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More documents call tribal history into question

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From page A2 | April 23, 2012 |

In the continuing saga between Cesar Caballero and the Indian tribe that owns and operates Red Hawk Casino over naming and trademark rights, Kristen Mackey presented more evidence she believes helps to prove the casino tribe should never have been federally recognized and thus have no claim to the Shingle Springs Band of Miwok Indians name.

Mackey, secretary and volunteer with Caballero’s tribe, points to the declaration of William Miles Wirtz, a court filing for the 2004 Eastern District of California case El Dorado County v. Norton.

In his declaration, Wirtz, a retired attorney for both the United States Department of Interior and the Bureau of Indian Affairs, arrived at the conclusion that the band of Indians that occupied the Shingle Springs Rancheria, Verona Tract, should not have been federally recognized as a tribe; only the Rancheria itself should have been recognized as being Indian land.

Wirtz stated that there are a few conditions that must be met to be federally recognized, “basically that the petitioner has continued to exist as a political and social community descended from a historic tribe.” He goes on to say that “Indian tribe” includes “all Indian tribes, bands, villages, groups and pueblos as well as Eskimos and Aleuts.”

While in the past the tribes could be recognized through a treaty, there are now three ways for recognition: “by an act of Congress, by judicial means, or since 1978 through acknowledgement by the (Department of Interior) pursuant to the Acknowledgement Regulations adopted by the BIA,” Wirtz wrote.

The crux of Wirtz’ argument was that, according to United Houma Nation v. Babbitt, “miscellaneous Indians do not make a tribe.” Wirtz explained that the group that took up residence about 60 years after the Rancheria was bought as Indian land by the federal government was not a tribe, but a collection of individuals and families from around the area.

In a 1970 memo between the Sacramento area directer of the BIA and the commissioner of Indian Affairs, it was stated that none of the 54 descendants of the original 34 in  the land was purchased for — who became the Sacramento-Verona Band of Homeless Indians — was living on the land, although they had been informed that they could. It is also mentioned that “Only a very few can be identified by ancestral tribal organizations.”

This was likely in part because some were not American Indians to begin with. When gathering information about the individuals that the land was being bought for, Indian Service Agent John J. Terrell found that some individuals were of Hawaiian descent.

The Chief Clerk of the Indian Service — the department that would later become the BIA — asked Terrell to “show why you have included in the census submitted with your letter of January 4, 1916, some Hawaiians. These are not Indians, and the fund for the purchase of California lands could not properly be expended on them unless by reason of affiliation or adoption into the band they have become a part of.”

Terrell responded saying he had been under the assumption that there had been intermarriage and affiliation.

In 1918, the clerk wrote Terrell about the land again, saying “the purchase should be made for the ‘landless Indians of California’ and not for ‘Hawaiian Indians’ who may have intermarried with the California Indians.” The clerk then said acceptance of the Hawaiians into the tribe that was being formed would be on a case-by-case basis.

Wirtz wrote that in March 1978, the BIA made a list titled “Traditional Indian Organizations (Recognition Without Formal Federal Approval of Organizational Structure).” A similar list was created the next year. Both included the Shingle Springs Rancheria, but neither list had a “group of persons,” Wirtz said.

“It is not until July 8, 1981, well after the effective date of the Acknowledgement Regulations, that the BIA identified the Shingle Springs Band, in addition to, the Rancheria as the relevant ‘tribal entity.’” From 1981 onward, the lists included the “Shingle Springs Band of Miwok Indians, Shingle Springs Rancheria (Verona Tract), California.”

Wirtz wrote that the tribe being on the lists of federally-recognized tribes “is not dispositive on the question of whether the Band has ever been legally recognized by the federal government as an Indian tribe through the administrative process, by an Act of Congress or by judicial means.”

He goes on to say that the group’s efforts to inhabit the Rancheria between 1970 and 1979 “were focused on receiving and managing property without any specific intent concerning recognition of tribal status of an historical group on the part of the BIA.”

Wirtz cites Judith Rabinowitz, counsel to the federal government, who said the recognition of the Shingle Springs Band was “not pursuant to administrative processes” and had come about from “course of dealings,” something Wirtz said was not a way to become federally recognized. In short, Wirtz said, the band should not have been recognized merely because the land they occupied was originally listed.

Mackey also cites an article written by Sarah Darlington in the April 19, 1890 issue of the Mountain Democrat. The article, “Sketches of Hawaiian life: A contrast,” compares how Hawaiians in the area — pointing out they were, indeed, in the area — were doing far better socially and financially than local Indians, a plight that is playing out again more than 120 years later.

Darling wrote that the Indians were a “miserable remnant of a once free, independent, self-respecting people, down-trodden, reviled, clad in our cast-off rags,” while the Hawaiians were nicely dressed and going to schools.

Mackey said the article “was one the primary motivating factors in my assisting” with Caballero’s tribe, and that it runs parallel with today’s situation between the tribe running the Casino and Caballero’s tribe.

Contact Cole Mayer at 530-344-5068 or cmayer@mtdemocrat.net. Follow @CMayerMtDemo.

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