Intertribal court rules in favor of Napoles family
Family has rights to land needed for Paiute Palace Casino expansion.
The Intertribal Court of Southern California Court of Appeals threw a new wrench in the Paiute Palace Casino expansion project works with an opinion filed on Nov. 2. That court ruled that Bishop Paiute Tribe member Geraldine Pasqua has sole right to occupy and possess the two lots of land the Tribal Council has long included in its casino expansion plan.
“The Court’s ruling means that the Tribal Council does not now, nor has it ever had the right to the land they are planning on constructing a hotel and casino upon,” said Pasqua’s nephew Ron Napoles. “The implication is that the Tribal Council has gone forward with a casino expansion plan while failing to secure the land … “
The proposed $30 million dollar expansion project includes 94,230 square feet of hotel, casino floor and meeting/conference space, according to the August Bishop Paiute Tribe’s Tribal Newsletter. The hotel would be two stories, 80-100 rooms, while the casino itself would expand an additional 10,000 square-feet, with three floors total, and would connect to the hotel. The estimated completion date is mid-year 2017.
This is not the $20 million project voted down 287-258 by members of the tribe in July, 2013. Instead, this appears to be a project that the Tribal Council authorized the Bishop Paiute Economic Development Board to pursue in March, 2014, despite the 2013 rejection of the original project proposal.
A Casino project hinges upon expanding into land assignment Block 3, lots 6 and 7, which Bishop Paiute Tribe member Ron Napoles and his family have long maintained belongs to Geraldine Pasqua, granddaughter of the assignment’s original owner, Ida Warlie.
Members of the Bishop Paiute Tribe do not own land outright, rather, under federal Indian law, the Tribe collectively owns land and assigns it for family use. The Tribe granted Warlie’s land assignment in 1937. Warlie received her land as “Head of Household” for her entire family, so the assignment, Block 3, contains multiple lots, including the two contested acres of open pasture behind the Casino.
In 1962, because of the growing population and scarcity of land on the Bishop Paiute Reservation, the Owens Valley Paiute-Shoshone Bands of Indians (Owens Valley Band) passed an Ordinance mandating that new assignments on the Reservation be limited to two lots per assignment.
But Ron Napoles contended in an interview with The Sheet last year that this Ordinance pertained only to unassigned land, not land granted to the original families during the creation of the Reservation. Indeed, according to the Court of Appeals opinion document, the Tribe continued to respect Warlie’s assignment until her death.
When Warlie died, the Tribe’s current Tribal Council asserted the assignment passed back to the Tribe. But according to the Court of Appeals, “There is no dispute that Ida Warlie’s land continued to be used and occupied by her descendants in the years following her death through 1976.”
In 1977, Warlie’s granddaughter Geraldine Pasqua applied for ownership of the assignment’s two lots and several other lots. The Bureau of Indian Affairs (BIA) denied her application because it violated the 1962 Ordinance of two lots per assignment.
However, the Napoles family argued—and the Court of Appeals agreed—that the BIA had no right to approve or deny assignment applications. The BIA itself released a statement soon after denying Pasqua’s application, acknowledging that it had only the right to review applications.
Tribal Council Chairman Gerald Howard argued this point when contacted by The Sheet for comment on the Court of Appeals opinion. “That’s true, the BIA eventually changed their position, but up until that time, they did have that approval power,” he said. He asserted that the BIA “pulled away from its previous position [regarding approval of land assignments]” in the mid-1980s, after the Indian Civil Rights movement of the ‘60s and ‘70s.
“That seemed a little odd, to go back and apply the policy of the ‘80s to the ‘70s,” he said.
But Napoles noted that regardless of the BIA, in 1977, Pasqua was actually granted Head of Household rights to all of Ida Warlie’s assignment, including Block 3, lots 6 and 7, by both the Tribal Council and Owens Valley Band.
Nevertheless, in 1982, the Tribal Council adopted a resolution reassigning the two contested lots to Warlie’s granddaughter, Carol Jean Warlie. Subsequently, Tribal Council claimed it reassigned the lots again to Ron Napoles’ brother, Mark Napoles, who agreed to acquire land elsewhere on the Reservation in 2006 so the Tribe could acquire lots 6 and 7.
The Court of Appeals found no evidence of the land assignment to Mark Napoles.
Charged with trespassing
Ron Napoles and family members have been fighting since the early 2000s to prove that the two lots are still assigned to Pasqua, not the Tribe.
The Napoles’ found an unexpected opportunity in June of 2014, when the family protested the Casino expansion with a sit in on the two lots—and family members were each promptly issued $500 fines for trespassing.
The Napoles appeared before Tribal Court to contest the trespassing citations. Ron Napoles argued that if the two lots belonged to his family, the protesters could not possibly have trespassed. The Tribal Court asserted that because it could not make any decision regarding land ownership—only Tribal Council can—it had to defer to Tribal Council’s position that the Tribe owns the land, and affirm the trespassing citations.
After the Tribal Court’s ruling, Ron Napoles and his family took the last recourse they had: filing an appeal with the Intertribal Court of Appeals.
The Intertribal Court of Appeals determined that the Tribal Court could decide on issues of assignment. The opinion document states: “As the appellants attempted to point out several times in the lower court proceedings, it would be nonsensical to interpret the Trespass Ordinance [pertaining to the Napoles’ case] as conferring jurisdiction on the Tribal Court to hear trespass cases while at the same time precluding the Tribal Court from deciding the underlying question of who has the right to occupy and possess the land in question.”
The Court of Appeals ruled that Tribal Court committed an error of law when it asserted that it did not have jurisdiction to decide whether appellants lawfully occupied and possessed the Lots.
Furthermore, the Intertribal Court ruled that whether or not Ida Warlie’s assignment reverted to the Tribe upon her death, and whether or not family members named in the original assignment application assumed the right to possess and occupy the assignment per tribal custom, were irrelevant, because Geraldine Pasqua subsequently applied for and was granted the assignment.
The Court of Appeals ultimately reversed the Tribal Court’s decision regarding the trespassing citations, upholding Geraldine Pasqua’s right to possess and occupy the lots.
“We feel really good, because besides reversing the [Tribal Court’s] decision, the Appeals Court also took several steps forward to decide on these really longstanding issues with the Tribal Council,” said Napoles.
Tribal Council Chairman Howard disagreed with the Court of Appeals decision, arguing that in order for the Napoles’ to appeal the Tribal Court’s decision at the Appeals Court level, “there had to be an issue with the [Tribal Court’s] process.” He did acknowledge that one potential issue could have been the Tribal Court’s assertion that it could make a ruling regarding trespassing, but not the possession of an assignment.
“We’re going to seek a re-hearing on this,” he said. “I’m just kind of astounded at the decision, and frankly, that the decision wasn’t left in the hands of the Tribal Council … With any court, the tribal sovereignty issue is there in determining the best interest of the Tribe.”
When asked what would happen to the Casino expansion project, should the Court of Appeals uphold its decision, Chairman Howard offered no comment.
But Napoles said, given the Nov. 2 decision, “Tribal Council is in violation of our trespass laws right now.”
