It is said that history is written by the winners and the victors in this story have taken their case all the way to the Ninth Circuit Court of Appeals to lay claim to the Winnemucca Indian Colony’s tribal council and lands. The land specifically in question is 20 acres tucked inside the city of Winnemucca boundaries and it is here where at least eight people will soon be served eviction notices.
The victors in this ongoing saga are the Winnemucca Indian Colony Council Chairwoman Judy Rojo and the rest of the council members. Rojo and the Council say family members of the Ayer, Brown, Missouri, Dick, Loya, and Smart living on the reservation do not have legal standing because they are not members of the Colony nor are in compliance with the Colony’s laws.
This two-part series will examine the history of the Colony, its legal battles as it relates to the legitimacy of the council, Colony membership as defined by its constitution, and future development of the reservation.
In 1917 and 1818, President Woodrow Wilson signed two Executive Orders for two 160-acre plots to be withdrawn from public use and set aside for the “Winnemucca Band” of homeless Shoshone Indians then located near Winnemucca. However, it was discovered that, instead of moving to the designated landsite, the Shoshone Indians had built homes on a 20-acre tract of land owned by the Central Pacific Railway. Rather than attempting to remove the Indians, the United States government bought the 20 acres and placed it in trust for the Indians in 1928.
In the 1970s, the Winnemucca Colony established a constitution and bylaws governing the reservation. With the approval of the constitution and bylaws the Secretary of the Interior recognized the Winnemucca Indian Colony as having the legal right to occupy and control the 340 acres, which included the 20 acre parcel where the Colony lived.
The Colony’s constitution also specified that Colony membership “shall include all persons of at least one-fourth (1/4) degree Paiute and/or Shoshone Indian blood” and whose “names appear, or they are descendants of persons whose names appear, on the December 9, 1916, census of the Winnemucca Shoshone Indians.” The constitution further states that “No person shall be eligible for membership in the Winnemucca Indian Colony who has received land or money as a result of having been enrolled as a member of some other tribe, band or community of Indians.”
By 1986, the Bureau of Indian Affairs (BIA), which has jurisdiction over the affairs of the Winnemucca Indian Colony, had determined that based on the Colony’s constitution, “of the 62 persons who reside on the Colony, 43 were members of the Ft. McDermitt Paiute Tribe and the balance were affiliated with other tribes,” thus “the BIA confirmed that no one who resided on the Colony was a proper member of the Colony at that time.”
The BIA asked for the resignation of the sitting council members and requested the Paiutes to leave the Colony and join their respective tribes. The Agency then took over the assets of the Colony.
Attorney Treva Hearne, who represents the Council, said the BIA in 1986 stated that the Winnemucca Colony is a Shoshone colony. Hearne said that in 1986 many of the members knew they did not qualify to live at the colony but continued to live on the reservation.
The BIA began a search for persons who could qualify as members. The search concluded in 1990 when the BIA chose and recognized Glenn Wasson as Chairman and Richard Tom, Elverine Castro, Lucy Lowery and Sharon Wasson as the council. This council governed the Colony until 1999 when Richard Tom resigned and was replaced by William Bills.
According to court documents, Glenn Wasson had discovered that William Bills was not an Indian, but in fact, Filipino. Wasson was in the process of having Bills removed from the Council when he was found stabbed to death on the steps of the Colony Administration Building. Twenty years later, no one has been arrested for his murder. In the meantime, Bills declared himself the Chairman of the Colony. However, disputes among Bills and other Council members forced the BIA to declare that the Colony government was dysfunctional and no official council was recognized.
Between 2000 and 2010 the disputes between the factions as to who should comprise the Colony’s legitimate governing body meandered through various state and tribal courts until finally, the case made its way to the Ninth Circuit Court of Appeals in 2010. The Court affirmed the decision made within lower courts to recognize the Colony’s Council.
The Court of Appeals decision cleared the way for the US District Court of Nevada to issue orders in December 2014 to the BIA to officially recognize the Council members as Judy Rojo, Misty Morning Dawn Rojo Alverez, Katherine Hasbrouck, Eric Magiera and Thomas Magiera II as “elected in the October 25, 2014, election of the Winnemucca Indian Colony.” The Court also ordered that membership applications be submitted to the Membership Committee of this Council.
This decision was again appealed and was turned over to the Inter-Tribal Court of Appeals of Nevada.
The crux of this case rests on tribal origin and blood quantum, or the total percentage of blood that is full Native American. Colony membership qualifications, as stated in its constitution and by-laws, require anyone who wishes to apply for membership and live on the reservation to have at least a quarter degree of Paiute and/or Shoshone Indian blood and be descendant from persons listed on the 1916 census. Anyone who met the membership requirements and who was denied membership could file a lawsuit for redress because they have a personal stake in the outcome or legal standing. Those who cannot prove they meet the requirements have no such standing in the eyes of the law.
The Court was concerned enough about what they called the plaintiffs’ (Ayer family) insufficient proof to qualify for membership to comment on it: “The trial court also commented about standing and asked for evidence. However, plaintiffs’ advocate (Allan Ambler) had informed the court at a status hearing on December 29, 2014, that no evidence would be presented at the hearing on January 16 (2015).”
According to the Memorandum Decision and Order dated February 24, 2016, Ambler argued that “standing was not an issue because his clients had already been declared tribal members and thus they need not reapply. When the trial court asked about this at the January 16, 2015 hearing, Mr. Ambler admitted that his clients were not on old membership lists” and that they had not applied for enrollment following federal court orders issued by the Ninth Circuit Court of Appeals in 2010.
The Inter-Tribal Court ruled that the “record was insufficient to show that plaintiffs had cognizable interests stemming from historical events, including old membership lists. The trial court was concerned that no evidence connected plaintiffs to the individuals on the list. Indeed, the court found that plaintiffs were not included on an important list that contained some individuals who may have been eligible to apply for Colony membership.”
The Tribal Court declared that the “Plaintiffs (Ayer family) could have availed themselves of the application (for membership) process presently offered by the Winnemucca Indian Colony. This they disdained. Without an application, they cannot challenge membership matters.” The Court declared that the appeal be dismissed “with prejudice” on the grounds that the Ambler group “lacked standing” to challenge Winnemucca Indian Colony and its recognized Council. A court case that is dismissed with prejudice means that it is dismissed permanently and can't be brought back to court.
The case is over at least from the Court’s point of view, but for the people involved the dispute over who should lead the Colony and who has the right to lead it will continue for the foreseeable future.
(Part two of this series will consider the Council’s efforts to clean up and modernize the reservation, and the residents' fight to remain in their homes).
