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In 2003, the Muwekma sued again, this time asking a federal judge to order the agency to restore the tribe's recognition. Citing the constitution's equal protection clause, the tribe contends that BIA acted "arbitrarily and capriciously" in denying its request while granting recognition to Koi Nation and an Alaskan tribe.
Although BIA does not dispute that Muwekma's tribal status was never officially terminated, the agency nonetheless posits that the tribe has not always remained a cohesive entity after being dropped from the Federal Register. Yet, a similar finding in the case of the Koi and the other tribe did not prevent the agency from restoring them.
Walton, the judge hearing the matter, issued a memorandum last September taking the agency to task for the way the case was handled, saying that the BIA "[had] not articulated a sufficient basis" for its "disparate treatment of the Muwekma" compared to the other tribes.
The judge in effect gave the agency one last chance to review the voluminous administrative record of its dealings with the tribe and demonstrate how denial of the Muwekma's claim is justified. In February, the agency submitted additional materials. In March, the tribe's lawyers filed new briefs, arguing that BIA's rationale is no more convincing than before the judge questioned it.
BIA spokeswoman Nedra Darling says the agency will have no comment on the matter, pending the outcome of the case. Harry R. Sachse, the tribe's lead counsel, says he's "very optimistic." Sachse compares BIA's "intransigence" toward the Muwekma to school boards that resisted desegregation during the civil rights era. "Rather than do right by the tribe, it appears the Bureau of Indian Affairs prefers to have a court order them to do so."
If Sachse's name sounds familiar, it's because he's a former assistant U. S. Solicitor General in the Nixon and Ford administrations whose resume includes a stint teaching Indian law at Harvard. Lawyers like Sachse don't come cheap, and the Muwekma can't afford his legal tab on its own. But others can others who are gambling that the Muwekma will become the first California Indian tribe to hit the jackpot and open a casino in an urban area.
Cambra isn't comfortable talking about gaming. "That's something that isn't on our minds right now. We're totally focused on the recognition issue."
But if she isn't talking, others are.
"Opening a casino is the end-all of the tribe's struggle," opines Cheryl Schmit, co-chair of Stand Up for California, an anti-gaming group. "It's the pot of gold at the end of the rainbow." This could especially be the case for the Muwekma, who, if recognized, would enjoy a distinct advantage over landless tribes from outside the Bay Area who want to open casinos here.
Federal law prevents tribes from setting up casinos on land they didn't already own in 1988 (the year the Indian Gaming Regulatory Act was enacted). But so-called "restored" tribes including the Muwekma, if they succeed which had no land when the law was passed, are exempt. Should the Muwekma, as a landless tribe, win recognition and establish a "reservation," they unlike most other tribes would not need the consent of California's governor to open a casino. (Gov. Arnold Schwarzenegger is on record opposing urban casinos.)
All of which helps to explain how a tiny group of Indians with ostensibly few resources could sustain a protracted legal battle against a federal agency that, by the tribe's acknowledgement, has cost it "several" millions of dollars. Its legal counsel, Sonosky, Chambers, Sachse, Endreson & Perry, with headquarters on K Street in Washington, is among the nation's pre-eminent firms specializing in Indian law.
"How do they afford it? I think you'd have to ask them that question," says Sachse.
Cambra deflects questions about the tribe's finances. To help pay its bills, the tribe has operated Ohlone Families Consulting Services, an archaeological consulting firm, since the 1980s, she says. But the business seems an unlikely candidate to cover mounting litigation costs. In a belt-tightening move, the firm closed its offices in San Jose four years ago, and its consultants, which still do occasional work for Caltrans and private developers, work from their homes, says tribal administrator Norma Sanchez.
Sources familiar with the matter say that since 1999, when the Muwekma filed the first of two lawsuits against the Interior Department (which oversees the Bureau of Indian Affairs), its legal tab has been picked up by Alan Ginsburg, the Florida real estate developer, and an associate, Frank Shunock.
Ginsburg, who did not respond to interview requests for this article, has long been a key behind-the-scenes player in trying to bring Indian gaming to the Bay Area. His North American Sports Management Co. is the prime backer of the Scott's Valley Band of Pomo's efforts to build a Vegas-style gambling establishment in the unincorporated East Bay community of North Richmond. Until the tribe switched its allegiance to another developer, Ginsburg had also backed the Guidiville Band of Pomo's campaign for a casino next door in Richmond.
And, ironically, considering his ongoing role with Muwekma, Ginsburg was, until 2005, the financier behind Koi Nation, a 53-member Pomo band (aka Lower Lake Rancheria) that tried unsuccessfully to procure land for a casino near the Oakland airport.
Koi Nation's effort was especially nettlesome for Cambra, who says she personally introduced its tribal leaders to Ginsburg several years ago when the tribe expressed interest in launching a casino project in Lake County, its aboriginal territory. "The next thing you know, they're down here, claiming to be native to the Bay Area, and trying to set up in Oakland," says Cambra, who spoke against the Koi project at public hearings.
Was Ginsburg simply trying to hedge a bet?