June 9, 2014 VIA

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The Paskenta Band of Nomlaki Indians of California June 9, 2014 VIA EMAIL Vacant Chairman David Swearinger Vice Chairman Leslie Lohse Treasurer Geraldine Freeman Secretary Allen Swearinger Member at

1 The Paskenta Band of Nomlaki Indians of California June 9, 2014 VIA Vacant Chairman David Swearinger Vice Chairman Leslie Lohse Treasurer Geraldine Freeman Secretary Allen Swearinger Member at Large Michael R. Smith Deputy Bureau Director United States Department of the Interior MS-4606-MIB 1849 C Street N.W. Washington, D.C mike.smith@bia.gov Dear Mr. Smith: Thank you for kindly for taking the time to meet with us last week. Again, our ask is that the Assistant Secretary of Indian Affairs or his designee immediately issue an advisory letter that identifies the Paskenta Tribal Council in existence today and the day before this dispute arose on April 12, 2014: Andrew Freeman, Chairman; David Swearinger, Vice Chairman; Geraldine Freeman, Secretary; Leslie Lohse, Treasurer; and Allen Swearinger, Member-at-Large. We write to more specifically explain the illegality of the purported actions taken by suspended Chairman Andrew Andy Freeman or his new Tribal Council on April 12, 2014 and May 10, 2014, as a matter of the Paskenta Band of Nomlaki Indians Tribal Constitution. 1 Pivotally, we focus you on what transpired before the Paskenta General Council Annual Meeting was adjourned at 10:50 AM on April 12, as it is that moment in time that is the pivot for your decision. In accordance with Article VIII, Section 1 of the Tribal Constitution, an agenda for the April 12 Annual Meeting was published. Attachment 1. Article VIII, Section 1 mandates certain agenda items. Neither that provision of our Constitution nor the published agenda include anything to do with the election, removal or appointment of Tribal Council, or the suspension, removal or disenrollment of any Tribal members. The closest required Annual Meeting topic according to Article VIII, Section 1 is that the listing of the names of all persons enrolled, disenrolled, or who relinquished membership in the Band during the fiscal year immediately preceding the meeting. 1 Importantly, the fact that there exists a dispute over who the correct members of the Tribal Council are is enough to trigger the rule that federal agencies recognize the last undisputed officials as tribal officials for government-to-government purposes until the dispute can be settled pursuant to the Tribe s own law and procedure. Alturas Indian Rancheria v. Acting Pacific Regional Director, 54 IBIA 1, 8 (2011) (quoting Wasson v. Western Regional Director, 42 IBIA 141, 158 (2006); George v. Eastern Regional Director, 49 IBIA 164, 190 (2009)). We offer this account and analysis for your edification only it should have no bearing on your recognition of certain individuals as tribal officials for government-to-government purposes. Mailing Address: PO Box 785, Orland, California Tel:

2 Those items that Article VIII, Section 1 requires be reported to the General Council were listed on the agenda under Section 7.2, Government Actions. More specifically, since there were no disenrollments or relinquishments in the fiscal year immediately preceding the meeting, only our enrollment of the children of enrolled Tribal members in accordance with the Tribal Membership Act, was to be reported under Government Actions. There was therefore no matter of disenrollment or relinquishment that could have even been properly raised at the Annual Meeting, according to our Constitution. Further, as of April 12, there was absolutely no Tribal Council election, vacancy, removal or recall effort that was constitutionally appropriate for the April 12 Annual Meeting. Indeed, our five-person Tribal Council required by Article III of the Constitution was fully intact and functional as of the morning of April 12. Even if that were not the case, the Constitution makes clear that the General Council Annual Meeting is not the proper forum to address Tribal Council elections. Instead, Tribal Council elections are confined to the process set forth in Article IV of the Constitution, which contemplates Tribal elections in the September of most every year. Moreover, according to Article III, Section 2 of our Constitution, the General Council may act only through election of a Tribal Council, referendum, initiative, [or] amendment and not by acclamation (i.e. fiat) as the Freeman Group claims. See Attachment 7. According to the Rolling Hills Casino video surveillance footage we provided you, which has been observed and attested to by retired Tehama County Sheriff Clay Parker, the April 12 Annual Meeting was called to Order at 10:12 AM. Attachment 2. After an opening prayer and brief opening remarks by Andy, a Roll Call was taken, while Tribal members milled around the room, between 10:12 and 10:38 AM. Id. According to a Tribal member s witness statement, the first three rows of seats were family and supporters of Andy. Attachment 3. At 10:38 AM, Andy abruptly began reading a prepared statement announcing that the Henthorne [sic], Pata, Crosby and Lohse families weren t legally on the Paskenta rolls. Attachments 2, 3. At that exact moment, a male subject from the Freeman front row walk[ed] to the side door and [got] security guards, who were obviously already waiting immediately outside the room. Attachment 2. According to Clay Parker s police report, the surveillance video of the meeting depicts that the takeover was a pre-planned event. Id. Andy s recitation of his prepared statement lasted for two minutes until 10:40 AM. Attachment 2. As we reported in the Annual Meeting Minutes: Following this statement, the Chairman lost control of the meeting, and [r]aucous chiding from several members and visitors, including, but not limited to, the Chairman s sister/tribal Member Brenda Freeman [and] the Chairman s wife/non-tribalmember Sherry Freeman ensued. Attachment 4. Then Sherry Freeman went to the exit doors and gesture[d] for someone to enter and more security enter[ed]. Id. As the Tribal member witness recounts: Rolling Hills casino officers surrounded the back of the Tribal Council. Attachment 3. At 10:42 AM, audience members began standing and gesturing towards the Pata side 2

3 of the crowd. Attachment 2. The (first three tows) stood up and began yelling and became unruly. Attachment 3. At that point, at least one Tribal member escorted his young boy out of the room for his own good; within the next ten minutes, others would leave as a matter of safety. Attachment 2. In fear of violence and in concern for the safety of the Paskenta Membership, Vice Chairman Swearinger immediately made a motion to adjourn the meeting. Attachment 5. Secretary Freeman seconded the motion. Id. Vice Chairman Swearinger called for the question. Id. The Tribal Council agreed to adjourn the meeting, and Vice Chairman Swearinger stated to the council and the membership, we agree the meeting is now adjourned. Id. According to a police report: The meeting was in fact adjourned by four members of the Tribal Council before any formal action had been taken at the General Council meeting. Attachment 2. Meanwhile, Andy ordered security to escort out certain tribal members, most notably Treasurer Lohse, at 10:47 AM, and the Freeman group yell[e]d you can t adjourn the meeting. Attachments 2, 4. It was utter chaos. At 10:46 AM, somebody associated with the Freeman group called the Tehama County Sheriff to report[] a verbal disturbance regarding excluding 50 trib[al] members from a meeting with 300 in attendance. Attachment 6. Again, the takeover was pre-planned. By 10:49 AM, local police entered the room. Attachment 2. According to the witness: Immediately along with regular security officers came many sherrifs [sic] officers and highway patrol officers also.... I could see they [the Tribal Council] were being surrounded by the crowd and it didn t look safe up there for anyone... [t]he police tried to calm them down. As of then, the four of us each stood, gathered our belongings and began to leave the room. Attachment 3. At the same time, Corning P/D tried to settle [the Freeman group] down and walked up to them [and they] yelled I m tribal and you cant [sic] touch me. Id. With the mob getting much worse and Tribal members not merely the Henthorn/Pata family feared for [their] safety. Id. By 10:50 AM, a big portion of the crowd left, with Corning Police Officers usher[ing] out people. Attachment 2. We, like you, have received a set of Annual Meeting Minutes prepared from the Freeman group. See Attachment 7. They are fabricated. Note that unlike Attachments 1 through 6, which have been prepared by various sources and are all consistent with one another as well as the surveillance footage you have seen, the Freeman group s minutes say nothing about what transpired from 10:40 to 10:50 AM, meaning between the time Andy delivered his prepared statement and a big portion of the crowd left. Attachment 2. The Freeman group and Rob Rosette would lead you to believe that there was no verbal disturbance (according to the Tehama County Sheriff s Office); that the Chairman did not los[e] control of the meeting (according to the four-person Tribal Council); that the Tribal Council was not surrounded by the crowd, that the Freeman group did not begin to act violently, or that Tribal members did not fear[] for 3

4 [their] safety (according to a Tribal member eyewitness); or that a takeover [that] was a pre-planned event did not occur (according to Clay Parker). Further, the Freeman group s minutes say that Andy warned the four of us that under the Tribal Constitution, those Tribal Council members leaving the meeting were abandoning their posts. The weight of evidence makes clear that Chairman Freeman made no such warning. See Attachments 1 through 6. Even had we abandoned our posts we did not Article VIII, Section 6 of the Tribal Constitution allows removal of a Council member at a General Council Meeting only for their [f]ailure... to attend a General Council meeting. There is no dispute that we attended the General Council Annual Meeting. Attachments 1 through 5. Even the Freeman group s minutes acknowledge our attendance. Attachment 6. Therefore, our purported removal was and remains null and void. Further, anything that purportedly occurred after 10:50 AM on April 12, 2014, and indeed on May 10, 2014, was not lawful under the Tribal Constitution. Apparently, Andy, true to his word, scheduled a General Council Meeting for Saturday, May 10, 2014, to reaffirm actions taken by the General Council at its April 12, 2014 Meeting. Attachment 8. Notwithstanding, any action taken on May 10, 2014 or otherwise, to reaffirm or ratify any unlawful action taken after 10:50 AM on April 12, is equally null and void. Andy does not represent the Paskenta tribal government, nor do his appointed councilmembers. One cannot simply declare or render a wholly illegal action legal, no matter how one goes about trying to accomplish that. We trust that you can see very transparently who is telling the truth about what happened, and what did not happen (at least legally), on April 12, We again request that you please now, and without any further delay, issue an advisory recognizing as tribal officials for government-to-government purposes the Tribal Council that was in place immediately prior to the Annual Meeting. 2 Once you do offer that pivotal advisory, we promise that we will invite our relative Andy Freeman back to the Tribal Council, so we can begin the process of restoring the entire Paskenta Band of Nomlaki Indians. We know that will not be easy but we promise our good faith and very best efforts in accomplishing those goals. We owe it to both our and Andy s fathers, uncles, and ancestors, particularly Everett Freeman and Carlino Bud Swearinger. 2 See e.g. George, 49 IBIA at 186 ( The policy of recognizing particular individuals when necessary for government-to-government relations is normally applied by recognizing the last undisputed officials. ) (quoting Poe v. Pacific Regional Director, 43 IBIA 105, 112 (2006) (emphasis added)); Walter Rosales v. Sacramento Area Director, 32 IBIA 158 (1998) (applying last uncontested election results). 4

5 Very truly yours, Enclosures/Attachments 1-8 cc: Amy Dutschke, Regional Director Bureau of Indian Affairs, Pacific Region United States Department of the Interior Hankie Ortiz, Deputy Bureau Director Office of Indian Services Bureau of Indian Affairs United States Department of the Interior 5

6 ATTACHMENT 1

7 Paskenta Tribal Police Department Case #: 14-1 Crime: Information Classification: Supplemental Report #2 Date and Time: Officer: Parker,C #2301 NARRATIVE: On Wednesday May 28, 2014, I spoke with CI-26 on the telephone regarding incidents occurring at the casino since April 12, CI-26 stated that on May 24, 2014, five of the thirteen surveillance personnel were fired because they were perceived to be friends with the Pata family. CI-26 had been taken to the office where both doors were guarded by armed security guards and had been told by E-6 and E-2 that he was terminated for discussing tribal matters at work that had created a hostile work environment. CI-26 stated that his judgment had always been trusted but that since April 12, 2014, things started changing. CI-26 stated that cameras were being pointed in different directions and that cameras were being shut down. CI-26 stated that employees were cashing their payroll checks at the casino cage and he was concerned that taxes were not being collected. CI-26 asked an employee why cameras were being shut down and he was told that it was for your own protection and we will be moving computers and stuff so it s best that you don t know. I asked CI-26 about the guards at the casino and CI-26 stated that they are all armed and that during the week of May18 through 24, 2014, one of the guards at the back door was armed with an AR-15 that was slung across his chest and that the guard was also wearing a camo rag around his neck. CI-26 stated that all the armed security guards had been issued ski masks for intimidation purposes. CI-26 stated that an armored car service has recently started showing up at the casino again. I asked CI-26 if he had been working on April 12, 2014 and CI-26 stated that he had not been working. I asked CI-26 if there would still be a surveillance tape of the meeting and CI-26 stated that it would now have fallen off the recorder. CI-26 stated that E-2 had made a copy of the April 12, 2014 general council meeting so CI-26 stated that he also made a copy of the meeting and would provide me the DVD on May 29, On Thursday May 29, 2014, I met with CI-26. CI-26 then gave me three DVD s that he stated was the surveillance video of the April 12, 2014 meeting taken from three different cameras. CI-26 stated that the videos began about one 1 ATTACHMENT 2

8 Paskenta Tribal Police Department hour before the meeting, went through the meeting and recorded to about one hour after the meeting. CI-26 stated that he had labeled the DVD s by the camera numbers of C655, C657 and C658. I later wrote facing Carlino s entrance from inside by bar on the C655 DVD. I later wrote facing bar from Carlino s entrance on the C657 DVD and I wrote inside meeting room on the C658 DVD. CI-26 then told me that on May 9, 2014, the casino management group had completely shut down the casino for at least six hours beginning at 0200 hours and lasting past 0700 hours. CI-26 stated that the casino management group had taken all their heavy equipment like Caterpillars and blocked all the entrances to the casino with the vehicles and had also installed barricades. CI- 26 stated that E-2 had told CI-26 that I had been drunk when I moved the Cat. CI-26 stated that the casino management group is now hiring some of the security guards from Zak s Security and questioned the hiring because the guards had been fired from Zak s Security for being so dumb that they couldn t even work their radios correctly. CI-26 stated that on one occasion since April 12, 2014, it had been reported that I was at the casino and that fifteen security guards had been sent to intercept me but that it had been a case of mistaken identity. CI-26 stated that you should be flattered. On Thursday May 29, 2014, I met with CI-31. CI-31 stated that he had been taken to the office recently where he was met by two armed security guards and E-6 and E-2. CI-31 stated that that he was then fired for insubordination and personal use of a cell phone. CI-31 stated that he had been working on April 12, 2014 and he noticed that something was weird with the radio traffic and that all the security supervisors had been behind the building prior to the 1000 hours meeting. CI-31 then saw guards being stationed around the meeting room and then during the meeting he noticed police presence. CI-31 then saw people pouring out the side exit. CI-31 then stated that E-4 then contacted him and stated that no one was to be in the gaming commissioner s office except E-2. CI-31 saw that John Pata had been stopped by an armed security guard from entering the commissioner s office but that John Pata had found another way into the office and had seen him walk out with a bag of stuff. CI-31 stated that E-1 then told him that something had gone down and that the Pata s are no longer on the gaming commission and are excluded from 2

9 Paskenta Tribal Police Department the casino. On April 13, 2014 CI-31 stated that E-2 told him that the Pata s are not blood relatives. I asked CI-31 if he had seen a picture of me posted in the casino and CI-31 stated that there is an 8 ½ x 11 photo of me taped to the monitor being watched by Zak s security. CI-31 also stated that there are photos of John and Ted Pata also displayed in the surveillance office along with family photos of John and Ted Pata s family. I asked CI-31 about the security guards and CI-31 stated that he had seen one of the guards by the security door with an assault rifle. The guards were wearing bullet proof vests, scarves, Tasers, beanies, ball caps and had handguns. CI-31 stated that one of the female guards had five knives on her. CI-31 said that Zak Zacharias had told CI-31 that he always had three guns on him. CI-31 stated he had seen three K-9 guards and that the dogs were two German Shepherds and one was a Pit Bull with a massive head. CI-31 stated that since May 10, 2014, that the guards are now wearing metal badges and that some of them have Rolling Hills Casino identification cards displayed. The security has now loosened up some and that one of their two doors in the surveillance office is now blocked with a pallet of concrete on the outside of the door and that a new deadbolt had been installed. CI-31 stated that since April 12, 2014 that Zak s Security guards had maintained a constant presence in the surveillance office and that they had to use the speaker phone so that Zak s Security could listen in on the conversation. C-31 stated that there is a lot or paranoia at the casino and he saw E-2 covering up security cameras in the gaming commissioner s office. CI-31 also stated that he had seen E-5 unplugging security cameras in the gaming commissioner s office. CI-31 asked E-2 why the cameras were being disabled and CI-31 was told that they would be moving boxes in and out of Ted and John s Office. I then returned to my residence where I viewed that DVD s given to me by CI-26. The DVD that captured the meeting best was labeled C658 Inside Meeting Room. I then observed the following actions at the following times: Call to Order-10:12:00 Cody Pata s opening prayer-10:12:05/10:15:27 Geraldine Freeman s opening remarks-10:15:43/10:17:59. Roll Call 3

10 Paskenta Tribal Police Department Chairman Andy Freeman Stands and a male subject from the Freeman front row walks to side door and gets security guards-10:38:46 Chairman Freeman s sisters stand up and make gestures towards the crowd- 10:39:20 The crowd is clapping and gesturing Chairman Freeman sits down-10:40:03 Outside doors then open and close Geraldine Freeman leans between Chairman Freeman and Treasurer Leslie Lohse-10:40:39 Sherry Freeman starts walking in front of the crowd Sherry Freeman goes to exit doors and gestures for someone to enter-10:40:52 More security enters-10:41:19 Sherry points out group to security-10:41:34 A woman stands at the end of the Tribal Council tables and is gesturing towards the Pata side of the crowd-10:42:32 The crowd is standing, clapping and gesturing A man walks a boy out of the room-10:44:12 John Crosby approached Tribal Council table and talks with Chairman Freeman-10:44:21 Vice-Chairman David Swearinger, Secretary Geraldine Freeman and Treasurer Leslie Lohse stand and gather their belongings-10:46:54 Leslie Lohse is ordered out-10:47:31 Chairman Freeman stands and talks to Larry Lohse-10:48:17 Several people stand and start moving around and approach the Tribal Council tables Member-at-Large Allen Swearinger stands-10:49:24 Corning Police Department enters the room-10:49:52 All big portion of the crowd is leaving-10:50:49 Freeman group clapping and cheering-10:51:10 Corning Police Officers usher out people-10:51:22 The exit door is closed-10:52:07 The California Highway patrol enters the room-10:52:56 Chairman Freeman talks with Allen Swearinger and Sherry Freeman-10:54:28 Chairman Freeman sits back down-10:54:54 CONCLUSION: Since I have interviewed the Tribal Council members and have read the official minutes of the April12, 2014 meeting, I believe that the surveillance video of the meeting depicts that the takeover was a pre-planned event and that due to safety concerns, the meeting was in fact adjourned by four members of the 4

11 Paskenta Tribal Police Department Tribal Council before any formal action had been taken at the General Council meeting. RECOMMENDATION: Continue to work with all local, State and Federal agencies to resolve the situation peacefully. EVIDENCE: 1. Three DVD s obtained from CI-26 Parker,C #

12 ATTACHMENT 3

13 ATTACHMENT 4

15 ATTACHMENT 5

16 ATTACHMENT 6

17 ATTACHMENT 7

19 ATTACHMENT 8

TRIBAL COURT OF THE PASKENTA BAND OF NOMLAKI INDIANS

TRIBAL COURT OF THE PASKENTA BAND OF NOMLAKI INDIANS 0 Robert A. Rosette (CA No. ) David M. Osterfeld (AZ No. 0) ROSETTE, LLP W. Chandler Blvd., Suite Chandler, AZ Telephone: (0) -0 Facsimile: (0) - rosette@rosettelaw.com dosterfeld@rosettelaw.com Attorneys