Federal judge dismisses appeals on Chukchansi tribal government

A federal judge has rejected four appeals challenging the leadership of the Picayune Rancheria of Chukchansi Indians’ tribal government.

By doing so, the federal Department of the Interior appears to have reaffirmed its support for the tribal council elected in October.

The judge’s decision was applauded by the group elected to the tribal council in October. It was derided as a strike against the tribe’s sovereignty by those who had appealed earlier federal decisions to work with tribal council members elected in 2010.

In 2014, the federal Bureau of Indian Affairs supported a board composed of tribal council members elected in 2010: Reggie Lewis, Nancy Ayala, Dora Jones, Morris Reid, Chance Alberta, Jennifer Stanley and Nokomis Hernandez, who was appointed to the council in 2011.

Opposing factions of the Madera County tribe appealed the 2014 decision. In early 2015, the federal appeals board supported the BIA decision. Last week’s decision by the Interior Board of Indian Appeals backed up the Bureau of Indian Affairs.

The 2010 council was an amalgamation of members from the “Ayala Quorum Council” and the Lewis and Reid councils. Since both the so-called Lewis-Reid and Ayala Quorum councils agreed to join together as the 2010 council, their earlier appeals were dismissed.

The board elected in October includes Reid, Jones and Hernandez. Also elected were: Tom Walker, Harold Hammond, Dixie Jackson and Claudia Gonzales.

The lawyer for the recently elected council, John Peebles of Sacramento, said dismissing the appeals “was a great decision for us.”

An appeal by the former Tex McDonald group, which is now led by Monica Davis, also was dismissed because the appeals panel described the McDonald faction as an extension of the Ayala Quorum Council, which became part of the 2010 council. McDonald members were elected after Ayala’s board removed other members.

Because McDonald and his supporters were part of the Ayala group, they technically were part of the 2010 council, Judge Steven K. Linscheid found. So, the judge said, there were no grounds to overturn the 2014 decision by the BIA’s regional director, Amy Dutschke, that recognized the 2010 council.

The dismissal of appeals has no bearing on the operation of Chukchansi Gold Resort & Casino.

Appeals likely

Les Marston, the Ukiah-based attorney representing the Monica Davis faction, said he will meet with group members to decide whether to take action in U.S. District Court under the federal Administrative Procedure Act to get the decision overturned.

Luke Davis, chairman of the distributees, members of two tribal families who claim to be the true Chukchansi descendants, opposes Interior’s appeal board decision. The appeals board dismissed his group’s appeal.

Gary Montana, the Wisconsin-based lawyer for the Luke Davis’ faction, called the board’s decision “arbitrary and capricious.” He said he will fight it in federal court.

“IBIA was already biased toward our group,” said Davis, who is Monica Davis’ cousin but leads a different council. “The Bureau of Indian Affairs did our tribe wrong from the beginning; they already had a board in mind and it was the 2010 board.”

But Judge Linscheid said the Luke Davis group was not entitled to appeal a Bureau of Indian Affairs decision recognizing a tribal council because it never proposed to the Bureau of Indian Affairs for a government-to-government relationship as the agency to collect Indian Self-Determination Act grants – money that is distributed to tribal members.

The Luke Davis group “has not shown that it is more than a collection of tribal members who believe themselves to have a greater claim to legitimacy as tribal citizens than the tribe’s other members,” Linscheid wrote.

The board also dismissed an appeal by Patrick Hammond, who was removed from the 2010 board following his election and replaced by Hernandez.

The appeals ruling said that Hammond didn’t try to use tribal rules after being removed to try to return to the council and only sought to be returned to the council once Dutschke issued her initial 2014 decision to recognize the 2010 council.

Hammond said he should have been a member of the elected 2010 council. He said his removal was wrong and politically motivated, but he is encouraged by the election in October of the new tribal council.

Overall, Linscheid wrote, because the situations that emerged from the lengthy tribal battles don’t “dictate a particular outcome, we will afford BIA latitude to exercise discretion with whom it will deal in carrying on the government-to-government relationship with the tribe.”

Sovereign nations?

Although tribes have sovereignty, the ability for tribal governments to make decisions for themselves is tempered somewhat when gaming is involved, said Kenneth Hansen, a Fresno State political science professor with expertise in American Indian issues.

“When there are these internal disputes, people are often looking for a referee to help resolve them,” said Hansen, co-author of “The New Politics of Indian Gaming.”

A consortium of about a dozen Southern California tribes use a tribal court, but Chukchansi’s tribal court is trusted by some groups and ignored or distrusted by others.

That leaves decisions, such as those involving Chukchansi’s government, to the Bureau of Indian Affairs and ultimately the appeals judge and potentially federal courts.

The problem, he said, was that the Chukchansi problems evolved over four years, and new factions formed to complicate an already difficult process that eventually led to the casino closing for 14 months after a raid of the Coarsegold casino and resort office.

“There is nobody willing and able to really adjudicate this in a timely and helpful manner,” he said, referring to the political squabbling.

In the past, tribal factions and lawyers have questioned whether the tribe possesses sovereignty to make its own decisions when the federal government rules against them. But a tribe relinquishes some sovereignty when it signs contracts to build and run casinos, known as compacts, with states and the federal government, Hansen said.

“Tribes trade away some of their sovereignty to have casinos, a good portion it would seem to me,” he said. “A casino is by and large what the fight’s about; if there is no casino, there is no fight.”

This story was originally published January 31, 2016 at 2:00 AM with the headline "Federal judge dismisses appeals on Chukchansi tribal government."