[00:00:38] Speaker 02:
Good morning.

[00:01:10] Speaker 00:
May it please the court, my name is Dennis Whittlesea.

[00:01:12] Speaker 00:
I'm counsel for Duke County Appellate.

[00:01:15] Speaker 00:
And I'd like to introduce my colleague and law partner, Vishnu Ramaswamy, who's working with me today on this particular case.

[00:01:22] Speaker 00:
As this court knows full well, this is the second time this case has been before this court.

[00:01:32] Speaker 00:
And I think that it's important that I emphasize just a couple of points.

[00:01:38] Speaker 00:
We're not challenging the Matuta status as a tribe, or its status as a recognized tribe, or its right to have land in trust, or its right to conduct gaming on land that qualifies for gaming under the Indian Gaming Regulatory Act.

[00:01:57] Speaker 00:
The tribe is seeking to conduct gaming on a land parcel that it says is restored land, as that term is used under the Indian Gaming Regulatory Act.

[00:02:08] Speaker 00:
And if the land qualifies as restored land, the tribe has an absolute statutory right to conduct gaming.

[00:02:15] Speaker 00:
Now, if it's not restored land, there are other provisions for taking land into trust for gaming that would perhaps be a slightly different track for the tribe to follow.

[00:02:26] Speaker 00:
But in this case, the restored land designation is opposed by the tribe.

[00:02:33] Speaker 00:
And as Judge Randolph said,

[00:02:35] Speaker 00:
in the July 2010 decision, when we were here before, at page 2, in his opinion, he said the issue is whether the land qualifies as restored land under IGRA, or IGRA, as some people say.

[00:02:49] Speaker 00:
And at page 3, it was stated, the tribe must demonstrate a significant historical connection to the land.

[00:02:58] Speaker 00:
Now, the court referred this matter back to Interior in that decision.

[00:03:07] Speaker 00:
for the reason that the Interior Department admitted it had not only failed to review our expert witnesses report written by the ethno-historian Dr. Steven Dow Beckham of Lewis and Clark College, but they had chosen not to because they'd already made up their mind.

[00:03:25] Speaker 00:
And this court referred this matter, all the remanded, back to Interior for consideration in light of the Beckham report.

[00:03:33] Speaker 00:
The Beckham Report contained one thing that was absolutely critical.

[00:03:38] Speaker 00:
Reproduced in total the Chico reservation role as the Indians of California census conducted in 1928 to 1933 prepared.

[00:03:53] Speaker 00:
And that role is a role that was conducted by the government in anticipation of land claims to be litigated by the Indians of California in the US Claims Court.

[00:04:14] Speaker 00:
Each head of family was interviewed by Department of Justice,

[00:04:19] Speaker 00:
census takers.

[00:04:22] Speaker 00:
BIA actually was the agency within the department.

[00:04:26] Speaker 00:
Each head of family witnessed an affidavit with a BIA enrollment officer which contained detailed information as to the blood quantum, tribal affiliation, ancestry of parents, grandparents, other information.

[00:04:42] Speaker 00:
And as Dr. Beckham reported,

[00:04:44] Speaker 00:
That information demonstrated that the Indian population on the Chico Ranch was consisted of the members of eight tribes, one only one of which was Matuta, as well as descendants of Hawaiians, African Americans, and whites.

[00:05:01] Speaker 00:
And our contention is that that's an interesting combination, but it does not demonstrate success or an interest to the historic treaty tribe that was Matuta.

[00:05:10] Speaker 03:
Which report are you referring to?

[00:05:11] Speaker 00:
I'm sorry?

[00:05:12] Speaker 03:
Which report are you referring to?

[00:05:14] Speaker 00:
This is the Indians of California census that Beckham reproduces.

[00:05:17] Speaker 00:
It was conducted in 1928 to 1933 by the BIA.

[00:05:21] Speaker 03:
Which Beckham report are you referring to?

[00:05:23] Speaker 00:
It's the original Beckham report, the 2006.

[00:05:26] Speaker 00:
That census was never discussed in the Interior Department decision.

[00:05:33] Speaker 00:
All that was said was that they had reviewed censuses and other reports.

[00:05:42] Speaker 00:
And so that report was, I guess, reviewed.

[00:05:47] Speaker 00:
Oh, censuses and affidavits, those were the words they used.

[00:05:50] Speaker 00:
And I guess that report may have been reviewed, but it certainly wasn't discussed, nor was there any reconciliation with the determinations or with the findings of fact that that census revealed, which was, as I just said, these eight tribes, only one of which was Machuta, as well as non-tribal ancestry.

[00:06:10] Speaker 00:
Now, the curious thing about it is that was the final of four censuses that were conducted at the Machuta tribal village.

[00:06:21] Speaker 00:
The first was conducted in 1914 by a BIA employee named W.C.

[00:06:31] Speaker 00:
Randolph.

[00:06:32] Speaker 00:
Randolph listed 51 adults on his census identified by blood,

[00:06:38] Speaker 00:
named Blood Quantum and AIDS, and he said, I do not believe these Indians belonged to any particular band, but a remnant of various small bands originally living in Butte and nearby counties.

[00:06:49] Speaker 00:
This is important for one reason.

[00:06:51] Speaker 00:
The claims traced to the Treaty of 1851, and that's a treaty that was executed by Matuta, as well as other tribes.

[00:07:03] Speaker 00:
And the simple fact is that

[00:07:07] Speaker 00:
Machupta was only one.

[00:07:09] Speaker 00:
And so as Randolph looked at it, he sort of validated that makeup that the Machupta was only one.

[00:07:17] Speaker 00:
It wasn't a Machupta tribal treaty.

[00:07:20] Speaker 00:
It was a Machupta and several other tribes.

[00:07:23] Speaker 03:
So am I right that your position is that this evidence in this report conclusively shows that there was no Machupta tribe present

[00:07:37] Speaker 03:
at this ranch at that time?

[00:07:41] Speaker 00:
Well, there's no Matuta tribe at that time that's directly descended from the treaty tribe.

[00:07:48] Speaker 03:
I'm just narrowing the facts that the report is showing, in your view, are that there was no tribe there.

[00:07:57] Speaker 03:
Ergo, there could not have been a tribe relating back to the 1851 treaty negotiating tribe.

[00:08:03] Speaker 00:
No, no, I don't think, I don't think we've said that.

[00:08:07] Speaker 00:
There was, there were several tribes that were at the treaty council, one of them was- No, but shipped a tribe at the ranch.

[00:08:15] Speaker 00:
At the 1851 treaty council.

[00:08:17] Speaker 03:
No, no, I'm talking about the data you're pointing to, which is not 1851 data, but data from the census, 1918, right?

[00:08:27] Speaker 03:
The census data that you're pointing to is not from 1851.

[00:08:30] Speaker 03:
The census data that you're pointing to is early 20th century census data.

[00:08:35] Speaker 03:
And I'm trying to understand your position about what that shows.

[00:08:39] Speaker 03:
And I took your position to be that that shows that there was no Machuptah tribe as of the time of that census present on the ranch.

[00:08:51] Speaker 00:
I think that's right, because the tribe had not yet been federally recognized.

[00:08:56] Speaker 03:
And so the tribe was... But I thought your position was more profound than that, readily recognized or not.

[00:09:01] Speaker 03:
You're saying, as a matter of fact on the ground, no tribe there, no Matutek tribe there.

[00:09:07] Speaker 00:
No.

[00:09:07] Speaker 00:
Okay.

[00:09:09] Speaker 00:
What we're saying is that...

[00:09:12] Speaker 00:
whatever the Indian population was, it was not the modern, it was not a direct descendants, it was not directly related to, as a tribe, to the treaty tribe of 1851.

[00:09:25] Speaker 00:
That's the connection.

[00:09:27] Speaker 00:
That's the lack of connection.

[00:09:29] Speaker 03:
But I thought the way you were showing that, and I'm sorry if I'm seeming to repeat my question, I thought the way you were showing that was

[00:09:39] Speaker 03:
because data about connection is hard to find over a long period of time, was to say there was actually no Matupda tribe present at the time of the census, and therefore it was an impossibility that there could be any such tribe that relates back to the 1851 negotiators.

[00:09:58] Speaker 00:
Okay, no, that is the correct statement.

[00:10:00] Speaker 00:
Pardon?

[00:10:01] Speaker 00:
There were Indians, there was a population there, a diverse population, which is shown in that census and in Dr. Beckham's conclusions.

[00:10:09] Speaker 00:
But the population was a disparate group of Indians living there that became subsequently, now going beyond Beckham's report, that group was subsequently recognized, but it was recognized as a tribe of that reservation.

[00:10:26] Speaker 00:
so that not as the successor to the treaty tribe, and because, indeed, as the censuses that we quote going all the way back to 1914, 1910, and 1906,

[00:10:43] Speaker 00:
demonstrate that there was a disparate population and, for instance, the Kelsey Report in 1906, which is only 50 years after the treaty, demonstrated that it identified 27 heads of household without any tribal identification.

[00:11:01] Speaker 00:
Now, any tribal identification, although Interior cited the Kelsey, did cite Kelsey as saying that he'd showed the heads of household that identified two people, Lofanso and somebody else.

[00:11:14] Speaker 00:
But in fact, it didn't do that.

[00:11:17] Speaker 00:
So all Kelsey said was 17 of these people, 17 were identified

[00:11:23] Speaker 00:
who were identified in Kelsey, were missing four years later in the decennial census of 1910, wherein the census information was ignored by the three tribal experts, Bates, Bibby, and Tiley,

[00:11:40] Speaker 00:
And of the 27 households, 17 were missing four years later.

[00:11:45] Speaker 00:
So that shows you that the village that Kelsey was visiting in 1906 was basically a non-settled,

[00:11:57] Speaker 00:
non-cohesive unit.

[00:12:00] Speaker 00:
And you get to the decennial census of 1910, which was conducted by the, I think, the Department of Commerce.

[00:12:08] Speaker 00:
It was the original Indian population census schedule.

[00:12:12] Speaker 00:
And that identified 49 adult Indians living in the Indian village of Chico, only seven of whom identified themselves as having any Machupta or Machupta Maidu ancestry.

[00:12:27] Speaker 00:
And of those same 49, 19 identified their sole Indian ancestry as Maidu, 20 identified their ancestor tribes as other than Machupta or Maidu.

[00:12:38] Speaker 00:
Again, this information was ignored by the Bureau of Indian Affairs.

[00:12:42] Speaker 00:
But surely they knew about it.

[00:12:44] Speaker 01:
So can I ask this question about the suggestion that it was ignored?

[00:12:48] Speaker 01:
So the determination does say,

[00:12:54] Speaker 01:
According to the county's view, the Machupta tribe as it exists today originated on the Bidwell Ranch as an amalgamation of Indians from numerous tribes and non-Indians.

[00:13:03] Speaker 00:
That's correct.

[00:13:04] Speaker 01:
And then they go on to analyze why that doesn't preclude the finding that the historical connection has been made.

[00:13:11] Speaker 01:
That's correct.

[00:13:11] Speaker 01:
So why doesn't that discussion address the point that you're making?

[00:13:17] Speaker 00:
Address?

[00:13:17] Speaker 00:
I'm sorry?

[00:13:18] Speaker 01:
Well, I thought the point that you're making is, and maybe I'm getting back to the question that Judge Miller was asking, but I thought the point you're trying to make with this census data that was in the 2006 Beckham report is that it shows that, what ultimately comes from that is that it shows that there's an amalgamation on the property.

[00:13:37] Speaker 00:
Right, that's correct.

[00:13:38] Speaker 01:
But then, but that was responded to.

[00:13:40] Speaker 00:
Well, yes, well, that was, that was, the census material, Beckham's report was not directly responded to.

[00:13:48] Speaker 00:
I think the way it was responded was they said we looked at censuses and affidavits and we concluded that this, this tribe was directly descended from the treaty tribe.

[00:13:57] Speaker 00:
But they didn't mention the decennial census, they didn't mention Kelsey, they didn't mention Randolph, and they didn't reconcile this disparate group of people that were identified in the Indians California census as anything other than a direct descendant tribe from the treaty tribe of 1851.

[00:14:17] Speaker 00:
That's the point I'm trying to make.

[00:14:21] Speaker 01:
So there wasn't a specific enough – it sounds to me – and I may be missing something basic, but it sounds to me like the general discussion at JA 406 to 408 roughly addresses at least at a general level the point that you're making, but your point may be that it wasn't specific enough because it didn't specifically reference a particular census.

[00:14:42] Speaker 00:
Well, I think that's right.

[00:14:45] Speaker 00:
For some reason, Interior didn't do the job, and they didn't reconcile Beckham's report with their conclusion, and they were ordered to take the Beckham report into consideration, but it's barely mentioned.

[00:15:03] Speaker 00:
And certainly the findings of that census, which we think were amazing when we found them, we were surprised.

[00:15:11] Speaker 00:
Certainly that should have been addressed.

[00:15:13] Speaker 00:
And it wasn't.

[00:15:15] Speaker 00:
So the answer is, well, then there was the Coleman report.

[00:15:20] Speaker 00:
And that was the NIGC's decision.

[00:15:24] Speaker 00:
Well, Coleman didn't do any better than the Department of the Interior.

[00:15:28] Speaker 00:
Coleman did not make the findings, did not connect the dots, did not draw the lines together.

[00:15:35] Speaker 03:
So is it your position that

[00:15:40] Speaker 03:
It's the amalgamation of different people of different ethnicities and potentially tribal affiliations at the Bidwell Ranch that forecloses the conclusion that the Secretary arrived at.

[00:15:55] Speaker 00:
That is our position.

[00:15:57] Speaker 03:
And if they were to argue that there could be a number of different tribes subsisting kind of cheek by jowl in the same place, your response to that would be, that's not this case because

[00:16:13] Speaker 00:
My response to that would be, I'm astonished that somebody would make that statement.

[00:16:19] Speaker 00:
The Matripa tribe is federally recognized as a tribe today.

[00:16:22] Speaker 00:
The question is, does the tribe as it exists trace, can it directly trace its tribal existence as a tribe back to the treaty tribe?

[00:16:33] Speaker 00:
Because if it can, and we say they cannot, the census records

[00:16:37] Speaker 00:
basically establish our point.

[00:16:40] Speaker 00:
If it can't, then it can still do gaming, but it's going to have to do gaming under a different set of standards, which is there's newly acquired land and it's not restored land.

[00:16:52] Speaker 00:
And at that point, there are other things the county, well, there are other things the county could do, could raise, because it's a different part of the same statute.

[00:17:02] Speaker 00:
But it's after acquired land, it's section 20 of ICRA.

[00:17:06] Speaker 00:
But restored land is a special exception for a tribe that's restored to federal recognition.

[00:17:13] Speaker 00:
And in this case, it has to be the land that was occupied and used by the tribe.

[00:17:20] Speaker 00:
And there has to be a specific set of standards.

[00:17:25] Speaker 00:
And Interior said that one of the things that

[00:17:28] Speaker 00:
would have to be shown, and for instance, well, we did introduce records out of time because of the cutoff that we had faced, and we did respond to the Tiley report out of time.

[00:17:43] Speaker 00:
Well, we did so in light of the Esch versus Udder case in this court.

[00:17:49] Speaker 00:
which shows that it's appropriate to produce out of, you know, late documents where the documents were known to the agency at the time of the decision.

[00:17:58] Speaker 00:
Every one of these censuses is a federal, is an Interior Department census.

[00:18:01] Speaker 03:
Putting aside the procedural argument, I know that's a substantial part of your submission, and I'm not saying otherwise, but just putting aside for the moment, what's your

[00:18:12] Speaker 03:
substantive argument that what the tribe has submitted to the department during remand was a new application.

[00:18:22] Speaker 03:
Because I thought that the thing that was determinative of whether something is a new application or not is whether it goes to the same parcel.

[00:18:29] Speaker 03:
And this, the new information that they submitted did concededly go to the same parcel that they're trying to.

[00:18:37] Speaker 00:
Well, they did submit additional material.

[00:18:43] Speaker 03:
I'm trying to focus on, and you characterized that in your briefing as a new application.

[00:18:51] Speaker 00:
That's right, I did.

[00:18:52] Speaker 03:
And so I'm trying to understand more about what's the basis for that claim.

[00:18:56] Speaker 00:
It was still seeking land into trust as restored land.

[00:19:00] Speaker 00:
The same land?

[00:19:01] Speaker 00:
The same land.

[00:19:02] Speaker 00:
So it was, you know, so whatever the tribe did, it did, but it was pursuing the application for the land that they had already identified.

[00:19:11] Speaker 00:
And I assume purchased, I think they even say at some point they'd already purchased the land.

[00:19:18] Speaker 00:
And so it wasn't really a new application.

[00:19:20] Speaker 00:
It was going to that same application.

[00:19:22] Speaker 00:
It's called a revised application or perhaps part two of an application.

[00:19:31] Speaker 02:
All right, anything further?

[00:19:38] Speaker 02:
Give you some time on rebuttal.

[00:19:40] Speaker 00:
I'm sorry?

[00:19:41] Speaker 02:
We will give you some time after the government.

[00:19:44] Speaker 00:
Thank you, Your Honor.

[00:19:52] Speaker 02:
Good morning.

[00:19:53] Speaker 05:
Good morning.

[00:19:54] Speaker 05:
May it please the court.

[00:19:55] Speaker 05:
My name is Jeff Beilert.

[00:19:56] Speaker 05:
I'm here on behalf of the federal appellees.

[00:20:00] Speaker 05:
This court should affirm the judgment in favor of the federal appellees and the intervener, Machuptah Tribe.

[00:20:06] Speaker 05:
The department complied with the district court's remand order.

[00:20:09] Speaker 05:
It followed the procedural requirements for an informal agency adjudication.

[00:20:13] Speaker 05:
And it supported its decision to take the Chico parcel into trust for gaming purposes by substantial evidence.

[00:20:21] Speaker 05:
The county has spent a good bit of its time talking about censuses.

[00:20:26] Speaker 05:
I think even the county in its presentation here and in its brief acknowledges that each and every one of those censuses shows a presence of Machuptah Indians residing at the Bidwell Ranch.

[00:20:38] Speaker 05:
I'd also like to point out, even if we look at this tribe as an amalgamation, what's important is that in 1899 to 1902, Machupta children were enrolled in a Bureau of Indian Affairs schools.

[00:20:55] Speaker 05:
The department discusses this.

[00:20:57] Speaker 05:
In 1914, federal government had discussions with the tribe regarding trust lands.

[00:21:03] Speaker 05:
In 1918, Annie Bidwell died and left a trust, a private trust for this tribe.

[00:21:09] Speaker 05:
In 1933, the tribe that was existing at the Chico Ranchera contacted the federal government.

[00:21:15] Speaker 05:
The federal government treated the tribe as a sovereign, as a political entity, and had discussions about taking the parcel into trust.

[00:21:23] Speaker 05:
In 1939, the United States established

[00:21:26] Speaker 05:
the Chico Ranchera.

[00:21:27] Speaker 05:
It was a reservation.

[00:21:28] Speaker 03:
What's the baseline for finding a historical connection?

[00:21:33] Speaker 03:
How far back do we need to go?

[00:21:35] Speaker 03:
Do we need to go pre-contact?

[00:21:36] Speaker 03:
Do we need to go

[00:21:37] Speaker 05:
Well, so, Your Honor, it's the evidence of the whole is the standard that you look at.

[00:21:42] Speaker 05:
So in this case, what the department did, and Judge Srinivasan mentioned this earlier, it started pre-contact.

[00:21:49] Speaker 05:
It started with the history of the Maidu tribes in California.

[00:21:53] Speaker 05:
The Machupto was one of those tribes.

[00:21:55] Speaker 05:
Yes, it's true that there's not that much evidence out there, but we do have some evidence from early.

[00:22:00] Speaker 03:
If we thought that evidence was insufficient or unpersuasive, and again, I'm not saying that I think that, but if we did,

[00:22:06] Speaker 03:
could we start in 1933, could we start in 1939?

[00:22:10] Speaker 05:
Absolutely, Your Honor, and I think that the department actually does make this point in the record at

[00:22:18] Speaker 05:
J.A.

[00:22:19] Speaker 05:
425, where – and this is – I understand it's in the discussion talking about the Tarcharian and analyzing whether it was under jurisdiction, but what the department says is even assuming arguendo, right, that there's somewhat of an argument to be made that this tribe is nothing but an amalgamation, what you're looking at is a tribe that was under federal jurisdiction

[00:22:38] Speaker 05:
tracing it back not just to the 1851 treaty, but to what I was starting with right here, which is the fact that you had children enrolled in BIA schools, the fact that you had a federal government treating the tribe all throughout its occupancy at this ranchera as a government entity, and that it continued to do so when it created the ranchera in 1939.

[00:22:59] Speaker 05:
And then again, when it terminated the Ranchera.

[00:23:02] Speaker 05:
So Congress passed the California Ranchera Act in 1958, and then in 1968 the government terminated the trust relationship with this tribe.

[00:23:13] Speaker 05:
So even if it was an amalgamated tribe, we were still treating it as

[00:23:17] Speaker 05:
as a federally recognized tribe.

[00:23:19] Speaker 05:
And in fact, it was the settlement that was negotiated between the government and the tribe in 1992 due to litigation.

[00:23:26] Speaker 05:
Again, the government treated the tribe as a federally recognized tribe and recognized it again in 1992.

[00:23:33] Speaker 05:
Since that recognition,

[00:23:34] Speaker 03:
But as you mentioned, all of that discussion, that's not in the secretary's decision, but more in the record in the Carcieri discussion.

[00:23:45] Speaker 03:
So you're not actually arguing that the secretary did base the determination on that more recent tribe.

[00:23:53] Speaker 05:
no no i think this is not so to be clear i want to be clear here so the secretary did is this is where it started it started with the early contact it started with the fact that this is a tribe that resided at what was called chico creek that uh... you know early settlers got a land grant from the mexican government even before there was

[00:24:10] Speaker 05:
the United States presence in California and that this tribe always existed there.

[00:24:14] Speaker 05:
There were a number of villages that the tribe traces its history back to that were near Chico Creek.

[00:24:20] Speaker 05:
There was a summer camp that was referenced.

[00:24:25] Speaker 05:
department at JA 394 through 396 talks about field research by Dixon, by Kruber, by Hart Merriman, all confirming that Maidu tribes existed in the Sacramento Valley, including the Machupta.

[00:24:39] Speaker 05:
The 1840s talking about the contact with Bidwell himself, the small villages that were located there.

[00:24:45] Speaker 05:
And in 1851,

[00:24:46] Speaker 05:
When the federal government arrived to have treaty negotiations, Bidwell himself went out and gathered all the local tribes to include the Machuptah.

[00:24:56] Speaker 05:
The Machuptah signed a treaty with the United States of America.

[00:24:59] Speaker 05:
Unlike Professor Beckham, who characterized the Machuptah as a dialect or as a triplet, the government didn't hold that view because it recognized the Machuptah as a tribe and in fact signed a treaty with.

[00:25:12] Speaker 05:
with that tribe.

[00:25:13] Speaker 05:
And that's evidence to suggest that all along, the federal government treated this as a tribe, and they continued to do so all the way through and up until termination, which I was referencing earlier.

[00:25:25] Speaker 03:
We talked about these... How does the government evaluate?

[00:25:28] Speaker 03:
I mean, just focusing, zeroing in, and I know this isn't the approach that the secretary took, but zeroing in on what

[00:25:36] Speaker 03:
your opponent has characterized as sort of when the thread broke in the early 20th century.

[00:25:43] Speaker 03:
Can you put any more flesh on the bones of how the government dealt with, how the United States government dealt with that census information with the notion that there was

[00:25:55] Speaker 03:
there were not really tribes present as tribes on the ranch.

[00:25:58] Speaker 03:
There were a number of different people in a kind of multi-ethnic mix.

[00:26:03] Speaker 05:
Right, and the department talks about that all throughout the decision.

[00:26:07] Speaker 05:
Just to start out, and I provided a string site in my brief, but this claim that we did not address or that the department somehow did not address Professor Beckham is not supported by the record.

[00:26:17] Speaker 05:
I mean, on the very first page of the decision, it talks about Beckham's report all throughout.

[00:26:22] Speaker 05:
It addresses the censuses in a very general concept, and again, I would point your attention to JA 419-27, and it does occur in the Carcieri analysis, but in that context, it specifically refutes some of the evidence that Beckham is relying on.

[00:26:39] Speaker 05:
For example,

[00:26:40] Speaker 05:
this report by the clerk, the Bureau of Indian Affairs clerk Randolph.

[00:26:45] Speaker 05:
The department read the same report and said, you know what?

[00:26:48] Speaker 05:
Yes, it's true.

[00:26:49] Speaker 05:
This this clerk has a view that it was nothing but a mixed group of Indians.

[00:26:53] Speaker 05:
That's that view was not shared by other department officials.

[00:26:56] Speaker 05:
In fact, even if it or even looking at his

[00:26:59] Speaker 05:
views alone, they can't terminate the trust relationship that existed at that time.

[00:27:03] Speaker 05:
Talking about the censuses, I mentioned this earlier, every single census shows the presence of Machupta.

[00:27:09] Speaker 05:
The department recognized that there was an influx of other Indian tribes.

[00:27:13] Speaker 05:
The department talks about how those other Indian tribes became and embraced Machupta culture.

[00:27:20] Speaker 05:
Machupta culture survived throughout the period that the village on Bidwell's Ranch, the Indians became part of the Machupta tribe and were treated

[00:27:29] Speaker 05:
as such.

[00:27:30] Speaker 05:
All throughout, as they point to, the censuses show a presence of Machupta.

[00:27:36] Speaker 05:
And I understand that they have a different view of the evidence, but this is an APA case.

[00:27:40] Speaker 05:
And it's not for this court to have a de novo trial to weigh the evidence, either the court's reading or, for that matter, Beckham's reading or the county's reading.

[00:27:49] Speaker 05:
It's to look.

[00:27:51] Speaker 03:
What does our deference to the agency's expertise get the agency?

[00:27:56] Speaker 03:
I understand you can weigh competing data.

[00:27:59] Speaker 03:
What about at the level of methodologies?

[00:28:03] Speaker 03:
Because it does seem like the different views of the parties in this case are ships passing in the night.

[00:28:10] Speaker 05:
I don't disagree with that characterization, Your Honor.

[00:28:12] Speaker 05:
And I do think that the department looked at some of the exact same evidence that was relied on by Beckham and reached a different conclusion as to what that historical evidence suggests.

[00:28:25] Speaker 05:
And in some sense, it is ships passing in the night.

[00:28:29] Speaker 05:
I think that the deference here says that the department gets to weigh the evidence.

[00:28:34] Speaker 05:
The department gets to look at what the parties put before it, it gets to go through, and it did in this case.

[00:28:39] Speaker 05:
I mean, this is a thorough, well-reasoned decision, as the district court recognized.

[00:28:44] Speaker 05:
The department goes through each and every one of these pieces of evidence.

[00:28:47] Speaker 05:
It's footnoted throughout.

[00:28:48] Speaker 05:
It's a 53-page report that goes through this.

[00:28:52] Speaker 05:
What we talk about and what this court talked about in 2010 when it vacated the decision is that the decision must be supported by substantial evidence.

[00:29:00] Speaker 03:
And is it also your position that the department gets to choose the methodological approach, which is not just a question of weighing evidence, but a question of sort of maybe higher order judgments about how relevance is assessed?

[00:29:16] Speaker 03:
And how?

[00:29:18] Speaker 05:
Well, I do, I mean, I'm not to suggest, I mean, we cite cases.

[00:29:21] Speaker 05:
It's not that the APA, this is not a shield that you can't look a thorough review of what the department did here.

[00:29:27] Speaker 05:
I mean, I'm not trying to hide and say that, you know, we get carte blanche to decide how to go about this, but this is an informal adjudication under the APA.

[00:29:36] Speaker 05:
You know, this court made clear in 2010 that there are different requirements for how the department goes about considering evidence.

[00:29:43] Speaker 05:
In this particular case, the earlier decision was vacated.

[00:29:46] Speaker 05:
It was remanded to the district court.

[00:29:48] Speaker 05:
The district court asked the parties, how should we go about complying with this court's order?

[00:29:52] Speaker 05:
All three parties submitted something to the district court saying, here's what your remand order ought to look like.

[00:29:58] Speaker 03:
Let me just a little bit more specific on the methodological question that I was asking.

[00:30:03] Speaker 03:
One could read the record to show the department relying more on sort of the survival and continuity of culture, cultural practice, a group identity, and the county to be countering, but you're not responding to our evidence, evidence which

[00:30:29] Speaker 03:
in its own terms, looks at ancestry and sort of blood quantum.

[00:30:34] Speaker 03:
And my sense is that the department is unconcerned by the notion that some of the members that it is counting as tribal members may not be blood muchupta.

[00:30:50] Speaker 03:
A, is that correct?

[00:30:52] Speaker 03:
And B, do you think that decision is one entitled to deference?

[00:30:55] Speaker 05:
I don't buy the premise, Your Honor, that the Department somehow doesn't care about the blood quantum.

[00:31:00] Speaker 05:
I think that my point was just to suggest that the same evidence that the county is putting so much weight on these census reports is not the only evidence in this record, and that's important.

[00:31:12] Speaker 05:
because we look at the record as a whole and whether you can establish by substantial evidence to support the conclusions reached by the department.

[00:31:19] Speaker 05:
And so in this particular case, what you have, and this is sort of the laundry list I started with, what you have is not just census reports, which the department candidly and does directly address in its decision, but you have all of this evidence in the record, starting with the pre-contact, going through the treaty, going through the early

[00:31:37] Speaker 05:
20th century, where there were children enrolled in the schools, going through the way that the federal government interacted with the tribe throughout the period that it was residing at the Bidwell's Ranch.

[00:31:47] Speaker 05:
And that's the evidence that we're relying on.

[00:31:49] Speaker 05:
So it's true that there are, as with any tribal case, you may have evidence in the historical record that points one way, you may have evidence that points another way.

[00:32:00] Speaker 05:
The department's job is to go through and, you know, the county says reconcile.

[00:32:05] Speaker 05:
Well, reconcile in their view really means accept exactly what we say it means, and that is not what the department does.

[00:32:12] Speaker 05:
The department is an expert agency, as Judge Piller, you pointed out, and the department does not need to accept their reading of the historical evidence.

[00:32:20] Speaker 05:
It's the department's job to go through and address that evidence, which it has done in this case.

[00:32:25] Speaker 05:
It's done throughout the decision, and the department has addressed contrary evidence

[00:32:30] Speaker 05:
clearly, and it said why it reached a different conclusion as to why this parcel should be taken into trust.

[00:32:36] Speaker 05:
And under the Administrative Procedure Act, this court should affirm the department's judgment, or the department's conclusion here that this parcel does qualify.

[00:32:47] Speaker 05:
I would like to point out, it's unclear to me, the county comes in here and says, well, we're not challenging their status as a restored tribe.

[00:32:55] Speaker 05:
What we're challenging is this particular parcel.

[00:32:57] Speaker 05:
It's unclear to me how

[00:32:59] Speaker 05:
the Machupta as a restored tribe would ever be able to satisfy the test that Butte County has come up with in order to acquire restored lands.

[00:33:07] Speaker 05:
And I think if you read their briefs and you read the arguments and the things they're saying here today, they would never be able to do so.

[00:33:13] Speaker 05:
And that just is not right.

[00:33:15] Speaker 05:
The Machupta tribe has a long history in this area.

[00:33:18] Speaker 05:
It's a history that is well documented in not only the department's decision, but in the record that it is relying on.

[00:33:25] Speaker 05:
And the Machupta should be allowed to acquire this parcel

[00:33:29] Speaker 05:
in trust.

[00:33:31] Speaker 05:
Unless the court has any other questions.

[00:33:33] Speaker 05:
Thank you.

[00:33:41] Speaker 02:
Council for Appellant?

[00:33:43] Speaker 00:
Oh, I beg your pardon.

[00:33:45] Speaker 02:
I'm sorry.

[00:33:46] Speaker 02:
Please.

[00:33:48] Speaker 00:
Oh, I'm sorry.

[00:33:54] Speaker 02:
Beg your pardon.

[00:33:55] Speaker 04:
Yeah, good morning.

[00:33:55] Speaker 04:
Michael Anderson, representing the Machuqt of Indian Tribe.

[00:33:59] Speaker 04:
Our brief sets forth our view that the district court was proper in ruling that the APA was not violated when it allowed any and all information from both parties in the remand process, that the extension of time for the appellant was correct and reasonable under the APA, the one extension they were granted to submit information in response to our submission.

[00:34:20] Speaker 04:
And finally, that the overall decision in January 2014 was correct.

[00:34:23] Speaker 04:
So we believe the court was correct on all those matters.

[00:34:27] Speaker 04:
What I wanted to address today was Council's arguments regarding the historic nature of the Matupka tribe and their attempt to bifurcate the current Matupka tribe, which is federally recognized.

[00:34:39] Speaker 04:
I think it's very difficult to find out where there would be a broken

[00:34:54] Speaker 04:
Rancho del Arroyo Tchico Treaty in 1851 established the political relationship between the United States and the Tchico tribe, the Matupna tribe.

[00:35:04] Speaker 04:
Their leader, Lucky An, signed that treaty in 1851 at the Bilgral Ranch with the Federal Commissioner, Oliver Wozniakraft, as the representative of the United States.

[00:35:14] Speaker 04:
That is where we believe the political relationship began.

[00:35:17] Speaker 04:
The record of Dr. Kiley shows that there are a number of anthropologists and reports throughout the 1860s, 1870s, 1880s that show that the record reflects that there were leaders of the Matupa tribe and they called them headmen throughout that time period.

[00:35:37] Speaker 04:
For example,

[00:35:37] Speaker 04:
General Bidwell had a proclamation governing staying on the Red – on the Bidwell Ranch in 1885.

[00:35:44] Speaker 04:
He recognized Chief Lofanzo as the chief of the Machuto Indian tribe.

[00:35:50] Speaker 04:
Throughout the record, there are a number of cases like that.

[00:35:53] Speaker 04:
So there is an unbroken political relationship which appellants have not challenged.

[00:35:59] Speaker 04:
They also challenge the – our submission and the government's finding that – Well, they do challenge it.

[00:36:03] Speaker 03:
They say as you – as you

[00:36:05] Speaker 03:
I think, really nicely put it, they do argue that there's a broken link.

[00:36:09] Speaker 04:
Well, they didn't challenge the 1851 political relationship.

[00:36:12] Speaker 04:
In fact, the Beckham Report... Right.

[00:36:13] Speaker 03:
They don't challenge that per se, but they say it's a different entity now from that entity.

[00:36:18] Speaker 04:
Yes.

[00:36:18] Speaker 04:
But they did not, the Beckham Report, which they rely on from 2006, did not even mention the 1851.

[00:36:23] Speaker 04:
And so I think that's a fatal flaw in his analysis, a failure of academic purpose in looking at all of the proper facts.

[00:36:31] Speaker 04:
The other thing that appellants do not challenge is the Cartier analysis that the Machu Picchu tribe submitted and that the department agreed with.

[00:36:39] Speaker 04:
If there's a political relationship and the Machuptah tribe is under federal jurisdiction, as the IRA requires for land to be taken into trust since 1934, that is a political relationship and a finding that the appellants have not challenged.

[00:36:54] Speaker 04:
So they have two major problems here in that they've not challenged the political status of the current tribe.

[00:36:59] Speaker 04:
The Bureau of Indian Affairs and the Interior cannot create or establish a tribe.

[00:37:04] Speaker 04:
They acknowledge tribes.

[00:37:05] Speaker 04:
So either this tribe has been a tribe since time immemorial.

[00:37:08] Speaker 04:
We go back to first contact.

[00:37:10] Speaker 04:
In this case, the documented relationship was the treaty time.

[00:37:14] Speaker 04:
And if there's not a relationship like that, then the tribe cannot be a tribe.

[00:37:18] Speaker 04:
So the Department has properly found that they are a tribe.

[00:37:22] Speaker 04:
They've been under little jurisdiction since 1934.

[00:37:25] Speaker 04:
So what they've been left with, appellants, is a few selected, isolated, out-of-context statements from the record that they try to say, well, here's our evidence that the tribe is not a tribe.

[00:37:37] Speaker 03:
How can you help us to understand some of that evidence or give it a little bit more context?

[00:37:43] Speaker 03:
And maybe this isn't necessary under our standard of review, but it would help me to understand the case.

[00:37:47] Speaker 03:
The relationship between Maidu and Machokda

[00:37:51] Speaker 04:
Right.

[00:37:52] Speaker 04:
There is a core Machupta tribe that had families that Dr. Tiley traced the ancestry that found the core families from 1851, the treaty signers and the original Machupta people were the same core families throughout through 1950.

[00:38:08] Speaker 04:
that these families, the Lofanzos, the Conways, the others were, and there are not a lot of generations here, I mean it's four or five generations, it was not difficult to trace the lineage.

[00:38:18] Speaker 04:
Chief Lofanzo was at the Bidwell Ranch for 35 or so years, and so what she found is that the core families were the same throughout the history of the tribe.

[00:38:28] Speaker 04:
And if you look at things even like the appellant just cited in his opening statement, he said that look at the C.W.

[00:38:35] Speaker 04:
Randolph came to the tribe in 1914, and this was really one of the key parts of the brief saying that I do not believe there are any Indians belonging to any particular band.

[00:38:45] Speaker 04:
They're remnants of various small bands originally living in view of the nearby counties.

[00:38:50] Speaker 04:
That is one of their key findings.

[00:38:51] Speaker 04:
And that alone, well, there's actually no bans there.

[00:38:54] Speaker 04:
But if you look at the rest of C.W.

[00:38:56] Speaker 04:
Randolph's report, he says things like, he had the honor to advise that I visit this band of Indians last Saturday.

[00:39:06] Speaker 04:
And I had known before that this band of Indians was occupying land belonging to the Bidwell State.

[00:39:13] Speaker 04:
The Indians established the headquarters on the Bidwell Ranch.

[00:39:16] Speaker 04:
This band of Indians had the opportunity to pass to acquire land here.

[00:39:19] Speaker 04:
There are practically no gardens on the track now occupied by this band of Indians.

[00:39:24] Speaker 04:
Elmer LaFonte claims to be the hereditary chief of the band.

[00:39:28] Speaker 04:
After Mrs. Bidwell's death, he noted that we would give the Indians a title of the home now held by them.

[00:39:34] Speaker 04:
So, you know, the appellants say, well, geez, there's a remnants of a ban.

[00:39:38] Speaker 04:
The actual clerk who went there said, I had read every chief.

[00:39:41] Speaker 04:
There's going to be a home for them later.

[00:39:43] Speaker 04:
They have been here for years.

[00:39:45] Speaker 04:
I know of this ban.

[00:39:46] Speaker 04:
And so that's the choice that Interior had to find is, how do you weigh these type of reports?

[00:39:51] Speaker 04:
And it's been misleading and selective evidence that the appellants have used throughout this process.

[00:39:57] Speaker 04:
to confuse and to try to undermine the long history of the Machu Picchu tribe through this process.

[00:40:04] Speaker 03:
So just backing up a little bit, I'm just trying to understand their evidence on the terms they argue at.

[00:40:13] Speaker 03:
which I believe distinguishes Maidu from Machupta and also distinguishes Konkau from Machupta, and your position on that is not.

[00:40:25] Speaker 04:
Our core, we believe there's a core Machupta, but in census taking, there were sometimes the Machupta who were Machupta identified themselves as Maidu.

[00:40:33] Speaker 04:
I mean, they're essentially could be a generic term for the Machupta.

[00:40:38] Speaker 04:
Some say Maidu, some say Konkow.

[00:40:41] Speaker 04:
It may be whether their mother was a Maidu and their father was a Konkow, but basically that's why we say they're triplets in that their identification is as Maidu Machupta.

[00:40:52] Speaker 04:
Sometimes this is Maidu Machupta in the census, sometimes Machupta, and sometimes Maidu, but they're all a community local of actual Machupta.

[00:41:00] Speaker 03:
So we believe that...

[00:41:01] Speaker 03:
Am I misremembering that Maidu is also more of a language denomination?

[00:41:05] Speaker 04:
No, Maidu can be representative of both of a language group, language community, and as an Indian tribe.

[00:41:10] Speaker 03:
And is it not the language that all the Machupta speak?

[00:41:14] Speaker 04:
That is the generic language that the Machupta spoke.

[00:41:18] Speaker 04:
They actually had a specific Machupta language as well.

[00:41:22] Speaker 04:
For example, the

[00:41:23] Speaker 04:
anthropologists in 1887 found that there were certain words that the Machupti used only for themselves for seasons.

[00:41:31] Speaker 04:
Forty years later, Curtis found that the same words were used for seasons as well.

[00:41:35] Speaker 04:
So there was a language community and a Machupti community that was also broader with Maidu as well.

[00:41:40] Speaker 03:
And how about the Kankau, the relationship to Kankau?

[00:41:43] Speaker 04:
The same thing.

[00:41:44] Speaker 04:
They're basically, I mean, they're all Indians of the Maidu area, the same region.

[00:41:48] Speaker 04:
So it's not like we're dealing with the Apache tribes here, Navajo tribes.

[00:41:53] Speaker 04:
I mean, they're all basically the same, I guess we'd say cousins.

[00:41:56] Speaker 04:
And through intermarriage, they're all related from probably an earlier general Maidu people.

[00:42:05] Speaker 04:
My time has expired.

[00:42:06] Speaker 02:
All right, thank you very much.

[00:42:08] Speaker 04:
All right, thank you.

[00:42:12] Speaker 02:
Yes, Council for Appellants.

[00:42:13] Speaker 00:
Thank you.

[00:42:15] Speaker 00:
Uh, let me respond to Mr Anderson's last comment.

[00:42:19] Speaker 00:
Uh, the interchangeability of my doing the truth is somewhat elusive, at least to my knowledge, because in the Indians of California census,

[00:42:30] Speaker 00:
1828 to 1933, the heads of households, each head of family, identified with a witness affidavit, family information.

[00:42:42] Speaker 00:
No Maidu identification is to be found in that census of, in the Indians of California census of 1923.

[00:42:55] Speaker 00:
except 1928, 1933.

[00:42:58] Speaker 00:
No, the tribes that were identified in that census, and again, these are heads of households executing affidavits.

[00:43:08] Speaker 00:
And if you look at it, there's a lot of detailed information throughout those pages and pages of the reproduced census of 1928, 1933.

[00:43:18] Speaker 00:
The village is made up of the following eight tribes.

[00:43:23] Speaker 00:
Wallachian, Concal, Noema or Nimuk, Matupta or Machopta, Sioux, that's a Plains tribe, not generic to California, Pitt River, Yuki, Winton, Hawaiian descent, African-American and white.

[00:43:41] Speaker 00:
No Maidu.

[00:43:42] Speaker 00:
So that if the Maidu, if there's an interchangeability between Maidu and Matupta, it certainly was gone by that time.

[00:43:51] Speaker 00:
In any event, I would say that the census reports

[00:43:56] Speaker 00:
demonstrate over a very short period of time, for instance, the Kelsey in 1906, of the 27 heads of household identified by Kelsey, 17 of those people identified as heads of household were gone four years later in the decennial census.

[00:44:19] Speaker 00:
So it wasn't this solid

[00:44:23] Speaker 00:
you know, steady rock, rock steady permanent community.

[00:44:27] Speaker 00:
There was a lot of influx and outflux and it shows in these census records.

[00:44:31] Speaker 00:
And so when we say that they were not recognized, you know, what I'm saying is this tribe

[00:44:40] Speaker 00:
is federally recognized.

[00:44:42] Speaker 00:
But I'm saying this tribe does not track, as a tribe, back to the treaty tribe of 1851.

[00:44:49] Speaker 00:
And I don't think anything that's been said here contradicts what I just said.

[00:44:52] Speaker 03:
And does it have to?

[00:44:53] Speaker 03:
I know that that is the way that the Secretary framed it, so that's very important.

[00:44:58] Speaker 03:
But just as a general matter, if they had framed up the opinion in terms of dating back to the 1930s,

[00:45:07] Speaker 00:
Well, OK, the track has to be to the treaty.

[00:45:12] Speaker 00:
They have to demonstrate to the treaty.

[00:45:14] Speaker 00:
Now, they don't have to use it.

[00:45:15] Speaker 00:
The 1851 treaty?

[00:45:16] Speaker 03:
I'm sorry?

[00:45:17] Speaker 03:
The 1851 treaty?

[00:45:17] Speaker 00:
Yeah.

[00:45:17] Speaker 00:
Why is that?

[00:45:18] Speaker 00:
Because the land they're claiming, they're claiming to be restored land.

[00:45:23] Speaker 00:
And the only connection with that land is it's within the area identified as potential reservation land for the tribe that signed that treaty.

[00:45:32] Speaker 03:
That's a curious position for the county to be taking because the report that you relied on, the baseline report that you relied on doesn't even mention 1851 in the treaty.

[00:45:44] Speaker 03:
So I don't take that to be your point of reference.

[00:45:48] Speaker 00:
I'm not sure why Beckham didn't identify the 1851 treaty, because certainly he worked with it.

[00:45:54] Speaker 00:
And he certainly has, in many writings, not necessarily this report, but in his newer report, his 2014 report, I think he talks about the 1851 treaty, probably at length.

[00:46:07] Speaker 00:
I haven't read that recently, but he certainly is cognizant of it.

[00:46:12] Speaker 00:
And that's been the treaty from which the track has been made all along.

[00:46:17] Speaker 00:
So that it's, again, this tribe can still do gaming on that land, but they'd have to go through a different section of the statute.

[00:46:27] Speaker 00:
They'd have to establish certain things they don't have to establish under the restored lands provision, which is why they're pursuing it, which would include certain environmental concerns that are not part of this case because they weren't necessarily the restored lands issue.

[00:46:41] Speaker 00:
So there's a lot of reasons why the county has spent the time.

[00:46:45] Speaker 00:
And I would say a lot of money on this case, because it's the restored lands issue without any ability of the county to even discuss any concerns they might have about whether or not, as a matter of environmental law, this is a good site for the county or even, well, certainly even for the tribe, but certainly for the county.

[00:47:05] Speaker 00:
So there's a lot of issues not before the court.

[00:47:08] Speaker 00:
Cartiery, there's a reason why we never raised cartiery.

[00:47:14] Speaker 00:
And I will state it directly, I will never raise Cartieri.

[00:47:20] Speaker 00:
I think it's a blasphemy on Indian country.

[00:47:23] Speaker 00:
I don't know.

[00:47:24] Speaker 00:
I can't tell you how, I guess that's pretty strong.

[00:47:27] Speaker 00:
So I'll stop at that one.

[00:47:30] Speaker 00:
I might start using some of those words our mothers taught us never to use, and certainly we never have.

[00:47:35] Speaker 00:
So anyway, I would submit that as compelling an argument as we've heard both from the government and from the tribe, the fact remains there's a missing link between the treaty tribe and this tribe.

[00:47:48] Speaker 00:
This tribe can still do gaming even on this same land under a different section of the Indian Gaming Regulatory Act.

[00:47:58] Speaker 00:
So with that, I respectfully submit my argument and thank the court for its consideration.

[00:48:03] Speaker 02:
Thank you.

[00:48:04] Speaker 02:
We will take the case under advisement.