisition package…” In other words, without an MSA, the Tribe and their gambling interests are unable to file a full and complete application for a casino. Again, it cannot be overly emphasized, that without an MSA there cannot be a successful two-part determination under IGRA. The Tribe has responded to this dilemma with a two-pronged assault on the Plymouth City Council. First, they have had their backers attend City Council meetings and attempt to badger the Council into reopening negotiations with the Tribe. Secondly, they have initiated a slick new “PR” campaign with a website and glossy brochures which are aimed at swaying public opinion into supporting new negotiations. The message is the same old dishonest argument we’ve heard before…”we don’t want the casino but Plymouth must negotiate to protect itself because it’s a done deal.”

The TRUTH OF THE MATTER is that the Tribe has already started negotiations with the State, Amador County, and the City of Plymouth. Those negotiations are in the form of the recently submitted draft Environmental Impact Statement. That document contains the Tribe’s vision for economic development and it’s not a pretty picture. The Draft EIS page of this website provides the details necessary to understand the inadequacies of that document.

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