•Lawyers for tribal officers said they were acting in good faith.
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•Effort underway to get former council chair released from jail.
A Madera County Superior Court judge will hear Friday from lawyers seeking to dismiss criminal charges against 15 defendants involved in the Chukchansi Gold Resort & Casino office raid on Oct. 9 that sparked the casino’s evacuation and closure.
Before hearing the criminal case, Judge Dale Blea first has to decide whether the Madera County District Attorney’s Office and Sheriff’s Office had jurisdiction to make the arrests and file charges. Another issue is whether either of two tribal factions was in control — and had the authority to employ police officers — because the federal government had not recognized a tribal government in October.
Both prosecution and defense lawyers say that since neither side was the recognized leadership, both lacked authority. The lawyers are using that lack of recognized authority as key parts of their arguments.
The 15 defendants, including tribal council members Tex McDonald and Vernon King, police officers and members of their security team, were later charged with kidnapping, assault with a deadly weapon and other crimes. Nobody from the security team employed by the Reggie Lewis-Nancy Ayala tribal faction was charged.
The Oct. 9 raid was planned to recover audit information requested by the National Indian Gaming Commission, which had threatened to close the casino if two years of audits were not filed by Oct. 27. The Lewis-Ayala group had kept the McDonald faction away from the information since late August.
Defense lawyers say the McDonald tribal faction’s force was acting in “good faith” when its members detained and handcuffed members of the opposing security force. About an hour later, those arrested were released to then-Madera County Sheriff John Anderson. Those actions on Oct. 9 are seen in a video that’s part of evidence set to be released at Friday’s hearing.
Anderson questioned the people released to him and then let them go. Defense lawyers say that Anderson’s release of the security team hired by the Lewis-Ayala faction led to more violence. About 90 minutes after the initial raid, the Lewis-Ayala security director pulled a fire alarm as the opposing security team returned through the hotel basement, leading to fights between the two groups seen in video released in the days after the confrontation.
The Coarsegold-area casino and hotel were evacuated because of the fire alarm. The casino and hotel have remained closed since then, and their fate rests with state and federal agencies.
Anderson said no arrests were made the night of the raid because the sheriff’s office couldn’t figure out what happened.
“We didn’t know who was right or wrong,” Anderson said Wednesday. “We separated them, obtained statements and later were able to make some pretty good cases against the one group.”
McDonald and King are claiming they were members of the tribal government and should be immune from prosecution for issues that arise out of incidents on the rancheria related to their positions as tribal officers.
Prosecutor Nicholas Fogg says in his motion opposing the case dismissal that the McDonald faction must prove that it was the rightful tribal council when the Oct. 9 raid and basement scuffle occurred. But, Fogg says, no leadership group was then recognized by the federal government.
“They cannot prove that they (or their police officers) acted under the authority of the legitimate tribal government,” Fogg wrote. “Dismissal would create an absurd outcome and jeopardize public safety.”
In February, the 2010 tribal council led by Lewis, Ayala and Morris Reid — three separate factions — was recognized by the Bureau of Indian Affairs to lead the tribe. The National Indian Gaming Commission followed up with a similar pronouncement at the end of March.
Fogg says the county has jurisdiction under state and federal law to arrest and charge the officers.
But lawyer Mark Coleman, who represents nine of the defendants, said his clients are sworn police officers, many with military backgrounds and medals. He said that any actions they took as police officers give them immunity from prosecution because they were just doing their jobs.
Coleman said county prosecutors are taking sides by charging one tribal faction’s officers, even though the other side fought back, pulled a fire alarm and deployed an electronic stun gun against one of the police officers.
County email cited
Coleman said a November email from now retired Madera County Counsel Doug Nelson supports his group’s position: “The primary issue is that the Picayune Rancheria of Chukchansi Indians has failed to resolve its dispute over who is the governing body of the Chukchansi tribe,” Nelson wrote in the Nov. 5 email. “Unless and until that dispute is resolved by the tribe, the county has no power or authority to recognize one tribal council over another.”
Nelson’s email, sent the day after David Linn beat incumbent Michael Keitz to become Madera County district attorney, was a response to an email from lawyers for the Lewis group seeking a deal with the county. Nelson added that the county “cannot and will not enter into an agreement with only one faction.”
“Even the county counsel is of the opinion that nobody but the tribe can determine who the tribal council is,” Coleman said.
Linn said questions for the judge to consider on Friday include: Who had jurisdiction? Is the rancheria a sovereign nation apart from California? “We have to get beyond the jurisdictional issues with the judge,” Linn said. “Assuming that we do, then we have to deal with the proof.”
That proof rests on “critical questions,” Linn said, such as whether McDonald’s tribal police force acted in good faith and with restraint.
Fresno State professor Kenneth Hansen, who has written extensively on tribal gaming and tribal issues, said tribal leadership was unclear when the casino office raid occurred.
“Until the Interior Board of Indian Appeals answered (in February) all the appeals, it was totally up in the air who was really in charge,” Hansen said.
He noted that no one was arrested when Lewis and his supporters got into the casino in August and took over its operation, saying that’s because it was viewed as tribal infighting.
Hansen said that McDonald and King, the two former tribal leaders who remain in jail, could be considered “political prisoners” because they believed they were serving the tribe in their council capacities when they took part in the raid.
Chukchansi functions under federal Public Law 280, which spells out policing guidelines on certain Indian lands. Under its rules, tribe members can only be arrested by tribal police for offenses on tribal lands and nontribe members can be arrested by other law enforcement agencies. They also can be ordered off the property in lieu of arrest.
The Lewis security officers detained by McDonald’s tribal police officers were handed over to Madera County sheriff’s deputies and the sheriff. They were released after questioning and re-entered the casino basement as the fire alarm was pulled, defense attorney Coleman said.
If the police were acting in good faith and on behalf of the tribe, Hansen said, then it is conceivable that McDonald and King could be viewed in the same light.
“Vernon and Tex might be protected under 280 because they were attempting to act on behalf of the government,” Hansen said. “If the situation is murky enough to where they can’t say Tex, Vernon and the tribal police weren’t representing the tribe, then how do they prosecute? I would think the burden of proof falls on Madera County to prove Tex and Vernon were not the tribal government.”
That is the argument being made by the American Indian Movement, which is working with McDonald’s family to secure his release.
“AIM is supporting the process and we are very much concerned over this because of the way the federal government had not stepped in to prevent this from happening,” said Laura Wass, AIM’s Central California director.
The federal government failed the tribe, she said, by not putting a government in place sooner. Much of what has occurred at Chukchansi relates back to the tribe’s “historic trauma.” She said the federal government created sovereign nations without teaching tribes how to govern. In the meantime, massive disenrollment has been allowed and government upheaval has continued.
“It’s the federal government’s trust responsibility to see that protocols, policies and procedures are adhered to,” Wass said. “It has run amok for so long and destroyed a lot of lives.”