By Erin Sherbert
By Erin Sherbert
By Leif Haven
By Erin Sherbert
By Chris Roberts
By Kate Conger
By Brian Rinker
By Rachel Swan
Quan: "You are the former director of the Bureau of Indian Affairs?"
Gover: "I am."
Quan: "And were you not the person who made this tribe eligible for land rights?"
Gover: "I am the person that restored the Koi Nation to its rightful federal recognition, yes."
Quan: "Are you now an employee of either the Koi Nation or its investors?"
Gover: "I am a consultant to its investors, yes."
Quan: "You're asking us to have faith in the credibility of the process, but clearly as an insider it seems that you have a disproportional impact on it. So you have to understand that we're somewhat skeptical."
Although the tribe would prefer to have Oakland's cooperation, in the end, the city will have little, if any, say about the casino. That's because of the Koi's special status as a so-called "restored" tribe, whose rancheria, or small reservation, was disbanded during the Eisenhower administration as part of a policy of assimilation. While federal law generally prevents tribes from setting up casinos on land they didn't already own in 1988 (the year the Indian Gaming Regulatory Act was enacted), restored tribes, such as those of the Pomo, which had no land when the law was passed, are exempt. (Unlike many other rancheriatribes, however, as a technical matter Lower Lake/ Koi Nation was never officially terminated by the federal government, even though it had ceased to be included on the government's list of federally recognized tribes after its land was sold; thus, Gover's action to reaffirm recognition.)
Indeed, should the Koi Nation persuade the U.S. Department of the Interior to let it acquire land near Oakland's airport as a "reservation," under the law the tribe would not need the consent of California's governor to open a casino. All of which makes what Gover did for the Koi enormously valuable. "It's almost like a free ticket," says Tom Gede, who teaches Indian law at the University of the Pacific's McGeorge School of Law in Sacramento. "It may have been unseemly, and it may be incongruous, but once they got federal recognition, there's not much anyone can do about it."
The circumstances leading to Gover's reaffirming the Koi Nation as a federally recognized tribe remain shrouded in secrecy. A letter from Gover congratulating the tribe for attaining its new status alludes to a meeting that members of his staff conducted with the tribe in October 1999. But BIA officials have failed to provide documents related to that meeting (or any other communication Gover may have had with the tribe before recognition was granted), despite the Weekly's requesting the records for more than three months.
No one disputes that the tribe owes its sovereignty to the singular -- and highly unusual -- administrative act executed by the former BIA director on his last day in office. That's when Gover announced his decision to reaffirm the tribe in a four-paragraph letter to its chairman, Daniel Beltran. The letter offered no legal rationale. It proclaimed that "henceforth" the tribe would be included on the list of Indian entities recognized by and eligible to receive the services of the Bureau of Indian Affairs. In making the decision, Gover wrote that he had been "advised" by two of his subordinates, the bureau's Pacific regional director and the superintendent of the Central California office, both in Sacramento.
Dale Risling, the former superintendent who is now a deputy regional director of the Pacific regional office, says that Gover initiated the review of the Koi's status. He says he does not recall the details of his own involvement. "That's been a few years ago, and I would have to go back and look at files that aren't readily available," he says. Ron Jaeger, who was Pacific regional director at the time and has since left the agency, did not respond to interview requests for this article.
What the letter didn't mention was that Gover's own staff of experts within the bureau's Branch of Acknowledgment and Research (now known as the Office of Federal Acknowledgment) was unalterably opposed to bestowing federal recognition on the Koi Nation.
Having heard rumors that Gover was about to recognize the Koi and two tiny Alaskan Indian groups, Lee Fleming, the head of the bureau's acknowledgment office, fired off a memo imploring his outgoing boss to hold off -- just two days before the Gover edict. The memo, a copy of which was obtained by the Weekly, laid out the case for why the Koi Nation did not qualify for reaffirmation. Among other things, it cited problems with the list of tribal members that the group had submitted.
BIA staffers had become suspicious after the tribe, apparently aiming to clean up the list, reduced its enrollment by half in the year leading up to Gover's action. Fleming, a widely respected expert in Indian genealogy, concluded that the tribe had failed to adequately establish hereditary links to the handful of Native Americans purported to have been members of Lower Lake Rancheria before the rancheria was disbanded a half-century ago.
Fleming wrote that his office and the Office of Tribal Services were concerned that the reaffirmation was about to occur "without a thorough factual and legal review." Questioning Gover's legal authority to take action on his own, Fleming complained that there had been no chance for third parties to comment on the matter, which he opined was likely a violation of federal law. The memo concluded that to proceed with reaffirming the Koi and other tribes would damage the bureau's "credibility as an unbiased agency tasked with acknowledging tribes."