San Diego Superior Court - Central District

CALIFORNIA VALLEY MIWOK TRIBE (Burley)

VS.

THE CALIFORNIA GAMBLING CONTROL COMMISSION

37-2008-00075326-CU-CO-CTL

 

At the hearing on April 26, 2013 in the San Diego case, the Superior Court ruled in favor of the
California Gambling Control Commission (CGCC) and us - dismissing Silvia Burley's suit to
have the court order the release of the funds that are frozen in the Revenue Sharing
Trust Fund (RSFT) to the Tribe in her custody. The effect of this is to keep the fund frozen.

This has been an extremely hard fought battle, which is a major victory for the
State, the Tribe, and Indian law. While the main Defendant for keeping the money
frozen was the CGCC, our participation as Intervenor was critical at a couple of
points.

The Court's Rulings is below.

"The court then rules as follows. Defendant California Gambling Control Commission's motion for
summary judgment is granted.

The decision in California Valley Miwok Tribe v. The Superior Court of San Diego County (Cal. Ct. App.,
Dec. 18,2012,0061811) 2012 WL 6584030 frames the central issue on this motion.

Based on the gravamen of the complaint, the fundamental issue presented to the trial court for resolution
on the merits is whether the current uncertainty in the federal government's relationship to the Miwok
Tribe - including the pendency of the Salazar case - constitutes a legally sufficient basis for the
Commission, as trustee of the RSTF, to withhold the RSTF funds from the Miwok Tribe. To resolve that
issue the trial court need not determine the issues presented in the Salazar case or determine the
proper tribal leadership body. The trial court need only acknowledge that the federal dispute is ongoing,
and based on that factual predicate, determine whether the Commission has a legally sufficient basis for
withholding the RSTF funds.

Put simply, the issue for the trial court to resolve is limited to whether the Commission is
justified in withholding the RSTF funds because the Salazar case is pending and the BIA has not
recognized a tribal leadership body for the distribution of ISDEAA benefits."

For the full ruling see:

http://www.californiavalleymiwok.com/Suit-Burley-v-CGCC/2013-04-26-Court-Tentative-Ruling.PDF

In this type of proceeding, the Court issues, on the evening before the Hearing, what is called
a "Tentative Ruling" so that the Parties know in advance how the Judge is going to rule and so that
the Parties are somewhat prepared to argue for or against at the Hearing, after which the Judge
makes his final determination. At the end to the proceedings, this Judge said that there would
be no changes in his Ruling and told the CGCC to use the exact wording in constructing the final
Order, so that there would be not ambiguities upon appeal.

At the Hearing, Burley's lawyers were frantic and tried extreme flim flam maneuvers over a period
about one and a half hours of argument to get the Judge to change his mind.

The first maneuver was say that the Tribe is listed in the Federal Register as a Federally
Recognized Tribe, which is obviously true. Therefore, so they reasoned, there cannot be a
Federally Recognized Tribe without a Federally Recognized Authority. Further because Yakima Dixie
deposition records one statement in which he (erroneously) agreed that he signed a Resignation
document; therefore, Silvia Burley must be the Recognized Authority. Everyone was amazed
at that kind of deduction. And the Judge did not buy that.

When that argument did not work, her lawyers asked the Court to postpone the Ruling until
a special trial could be conducted to adjudicated the above contention, which amazed people
even more and was resoundingly denied.

Finally, the lawyers asked the Court to stay the ruling until the Federal Court had made
its determination. With that, people nearly flipped in their seats, because, as the Judge
pointed out, that is exactly what he had done in the first place, and it was Burley's lawyers who
had initiated the action in the Court of Appeals which required him to make a judgement.
'You sort of shot yourself in your own foot', the Judge suggested.

The lawyer for the CGCC, who is a very quiet, methodical, sincere, and well reasoned person,
said very little, pointing out briefly that nothing which the Burley lawyers had said was
new nor relevant to what was being required by the Court of Appeals - namely, that the
Superior Court must rule on whether or not the CGCC had the authority to withhold trust
funds if there is a clear lack of a Recognized Authority by the BIA, which in this
instance there is. Finally, our lawyer, McConnell of Sheppard Mullin gave a
brief status report of the Federal case.

At the finish of the Hearing, the Judge commented that this has been a very interesting
case for him and that he had studied all of the Pleadings, some of which he had read
three times.

Although Burley has already appealed this decision, it will almost certainly
be upheld by that Court. This caps a rather long court process which began in 2008,
when Burley filed her original complaint. Initially, it was transferred to Federal Court,
which rejected it on the basis that it was a State, not Federal, matter. Then the Superior
Court dismissed it on the basis of there not being anyone in the Tribe with standing to sue.
The Court of Appeal ruled that there were people with standing to sue, and returned
it back to Superior Court. The Superior Court stayed the suit until the Federal
Government determined a tribal authority in a dispositive manner. Burley took that
stay back to the Court of Appeals, asking that the Judge be order to try the case,
which the Court of Appeals did so order. And now, the Court ordered
the case dismissed and ruled that the CGCC has the right to freeze trut
money in this kind of a situation.