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TIM VOLLMANN
California Bar #58541
3301-R Coors Rd. N.W. #302
Albuquerque, NM 87120
tim_vollmann@hotmail.com
Ph: 505-792-9168
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Dixie, who have today filed an Application for Leave to file a brief in these proceedings
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as amici curiae. Their brief offers support for the demurrer filed on September 2, 2008,
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by defendant California Gambling Control Commission (“Commission”). If they are
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granted status as amici curiae, they respectfully ask that this brief be filed, and that it be
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given consideration by the court in conjunction with the Commission’s demurrer.
Attorney for Amici Curiae
Yakima K. Dixie and Melvin Dixie
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGO – CENTRAL DISTRICT
CALIFORNIA VALLEY MIWOK TRIBE, )
)
Plaintiff,
)
)
v.
)
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CALIFORNIA GAMBLING CONTROL )
COMMISSION, et al.,
)
)
Defendants,
)
)
YAKIMA K. DIXIE and MELVIN DIXIE, )
)
Amici Curiae.
)
___________________________________ )
Case No. 37-2008-00075326-CU-CO-CTL
AMICUS BRIEF OF YAKIMA DIXIE
& MELVIN DIXIE IN SUPPORT OF
DEMURRER FILED BY DEFENDANT
CALIFORNIA GAMBLING CONTROL
COMMISSION
This brief is lodged with the clerk of the court by Yakima D. Dixie and Melvin
1
INTEREST OF AMICI
1
2
Amici Curiae, Yakima K. and Melvin Dixie, are lineal descendants of the Miwok
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people who were settled at the Indian Rancheria at Sheep Ranch, California, nearly 100
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years ago. This is the origin of what is now known as the California Valley Miwok
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Tribe. For years the Dixies have been challenging Silvia Burley’s claim to leadership of
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the Tribe, and are working with the U.S. Bureau of Indian Affairs (BIA) to organize a
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tribal government. They are concerned that if the Commission is ordered to pay over $4
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million in gaming revenue shares to Ms. Burley, they and the other Miwok descendants
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will never see any portion of that money.
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STATEMENT OF FACTS
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Yakima K. Dixie and his brother, Melvin Dixie, are the great grandsons of Peter
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Hodge, who was the leader of the small band of Miwok Indians who were settled by the
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federal government on a small parcel of land in Calaveras County almost 100 years ago.
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See Exhibit A, an August 13, 1915 letter to the Commissioner of Indian Affairs from the
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Special Indian Agent. This land was held in trust for the Sheep Ranch Indians until
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implementation of the California Rancheria Termination Act of 1958, as amended. Act
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of August 18, 1958, (72 Stat. 619), amended by Act of August 11, 1964 (78 Stat. 1965).
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(Copy attached as Appendix 1.)
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California Indian Rancherias. The mother of Yakima and Melvin Dixie, Mabel Louise
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Hodge Dixie, was listed as the only distributee of the Sheep Ranch property. Exhibit B
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consists of BIA documents from 1965 showing her to be the distributee of the Sheep
Those laws authorize the distribution of the assets of
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Ranch land. When Mrs. Dixie died in 1971, her oldest son Richard became the head of
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the Tribe; and upon his death in 1984, Yakima Dixie became hereditary chief. See
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Exhibit C, an excerpt from the Handbook of California Indians regarding Miwok
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chieftainship. The attached Declarations of Yakima and Melvin Dixie, Exhibits D and E,
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are offered to explain the family relationships.1
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In 1996 Mr. Yakima Dixie provided assistance to Silvia Burley and her children,
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recognizing their claims to membership in the Tribe, so that they could obtain medical
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and educational benefits.
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represented herself to be the chairperson of the Tribe. She has relied on a document
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purportedly showing Mr. Dixie’s resignation as Tribal Chairman. That document is a
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forgery. See Declaration of Yakima K. Dixie, attached as Exhibit D.
In 1999 without Mr. Dixie’s permission Ms. Burley
Yakima Dixie has challenged Silvia Burley’s claims to tribal leadership in
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lawsuits and administrative appeals for several years.
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believes that Silvia Burley’s claims concerning entitlement to tribal membership were
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and are false. Attached as Exhibit F is a February 11, 2005, letter to Mr. Dixie from
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Interior Department Assistant Secretary Michael D. Olsen, advising that the BIA regards
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the California Valley Miwok Tribe as “not an organized tribe”, namely one for which no
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tribal government has been recognized. The BIA has refused to recognize a “tribal
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constitution” submitted by Ms. Burley as the official organic document of the Tribe. She
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challenged that decision in litigation in the U.S. District Court for the District of
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In addition, Mr. Dixie now
These declarations, signed June 1, 2008, were originally filed with the U.S. District Court for the Eastern District
of California, which remanded this case to the Superior Court.
3
1
Columbia, California Valley Miwok Tribe v. U.S. Department of the Interior. Her suit
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was dismissed, 424 F.Supp.2d 197 (D.D.C. 2006), for failure to state a claim, and that
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dismissal was affirmed on appeal on February 15, 2008. 515 F.3d 1262, supra.2 The
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Court of Appeals granted Yakima Dixie’s motion to file an amicus brief, and counsel for
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amicus was allowed to participate in oral argument.
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Meanwhile, in September 2005, while the U.S. District Court litigation was
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pending in the District of Columbia, Silvia Burley and her two daughters, acting as the
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purported “Tribal Council”, notified Yakima Dixie that he had been disenrolled from the
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Tribe on the ludicrous ground that he had enrolled in another Tribe, namely the Sheep
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Ranch Me-Wuk Indians of Sheep Ranch Rancheria, simply the Tribe’s former name. See
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Exhibits G and H.
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More recently, the BIA has proceeded to assist the Tribe to organize its members
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to draft and adopt an organic charter. See Exhibit I (“eye”), a Public Notice published on
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April 11, 2007. Silvia Burley is not cooperating in this effort, and has sought to block it
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through her endless administrative appeals. See Exhibit J. And though no government
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agency now recognizes her as the leader of the Tribe, she has filed this suit to demand
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that the California Gambling Control Commission pay over $4 million in tribal funds to
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her as a person of authority.
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Paragraph 17 of Plaintiff’s First Amended Complaint, filed July 26, 2008, states falsely that Judge Robertson’s
decision “is presently on appeal.” In fact, counsel for Silvia Burley filed a Petition for Rehearing to the D.C. Circuit
on March 31, 2008, and that petition was summarily denied on April 23, 2008. See Exhibit K. The mandate issued
on May 5, 2008. That case has been concluded for months.
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The Commission declined to make payments of the gaming revenue shares to
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Burley after the BIA ceased its recognition of her as the tribal leader. Later, because the
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Tribe is entitled to these funds, the Commission deposited the Miwok revenue shares into
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a separate account with the Tribe listed as the beneficiary. Defendant’s Memorandum in
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Support of Demurrer, at p. 4.
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ARGUMENT
I.
The Issue in This Case Is Not Whether the Tribe is Entitled to Its Money; It Is
Whether Silvia Burley Is Authorized to Speak on Behalf of the Tribe.
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Silvia Burley has filed this lawsuit in the name of the “California Valley Miwok
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Tribe.” Yakima and Melvin Dixie deny that she has any authority to do so, and this brief
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will refer to Silvia Burley as the “plaintiff” herein. Ms. Burley has wrapped herself in the
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persona of the Tribe, and seeks mandatory relief compelling the Commission to deposit
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the Tribe’s gaming revenue share into an account she administers in the name of the
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Tribe. Her claim is that the Commission is denying the Tribe its lawful share of these
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revenues.
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The allegations in the First Amended Complaint (FAC) are designed to confuse
the issues before this Court. For example, paragraph 24 alleges that:
[T]he BIA has recognized, and continues to recognize, Burley as a “person of
authority” and the Miwok Tribe as an “unorganized tribe.” The language of
Section 2.21 of the [Gaming] Compact requires only that the Tribe be federallyrecognized, not necessarily “organized”. The BIA has to date never stated that the
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Miwok Tribe was no longer recognized, or that Silvia Burley was no longer a
“person of authority”.3
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The last sentence purposely mixes the issue of whether the California Valley Miwok
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Tribe is a “federally-recognized” Indian tribe, with the issue of Silvia Burley’s tribal
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authority. The 1996 BIA list of Indian tribal entities in the Federal Register, who are
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recognized and eligible to receive services from the BIA, identifies the “Sheep Ranch
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Rancheria of Me-Wuk Indians of California” as one such entity. 61 F.R. 58211, 58214
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(Nov. 13, 1996). The 2005 list in the Federal Register includes the California Valley
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Miwok Tribe, adding parenthetically “(formerly the Sheep Ranch Rancheria of Me-Wuk
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Indians of California.)” 70 F.R. 71194 (Nov. 25, 2005). (These notices are attached as
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Exhibit L.) Thus, whether the California Valley Miwok Tribe has federal recognition as
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a tribe is not open to debate. That does not mean that Silvia Burley is the embodiment of
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that Tribe, or that the Tribe is lawfully represented to be the plaintiff in this lawsuit.
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Certainly, it does not mean that the Commission should be compelled to pay the $4+
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million in gaming revenue shares to Ms. Burley because she has represented herself to be
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a person of authority in the Tribe.
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At best, the central issue in this case is simply whether, in the absence of a tribal
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governing body recognized as such by the BIA, the Commission should be compelled by
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The Dixies deny the allegations in Paragraph 24 in its entirety. They certainly deny that Silvia Burley was
“selected” to be the leader of the Tribe in accordance with tribal “customs or traditions.”
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this court to pay those revenue shares to plaintiff Silvia Burley.4 When the BIA speaks of
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the need for a tribe to be “organized”, it is simply referring to the existence of a formal
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tribal governmental process, such as set out in a constitution or charter, which lays out
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the procedures for the election or selection of tribal governmental officials who are
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authorized to speak and make decisions on the Tribe’s behalf.
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II.
This Court Lacks Jurisdiction to Determine Who Speaks For, Or Is Authorized To
File Suit in the Name of a Federally-Recognized Indian Tribe.
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Part II of the Commission’s Memorandum in Support of its Demurrer offers two
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arguments why this Court does not have jurisdiction to determine the identity of the
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authorized leader or spokesman of the California Valley Miwok Tribe. It points out
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persuasively that the Commission itself sought judicial guidance in 2005 in Sacramento
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Superior Court, where it sought a determination of whom it should pay the gaming
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revenue share of the Tribe. It named Silvia Burley and Yakima and Melvin Dixie, among
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others, as defendants in interpleader. Ms. Burley, however, filed a demurrer challenging
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the court’s jurisdiction, and Judge McMaster agreed. See Exhibit 5 to the Commission’s
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Request for Judicial Notice.
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The Commission also argues that this Court is barred by the political question
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doctrine from granting the relief sought by plaintiff Silvia Burley. It cites Miami Nation
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of Indians v. U.S. Dept. of the Interior, 255 F.3d 342 (7th Cir. 2001), for this proposition.
Since the Commission has already deposited the Tribe’s revenue shares into a separate account listing the Tribe
as beneficiary, there appears to be no basis for this suit at all. Cf., United States v. Dann, 470 U.S. 39 (1985).
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Amici agrees with the Commission’s conclusion, but believes that the Miami Nation
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decision is not on point. There a group of Indian people of common heritage challenged
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a BIA administrative decision declining to acknowledge that their group constituted a
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federally-recognized tribe. This citation thus blurs the distinction between the recognition
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of an Indian tribe, and the recognition of a tribe’s governing body—the confusion invited
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by plaintiff’s FAC, ¶ 24, quoted above.
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Nevertheless, the political doctrine does apply here. As in international relations,
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the United States Government must make its own determinations on who speaks for a
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tribal government. In modern foreign affairs, the question may be, “The Shah or the
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Ayatollah?” Early in the history of this nation the question was often, “Who should be
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regarded as the tribal leader with whom the United States will negotiate a treaty.”
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And the Supreme Court, early on, made clear that the judiciary played no role in
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reviewing those executive/legislative determinations. In Fellows v. Blacksmith, 60 U.S.
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366 (1857), an objection was raised to a treaty based on the alleged failure to secure the
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agreement and signatures of certain chiefs and headmen. The court held that it could not
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go behind the treaty. 60 U.S. at 372. See also United States v. Minnesota, 270 U.S. 181,
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201-02 (1926). After the end of treaty-making the authority to determine who speaks for
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an Indian tribe was delegated to the Commissioner of Indian Affairs and the Secretary of
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the Interior. Rev. Stat. § 463, now 25 U.S.C. § 2. See also California Valley Miwok
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Tribe v. United States, supra, 515 F.3d 1262, 1267.
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Thus, the primal authority for determining the valid, authorized spokesman for an
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Indian tribe now resides with the Secretary of the Interior, who must manage day-to-day
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relations with hundreds of Indian tribes eligible for a wide variety of federal programs.
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Other executive agencies, such as the Department of Health and Human Services and the
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Department of Housing and Urban Development, routinely look to Interior and the BIA
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to provide them with information and guidance on addressing their government-to-
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government communications with Indian tribes. This authority of the Secretary is also
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implicit in modern statutes such as the Indian Self-Determination Act, 25 U.S.C. §§450,
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et seq., which defines “tribal organization” as the “recognized governing body” of an
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Indian tribe. 25 U.S.C. § 450b(l). “Recognized” by whom? Of course, it must be the
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Secretary, or his delegees at the BIA.
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The California Indian Gaming Compact also embraces this terminology. See
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Appendix to Exhibit 1 of Defendant’s Request for Judicial Notice. Even non-Compact
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tribes are required to be federally-recognized tribes. This comes from the language of the
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Indian Gaming Regulatory Act (IGRA), which provides in 25 U.S.C. § 2703(5) that the
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term “Indian tribe” includes “an organized group or community of Indians which is
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recognized as eligible by the Secretary [of the Interior] for the [federal Indian] programs
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and services ….” Further, if the California Valley Miwok Tribe were a gaming tribe, its
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“governing body” would have to adopt and submit to the Chairman of the National Indian
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Gaming Commission a gaming ordinance for approval. 25 U.S.C. § 2710(d)(2(A). And
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its Compact would have to be approved by the Secretary. 25 U.S.C. § 2710(d)(3)(B).
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Thus, the Secretary’s recognition of a Tribe’s governing body, as the valid, authorized,
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agent of a Tribe is essential to the gaming business.
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It thus behooves the California Gambling Control Commission to look to the
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Secretary of the Interior, as other federal departments do, to determine whether the
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Commission is engaging in government-to-government negotiations with a person or
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entity which is authorized to speak for an Indian tribe. That Congress has delegated that
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responsibility to the Secretary of the Interior demonstrates that California state courts
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should not be making those determinations in lieu of the Secretary.
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III.
The Secretary of the Interior Is a Necessary Party To This Lawsuit.
The Commission has argued—briefly in Part IV of its Memorandum—that other
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Miwoks, like Yakima and Melvin Dixie, are necessary parties to this suit, because they
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also claim an interest in the gaming revenue shares, and could be deprived of their share
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of this money if the Court awards the relief sought by plaintiff Silvia Burley. Amici
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submit that the Secretary of the Interior or the Bureau of Indian Affairs (BIA) is also a
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necessary party.
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As confirmed by the public notice published by the BIA on April 11, 2007
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(Exhibit F), there is an ongoing effort to organize the Tribe so that its elected leaders may
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be recognized as speaking for the Tribe for purposes of governmental relations. And as
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explained in the previous section, the Secretary of the Interior plays a critical role in the
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gaming compact process. If this Court were to overrule the demurrer, and entertain
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plaintiff’s FAC on the merits, there would be a great risk that an order requiring the
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Commission to pay several million dollars in gaming revenues to Silvia Burley in the
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name of the Tribe will thoroughly skew the organizational process. Will the descendants
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of the original Sheep Ranch Miwoks be influenced by the fact that Ms. Burley suddenly
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has great wealth at her fingertips? Does a Superior Court “recognition” of the leadership
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of a Tribe trump a BIA determination? These are tricky issues which become trickier if
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the BIA is not in the courtroom.
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CONCLUSION
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For the foregoing reasons presented by amici, in addition to the persuasive reasons
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put forth by counsel for the Commission, this Court should sustain defendants’ demurrer
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to plaintiffs’ First Amended Complaint, and deny plaintiff’s Petition for Mandate.
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Date: September 12, 2008
Respectfully submitted,
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Tim Vollmann
Attorney for Amici Curiae
Yakima and Melvin Dixie
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CERTIFICATE OF SERVICE
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I, Tim Vollmann, hereby certify that on September 12, 2008, I served the
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foregoing Amicus Brief of Yakima and Melvin Dixie in Support of Demurrer Filed by
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Defendant Californai Gambling control Commission by U.S. mail sent to the following
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individual attorneys, who have entered their appearances on behalf of the parties to this
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case:
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Manuel Corrales, Jr., Esq.
11753 Avenida Sivrita
San Diego, CA 92128
Peter H. Kaufman
Office of the Attorney General
P.O. Box 85266
San Diego, CA 92186-5266
Terry Singleton, Esq.
Singleton and Associates
1950 5th Street, Suite 200
San Diego, CA 92101
_______________________________
Tim Vollmann
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