Judge rules on BIA decision

awileman@sierrastar.comApril 22, 2014 

On Tuesday, April 15, the Interior Board of Indian Appeals denied a motion to place the 2010 elected tribal council as acting tribal council of the Picayune Rancheria of the Chukchansi Indians in regards to government relations.

The BIA's initial decision by Pacific Regional Director Amy Dutschke's on Feb. 14, 2014 to acknowledge the "last uncontested" tribal council (2010) for the purpose of government relations, came after years of internal conflicts between two factions claiming to be the tribe's lawful tribal council.

The McDonald faction, which currently runs day-to-day operations at the casino, appealed the motion handed down by Dutschke within days of the decision being announced.

In response to the appeal, on Feb. 19, Dutschke motioned that the BIA's Feb. 14 decision become effective immediately citing public safety and health as the main concern.

However, on Tuesday, Chief Administrative Judge Steven K. Linscheid of the United States Department of the Interior, decided that the report provided insufficient evidence to prove that not putting the decision into immediate effect would directly affect public health and safety.

According to the court report issued by Judge Linscheid, "briefs fail to articulate the Regional Director's reasoning for why she believes making the decision effective immediately would preserve public health and safety."

The judge's court report detailed reasons to the request denial, insisting the only reason to believe public safety was at risk was from the idle threats made by each of the two factions upon the denial or approval of the appeal.

"The board agrees that the public safety factor should not be construed as inviting or permitting a party to threaten, explicitly or implicitly, to create or exacerbate a public safety risk in order to bolster the party's position in support of or in opposition to placing the BIA decision into effect."

According to Judge Linscheid both factions engaged in threatening speech in order to influence the IBIA's decision to either deny or approve the decision to place the BIA's decision into immediate effect.

"In the present case, The Lewis/Reid faction's arguments, and to a lesser extent the McDonald faction's arguments, might as well be construed as doing just that. The situation may be tense and volatile, but the source of that volatility is the tribal faction themselves which — with the assistance of their respective council — have both the responsibility and ability to take steps to reduce or eliminate the possibility of violence."

The Lewis/Reid faction argues that trust resources are at risk, but according to the board's report, there has not been ample evidence to support the notion that protecting those resources requires the BIA's decision to become effective immediately.

Meanwhile, the McDonald faction, who currently works out of the tribal office located across from Chukchansi Gold Resort and Casino, is running day-to-day operations at the casino and claims by denying their appeal, the courts are not allowing sufficient time to provide evidence that would prove their current council continues to successfully run operations and properly distribute funds to all facets involved with the Chukchansi tribe, including membership benefits, grant funding, casino operations and loans.

The McDonald faction also went on to say that contrary to Dutschke's assertion that defaulted loans have contributed to the circumstances, they are in complete control and have met all demands in regards to loans and payments. The McDonald faction, although acknowledging some problems in 2013, claim this was a cause of an illegal withdrawal of funds by the Lewis/Reid faction, which resulted in a lack of funding to make scheduled payments aligned with the tribe's financial agreements.

"According to the McDonald faction ... the casino is operating normally and the tribe is current on its loan payments," read the report.

The judge went on to state if there was significant proof and agreement from all factions that prolonging the BIA's decision, on the grounds of appeal, would cause further funding to be lost, they would indeed reaffirm the BIA's decision to acknowledge the 2010 tribal council as the acting tribal council in regards to government-to-government relations.

However, the judge clearly stated that the Native American Housing Assistance and Self-Determination Act (NAHASDA) funding, discussed in Dutschke's motion as reasoning to revert to the 2010 council, was no longer available prior to the regional director's decision and in no way will be recovered, even if an agreement is reached between the two sides.

"Although the Regional Director's motion appears to rely on a risk to the tribe's FY2014 NAHASDA funding if the decision is not made effective, it is undisputed that the tribe's opportunity to obtain that funding has been lost — and was lost while the dispute was pending before the Regional Director."

However, Dutschke touched on the United States Department of Housing and Urban Development (HUD) funds which would be received if a tribal council was recognized by the BIA. At that point, the HUD acknowledged it would recognize the BIA's decision as to which tribal council they would be authorized to collaborate with.

The regional director's decision also stated in the Feb. 19 court documents that the recognition of a tribal government "is essential for the purpose of contracting under ISDA," and to prevent "any further hiatus of this government-to-government relationship."

However, according to the judges decision on Tuesday, Dutschke failed to respond to the McDonald faction's claims that they are continuing to provide services and some level to programs, and the issues and insatiability that would be caused by placing the BIA's decision into immediate effect far outweigh the instability that would result if, in fact, the BIA's decision would stand.

In no way does Tuesday's decision affirm or deny that the McDonald faction will prove its merits during the appeal. Nor does the judge's decision make clear whether the Lewis/Reid faction will ultimately prove its merit.

Instead, the judges decision denies the BIA's decision to place the decision in the Feb. 14 release on behalf of the BIA into immediate effect on the basis of lacking evidence to deny an appeal.

"The board finds that the Regional Director and the Lewis/Reid faction have not made clear and convincing arguments that placing the decision into immediate effect will preserve public safety to a greater extent than if the decision remains without effect."

Reggie Lewis, chairman of the Lewis/Reid faction, stated in a prepared statement his belief that the decision handed down Tuesday in no way will affect the BIA's original decision to re-seat the original members of the 2010 elections for the purpose of government relations.

"The IBIA could not have been clearer that this decision should not be construed as recognizing anyone as the tribe's governing body. The BIA-recognized Tribal Council now looks forward to making our case on the merits," Lewis said.

The acting chairman for the McDonald faction responded to the IBIA's decision to uphold their appeal and place a hold on the BIA's decision to acknowledge the 2010 elected tribal council as the governing body in regards to government relationships.

"Again, the Lewis faction wastes our people's money, energy and time with their foolish lawyering and selfishness – and again they've lost," said Acting Chairman Tex McDonald. "While they sit in their glass tower in Fresno thinking of new ways to sabotage our Tribe, the on-rancheria Tribal Council continues to run the casino and resort, and provide services to our people. You have to wonder when the Lewis faction will get the message – that they're not in charge."

Clearly Tuesday's decision brings a halt to the possibility for a speedy resolution to the ongoing controversy surrounding the tribal council.

The judge concluded his report by reiterating that even if the decision is upheld, both factions are clearly at odds to what the decision clearly means.

According to Judge Linscheid, the McDonald faction believes the decision only applies to government-to-government relations and in no way forces their current faction, who runs day-to-day operations, to relinquish their seats to the 2010 council members which include Reggie Lewis (Lewis/Reid), Chance Alberta, Morris Reid (Lewis/Reid), Dora Jones, Nokomis Herndandez, Nancy Ayala (McDonald) and Jennifer Stanley.

On the other hand, the Lewis/Reid faction claim the BIA's decision, if made effective, would grant the 2010 elected council complete control over the casinos operations including on-site and government contracts.

Although the latest court documents recognize this considerable disagreement on the understanding of the BIA's decision, the regional director for the BIA has not yet responded to either faction's understanding of her intent.

According to sources, the board's confirmation of Judge Linscheid recommendation would send the issue to the assistant secretary of the Bureau of Indian Affairs.

The Sierra Star is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service