Case5:10-cv JF Document48 Filed08/05/11 Page1 of 8

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1 Case:0-cv-000-JF Document Filed0/0/ Page of 0 MICHAEL V. BRADY (SBN 0) MICHAEL E. VINDING (SBN ) BRADY & VINDING 00 Capitol Mall, Suite 0 Sacramento, CA Telephone: () -00 Facsimile: () - Attorneys for Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA and the Individual members of NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 0 NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA, v. Plaintiff, KEN SALAZAR in his official capacity as Secretary of the Interior; LARRY ECHO HAWK in his official capacity as Assistant Secretary for Indian Affairs of the United States Department of Interior; Does through 00, Defendants. CASE NO. :0-cv-000-JF NOTICE OF MOTION AND MOTION TO PROCEED IN THE MATTER OF TILLIE HARDWICK v. UNITED STATES; POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: September, 0 Time: 0:0 a.m. Dept: Ctrm TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PURSUANT TO THE COURT S DIRECTIVE AND ORDER ON JULY, 0, please take notice that at the above noted date and time, at the above noted court, Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA ( Plaintiff ), will seek an order allowing its individual members including any heirs or legatees of such persons and any Indian successors in interest to real property so distributed from the Nevada City Rancheria (hereinafter class members ) to proceed in Tillie Hardwick, et al. v. United States of America, et al., No. C -0 JF (PVT) (Complaint filed July 0, ) ( Tillie Hardwick ). NOTICE OF MOTION AND MOTION TO PROCEED ; POINTS AND AUTHORITIES IN SUPPORT THEREOF

2 Case:0-cv-000-JF Document Filed0/0/ Page of 0 0 POINTS AND AUTHORITIES This motion is organized in three parts. First, the motion will briefly review the historical facts of the Nevada City Rancheria, its members, and its relationship with the United States. Second, the motion will discuss the BIA s actions in terminating the Nevada City Rancheria under the California Rancheria Act, Public Law - ( Rancheria Act ) of. Third, the motion will review the procedural history of Tillie Hardwick in order to demonstrate that the class members fell through the legal cracks and are entitled to the relief requested. I. Brief History of the Nevada City Rancheria. The history of the Nevada City Rancheria is set forth in greater detail in the Declaration of Shelly Covert ( Covert Declaration ) filed concurrently herewith. However, a brief history will put this motion in historical context. The families comprising the Nevada City Rancheria at the time of termination in were known to be living in the Nevada City are prior to the Gold Rush and prior to the admission of California into the Union. In, Chief Charlie obtained a -acre allotment under the Dawes Act for the property originally selected in. Although fee title was held in his name, Chief Charlie s intention was that the property known then as Campoodie, should be used by all of the Indians within the area. When Charlie Cully died in, the United States Indian Service sent an investigator who determined that, in fact, there were several Indians still living at the Campoodie. The Indian Service determined that the property should be used as a home for the common use of these Indians. The Secretary of Interior recommended that the President of the United States, at that time Woodrow Wilson, cancel the allotment and create an Executive Order Reservation. On May, President Wilson issued an order stating: It is hereby ordered the following described land in Nevada County, California, be and the same hereby is, withdrawn from entry sale or other disposition and set aside for the Nevada or Colony tribe of Indians residing near Nevada City, and then he listed the -acre parcel that had been the subject of the allotment. It is important to note, unlike the circumstances of other California rancherias, the Nevada City Rancheria was not created by the federal government in. No land was purchased by the NOTICE OF MOTION AND MOTION TO PROCEED ; POINTS AND AUTHORITIES IN SUPPORT THEREOF

3 Case:0-cv-000-JF Document Filed0/0/ Page of Indian Service and no tribal organization efforts were undertaken for the simple reason that there was an organized tribe already living on land owned by its Chief. This distinction becomes critical forty years later when the federal government terminated all of the rancherias. The Nevada City Rancheria was the only one that was not created by the federal government in the first place. As further noted in the Covert Declaration, the Tribe continued to govern through an ancient system whereby the Tribe was ruled by a Chief up until modern times when the system changed to a Tribal Council and a Tribal Chairperson. II. The Rancheria Act. The California Rancheria Act of, which terminated Federal supervision and Indian 0 0 status for rancherias, was enacted with the goal of eliminating the many small reservation units and to promoting assimilation. Section of the Rancheria Act identified the Nevada City Rancheria as subject to the Act. Section provided for preparation of a plan for future use of the Rancheria and required that the Indians holding formal or even informal assignments, or the Indians of such reservations or the Secretary of Interior, after consulting with such Indians, prepare the plan. Though some provisions of the Rancheria Act provided for the granting of allotments to individual Indians, another provision authorized title held collectively by a group, i.e., the status quo at the Nevada City Rancheria in and the status desired by Charlie Cully when he purchased the property that ultimately became the Rancheria. As shown in the Exhibits to the Covert Declaration, in representatives of the BIA visited the Rancheria for the purposes of disposing of the property pursuant to the Rancheria Act. Historical documentation demonstrates that, rather than consult with the several Indians living in the vicinity who were actually implicated by the Rancheria Act, the BIA spoke only to the two Rancheria occupants at that point in time, Peter and Margaret Johnson. (See each of the declarations filed concurrently herewith.) The BIA did not consult with any of the other members noted on membership rolls in possession of the BIA. (See Covert Declaration.) Nor did the BIA consult with the Chief Kelly, known to the BIA, who was living in line of sight and was within walking distance of the Johnsons home. (See Covert Declaration.) NOTICE OF MOTION AND MOTION TO PROCEED ; POINTS AND AUTHORITIES IN SUPPORT THEREOF

4 Case:0-cv-000-JF Document Filed0/0/ Page of 0 Both Mr. and Mrs. Johnson were in their later years and both agreed that they would like to receive any benefits of sale of the Rancheria. Despite having this knowledge and owing a fiduciary obligation to the Tribe, and despite the requirement within the Rancheria Act that the BIA consult with all adult members, the BIA failed to consult with Chief Kelly or any others. Consultation would have been crucial because later interviews with Louis Kelly suggests that he was confused as to the legal title of the Rancheria and who was responsible to be an assignee (as noted in the newspaper article attached to the Covert Declaration). Neither did BIA contact the Yemie family who were just some of the many documented Tribal members living in the area. (See Covert Declaration regarding the objection provided to the BIA four months after the alleged vote to terminate the Rancheria five years before the Rancheria was actually sold.) Tragically, the BIA did not even consult the Johnsons own living descendants who could have, at the very least, benefitted from the educational training required by the Termination Act. (See Declarations of Richard and Robert Johnson.) The BIA s failure to contact any tribal members other than the Johnsons before disposing of the Rancheria property violated the fiduciary duty owed to the Tribe. In the case of other rancherias the BIA engaged in substantial outreach both on and off the Rancheria to ensure that any termination took place with due process protections in place. Particular attention was paid to 0 ensuring participation by all those having an interest in the Rancheria: At each of the meetings Public Law - was discussed entirely, section by section. Generally speaking, the Indians concerned were very anxious to receive title to the lands they are occupying. It was explained that we wanted them to make their own plans and to include in the plan those people whom they thought had rights on their Rancheria. We found that there were different situations that called for different conclusions and it would be hard to issue a regulation governing membership. It is our hope, and we tried to Compare the efforts reported in connection with the Mooretown Rancheria in the September, Progress Report No. - Public Law - with those at the Nevada City Rancheria in November, Progress Report No. - Public Law -. NOTICE OF MOTION AND MOTION TO PROCEED ; POINTS AND AUTHORITIES IN SUPPORT THEREOF

5 Case:0-cv-000-JF Document Filed0/0/ Page of 0 explain this to each group, that they will not exclude anyone who has a right on the Rancheria. Progress Report No. - Public Law - (September, ). But when it came to the Nevada City Rancheria, the BIA did not follow its own advice or procedures and rejected participation by anyone not currently residing on the Rancheria proper, including the tribal Chief, Louis Kelly. In short, the BIA took advantage of the Johnsons, to the detriment of the Johnsons and the many other beneficiaries of Charlie Cully. There are many possible explanations for this nonfeasance. However, one result is clear: Unlike other rancherias where BIA failed to honor the contractual terms of termination, the BIA avoided having to provide infrastructure, training, education and the like through the simple expedient of reaching a deal with Peter Johnson, who, according to press clippings at the time, never wanted to leave the Rancheria in the first place. only Peter and Margaret Johnson as distributees. The Approved Distribution Plan included 0 Thus, contrary to the intentions of Charlie Cully when he obtained his original allotment and President Wilson s Executive Order, the property was sold for the benefit of one Indian, Pete Johnson (Margaret Johnson having died shortly after voting to liquidate the Rancheria). This and all other evidence is consistent with an agency taking an exceedingly narrow, and under the Rancheria Act, illegal view of its obligations. It is important here to go back to one of the United States Solicitor s opinions about property title on Executive Order Reservations like the Nevada City Rancheria. It varied. Some would have mineral rights, some would not. Some would have water, some would not. Solicitor E. L. Patterson said in a March, legal opinion: December, Worksheet for Rancheria Termination, attached to the Covert Declaration. November, Progress Report No. - Public Law -. Nevada County Nugget, October, Rancheria Sale Ends Colorful Chapter, quotes Peter Johnson as saying, I have lived here since I was eight years old and I don't know what I would do if the Indian Agency moved me out. (Attached to the Covert Declaration.) A Plan for the Distribution of the Assets of the Nevada City Rancheria, According to Public Law -, August,, dated June,. (Attached to the Covert Declaration.) NOTICE OF MOTION AND MOTION TO PROCEED ; POINTS AND AUTHORITIES IN SUPPORT THEREOF

6 Case:0-cv-000-JF Document Filed0/0/ Page of These but illustrate the fact that at particular reservations, or a particular tribe, or band of Indians, relevant facts or circumstances surrounding the creation of the reservation should not be disregarded in determining the character or extent of the Indian title. For the Nevada City Rancheria the character of the title was that the property was held for the benefit of Indians in and around Nevada City, not just the one elderly couple that was found upon the Rancheria one day by BIA as it was clearing its rolls. II. Tillie Hardwick And The Crack In The Legal System. California Indian Legal Services ( CILS ) filed Tillie Hardwick on July 0,. (Docket 0 0 No., at Exhibit.) CILS challenged the actions of the BIA in terminating thirty-four Rancherias alleging that the BIA failed to follow the Rancheria Act and failed to fulfill its mandates including upgrading of houses, roads, water and sewer systems, and training and education for "terminated Indians. On February,, this Court issued an Order Re: Class Certification in Tillie Hardwick. (Docket No. -, at Exhibit.) Nevada City Rancheria is listed as a class member on page, line. CILS filed a Certificate of Counsel Re: Hearing on Approval of Settlement Class Actions filed by California Indian Legal Services on November,. (Docket No. -, at Exhibit.) On December,, CILS filed a Stipulation For Entry of Judgment. (Docket No. -, at Exhibit.) Notably, while Nevada City Rancheria was listed as a class member in the February, Order, it was not listed anywhere in the December, Stipulation. In other words, it appears that Nevada City Rancheria fell through the legal cracks. Both the former trial counsel for CILS that actually litigated Tillie Hardwick, Mr. David Rapport (Docket No. ) and the former trial counsel for the United States agree that the class members fell through the cracks. (Docket No..) On May 0, 0, Mr. Rapport declared (at paragraphs - in his first declaration; Docket No. ): a. While Nevada City Rancheria was listed as a class member in the Complaint, the First Amended Complaint and the February,, class Certification, it was not listed or referenced in the NOTICE OF MOTION AND MOTION TO PROCEED ; POINTS AND AUTHORITIES IN SUPPORT THEREOF

7 Case:0-cv-000-JF Document Filed0/0/ Page of Stipulation For Entry of Judgment. b. The Stipulation For Entry of Judgment disposed of the claims asserted in the action on behalf of the class members from all of the rancherias, included in the Order Certifying the Class, who received notice of the proposed settlement, except for the class members from the Nevada City Rancheria. c. As a result, the claims of the class members from the Nevada City Rancheria were not dismissed with or without prejudice by the Stipulation and the resulting judgment. d. It is my understanding and belief that Nevada City Rancheria was, is and continues to be a class member in Tillie Hardwick and that no final determination, no dismissal and/or no judgment has been entered in regards to Nevada City Rancheria. 0 (Id.) 0 As for the United States, Mr. Paul Locke was the Assistant U. S. Attorney and lead counsel of record for the federal defendants in Tillie Hardwick. Mr. Locke, as noted in his declaration filed on May 0, 0 (Docket No. ), reviewed pleadings from Tillie Hardwick and concluded that while Nevada City Rancheria was a class member therein, he believes the omission of Nevada City Rancheria from the Stipulation for Entry of Judgment was a clerical error. (Locke Declaration, :.) As noted in the Declaration of Michael Vinding, a year long exhaustive search has revealed that there is only one conclusion: the class members were a party to Tillie Hardwick, but have never been given their day in court. In light of the history of the Nevada City Rancheria, the BIA s actions under the Rancheria Act, and the procedural history of Tillie Hardwick, the class members must be allowed to proceed under Tillie Hardwick. CONCLUSION Class members of the Nevada City Rancheria and the Nevada City Rancheria respectfully request that the Court issue an Order allowing the class members to proceed in Tillie Hardwick. In a clarifying declaration, Mr. Rapport clarified, the class consisted of certain Indians from the Rancherias, including Nevada City Rancheria, which were listed in Exhibit A to the amended complaint and paragraph of the Order Certifying the Class. (Docket No., filed //; emphasis in original.) NOTICE OF MOTION AND MOTION TO PROCEED ; POINTS AND AUTHORITIES IN SUPPORT THEREOF

8 Case:0-cv-000-JF Document Filed0/0/ Page of For purposes of judicial finality that request includes a suggestion that the Court consolidate the present action with Tillie Hardwick as such action would be consistent with the federal defendants position taken in the Joint Motion to Relate (Document ) (i.e., it relates to the same property, the same transaction and event, and avoids duplication of labor and expense). Respectfully submitted, Dated: August, 0 BRADY & VINDING 0 0 By: /s/michael E. Vinding MICHAEL E. VINDING Attorneys for Plaintiff Nisenan Maidu Tribe of the Nevada City Rancheria and the individual members of the Nevada City Rancheria NOTICE OF MOTION AND MOTION TO PROCEED ; POINTS AND AUTHORITIES IN SUPPORT THEREOF

9 Case:0-cv-000-JF Document- Filed0/0/ Page of MICHAEL V. BRADY (SBN 0) MICHAEL E. VINDING (SBN ) BRADY & VINDING 00 Capitol Mall, Suite 0 Sacramento, CA Telephone: () -00 Facsimile: () - Attorneys for Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA 0 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 0 NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA, v. Plaintiff, KEN SALAZAR in his official capacity as Secretary of the Interior; LARRY ECHO HAWK in his official capacity as Assistant Secretary for Indian Affairs of the United States Department of Interior; Does through 00, Defendants. I, Michael E. Vinding, declare: CASE NO. :0-CV-0000-JF (PSG) DECLARATION OF MICHAEL E. VINDING IN SUPPORT OF MOTION TO PROCEED IN THE MATTER OF TILLIE HARDWICK v. UNITED STATES Date: September, 0 Time: 0:0 a.m. Dept: Ctrm. Nothing in this declaration is intended or should be construed to waive the attorneyclient and/or work-product privileges. All statements or arguments are made for the purposes of obtaining an order to proceed in the matter of Tillie Hardwick, et al. v. United States of America, et al., No. C -0 JF (PVT) (Complaint filed July 0, ) ( Tillie Hardwick )).. On June, 00, I suspected that Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA or its members ( Nevada City Rancheria ) was still an active party in Tillie Hardwick. The basis for that suspicion was my discovery that Nevada City Rancheria was neither dismissed (with or without prejudice), nor included in the stipulated judgment. -- DECLARATION OF MICHAEL E. VINDING IN SUPPORT OF MOTION TO PROCEED

10 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 0. Based upon that suspicion, I contacted David Rapport and Leslie Marston, both of whom had previously been employed with CILS and in that capacity were attorneys of record in Tillie Hardwick. In that capacity, Mr. Rapport and Mr. Marston were responsible for the case beginning with the filing of the Complaint, the Amended Complaint, the Certificate of Counsel Re: Hearing on Approval of Settlement of Class Actions, and the Stipulation for Entry of Judgment (among other matters).. Both Mr. Rapport and Mr. Marston understood and intended that Tillie Hardwick was brought on behalf of Nevada City Rancheria as it was included in the class certification which was defined as all persons who received any of the assets of the following California Indian rancherias pursuant to distribution plans purportedly prepared under the California Rancheria Act... any heirs or legatees of such persons and any Indian successors in interest to real property so distributed.. Mr. Rapport agreed to execute a declaration (Docket No. ) wherein, he states that he intended and understood that Nevada City Rancheria and its members were parties to Tillie Hardwick. In a clarifying declaration (Docket No. ), Mr. Rapport states that the individual members of Nevada City Rancheria were parties to Tillie Hardwick.. In order to present a complete record to the Court, I also contacted others involved in the Tillie Hardwick case.. First, I contacted Mr. Paul Locke. Mr. Locke was the Assistant U. S. Attorney and lead counsel of record for the federal defendants in Tillie Hardwick. Mr. Locke, as noted in his declaration (Docket No. ), reviewed pleadings from Tillie Hardwick and concluded that while Nevada City Rancheria was a class member therein, he believes the omission of Nevada City Rancheria from the Stipulation for Entry of Judgment was a clerical error. (Locke Declaration, :.). Thereafter, I contacted Mr. William Wirtz, as he was employed as an attorney with the United States Department of Interior, Office of the Regional Solicitor (Solicitor s Office) on assignment to the United States Department of Interior, Bureau of Indian Affairs between the time that the Tillie Hardwick Complaint was filed and the filing of the Stipulation for Entry of Judgment. -- DECLARATION OF MICHAEL E. VINDING IN SUPPORT OF MOTION TO PROCEED

11 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 0 Mr. Wirtz confirmed the information provided by Mr. Marston, Mr. Rapport and Mr. Locke.. In addition, I contacted Mr. Charles Renda, a former Assistant U. S. Attorney and counsel of record for the federal defendants in Tillie Hardwick. Mr. Renda confirmed the information provided by Mr. Marston, Mr. Rapport, Mr. Locke and Mr. Wirtz. 0. I also contacted counsel for the federal defendants in the above-entitled action to request a copy of all non-privileged documents in Tillie Hardwick. As a matter of professional courtesy, federal defendants agreed to my request and have since produced their file as well as later discovered documents.. I attempted to contact others involved, but after further search, I concluded that there were no other living persons who could competently testify to the issue of class members, having learned, for example, that Judge Spencer Williams was deceased.. Thereafter, the only remaining person/entity with documents that could aid in the complete and thorough presentation of my suspicion that Nevada City Rancheria fell through the cracks was CILS.. On or about June, 00, I contacted Mr. Alex Cleghorn of CILS because the CILS website notes that the Sacramento office, where Mr. Cleghorn works, is the office responsible for Nevada County tribal issues. After a year long legal-journey, I have obtained a copy of, and reviewed, the file of CILS.. As a result of my review of all documents known to exist, including the Court s file on no less than three () occasions, I can affirmatively state that I have found no documents to contradict that the individuals from Nevada City Rancheria were parties to Tillie Hardwick and that no resolution was reached on their behalf in that action.. Therefore, I represent to this Court that the matter did, in fact, fall through the cracks and, as a result, the individual members of Nevada City Rancheria continue to be an active class members in Tillie Hardwick. /// /// /// -- DECLARATION OF MICHAEL E. VINDING IN SUPPORT OF MOTION TO PROCEED

12 Case:0-cv-000-JF Document- Filed0/0/ Page of I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this th day of August, 0, in Sacramento, California. /s/ Michael E. Vinding Michael E. Vinding DECLARATION OF MICHAEL E. VINDING IN SUPPORT OF MOTION TO PROCEED

13 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 MICHAEL V. BRADY (SBN 0) MICHAEL E. VINDING (SBN ) BRADY & VINDING 00 Capitol Mall, Suite 0 Sacramento, CA Telephone: () -00 Facsimile: () - Attorneys for Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA, v. Plaintiff, KEN SALAZAR in his official capacity as Secretary of the Interior; LARRY ECHO HAWK in his official capacity as Assistant Secretary for Indian Affairs of the United States Department of Interior; Does through 00, Defendants. CASE NO. :0-CV-0000-JF DECLARATION OF ALBERTA (ROSE) GALLEZ IN SUPPORT OF MOTION TO PROCEED IN THE MATTER OF TILLIE HARDWICK v. UNITED STATES Date September, 0 Time: 0:0 a.m. Dept: Ctrm 0 I, ALBERTA (ROSE) GALLEZ, do state that the information given below is the truth to the best of my knowledge and would competently testify in Court that these are the facts in this matter.. I was born on March, 0.. My parents are Carmel and Frances Dutch Rose. Dutch Rose was the Tribal Chairperson of the Nevada City Rancheria from 0 until.. I grew up and played on the old Pott s Ranch near Rice s Crossing (Tribal land which was homesteaded by old Levi Potts, Sr., when he came to the gold fields in the 0 s) and the Colgate Plant on the South Yuba River.. My dad s parents were Mary Ellen (Potts) and Lew Rose. -- DECLARATION OF ALBERTA (ROSE) GALLEZ IN SUPPORT OF MOTION TO PROCEED

14 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 0. My great-grandmother, Mary Potts, is buried near the reservation as is her father, Pamelo (or Charley Toley as he was known to the white settlers). Pamelo s brother was Chief Pud nus brother (as noted in the Declaration of Rose Kelly Enos). Mary Potts mother and father were Mary (Toley) and Levi Potts, Sr.. Many of my father s siblings remained in the area of Dobbins and Nevada City and traveled between the two places for work. For example, Dutch, Dan, Ralph, Lilian and Rachel all lived on the Nevada City Rancheria from time-to-time. (See Rose Enos s map of where the Rose family s house was.). The men shared a mutual and close friendship with Chief Louis Kelly and checked in on him frequently when he was running the Nevada City Dump, a short distance from the Rancheria. Every Tribal member knew where to find Chief Kelly in the event that his leadership was needed.. There are pictures of me on the Rancheria as a baby as we camped there as our family had done for years and years. We carried on gatherings at the Rancheria, checked on the old ones living there making sure they had wood and food.. During school years I went to Nevada City Elementary school and then onto Nevada Union High School. I went to high school with Norman Kelly (Chief Kelly s grandson). He always had a hard time because he was teased and picked on very badly for being Indian. He was small so my sisters and I would walk to school with him so he didn t get beat up. 0. The Rancheria had a very bad reputation and people made fun of the Indians there. It was well known that non-native men would frequent the Rancheria with the worst intentions only having to take some wine up to the women to have their way.. I believed the reservation to be property of all Nisenan and that it was a place we could always go to stay because there was no rent, although there was no power, no running water, no bathroom. The only improvement was an old spring.. The reservation was very poor. The Indians who lived there just barely survived and were often forced to leave in order to find food, shelter and work.. To outsiders, it was also looked at as a place you could stop over to party and get -- DECLARATION OF ALBERTA (ROSE) GALLEZ IN SUPPORT OF MOTION TO PROCEED

15 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 0 drunk. People said you could hear the parties on Saturday nights with the Indians whooping and hollering all night. There was also a lot of violence. People were ashamed to admit they lived there and we, as teenagers, didn t like to say we stayed there for fear of ridicule, especially at school. This was hard because deep in my heart it will always be home and my great-grandmother and great-great-grandfather are buried there.. I know that when government officers came around, the parents and kids would hide because they had often taken the kids away.. The BIA or any other government official never approached any of the Rose family about termination nor did we receive anything from the sale.. We did wonder how and why one old couple, Peter and Margaret Johnson, could have the say so to sell the land and keep all the money.. The reservation did not belong to them. It belonged to the Tribe. I do not know why the BIA sold the land and gave the money to the Johnsons especially because they were so ill and were severe alcoholics and were barely able to read or write. They had no authority, in the Tribe s eyes, to make this decision.. Compared to the Rose family and some of the other old families that lived on the reservation (even before it became federal land generations back), the Johnsons were relatively new to the land in comparison.. By losing the reservation, we lost our home spot and we didn t have a say in the decision. 0. It was always a place people could gather and talk, eat and live like in old times. There was a community garden that if we helped take care of it, we could eat from it. We also went there to dry meat and prepare acorn. As for children, it was a playground. We helped each other. These traditions still go on in our individual households.. I hope to be buried up at our burial grounds when I die because that is where my spirit is. If the land had not been sold we would still use it as in the old days.. During the following years, I lived in the following places: 0 0 Dobbins and North San Juan -- DECLARATION OF ALBERTA (ROSE) GALLEZ IN SUPPORT OF MOTION TO PROCEED

16 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 0 Nevada City Rancheria 0 0 Nevada City Rancheria and Grass Valley. I would like for the court to allow me as an individual to continue with the Tillie Hardwick lawsuit which I learned about last year. I declare under penalty of perjury under the laws of California and the United States of America that the foregoing is true and correct. Executed this th day of August 0, in Nevada County, California. /s/ Alberta (Rose) Gallez Alberta (Rose) Gallez 0 I hereby attest that I have on file all holograph signatures for any signatures indicated by a conformed signature (/S/) within this efiled document. 0 Dated: August, 0 /s/michael E. Vinding Michael E. Vinding -- DECLARATION OF ALBERTA (ROSE) GALLEZ IN SUPPORT OF MOTION TO PROCEED

17 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 MICHAEL V. BRADY (SBN 0) MICHAEL E. VINDING (SBN ) BRADY & VINDING 00 Capitol Mall, Suite 0 Sacramento, CA Telephone: () -00 Facsimile: () - Attorneys for Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA, v. Plaintiff, KEN SALAZAR in his official capacity as Secretary of the Interior; LARRY ECHO HAWK in his official capacity as Assistant Secretary for Indian Affairs of the United States Department of Interior; Does through 00, Defendants. CASE NO. :0-CV-0000-JF DECLARATION OF CAROL HALL IN SUPPORT OF MOTION TO PROCEED IN THE MATTER OF TILLIE HARDWICK v. UNITED STATES Date September, 0 Time: 0:0 a.m. Dept: Ctrm 0 I, CAROL HALL, do state that the information given below is the truth to the best of my knowledge and would competently testify in Court that these are the facts in this matter.. I was born in 0 on the Nevada City Rancheria. I am a tribal member and my mother, Myrtle Mix, voted for organizing the Nevada City Rancheria under the Indian Reorganization Act.. Between about and into the late 0 s, I remember other families living on the reservation such as the Mix, Rose, Yemie, Childs and Kelly families.. I did not know of the Johnsons until later in life, approximately in the mid to late 0 s. -- DECLARATION OF CAROL HALL IN SUPPORT OF MOTION TO PROCEED N THE MATTER OF TILLIE HARDWICK V. UNITED STATES

18 Case:0-cv-000-JF Document- Filed0/0/ Page of 0. My great-grandmother, Mary Potts, is buried near the reservation as is her father, Pamelo (or Charley Toley as he was known to the white settlers). Pamelo s brother was Chief Pud nus brother (as noted in the Declaration of Rose Kelly Enos).. I remember returning to the Rancheria many times up until my late teens, which would have been approximately -.. I used to play with the Chief Kelly s girls, including Rose, at Chief Kelly s place when he tended the Nevada City Dump, which was a short walking distance from the Rancheria. In fact, you could see the Kelly place from the Rancheria. I declare under penalty of perjury under the laws of California and the United States of America that the foregoing is true and correct. Executed this th day of August 0, in Nevada County, California. /s/carol Hall Carol Hall I hereby attest that I have on file all holograph signatures for any signatures indicated by a conformed signature (/S/) within this efiled document. 0 Dated: August, 0 /s/michael E. Vinding Michael E. Vinding -- DECLARATION OF CAROL HALL IN SUPPORT OF MOTION TO PROCEED N THE MATTER OF TILLIE HARDWICK V. UNITED STATES

19 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 MICHAEL V. BRADY (SBN 0) MICHAEL E. VINDING (SBN ) BRADY & VINDING 00 Capitol Mall, Suite 0 Sacramento, CA Telephone: () -00 Facsimile: () - Attorneys for Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA, v. Plaintiff, KEN SALAZAR in his official capacity as Secretary of the Interior; LARRY ECHO HAWK in his official capacity as Assistant Secretary for Indian Affairs of the United States Department of Interior; Does through 00, Defendants. CASE NO. :0-CV-0000-JF DECLARATION OF DORIS VAUGHAN IN SUPPORT OF MOTION TO PROCEED IN THE MATTER OF TILLIE HARDWICK v. UNITED STATES Date September, 0 Time: 0:0 a.m. Dept: Ctrm 0 I, DORIS VAUGHAN, do state that the information given below is the truth to the best of my knowledge and would competently testify in Court that these are the facts in this matter.. I was born on January, in Dobbins, California.. I am a Tribal member of the Nevada City Rancheria.. From the 0 s to the 0 s, I lived in and around the Nevada City-Grass Valley area during the time of CampPoodie also known as The Nevada City Rancheria. All of the local people, including the local law enforcement authorities, were aware of it, knew where it was located, and new that individual members were located beyond the boarders of the Rancheria.. In the late 0 s, I, along with Bill and Thelma Hatch, went up to the Rancheria so -- DECLARATION OF DORIS VAUGHAN IN SUPPORT OF MOTION TO PROCEED

20 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 that Bill could see an old friend. I recall there were three or four Nisenan families (partially comprising the membership of the Nevada City Rancheria) living there in assorted shacks and tents. They were many children running about.. I learned several years later, after talking with my family and other people, that the Bureau of Indian Affairs never contacted anyone, besides Peter and Margaret Johnson, regarding the sale of the Nevada City Rancheria. Rancheria.. Peter and Margaret Johnson had no right or authority to agree to the sale of the. The sale of the Rancheria without contact the other adults was wrong because the BIA was aware that there were other Tribal members and at least one other family holding an assignment of the Rancheria property. I declare under penalty of perjury under the laws of California and the United States of America that the foregoing is true and correct. Executed this th day of August 0, in Oroville, California. /s/ Doris Vaughan Doris Vaughan I hereby attest that I have on file all holograph signatures for any signatures indicated by a conformed signature (/S/) within this efiled document. 0 Dated: August, 0 /s/michael E. Vinding Michael E. Vinding -- DECLARATION OF DORIS VAUGHAN IN SUPPORT OF MOTION TO PROCEED

21 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 MICHAEL V. BRADY (SBN 0) MICHAEL E. VINDING (SBN ) BRADY & VINDING 00 Capitol Mall, Suite 0 Sacramento, CA Telephone: () -00 Facsimile: () - Attorneys for Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA, v. Plaintiff, KEN SALAZAR in his official capacity as Secretary of the Interior; LARRY ECHO HAWK in his official capacity as Assistant Secretary for Indian Affairs of the United States Department of Interior; Does through 00, Defendants. CASE NO. :0-CV-0000-JF DECLARATION OF NORMAN KELLY IN SUPPORT OF MOTION TO PROCEED IN THE MATTER OF TILLIE HARDWICK v. UNITED STATES Date September, 0 Time: 0:0 a.m. Dept: Ctrm 0 I, NORMAN KELLY, do state that the information given below is the truth to the best of my knowledge and would competently testify in Court that these are the facts in this matter.. I was born in New Castle, Placer County, in. I have lived in and around Nevada City my entire life.. I am the son of Lester Kelly and Elsie Childs.. I am the half-brother to Rose Kelly Enos (having the same father).. I remember staying with Chief Kelly at the Nevada County Dump during my school years. The Dump was within walking distance from the Rancheria and could be seen from the Rancheria. -- DECLARATION OF NORMAN KELLEY IN SUPPORT OF MOTION TO PROCEED N THE MATTER OF TILLIE HARDWICK V. UNITED STATES

22 Case:0-cv-000-JF Document- Filed0/0/ Page of. I also remember staying (camping in tents) on the Rancheria during the 0 s and 0 s. 0. I recall other families living on or near the Rancheria, but I cannot remember any of their names at this time.. I specifically recall the Rose family and their girls (Virginia, Alberta and Doris) living nearby in Nevada City. (Doris is the aunt of Shelly Covert, the current Tribal Secretary and Shelly Covert s mother Virginia was the Tribal Chairperson from until 00.). I was never contacted by the BIA or the federal government regarding termination. My family was not contacted and none of the people noted in my declaration were contacted.. I would like to be a party to the Tillie Hardwick lawsuit because the government wrongfully took away the Tribal land and did not offer us any of the benefits it was supposed to provide us under the Rancheria Act. I declare under penalty of perjury under the laws of California and the United States of America that the foregoing is true and correct. Executed this th day of August 0, in Nevada County, California. /s/norman Kelly Norman Kelly 0 I hereby attest that I have on file all holograph signatures for any signatures indicated by a conformed signature (/S/) within this efiled document. Dated: August, 0 /s/michael E. Vinding Michael E. Vinding -- DECLARATION OF NORMAN KELLEY IN SUPPORT OF MOTION TO PROCEED N THE MATTER OF TILLIE HARDWICK V. UNITED STATES

23 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 MICHAEL V. BRADY (SBN 0) MICHAEL E. VINDING (SBN ) BRADY & VINDING 00 Capitol Mall, Suite 0 Sacramento, CA Telephone: () -00 Facsimile: () - Attorneys for Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA, v. Plaintiff, KEN SALAZAR in his official capacity as Secretary of the Interior; LARRY ECHO HAWK in his official capacity as Assistant Secretary for Indian Affairs of the United States Department of Interior; Does through 00, Defendants. CASE NO. :0-CV-0000-JF DECLARATION OF EVERETT SMITH IN SUPPORT OF MOTION TO PROCEED N THE MATTER OF TILLIE HARDWICK v. UNITED STATES Date September, 0 Time: 0:0 a.m. Dept: Ctrm 0 I, EVERETT SMITH, do state that the information given below is the truth to the best of my knowledge and would competently testify in Court that these are the facts in this matter.. My name is Everett Smith and I am an year old Tribal member of the Nevada City Rancheria. I have lived most of my life in and around Nevada County.. I have also lived in Dobbins, Yuba County, which is just on the other side of the Yuba River which is the County line between Yuba and Nevada County. I knew of the Nevada City Rancheria (reservation) as my family has spent time living there for many, many generations.. My mother, Lillian Rose, a Tribal member, lived on the Rancheria off and on for years. (We have photos of Lillian at the Rancheria in the early 00 s.) -- DECLARATION OF EVERETT SMITH IN SUPPORT OF MOTION TO PROCEED

24 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 0. I would often return to the Rancheria to visit relatives and to check on the people who were there. For example, I went with my Uncle Dutch (Francis Dutch Rose) who was an important leader in the family (Tribal) groups. Uncle Dutch was the Tribal Chief from 0 until he died in.. Prior to becoming Tribal Chief, Uncle Dutch often took me to visit the Tribal Chief Kelly who worked over at the Nevada City Dump. We would walk over from the Nevada City Rancheria to the Dump to visit Chief Kelly. While at the Rancheria we would eat, visit and sometimes do Indian gambling (grass games). While at the Rancheria, we could look over toward the Dump to see if Chief Kelly was home.. There was lots of drinking that went on there. There were two old Tribal women living in a very small cabin on the Rancheria at this time which was in the early to mid 0 s. I cannot remember their names.. The last time I was on the Rancheria was in the late 0 s/early 0 s and families were still camping there as they had done for generations. This was due the seasonal work patterns of the people.. The Rancheria was someplace that people could live for free. At that time Indians used canvas, Army-style tents for their houses. Sometimes they used a wooden platform to put the tent on and sometimes they just used the ground. Indians were very capable of moving quickly.. There was some bitterness within the different Tribal families when Johnson was the only one to receive funds from the sale of the land. He shouldn t have sold without consulting everyone. 0. The government never asked any of our family about our thoughts or whether we would vote for termination.. We never received anything from the sale of the land, nor were we ever asked about the sale of the land.. I have family buried at the Rancheria burial grounds.. I was never offered any educational benefits or any of the other benefits available under the Rancheria Act. -- DECLARATION OF EVERETT SMITH IN SUPPORT OF MOTION TO PROCEED

25 Case:0-cv-000-JF Document- Filed0/0/ Page of. I would like to be involved in the Tillie Hardwick case in order to hopefully get back what was taken from me, my family and the entire Tribe by the BIA. They took our reservation without asking anyone except two members who had no right to give it away. I declare under penalty of perjury under the laws of California and the United States of America that the foregoing is true and correct. Executed this th day of August 0, in Nevada County, California. /s/everett Smith Everett Smith 0 I hereby attest that I have on file all holograph signatures for any signatures indicated by a conformed signature (/S/) within this efiled document. 0 Dated: August, 0 /s/michael E. Vinding Michael E. Vinding -- DECLARATION OF EVERETT SMITH IN SUPPORT OF MOTION TO PROCEED

26 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 MICHAEL V. BRADY (SBN 0) MICHAEL E. VINDING (SBN ) BRADY & VINDING 00 Capitol Mall, Suite 0 Sacramento, CA Telephone: () -00 Facsimile: () - Attorneys for Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA, v. Plaintiff, KEN SALAZAR in his official capacity as Secretary of the Interior; LARRY ECHO HAWK in his official capacity as Assistant Secretary for Indian Affairs of the United States Department of Interior; Does through 00, Defendants. CASE NO. :0-CV-0000-JF DECLARATION OF ROBERT R. JOHNSON IN SUPPORT OF MOTION TO PROCEED IN THE MATTER OF TILLIE HARDWICK v. UNITED STATES Date September, 0 Time: 0:0 a.m. Dept: Ctrm 0 I, ROBERT R. JOHNSON, do state that the information given below is the truth to the best of my knowledge and would competently testify in Court that these are the facts in this matter.. I was born July, 0.. I am the second son of Mabel Fay Johnson who was the oldest of the three daughters of Peter and Margaret Johnson.. My mother, two aunts and grandparents were all residence living on the Rancheria at the time of my birth.. In approximately the government removed all the children from the Nevada City Rancheria and I was sent to foster care. I remained in the hospital for approximately two years -- DECLARATION OF ROBERT R. JOHNSON IN SUPPORT OF MOTION TO PROCEED

27 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 0 and, when released, I joined my brother, Richard Johnson, in foster care of Nevada County.. At the time of the vote of the Distribution Plan, I was of the age of eight years old, and was living with Nana Orzalli at Scandling Avenue in Grass Valley approximately five miles from the Nevada City Rancheria.. I was never notified about the vote from the Bureau of Indian Affairs, nor of its possible benefits.. I learned about the termination of the Nevada City Rancheria when Grandma Margaret passed away in approximately and Grandpa Pete told us the Rancheria was sold. At that time, I was and still living in foster care with Nana Orzalli in Grass Valley while my mother was still living in Sacramento.. I learned about the Tillie Hardwick suit in the year of 00, when my brother Richard Johnson, the current Tribal Chairperson, told me about it.. When Tillie Hardwick was amended to class action lawsuit in, I was years old and still lived in West Sacramento. 0. I would like to continue to be a party to Tillie Hardwick and I ask that the Court allow me to do so. I declare under penalty of perjury under the laws of California and the United States of America that the foregoing is true and correct. Executed this th day of August 0, in Yolo County, California. /s/robert R. Johnson Robert R. Johnson, Grandson of Pete and Margaret Johnson I hereby attest that I have on file all holograph signatures for any signatures indicated by a conformed signature (/S/) within this efiled document. Dated: August, 0 /s/michael E. Vinding Michael E. Vinding -- DECLARATION OF ROBERT R. JOHNSON IN SUPPORT OF MOTION TO PROCEED

28 Case:0-cv-000-JF Document- Filed0/0/ Page of 0 MICHAEL V. BRADY (SBN 0) MICHAEL E. VINDING (SBN ) BRADY & VINDING 00 Capitol Mall, Suite 0 Sacramento, CA Telephone: () -00 Facsimile: () - Attorneys for Plaintiff NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NISENAN MAIDU TRIBE OF THE NEVADA CITY RANCHERIA, v. Plaintiff, KEN SALAZAR in his official capacity as Secretary of the Interior; LARRY ECHO HAWK in his official capacity as Assistant Secretary for Indian Affairs of the United States Department of Interior; Does through 00, Defendants. CASE NO. :0-CV-0000-JF DECLARATION OF RICHARD B. JOHNSON IN SUPPORT OF MOTION TO PROCEED IN THE MATTER OF TILLIE HARDWICK v. UNITED STATES Date September, 0 Time: 0:0 a.m. Dept: Ctrm 0 I, RICHARD B. JOHNSON, do state that the information given below is the truth to the best of my knowledge and would competently testify in Court that these are the facts in this matter.. I am a member and current Tribal Chairman of the Nisenan Maidu Tribe of the Nevada City Rancheria ( Tribe ), a formerly federally recognized Indian tribe.. I was born on the Nevada City Rancheria on May,.. I am the oldest son of Mable Fay Johnson (Hobbs).. My mother is the oldest of the three daughters of Peter and Margaret Johnson. The middle sister, Jeannie Johnson, is deceased. The youngest sister, my aunt Harriet Johnson, is still alive. In addition to others, my family were all present at and living on the Rancheria when I was -- DECLARATION OF RICHARD B. JOHNSON IN SUPPORT OF IN SUPPORT OF MOTION TO PROCEED

29 Case:0-cv-000-JF Document- Filed0/0/ Page of born My mother and myself, two aunts and grandparents were all living on the Rancheria up to the time of.. In approximately the government removed all the children from the Nevada City Rancheria and sent them to foster care. This included my mother Mable (age ) and me (age ), my brother Robert (age who was still in the hospital), and my aunts, Jeannie (age ) and Harriet (age ).. In representatives of the BIA visited the Rancheria for the purposes of disposing of the property pursuant to the Rancheria Act. However, rather than consult with the several Indians living in the vicinity, the BIA spoke only to the Rancheria occupants at that moment in time, my grandparents, Peter and Margaret Johnson.. At the time of the vote of the Distribution Plan, I was living with Nana Orzalli at Scandling Avenue in Grass Valley approximately five miles from the Nevada City Rancheria.. At the time of the vote of the Distribution Plan, my mother was an adult living in Sacramento and working at Sutter General Hospital. No efforts were made to contact her or either of my aunts. 0. The BIA was aware that my grandfather was not the Tribal Chairperson. I have attached BIA correspondence from two years prior showing Louis Kelly was the Tribal Chairperson. (Exhibit, June, list of Distributees.) Chief Kelly lived less than a mile away from the Johnsons and his home could be seen from the Rancheria, yet he was never contacted.. In similar fashion the BIA also turned a blind eye to the other Rancheria members living in the area, including myself (a minor at the time), my mom and my aunts.. Instead of only giving my maternal grandparents title to their assignment, the BIA decided to sell the entire Rancheria and the BIA determined Peter and Margaret Johnson were to receive all funds (but my grandmother died before that happened).. My mom told me that she was never knew nor was notified about the vote by the Bureau of Indian Affairs, nor of the possible benefits for the children under the Rancheria Act.. Instead, my mom learned about the termination of the Rancheria in when her -- DECLARATION OF RICHARD B. JOHNSON IN SUPPORT OF IN SUPPORT OF MOTION TO PROCEED