AUGUST 9, 2011: SACRED LANDS ALERT AND CALL FOR SUPPORT TRIBAL AND PUBLIC SUPPORT TO PROTECT THE ANCIENT ABORIGINAL HOMELAND VILLAGE OF THE ELEM PEOPLE FROM DESTRUCTION.

On Tuesday, August 16, 2011, at 1:30 P.M., at the Board of Supervisors Chambers, 501 Forbes St. Lakeport, California will be the time and place to hear THE APPEAL OF JOHN NADY (AB 10-04) OF THE PLANNING COMMISSION’S DENIAL OF A MITIGATED NEGATIVE DECLARATION AND DECISION TO REQUIRE A FOCUSED ENVIRONMENTAL IMPACT REPORT (EIR) FOCUSED ON THE IMPACTS OF CULTURAL ARCHEOLOGICAL RESOURCES Nady is requesting the BOS to adopt a mitigated Negative declaration that would allow him to destroy forever the main island village of the Elem Nation. The initial study is available for public review at the Lake County Community Development Department at 255 North Forbes Street, Lakeport, CA, Please contact Emily Minton at (707) 263-2221, or emilym@ca.lake.ca.us Your urgent support is needed to stop the continued destruction of our cultural resources as on a daily basis, Nady’s caretaker is digging up and taking artifacts off the Island. Which is a Federal Crime.

HISTORICAL REVIEW OF THE ELEM NATION LEGAL CLAIM TO ELEM-BODUN ISLAND A.K.A. RATTLESNAKE ISLAND

On behalf of the Elem Pomo Nation our traditional Roundhouse leaders and honored Elders, I’m honored to present a legal overview of the Elem Pomo Nations legal rights and tribal claim to their aboriginal homeland on Elem Island a.k.a. Rattlesnake Island. These facts can now be proven and are documented in “A Legal Analysis of the Un-extinguished Rights of the Elem Pomo to Their Sacred Island” a Legal report presented by Attorney William Griffin, and reviewed by The University of New Mexico School of Law in May 2005. This Examination is based on Constitutional law, treaty law, statutes, Indian legal doctrines, Indian Claims Court cases and contemporary observations that will demonstrate Congress clear intent to preserve the aboriginal rights of the Elem Pomo, not to extinguish them. When this intent is paralleled with the lack of explicit Congressional action requisite to extinguish the venerated aboriginal title of the Elem, the obvious conclusion is that the Elem should still have ownership of the island by law. Without an explicit “taking” by the U.S. government, the chain of record title patented by the State of California in 1877 is subject to successful challenge by the Elem. While acknowledging that the U.S. government has always had the power to extinguish or recognize the inferior aboriginal title, the Elem may appropriately assert that the federal government never granted the State of California the requisite authority for their aboriginal rights to be extinguished, and thus they are retained. A showing of un-extinguished aboriginal title begs an adjudication of quiet title and/or compensation as per the 5th Amendment to the U.S. Constitution. This writing could be employed to present the framework for such a claim, although the most feasible and appropriate remedy would be the application of the power of federal eminent domain for the restoration of the island to land held in trust for the tribe. Compensation, though the normal redress for a governmental taking of land held by aboriginal right, is an inadequate remedy. No amount of money would justify the destruction of the sanctity of the Island. Moreover, the issue of aboriginal title is a highly charged and sensitive federal question, which seems too delicate and too long awaited for any court to now determine. Many Elem can still recall the strangely unbalanced outcome in a 1949 Federal Court decision in which evidence of thousands of years of Elem occupancy of the island was totally ignored, thus they have little faith in another adjudication. The disposition of Rattlesnake Island is now an issue for

Congress alone; to determine what course we should take as a nation in regard to the aboriginal rights of California Indian Tribes. Hoping to guide Congress hand, the Elem tribal leadership believes that the island should be preserved for all people, and not reduced to a token compensatory payment to their members that would allow the resources and archaeology that the island holds to be potentially wasted. The Elem desire that Congress act, one way or the other, to resolve this issue once and for all. Application of the federal power of eminent domain is the most practical and equitable solution, and the time to do so is now, before this ancient sacred homelands and sacred tribal landscape is destroyed and lost forever. We are requesting tribal and public support to prevent the outright destruction of Elem’s 6,000 year old homeland village on Rattlesnake Island.

Rattlesnake Island Historical Background:

1. Rattlesnake Island has been the political and religious center of the Elem Tribe for at least 6,000 years. (That is 1,000 years older than the Egyptian Pyramids). The 1940’s Borax Lake excavations first date Elem at 8,000 - 10,000 years old, then with the recent 2006 U.S. EPA Superfund Cleanup project at Elem two Obsidian points were dated 14,000 years and a Borax Lake Obsidian Knife was dated at 26,000 years old. Is Elem the Mesopotima of the Pomo Nations?

(a. 1800’s painting of Elem sacred landscape with Mt. Konocti and a large village on Elem a.k.a. Rattlesnake Island. b. Main Island Village, Photo taken during a federal Survey of the Island, this is the exact site of Nadys proposed summer home!)

2. The entire island contains cultural materials from the more than 6,000 years of human use. It contains 6 acres of concentrations of material that have been recorded as individual archaeological sites. The main village site still contains original house foundations and structural depressions including that of the ceremonial dance house. Other sites have areas cleared of rock for structures, pathways, etc. In 1978, The Elem Tribe invited Students from Sonoma State University (that included then Student Dr. John Parker and escorted by Jim Brown III of Elem) to evaluate the islands cultural and natural resources. Elem who was given the responsibility and traditional authority by his Father Jim Brown Jr. and his Uncle Dewey Barnes Sr. to help protect our utmost important sacred site and main homeland village

(Photo a. 1978 Jim Brown Standing near Roundhouse and house pits, b. Rock Mortar others were also

identified c. pestles disturbed and uncovered by Rocca family Jeep driving over the area)

3. The Elem Pomo are one of only two maritime cultures in California (the other being the Chumash of the Channel Island). Because their culture was maritime-oriented, their political center was located on islands ( Elem, Koi & Komdot aboriginal Southeastern Pomo) and they spent much of their life on the lake. Known by local tribes as “Water People”.

4. In 1851, the Captain of the Elem community on Rattlesnake Island met with Col. Redick McKee to sign Treaty “O” put forth by President Millard Fillmore to set aside the Clear Lake Basin as a permanent reservation for Northern California Tribes. Chi-bee signed on behalf of the Howcuma Nation Captians that consisted of three Southeastern Pomo Island Villages of Elem, (Rattlesnake Island) Koi (Indian Island) and Kamdot (Buckingham Island). NOTE: Lake County has recently purchased The Sacred Mt. Konocti the home of Elem’s Creation story and are in the process of allowing a hikers to desecrate this Sacred Moutian and they also purchased Komdot a.k.a. Buckingham Island, this was the documented site where General Vallejo burned over 200 Pomo villager’s alive in their Roundhouse, simply because they refused to submit to become slaves at his Sonoma County Rancho, in the historical record Elem’s warriors chased Vallejo’s army from Lake County. (Photo’s a. Elem Men’s Sweat Lodge. B. Elem Roundhouse)

5. In 1872, the Elem community hosted the Ghost Dance Ceremony that was attended by native People and tribes from all over Northern California and Oregon. For decades Elem has been a key location for generations of tribal roundhouse ceremonies. This tradition continues to this day at Elem.

6. In 1942, Elem tribal member (John Kelsey) confronted archaeologist Mark Harrington on Rattlesnake Island, asked him to leave the Island and chastised him for digging up human remains and cultural materials that belonged to the Elem people and community.

(Photo’s a. 1942’s Mark Harrington photo record before excavation of sites on Rattlesnake Island, Elem in Background. b. Harrington’s camp site on Buckeye or Dollar Island on the Elem Reservation, he received permission from the BIA to excavate, sites at Elem in-order to compare his work from Borax Lake and Rattlesnake Island., thus concluded that this was all a part of Elem’s aboriginal tribal lands on Clearlake.)

7. In the 1960’s, the Elem Tribe joined other Native people in the peaceful occupation of Alcatraz Island to call attention to the 18 Un-Ratified U.S. treaties dealing with Native Land Claims in California. Following Alcatraz, many Elem families left their homes on the mainland to live on and occupy the Island to increase public awareness and protect the ancient tribal homelands of the Elem people During the late 19 60’s the Boise Cascade Corporation who first announced that they owned Rattlesnake Island was planning to sub-divided the Island for Condo’s was directly challenged and stopped by the Elem peoples Occupation of Rattlesnake Island led by Dewey Barnes Sr. an Elem tribal Member and spokesmen and Jim Brown Jr. Elem Cultural Leader.

(During Elem’s occupation small cabins and camp sites we built by Elem people including a traditional arbor for cultural ceremonies. o a. Dewey Barnes Sr. Cabin b. Brush house c. Carmelita Baker’s Cabin.)

8. With the 1960’s civil rights movement and the recent occupation of Alcatraz the Bosie Cascade Corporation begun to meet with Elem reps and Attorneys from the California Indian Legal Services, the company wanted $200,000 dollars from Elem people who had no tribal funds or government services available to them. However, they always had and recognized and honored traditional chiefs and Chieftain’s The CILS informed the tribe that this company could get this in a tax right off if they donated the land back to the tribe. The meetings broke down and the paper title was sold to Curtis Roca, an International Rice Farmer from San Francisco for $25,000 dollars. The Roca Family represented by Paul Dennet and Windflower Reality tried to make a deal to build a Casino on the Island In 1994 with an Elem tribal chairman, (The Elem Chairman was later recalled due to his unauthorized attempt to exploit the Island for gaming along with the Roca Family), thus to this day Mr. Nady states that Elem’s only reason to get the island back is for a Casino. The Roca family sold their paper title to John Nady for 2.5 Million dollars; however Mr. Nady states he paid 5 Million?

If by some strange event that Nady co-operated with the federal power of Eminent domain, Nady could actually receive three times the dollar amount that he paid for the island? What a travesty of justice!

(Photo’s a. 1980 Elem Tribal member (Barnum Morinda) wedding ceremony at the center pole arbor on the Island, in 2009 on the request of this Elem member his remains were spread over on the Main Village site on Rattlesnake Island by his family tribal members. B. 1981, Shakehead Dance at Rattlesnake Island. C. 1981, the General Public in attendance at Elem tribal ceremonies on Rattlesnake Island the official signatures on the guest list included a representative from Mr. Leggets office .)

9. In May 2008, following a unanimous vote of the California Historical Resources Commission and concurrence by the Keeper of the Register, Rattlesnake Island and its archaeological resources were determined eligible for the National Register of Historic Places.

10. Rattlesnake Island has long been designated as a sacred site by the Native American Heritage Commission a State of California Agency.

11. In today’s Economic crisis, is funding available to purchase Rattlesnake Island? Since 2006, during Phase 1 of the U.S. EPA Superfund “Non-critical” Cleanup Project, their Sub-contractor CH2MHill, did not comply with Section 106 of the Historic Preservation Act, a federal requirement that resulted in the complete destruction of Elem’s 1906 cultural resources. Is EPA waiting quietly for the Statutes of Limitation to expire? The US EPA would be required to compensate Elem for their loss, that includes the purchase of Rattlesnake Island. (Photo’s a, & b. 1906 Home sites and cultural soils that were destroyed during the 2006. )

DAMAGE AND CONTINUED DESTRUCTION OF THE CULTURAL RESOURCES OF RATTLESNAKE ISLAND BY MR. NADY, HIS EMPLOYEES AND FAMILY.

Mr. Nady stated at a public hearing that he “cleaned stuff off the island” Much of that “stuff” consisted of historic cultural deposits and structures from the 1800’s to the 1980’s that depicted the early and more recent historic uses of the Island (including historic can dumps and the historic structures that were built during the Indian Land Claims Protests of the 1960’s). This removal and damage to potentially historic artifacts and resources has been corroborated by Nady’s caretaker who was given the task of “removing the trash and cleaning up the site”. Due to a lack of accureately labeled maps, it is very difficult to determine what parts of Mr. Nady’s proposed project have already been completed “without Permits” versus those portions that he is currently requesting permits for. It appears that at least 7,960 feet of scraped, graded, and /or trenched work has taken place on the island without any permits including, 1,328 feet of roads, 4,316 feet of foot paths, 1,826 feet of water pipe trenches, 498 feet of power line trenches. Elem Tribal members have complained many times to the County Community Development Department with no response, or follow up. Nady apparently gave verbal permission to a couple to come

on the Island and dig up and collect any artifacts they felt like carrying away. This is a direct violation of the California Penal Code (sec. 622.5) occurred since 2004. Nady and the Lane Use Planning Process: October 2004, the Community Development Department (CDD) made an error in issuing septic permits to Nady without the benefit of an archaeological inspection.

November 2004, the potential for archaeological sites was discovered and the CDD notified Environmental Health (EH) that the permits were revoked, EH sent a letter to Nady indicating permits revoked. November 2004, Nady disagreed and filed an administrative appeal of the revocation. November 12, 2004, the CDD requested that Nady obtain an archaeological report for his proposed project. December 2004, CDD sent letter to applicant requesting that they not start work pending a Planning Commission hearing on permit revocation.

January 5, 2005, applicant began excavation work on septic system anyway!

January 5, 2005 Supervisor contacted CDD requesting action be taken to stop the excavation work.

January 11, 2005, Board of Supervisors asked Nady to stop work, to which he replied “No”. BOS held closed session to initiate legal proceedings against Nady.

January 14, 2005, Temporary Restraining Order was issued to prevent Nady from continued excavations.

January 27, 2005, Nady appealed the staff’s requirement for an archaeological report to the Planning Commission; The Appeal was Denied! Nady retained and fired 4 Archaeological consultants simply because they all indicated that the resources on Rattlesnake Island were very significant.

August 1, 2005, in a 24 page letter to County Planning, Nady’s attorney states “the site of the former village of Elem would remain historically significant whether or not the caretaker’s cottage and septic systems are built.” He also states “there is no substantial evidence that archaeological resources at the site are unique.”

October 19, 2005, based on the significance of the Island’s cultural resources the State Office of Historic Preservation (OHP) recommended that Lake County require an EIR for the project.

October 27, 2005, Nady’s attorney wrote a 7 page letter denouncing the OHP recommendation and attempting to refute the facts of the Island’s significance as outlined in the National Register nomination being reviewed by the OHP.

October 2007, CDD receives a revised site plan from applicant showing proposed improvements and that many of the originally proposed improvements had already been constructed presumably without the required permits. 2008, Rattlesnake Island determined eligible for inclusion on the Rational Register of Historic Places, automatically added to the California Register of Historic Places.

2008, an archaeological firm (SWCA Environmental Consultants) is selected by the County through a proposal process to evaluate cultural resources in the project area. Nady’s

attorney sent threatening letters to all the consultants on the County’s list, hoping to poison the process and once the Firm was selected refused to allow an Elem tribal monitor that was requested by the Firm!

August 2009, archaeological testing report completed. Although a continuous lithic scatter (stone tool manufacturing material) was found throughout the project area, the report indicates that no cultural materials were allowed to leave the island for cleaning, sorting, or analysis. This prevented any determination of the age of the deposit or whether it was intact or disturbed (the primary purpose for the testing report). In the end, 61 shovel test pits were excavated into one of the Rattlesnake Island archaeological sites and no information was obtained. This not only prevented a CEQA evaluation of the project area, but ultimately destroyed that portion of the site that was excavated.

April 28, 2010, SWCA archaeologist indicates that Nady wanted him to “do the mitigation during his site testing program” and forced the archaeologist to change locations of his test holes to conform with this plan. SWCA archaeologist’s original report called for the preparation of an EIR. In a meeting with OHP, and County CDD representative, the OHP recommended that an EIR be done! SWCA archaeologist indicated that Nady forced the county and the archaeologist to recommend only monitoring, rather than data recovery, avoidance, or any other alternative listed in CEQA. SWCA archaeologist indicated that the CDD director let Nady edit all the archaeological reports.

April 29, 2010, staff at the California Historic Resources Information System (CHRIS) office indicated that Nady’s attorney had sent letters and threatened them with a lawsuit.

April 29, 2010, Lake County Heritage Commission review of the archaeological testing report determines that the proposed “monitoring plan” does not fulfill the CEQA requirements as mitigation.

May 13, 2010, SWCA archaeologist indicates that the County CDD told him not to do a records search per Nady’s request. He was also told by the County CDD not to file a copy of his report with the CHRIS office until the report is “final” (thus effectively preventing any public review of the document before public hearings).

August 24, 2010, Nady’s attorney threatened to sue the count if the Board of Supervisors didn’t allow an appeal of the Planning Commission’s decision requiring an EIR. The supervisors allowed the appeal! TO date there has been no discussion in the Initial Study or the proposed Mitigated Negative Declaration about how to mitigate the impacts of the project on the Sacred Site Status of the Island. How will Nady mitigate the visual Impacts, impacts to burial grounds (e.g. family visitation, damage to, etc.), impacts to medicinal and ceremonial plants and family plant harvesting, impacts to the Elem religious center and ancient homelands.

In closing, our elders have said, not to get mad at these “Paper Owner’s of Rattlesnake Island,” no matter how racist they act, they said, remember, “like it or not they are also Victim’s of real estate fraud as well as us”! In 2010 A copy of Elem’s legal case concerning Rattlesnake Island was formally presented to Congressman Thompson and his staff by Liam Griffin, Attorney and Jim Brown, Elem Representative. A August 9, 2011 a Legal Review of this document was sent to the Lake County Board of Supervisors, along with a request to make a presentation to the public at the BOS August 16, 2011 meeting on Rattlesnake

Island. To date we have not received a reply to our request, and therefore will release this information to the news media for public review.

If the BOS approves Nady’s request for a Mitigated Negative Decision this would completely destroy the heart of the most sacred cultural landscape (Mt. Konocti & Rattlesnake Island) and ancient Village site of Elem people. Elem is also concerned about a possible conflict with the CDD Director as he has allowed Nady’s attorney to re-write the contract to not allow the Archeologist to provide scientific evaluation of cultural artifacts. Elem feel’s that either the CDD Director has a conflict due to his family lands ownership near Koi Indian Island in Clearlake or maybe he also, has been bullied, or threatened by Nady’s Attorney? Like all The Archaeologist he has hired and all the State & Federal agencies he has criticized for their simple acknowledgement of Elem’s cultural history on Rattlesnake Island. Additionally, During My 2008 appointment by the BOS to the Lake County Heritage Commission (elected Chairperson of LCHC) One of our main goals was to bring the county into compliance with section 21-38 of the County approved “Ordinance Establishing Preservation of Historic Resources”. The CDD Director continued to oppose the Commission attempt to bring this revised document forward for approval of the BOS and continues to undermine and eliminated any county regulations protecting Native American Cultural sites. Due to this reason in January 2010, when my term on the LCHC expired, I refused to continue due to these unprofessional of the CDD Director. On behalf of the Traditional Elem Roundhouse Leaders I m asking the local and national spirit warriors and defenders of our sacred sites to be on alert! And be prepared to answer the call, depending upon the decision of the Lake County Board of Supervisors on August 16, 2011!!!! Oh Way-ya, of Way-ya “All My Relations” Jim Brown E-mail jbrowneagle@gmail.com or message phone (707)998-3526

Note: (Elem will open up a website dedicated to the protection and preservation of Rattlesnake Island and other tribal Sacred Sites.)

LEGAL REVIEW BY LIAM GRIFFIN E-MAILED TO THE LAKE COUNTY BOARD OF SUPERVISORS

If all applicable U.S. laws were fairly applied the Elem tribe would have superior claim to Rattlesnake Island it is time for the truth to expose who the Island truly belongs to. The Elem Pomo can prove nearly 10,000 years of “aboriginal title” from their clear historical presence on the island, including the first 100 years after white men first sought to establish dominion over it. Plus, the current record title holder, wireless electronics industrialist, John Nady, bases his claim upon a chain of title originating in 1877 with a California patent issued to two wealthy white men in violation of the federal land grant laws of the day. Federal Indian law dictates what legal approaches that must be taken to resolve the land dispute. The U.S. asserts sovereign authority over all tribal lands within its borders. Thus the U.S. Sovereign authority stems from conquest the U.S. also typically honored a foreign sovereign’s recognition of aboriginal rights as legally, aboriginal rights have only been determined by U.S. through two means: 1. Official (Congressional) acknowledgement i.e. treaty or other official recognition. 2. Showing of Use and Occupancy by tribe through data and conduct or lawsuit. Both official acknowledgement and proof by use and occupancy can be demonstrated in Elem case. The United States first recognized Elem land title as early as 1851.

U.S. Treaty representatives invited “Howruma: Island People” leader to August 20, 1851 Treaty Meeting R. F. Heizer, The Eighteen Unratified Treaties of 1851-1852 Between the California Indians and the United States Government, (Archaeological Research Facility, U. Cal. 1972). Treaty was never ratified.

In addition, the U.S. Congress took specific steps to establish aboriginal titles in California

Act Making Appropriations for the current and contingent Expenses of the Indian Department, and for fulfilling Treaty Stipulations with various Indian Tribes.

32 Cong. Ch. 104, March 3, 1853, 10 Stat. 226. (for the “expense of subsisting the Indians in California”)

An Act to Provide for the Survey of the Public Lands in California, the Granting of Preemption Rights Therein, and for Other Purposes.

32 Cong. Ch. 145, March 3, 1853, 10 Stat. 244. “This act shall not be construed to authorize any settlement to be made on any tract of land in the occupation of any Indian tribe, or to grant preemption right to the same.”

OFFICIAL SURVEYS OF RATTLESNAKE ISLAND

Surveys conducted pursuant to an Act to Provide for the Survey of the Public Lands in California… 32 Cong. Ch. 145, March 3, 1853, 10 Stat. 244.

Surveyor E.D. Richardson, 1854

Marked it on his map as “Indian Island” and included five triangular symbols commonly used to connote Indian dwellings (Later, Koi island would assume the name “Indian Island”).

United States Bureau of Land Management, General Land Office, Plat of the Survey of Township 13 North, Range 7 West, Mount Diablo Meridian (1854).

Surveyor I.N. Chapman , 1868

“There is an Indian village of some dozen huts along the southern shore. These Indians keep some horses on the island; they also cultivate a garden spot of a few acres.”

United States Bureau of Land Management, General Land Office, Field Notes of the Survey of Three Islands in Clear Lake T.13N, R7 & 8W, and T.14N, R.7W, Mount Diablo Meridian (1868).

ELEM ABORIGINAL RIGHTS WERE NOT LEGALLY EXTINGUISHED!

Proposed 1851 treaty was never ratified

Failed treaty negotiations indicate that Congress desired to terminate title ONLY by Treaty. Plamandon ex. rel. Cowlitz Tribe of Indians v. U.S. 467 F.2d 935 (Ct. Cl. 1972).

U.S. survey results indicate official acknowledgement of Elem presence on Rattlesnake Island

Once acknowledged, extinguishment of aboriginal rights requires explicit congressional act

Indian Non-intercourse Act, 25 U.S.C. § 177.

ELEM POMO CAN ALSO CLAIM OBORIGINAL RIGHTS TO RATTLESNAKE ISLAND BY THEIR USE AND OCCUPANCY!

1) “Can assert an exclusive use and occupancy;

2) Of a definable area of land;

3) Enduring for a long time, and that such use and occupation was;

4) Adverse to the rights of any record title-holder.”

United States v Santa Fe P.R.R., 314 U.S. 339 (1941). See also Sac and Fox Tribe of Indians of Okla. v U.S., 315 F.2d 896 (Ct. Cl. 1963) and U.S. v Pueblo of San Ildefonso, 513 F.2d 1383 (Ct. Cl. 1975).

ABORIGINAL RIGHTS IN LAKE COUNTY NOTED BY WHITE VISITORS

Juan Bojorges, Personal account of Salvador Vallejo’s massacre and capture of Clear Lake Indians in 1842.

Stephen Powers, Tribes of California, 214 (Government Printing Office 1877).

H.H. Bancroft, Recollections of California History (Bancroft Library, U. Cal. 1877)

A.A. Palmer, History of Lake County 1881, 34 (Slocum, Bowen & Co. 1881).

S. A. Barrett, Ethno-Geography of the Pomo and Neighboring Indians, in University of California Publications in American Archaeology and Ethnology vol. 6, 205, 208 (U. Cal. Press 1908).

E.W. Gifford, Clear Lake Pomo Society, in University of California Publications in American Archaeology and Ethnology vol. 18, no. 2, 289 (U. Cal. Press 1926).

F. B. Kniffen, Pomo Geography, 359 (U. Cal. Press 1939).

Collected Documents on the Causes and Events in the Bloody Island Massacre (R.F. Heizer, ed., Archaeological Research Facility, U. Cal. 1973).

A. L. Kroeber, Basic Report on California Indian Land Holdings, 147 (U. Cal. Press 1974).

ELEM’S USE AND OCCUPANCY OF RATTLESNAKE ISLAND CITED SPECIFICALLY!

Juan Bojorges: (describes a large, sophisticated settlement on the island with numerous watercraft, permanent structures and a swollen population). 1842.

Stephen Powers: “They burn the dead, and always if possible on their native island” 1871.

A.A. Palmer: The Elem “lived on an island just west of the Sulphur Bank”. 1881.

S. A. Barrett: The “chief permanent villages seem to have been located on the islands in the lake.” Elem Village “is situated on the immediate lake shore opposite the site of the former village of Elem on Rattlesnake or Sulphur Bank Island.” …“the principal village, however, being on the adjacent island.” 1908.

E.W. Gifford: “the people of the island refer to themselves as ‘Elemfo,’” the village of Elem was “…sometimes on Rattlesnake Island, sometimes on the adjacent mainland where it is now…” 1922.

F. B. Kniffen: “…called Kaoguma by the Big Valley people, had their main village on the island of Elem.” “…unlike other area groups, they were true lake dwellers.” 1939.

A. L. Kroeber: “these southeastern Pomo had their stable seats on islands, whence they navigated to the shore on their balsas of rushes, as occasion advised.” 1949.

ARCHAEOLOGISTS FIND CLEAR EVIDENCE OF USE AND OCCUPANCY OF ISLAND!

Mark R. Harrington – 1942

Conducted test excavation on Rattlesnake Island within the bounds of a site, now designated as CA-Lak-89/H. Identified “Rattlesnake” type point.

Clement Meighan - 1955

Henry Mauldin – 1960

“…at one time Rattlesnake Island was the site of one of the largest Indian Villages in the county…evidently from its dark soil texture long occupied, but leaving behind no history or legend of its inhabitants.”

Dr. John Parker – 1978 to present

CURRENT NON-ABORIGINAL TITLE IS BASED ON FLAWED 1877 FEDERAL PATENT!

Issued to two wealthy white men

Authority for grant purportedly based on three Federal Statutes:

“An Act to Appropriate the proceeds of the sales of the public lands and to grant pre-emption rights.” 27 Cong. Ch. 16, September 4, 1841, 5 Stat. 453.

“An Act to provide for the survey of the public lands in California…The granting of pre-emption rights therein and for other purposes.”32 Cong. Ch. 145, March 3, 1853, 10 Stat. 244.

“An Act Donating Public Lands for Colleges” 37 Cong. Ch. 130, July 2, 1862, 12 Stat 503.

CITED ACTS SPECIFICALLY PROHIBITED CERTAIN PATENTS

Federal Patent requirements in 1877

U.S. citizens only

Land had to be surveyed first

Minimum price per acre must be paid

Indian land not automatically pre-empted

Indian Title must first be extinguished (by act of Congress)

“act shall not be construed to authorize any settlement to be made on any tract of land in the occupation or possession of any Indian tribe, or to grant any pre-emption right to the same.”

Patentees who owned more than 320 acres in the U.S. barred from grant of patent

Patentee must take possession and occupy patent

BOTH PATENTEES WERE BARRED FROM RECEIVING FEDERAL PATENTS!

FATAL FLAWS IN COURT OF 1877 PATENT!

Captain Richard S. Floyd:

Owned Kono Tayee and other lake properties

Lived in San Francisco and owned several San Francisco properties

Commissioned to build Lick Observatory in 1880

Never took possession of Rattlesnake Island

Thomas P. Madden

Invested heavily in Lake County realty

Holdings exceeded thousands of acres by 1892

“TITLE ON PAPER” ONLY!

No white man occupied Rattlesnake Island until late in the 20th Century

The Elem Pomo continued to occupy and/or use Rattlesnake Island until the 1990’s

The Elem were not even aware of claims of white title until the 1940’s when a dispute arose among the white men laying claim to it

In the 1960’s when Boise Cascade announced plans to build an employee retreat on the island, the Elem rose in earnest opposition

RATTLESNAKE ISLAND QUIET TITLE SUIT FILED IN U.S. DISTRICT COURT IN 1939!

Brought by U.S. Attorney Frank Hennessy on behalf of the United States (and ostensibly on behalf of the Elem tribe) as Plaintiff

to “determine all and every claim, estate or interest therein of [record title-holders and other potential claimants]…adverse to the said plaintiff, to be null and void…”

Notice of Lis Pendens, United States v State of California, Civil No. 4068L (N.D. Cal. Feb. 10, 1939).

Suit lasted ten years

FEDERAL LAWSUIT ACTUALLY UNDERTAKEN TO FORECLOSE RIGHTS OF ELEM!

Named sixty-two potential claimants as defendants, including the heirs and successors of Floyd and Madden

Elem not notified of suit until after final judgment was rendered

Resulted in clear victory for the defendants MacDonough, the heirs and successors of Floyd and Madden,

JUDGEMENT WAS CLEARLY ERROANOUS!

“…neither plaintiff nor its Indian wards has any right, title estate or interest in, to or upon said premises or any part or parcel thereof…”

“Neither of the parcels described . . . is or ever has been occupied, used, cultivated, improved, enjoyed, claimed, or possessed by Indians of the Pomo Indian tribe, or by Indians of other tribes, or by Indians whomsoever.”

Judgment, United States v State of California, Civil No. 4068L (N.D. Cal. Jan. 10, 1949).

PIVOTAL EVIDENCE WAS IGNORED!

Anthropologists had submitted vast collected data of native occupation of the island, including results of Harrington’s dig in 1942, while the suit was in process

No findings of the Court addressed this data

Elem tribe accused Bureau of Indian Affairs agent of selling them out:

“the (BIA) Agent did not notify the Elem Tribal Leadership in writing of the land claim court action, nor did he offer to any Tribal Member, the opportunity to be there in Federal Court as a witness”

www.elemnation.com (2005).

RESEARCH REVEALED TITLE FLAWS!

Begun in response to John Nady’s efforts to build a home upon Rattlesnake Island

Research completed in 2005 at the University of New Mexico under guidance of Indian Law Department

Presented to Congressman Thompson in 2010

Thompson proposed that Lake County Board of Supervisors study the issue and consider a Resolution stating the position of Lake County regarding Elem aboriginal rights

FEDERAL POWER REQUIRED!

If Rattlesnake Island is to be “Indian Land” congress would “condemn” Nady’s ownership under federal power of eminent domain, and compensate him at fair market value

The United States owns all “Indian Land”

If seized by State or County authorities, “just compensation” must still be paid, but title would then be held by State or County, not Elem tribe

END OF PRESENTATION!