Download pdf - MCGREGOR W. SCOTT (STATE BAR NO. 142413) …...2014/07/23 · from Armed Guard Private Protection Security. 8. Attached hereto as Exhibit 5 is a true and correct copy of Resolution

SECOND DECLARATION OF DAVID SWEARINGER

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OHSUSA:758311301.1

MCGREGOR W. SCOTT (STATE BAR NO. 142413)[email protected]. RIDDELL (STATE BAR NO. 225004)[email protected], HERRINGTON & SUTCLIFFE LLP400 Capitol MallSuite 3000Sacramento, California 95814-4497Telephone: +1-916-447-9200Facsimile: +1-916-329-490

Attorneys for Defendants and Third-Party PlaintiffPASKENTA BAND OF NOMLAKI INDIANS, AFEDERALLY RECOGNIZED INDIAN TRIBE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

STATE OF CALIFORNIA,

Plaintiff,

v.

PASKENTA BAND OF NOMLAKIINDIANS, A FEDERALLY RECOGNIZEDINDIAN TRIBE,

Defendants.

Case No. 2:14-cv-01449-KJM-CMK

SECOND DECLARATION OF VICECHAIRMAN DAVID SWEARINGER

PASKENTA BAND OF NOMLAKIINDIANS, A FEDERALLY RECOGNIZEDINDIAN TRIBE,

Third-Party Plaintiff,

v.

ANDREW FREEMAN,

Third-Party Defendant.

I, David Swearinger, declare:

1. My name is David Swearinger, and I am the Vice Chairperson of the Paskenta

Band of Nomlaki Indians. I have personal knowledge of each fact stated in this declaration.

Case 2:14-cv-01449-KJM-CMK Document 23-1 Filed 06/26/14 Page 1 of 87

- 2 - SECOND DECLARATION OF DAVID SWEARINGER

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OHSUSA:758311301.1

2. The Paskenta Band of Nomlaki Indians is a federally recognized Indian tribe. The

Tribe operates pursuant to the Constitution of the Paskenta Band of Nomlaki Indians and other

Tribal laws. The Tribe is governed by a five member Tribal Council who are responsible for

providing essential government services to and protecting the health and welfare of the Tribe’s

members. The Tribal Council is comprised of Chairman Andrew Freeman, Vice Chairman David

Swearinger, Treasurer Leslie Lohse, Secretary Geraldine Freeman, and Member-at-Large Allen

Swearinger.

3. With respect, I offer this Declaration without waiving any entity’s sovereign

immunity protection and without consenting myself or the Tribe or any Tribal entity to suit.

4. Attached hereto as Exhibit 1 is a true and correct copy of an October 25, 2012

letter to Rebecca Swearinger re Elections Board Denial of election Appeal. .

5. Attached hereto as Exhibit 2 is a true and correct copy of a June 9, 2014 letter to

Mike Smith with enclosures.

6. Attached hereto as Exhibit 3 is a true and correct copy of an April 12, 2014

Orland Police Report.

7. Attached hereto as Exhibit 4 is a true and correct copy of an April 20, 2014 Report

from Armed Guard Private Protection Security.

8. Attached hereto as Exhibit 5 is a true and correct copy of Resolution No. 2014-

0419, dated April 20, 2014.

9. Attached hereto as Exhibit 6 is a true and correct copy of a May 15, 2014 letter to

Bruce Thomas re Notice of Facility License Revocation.

10. Attached hereto as Exhibit 7 is a true and correct copy of an April 22, 2014 letter

from A. Freeman re removal from Rolling Hills Clinic board of directors.



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OHSUSA:758311301.1


0429, dated May 6, 2014.


0435, dated May 9, 2014.


0433, dated May 7, 2014.

14. Attached hereto as Exhibit 11 is a true and correct copy of the Temporary

Restraining Order entered in the Paskenta Tribal Court on May 9, 2014.

15. Attached hereto as Exhibit 12 is a true and correct copy of the Preliminary

Injunction entered in the Paskenta Tribal Court on May 29, 2014

16. Attached hereto as Exhibit 13 is a true and correct copy of Paskenta Tribal Policy

Dept. Supplemental Report #3, dated June 2, 2014.

17. Attached hereto as Exhibit 14 is a true and correct copy of Ken Many Wounds

Independent Compliance Investigation of Rolling Hills Casino, dated June 5, 2014.

18. Attached hereto as Exhibit 15 is a true and correct copy of a June 11, 2014 letter

from US Department of Interior, dated June 11, 2014.

19. I have reviewed the video located on YouTube, at

https://www.youtube.com/watch?v=-gx88yK9RAc. The persons depicted in this video are

Chairman Andrew Freeman, his officers, agents, servants, employees, hired security forces. I am

not aware who captured this video, but the video of the exchange appears to me to be an accurate

depiction of portions of what occurred at 2:00 AM on April 15, 2014.

20. By June 12, 2014, the Tribal Council directed all Tribal Police officers stationed at

the Casino to disarm, and by June 14, 2014, the Tribal Council caused the Tribal Police to fully

withdraw from the Casino grounds.



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OHSUSA:758311301.1

21. Attached hereto as Exhibit 16 is a true and correct copy of excerpts from the

transcript of the hearing on Plaintiff’s Motion for Temporary Restraining Order, heard before this

Court in the above-captioned matter on June 18, 2014.

I declare under the penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

DATED: June 25, 2014

____________________________

David Swearinger, Vice Chairperson

Paskenta Band of Nomlaki Indians


EXHIBIT 1




EXHIBIT 2


The Paskenta Band of Nomlaki Indians of California

Mailing Address: PO Box 785, Orland, California 95963 Tel: 530-736-7631

Vacant Chairman

David Swearinger Vice Chairman

Leslie Lohse Treasurer

Geraldine Freeman Secretary

Allen Swearinger Member at Large

June 9, 2014

VIA EMAIL

Michael R. Smith Deputy Bureau Director United States Department of the Interior MS-4606-MIB 1849 C Street N.W. Washington, D.C. 20240 [email protected]

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.


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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-tribal-member 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


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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


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[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, 2014.

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).


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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


ATTACHMENT 1


Paskenta Tribal Police Department

1

Case #: 14-1 Crime: Information Classification: Supplemental Report #2 Date and Time: 053014 0455 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, 2014. 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, 2014.

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

ATTACHMENT 2



2

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



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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



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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



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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 #2301 053014


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EXHIBIT 12


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GERALDINE FREEIIilAN and INESCROSBY,

FILE:D' '

MAY 2 g 2olll*0.

PAq.{FltTA BAHD OF NOHLAKT!!Ql4fs TRTFAL couni

IN THE PA$KENTA BAND OF NOMIAKI INDIANSTRIBAL COURT

NO. PTCV-14-001

PRELIMI NARY I NJUNCTIONPleintifrs,

v.

ANDREW FREEMAN, Et AI.,

Defundants-

EEFORE the Tribal Court is Plaintiffs' Mstion for Preliminary Injunction. Having

revieued said Motion and the file and pleadings therein, the Tribal Gourt deemg itself

ottpnrise fully advised in the prcrnisat- Accordingly, Flaintiffs' Motion is GRAilTED in

part.

The Tribal Gourt FlltlDS and COI{GLUDES that (1} therc are serioue questions

going te th€ merits sf Plaintift' claims; (2) Plaintiffu nnuld suffur irreparable iniury

absent fie iesuance of this injunction; (3) gnanting the injunction will not harm

Defendanb; and (4) issuing the injunction serues the public interest.

IT IS TITEREFORE ORDERED THAT:

1. Russell Dennis, Zak Zacharia, and Zaks Security One are enjoined from

entering or being present in any rnanner upon any sf the lands described in Article I of

PRELIMINARY INJUHGTION - 1




EXHIBIT 13



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Case #: 14-1 Crime: Information Classification: Supplemental Report #3 Date and Time: 060214 1305 Officer: Parker,C #2301 NARRATIVE: On Monday June 2, 2014, I spoke with CI-7 on the telephone regarding incidents occurring at the casino since April, 12, 2014. CI-7 stated that on May 24, 2014, he received a telephone message from E-6 who told him that “As you may have heard several surveillance personnel and have been terminated and I want to save you the trip and you are terminated”. CI-7 stated that E-6 did not give him a reason for the termination and that he had been a loyal employee for several years. CI-7 stated that until recently, it had been a great job but that since April 12, 2014, the stress has been horrible. CI-7 stated that the tension is through the roof and that there are two groups of people and that they could not voice their opinion on the take-over. E-12 told CI-7 that the whole problem started with Ted Pata “sliding a sexual harassment claim under the rug”. CI-7 stated that since April 12, 2014, armed guards were brought in and that they carried pepper spray, Tasers, handguns, knives in boots and holsters, the K-9 unit had an AR-15 and the guards at the back of the building had AR-15’s. CI-7 stated that armed guards were in the hallways and were protecting the gaming commissioner’s office and that an armed guard was stationed within the surveillance office on an ongoing basis since April12, 2014. CI-7 stated that he saw E-2 cover one of the monitors in the gaming commissioner’s office with a piece of paper and saw E-26 unplug several cameras in the commissioner’s office. One morning he saw a lot of boxes and file cabinets in shipping and receiving and CI-7 was told that it was the files and paperwork from the Orland office. That afternoon, all of the boxes and cabinets were transferred to the “sea crates” that had been brought in. CI-7 stated that one of the armed guards he talked to told him that he had taken a “federal class” so he could carry a gun. CI-7 stated that he had heard that some of the guards were from the Fresno area and were gang members. CI-7 stated that he saw the armed guards show up for work and that they would then be issued their handguns.



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CI-7 stated that E-4 told him that “if something happens turn the cameras away because we’re going to hurt them”. I asked CI-7 if anyone was banned from the casino and CI-7 stated “you my friend are banned”. CI-7 stated that my photograph is displayed in the surveillance office and that the Pata/Henthorne members are also banned. I asked CI-7 if instructions had been given to the guards if a banned member showed up and CI-7 stated that he did not know of any instructions but that they would “probably approach you and put you to the ground”. I asked CI-7 if Chairman Andy Freeman was running the casino and CI-7 stated that “he’s not in charge of anything and that E-12 is running everything.” CI-7 stated he spoke with some of the guards and that they were waiting to hurt someone and that if someone came armed to take back the casino that the guards would shoot. CONCLUSION: The interview with CI-7 further shows that violations are happening at the casino and that the people in possession of the casino are willing to resort to violence to maintain the possession of the casino. RECOMMENDATION: Continue to work with all local, State and Federal agencies to resolve the situation peacefully. Parker,C #2301 060214


EXHIBIT 14









EXHIBIT 15


United States Department of the Interior

1.'..: REPLY REFER TO:

Paskenta Band of Nomlaki Indians PO Box709 Corning, CA 96201

Paskenta Band of Nomlaki Indians POBox785 Orland, CA 95936

To Whom It May Concern:

BUREAU OF INDIAN AFFAIRS Pacific Regional Office

2800 Cottage Way Sacramento, California 95825

June 11, 2014

As the Superintendent for the Bureau of Indian Affairs (BIA), Central California Agency, observed in his letter of June 9, 2014, the BIA remains concerned that violence could erupt on Tribal property that is held in trust by the Department of the Interior (DOI). The Superintendent noted that certain uses of trust property are subject to approval by the BIA, including obstruction of Indian Reservation Roads or encumbrances on trust lands.

Since California is subject to Public Law 83-280, State and local law enforcement officials are responsible for the enforcement of State criminal laws and what are considered major federal crimes in Indian country. While Tribal law enforcement officials may have concurrent jurisdiction to enforce tribal laws in some cases, this authority would not interfere with or supersede the State's authority to enforce the law and ensure peace and welfare. We would also like to bring to your attention the fact that Tribal police officers have not been deputized to enforce either Federal or State laws on trust property.

This letter is to advise you that any use of force on Tribal trust property may be prosecuted by State and, in some cases, Federal law enforcement officials. We therefore urge everyone in both Tribal factions to refrain from taking any actions, supporting any actions, or authorizing any actions that could endanger anyone or result in a conflict that may result in prosecution.

It is our sincere hope and plea that both factions will direct armed individuals who are stationed in and around the Tribe's casino to withdraw from their positions in order to allow State and local law enforcement officials to exercise their authority to protect the Tribe's peace and welfare. The Bureau of Indian Affairs continues to encourage mediation.

Sincerely,

/2.L~~~ ~~1. Dutschke Regional Director

TAKE PRIDE •IO?-; -t INAMERICA ~


cc: Joe Dhillon, Office of the Governor, California ·Olin Jones, Office of the Attorney General, California Philip Ferrari, United States Attorney's Office Tehama County Sheriff Gabriel Galanda, Galanda Law Rob Rosette, Rosette LLP Eric Schalansky, Nation Indian Gaming Commission George Skibine, Dentons


EXHIBIT 16


IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

---O0O---

BEFORE THE HONORABLE KIMBERLY J. MUELLER, JUDGE

STATE OF CALIFORNIA,

Plaintiff,

Vs. CASE NO. CIV. S-14-1449 KJM

PASKENTA BAND OF MONLAKI INDIANS, A FEDERALLY RECOGNIZED INDIAN TRIBE,

Defendants.

_______________________________/

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REPORTER'S TRANSCRIPT

RE: PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER

WEDNESDAY, JUNE 18TH, 2014

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Reported By: CATHERINE E.F.BODENE, CSR. NO. 6926, RPR

[email protected](916) 446-6360

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APPEARANCES

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For the Plaintiff:

STATE OF CALIFORNIA OFFICE OF THE ATTORNEY GENERAL INDIAN AND GAMING LAW SECTION 1300 I Street, Sacramento, California 94244-2550 BY: WILLIAM P. TORNGREN, DEPUTY ATTORNEY GENERAL BY: TIM M. MUSCAT, DEPUTY ATTORNEY GENERAL

For the Defendants:

ROSETTE, LLP 193 Blue Ravine, Suite 255 Folsom, California 95630 BY: ALEX LOZADA, ATTORNEY AT LAW BY: RICHARD ARMSTRONG, ATTORNEY AT LAW

For the Defendants:

ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capital Mall, Suite 3000 Sacramento, California 95814-4497 BY: MCGREGOR SCOTT, ATTORNEY AT LAW BY: JONATHAN "J.R." RIDDELL, ATTORNEY AT LAW BY: EMMANUEL B. FUA, ATTORNEY AT LAW

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THE COURT: All right. This is on for an initial

hearing, at least on the motion for a temporary restraining

order.

I have several questions that I would like to have

answered by the parties to help me assess what the best next

steps are and whether to issue a temporary restraining order

even as early as today.

I think the fundamental question is, is there an

agreement about the status of the situation around the

Rolling Hills Casino.

The suggestion in the State's filing is that even

though there has been some cessation of the confrontation,

that matters are still very unstable and the factions, if

that's the right word, are roiling in a way that could lead

to public safety risks, and that the local sheriffs are

tapped out and don't have the resources to ensure that things

don't come to a head again soon.

So first just help me understand that issue, the

public safety context, so that I can consider whether or not

that argues for some immediate action.

First, Mr. Torngren, your position?

MR. TORNGREN: Your Honor, as of this morning, and we

received an update from law enforcement, and I'll use the

term "on the ground" because that's the term that is used by

the law enforcement, and indeed, as you observed, the Tribal


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Police have withdrawn. In the eyes of law enforcement, they

can return as quickly as they came before and as quickly as

they left before.

It was observed that one member of the casino

security force was armed. That's been within the last 24

hours.

Neither side has backed off the statements that have

been made. And to the extent that I have used the term

"faction" in any of our pleadings, if that offends anybody,

we didn't do that with that in mind. The notion here is

we're not taking a side. We understand there is a

disagreement.

In any event, neither side or group has backed off of

statements that have been previously made, that "we will take

the casino as needed and by force," or on the other side,

that "we will defend the casino as needed and by force."

There has been no retraction of any of those statements

whatsoever.

The Tehama County Sheriff continues to have resources

committed to the scene. As of this morning he had two

two-men patrols or two deputy patrols there, plus we have

agents from the Office of Emergency Services. And,

additionally, we have other people manning the, quote,

"command center" at the site.

This is, as we stated in our declarations -- or the


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THE COURT: Who enforces that order if I sign it?

It's self-effectuating?

MR. SCOTT: I don't know.

I'm sorry. Which order? To close the Casino?

I misunderstood your question.

Yes. The Marshal Service, I believe, would be the

proper entity to effectuate your order.

MR. ARMSTRONG: Your Honor, may I address the issue

of the closure order?

When you have Indian gaming, it's facilitated and

authorized through the tenants of the Indian Gaming

Regulatory Act, the federal statutes via the Tribal-State

Compact vehicle and the relationship between the State and

the Tribe.

Through that relationship you have the National

Indian Gaming Commission that oversees and enforces and

regulates class III and class II gaming at Indian Tribes.

If that federal agency is concerned about breaches of

rules, regulations, health and safety of the public and

employees, they would normally issue a notice of violation

and/or a closure order which, as you just alluded to, would

tend to lead to involvement of the U.S. Marshal to enforce

that type of regulatory closure order.

The NIGC isn't here today seeking that type of

enforcement. Likewise, the Tribe's own Tribal Gaming


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Commission has the authority under the NIGC approved Tribal

Gaming Ordinance to likewise close this facility if a

situation warrants closure. Neither one of those agencies

have done so.

In addition to those two regulatory agencies, through

the Compact the State's own regulatory bodies also look to

the facility and the state of the facility. And I don't look

across the room here and see the State Gaming Agency

screaming for a closure order. So again --

THE COURT: So you say I don't have the power to do

that if I decide that's warranted based on the record before

me?

MR. ARMSTRONG: And that's what I was getting at.

In terms of the balance of equities and all of the

factors considered here, the number of employees that would

be impacted, the local economy -- this is the second largest

employer in the county -- to issue such an order would be

extremely damaging and irreparable to this local community,

this Tribe and its membership for the benefit of one Tribe to

stifle the tribal law process currently pending and outside

the jurisdiction of this court.

THE COURT: All right. I understand the issues. If

you have additional authority you want me to review, file it

in the simple form I indicated by three o'clock.

If you work things out, let me know as soon as


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REPORTER'S CERTIFICATE

---o0o---

STATE OF CALIFORNIA )COUNTY OF SACRAMENTO )

I certify that the foregoing is a correct transcript

from the record of proceedings in the above-entitled matter.

IN WITNESS WHEREOF, I subscribe this certificate at Sacramento, California.

/S/_Catherine E.F. Bodene_________________________ CATHERINE E.F. BODENE, CSR NO. 6926

Official United States District Court Reporter


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