The state of California filed a notice of appeal Oct. 26 with the Interior Board of Indian Appeals disputing a determination made by the Department of the Interior that the Ione Band is a restored tribe and that Plymouth parcels are restored lands.

The determination came in a September letter by Carl Artman, associate solicitor in the Division of Indian Affairs. A subsequent letter written by Associate Deputy Secretary James Cason supported Artman's findings. The determination, if upheld, facilitates the building of a casino in Plymouth.

The state of California, represented by Deputy Attorney General Randall Pinal, filed the appeal stating that the conclusions of Artman and Cason "are factually inaccurate and unsupported by the law." No action has been taken by the IBIA in response to the appeal as of press time.

Amador County filed a similar appeal Oct. 18, which was dismissed the following day. The IBIA cited a limitation of its jurisdiction as the reason for the dismissal. "No regulation or delegation grants the board authority to directly review a determination by the associate solicitor, Division of Indian Affairs or to review a determination by the Associate Deputy Secretary of the Interior," the notice of dismissal said.

The restored lands determination was requested by the Ione Band of Miwok Indians, which has already filed a pending fee-to-trust application with the Department of the Interior, the first step toward building a proposed gaming facility in Plymouth. "To accomplish its objective," Pinal wrote in the state's appeal, "the band has applied to the secretary to have 228 acres in that community taken into trust, and has asked the National Indian Gaming Commission to determine whether the land is eligible for gaming."

Artman said in his opinion letter that the Ione Band qualified for the restored lands exception within the Indian Gaming Regulatory Act, which would allow the tribe to conduct gaming on restored lands taken into trust after 1988.

"To qualify for IGRA's restored lands exception," Pinal said, "the tribe must first be a 'restored tribe'; that is, at some point the federal government formally recognized the tribe, terminated recognition, then subsequently restored recognition ... After a tribe demonstrates it is a 'restored tribe,' it must establish the subject land qualifies as 'restored lands.'"

Artman concluded that the band is indeed a restored tribe, citing a 1972 letter by former Commissioner of Indian Affairs Louis Bruce recognizing the tribe; termination of the band's recognition by a federal court case in which the department took a position in court contrary to the position taken by Bruce; and the restoration of the band's recognition in a 1994 letter by former Assistant Secretary Ada Deer reaffirming the band's relationship with the federal government.

The appeal stated that the Department of the Interior erred in finding that the Ione Band is restored. "The department's findings are erroneous," Pinal wrote, "because the band's status as a federally-recognized tribe was never formally terminated and if it was, Assistant Secretary Deer's 'reaffirming' letter does not - and cannot - constitute official restoration of federal recognition."

Pinal said Artman's use of the court case as evidence of the tribe's terminated recognition constituted an abuse of discretion and exceeded the Department of the Interior's jurisdiction. The 1992 court case involved a complaint from the Ione Band seeking an order of federal recognition.

"At that time," Pinal wrote, "the band did not appear on the list of federally recognized tribes" because it "had not applied for recognition through the formal acknowledgment regulations." The court ruling was not a termination of recognition, Pinal said, but a ruling that procedures for tribal recognition were not exhausted.

Pinal also argued that if the tribe was terminated, Deer's letter was legally insufficient to constitute restoration "because in 1994, as now, the only means by which a terminated tribe's recognition could be officially restored was through the administrative acknowledgment process."

Pinal added that Deer's letter "did not use the terms 'restore,' 'acknowledge,' 'recognize,' or any other phrase" constituting restoration of the band's recognition and that interpreting the letter as restoration would require the IBIA and the Department of the Interior "to assume that she affirmatively acted outside the acknowledgment regulations and in direct contradiction of the law."

Finally, the appeal challenged the department's determination that land in and around Plymouth is restored lands, saying its finding that the band "established a modern and historical connection to the land is arbitrary and capricious."

Pinal stated that the band has not established an historical connection to the land, as there is no evidence current tribe members have ancestors buried near Plymouth nor any linking current members to those who signed a historic treaty in the area.

"Additionally," Pinal wrote, "there is no empirical data suggesting the proposed gaming site was an ancient village of the band, that a majority of its members - past or present - occupied the property for a significant time period, or that the property contained a single Ione Indian home."

The tribe's modern connection to the parcels was also brought into question.

The department "fails to identify the location, duration, or number of band members that supposedly live 'in the surrounding area,'" Pinal wrote in the appeal. He added that there are no geographical limitations defining the area in question.

"Moreover, the band's recent rental of facilities in Plymouth to conduct government meetings cannot constitute a modern connection to the land," Pinal said. "Congress did not intend the standard to be so low that a tribal government could simply rent facilities in any location throughout the country to establish a modern nexus to that land for gaming purposes."

The state is requesting that the IBIA reverse the Indian lands determination made by Artman and remand the matter to Artman or the NIGC "for further consideration consistent with such ruling."