THE 1977 AGREEMENT MADE INDIAN ALLOTTEE LAND SUBJECT TO THE CITY'S CODE
In 1977 the City and the Tribe entered into a contractual agreement under the terms of which the City's Municipal Code and other regulations such as zoning were made applicable to land held by Indian allottee landowners within the city limits. It does not apply to Tribal land - land owned communally by the tribe - nor to land held by an Indian allottee outside of the City limits.
A copy of this agreement can be found online at the City's website here:
According to this agreement:
a). The Municipal Code applies to Indian allottee landowners, but...
b). In the event that the City takes action against an Indian allottee landowner the landowner has the right of appeal to the Tribal Council, the ruling of which can overturn the City's action and is final.
To the lawyers among us: please correct me if I am wrong. I am not a lawyer.
NOW THE TRIBE HAVE DECIDED THAT THE CITY CODES ON PROPERTY MAINTENANCE AND VACANT BUILDINGS DO NOT APPLY TO INDIAN ALLOTTEE LAND
Last Wednesday the City's Attorney informed the Council that he had spoken with a representative of the tribe that morning and relayed that the Tribe... and here let me quote exactly what he said (as well as I can):
"... Under the normal circumstances, the City has no authority to regulate at all reservation land. However, back in the 1970s when everybody was doing redevelopment the tribe and the City were able to get together and come to some understandings and agreements as to what can transpire and the tribe recognized the fact that it was not in their best interests to have different sets of regulations apart from those that are in the City.
So, there was an agreement and there were various ordinances that the tribe and the City adopted to deal with that relationship.
The important aspect though is that, and I did discuss this with a representative of the tribe earlier today, is the concept of code enforcement… I say code enforcement but actually property maintenance, and the question of property maintenance, vacant buildings that sort of thing like we have within the City. The tribe does not agree to that. The tribe has not said to the City that our property maintenance regulations are applicable to allottee property and they have made it very clear that is, that is something they are retaining for themselves and they have their own property maintenance ordinance, and it’s their will at this particular time, well at least prior to now, that this was something that they wish to retain within their jurisdiction.
It is also my understanding though that they recognize the number of the issues that are mounting within the City as well as on reservation land and that they would welcome a dialog to start talking about to start looking at some of these issues and so one of the side issues that we would recommend here is, not withstanding what you decide to do here on this demolition aspect, is that we start that dialog with the tribe to see that we expand that into some level of dealing with property maintenance.
To compare the Magruder situation to the Rock Café, the Rock Garden, we were able to deal with that property because that was strictly City property. We were able to take certain enforcement efforts consistent with property maintenance on that property but we are not able to do that here. The only reason why we can do something here is because we have the consent of the allottees of that property to go on and to do the demolition, but we cannot, we do not have the ability under our codes to enforce that. We do not have the consent of the tribe to bring a property maintenance action against the allottees of that land."
BUT A FEW WEEKS AGO THE TRIBE TOLD US THAT THE CITY HAD FULL RESPONSIBILITY FOR AND RIGHTS TO ENFORCE ITS CODE
Now that is peculiar also because I and a colleague from our group had earlier held our own meeting with a representative of the Tribe and I can tell you who that was: Margaret Park, the Director of Planning of the Agua Caliente Band of Cahuilla Indians at the Tribe's offices, and when we asked her what redress the Tribe could provide to deal with the problems associated with vagrants on Indian allottee land she said this was not an issue that the Tribe either wanted to deal with or needed to deal with as, under the terms of the 1977 agreement between the City and the Tribe both the Police and the City had all the powers they needed to enforce their codes, ordinances, regulations etc. in such circumstances. In that conversation no exceptions or exclusions were mentioned.
In other words, an authoritative person who we went to to ask for clarification of the issue explained to us clearly that the responsibility for enforcement of City code on Indian allottee land is the City, and yet the City Attorney last Wednesday told the Council that the Tribe (now?) wishes to reserve the relevant powers that apply to enforcement to deal with the situation associated with the Magruder building to the Tribe.
SO NOW NEITHER THE CITY NOR THE TRIBE WILL ENFORCE MAINTENANCE STANDARDS FOR DERELICT BUILDINGS
If true though that is perplexing as we have been told that due to the small number of allottees, 300-400, there are great political difficulties within the Tribe should the Tribal Council apply any form of sanction, stricture, censure or the like against an individual allottee landowner. This led me to believe then that the Tribal Council therefore was delighted to have the City handle that messy business for them. But the City Attorney's information of last Wednesday seems to reverse that as it states that the Tribal Council will apply Tribal ordinances regarding property maintenance and vacant buildings, although my understanding is that in fact because of the political delicacy for the Council of doing so, it simply will NOT apply its ordinance. That is to say that though it appears that the Tribe is now saying that it reserves to itself the power to apply its own ordinances on property maintenance and vacant property in lieu of those of the City, it is unlikely that it actually will do so for political reasons internal to the tribe.
This then leaves us with two issues.
CITIZENS ARE IN LIMBO WITH NO AUTHORITY FROM WHICH TO SEEK REDRESS
Firstly, as of June 3rd. 2015, it appears that any person affected by property maintenance issues associated with indian allottee land or vacant buildings on such land has no way to seek redress as the City now claims to be "powerless" to address such issues (that was the word used by Council members to describe the situation) and the Tribe won't do anything about it either, though in a practical sense this has not been tested. Thus as of Wednesday it seems that the City is saying that if you want some redress against the owners of the Magruder building the Tribe has asserted its right to deal with such issues so you'll have to seek redress from the Tribe - see my earlier post with the email address of the Tribal Council and good luck with that. An alternative, according to the City Attorney, is to seek redress in federal court (state court is not an option in such matters), and again according to him, such could take years and according to Red cost a significant sum. Again the lawyers among us might possibly be able to advise. I am not a lawyer.
THE CITY IS STILL RESPONSIBLE FOR THE LACK OF ENFORCEMENT OVER THE PAST EIGHT YEARS
Secondly, the political announcement from the Tribe relayed by the City Attorney last Wednesday is news to everyone, including the City, otherwise surely there would be no need for him to explain the situation to the City Council nor have needed to speak to a representative of the Tribe that morning. Which means that if an agreement signed in 1977 gave the City the right to enforce its code, and the Indian allottee owners of the Magruder building were in repeated violation of that code, why did the City not enforce its Code from 2007 when the building became vacant up to June 3rd 2015, i.e. for eight years?
That question is reinforced by the fact that the City issued Courtesy Notices to Indian allottee landowners through the eight year period, notifying them of violations and informing them that fines and costs could follow. Indeed it was the issuing of two such notices to the Indian allottee landowner who owns the lot behind Rocky's Pawn shop - the land that runs to the corner of W. Sunny Dunes and S. Belardo Road - that caused him to employ people for weeks removing trash and cutting back trees, and which in turn led vagrants to migrate across the street to the Rock Garden land and the Magruder building. He complied with Courtesy Notices. The Saubels received Courtesy Notices as well but they have not complied, the building remains unsecured and is both a blight and a public nuisance for everyone around it yet the City has done nothing more than issue Courtesy Notices and pre-citations (which carry no financial penalty) to them. The City Attorney's declaration that the Tribe now reserves such powers to itself does not then get the City off the hook for its failure to enforce its code over the past eight years, although a claim that the allottee could always appeal a fine to the Tribal Council and make the City's action ineffective, might. However such a claim has not been made and even if that was suspected that the Tribe would overturn a City penalty for non-compliance, that course should have been pursued to determine exactly where the Tribe stands on such matters, and whether the 1977 agreement has any value.
So, we are now in a peculiar situation where people affected by blight stemming from vacant property on Indian allottee land have little to no redress, although stemming from the June 3rd Council meeting was the promise that the City and the Tribe would discuss how to move forward on the matter - and if that sounds vague that's because right now that's what we have, vagueness.
SO WHAT ARE THE OPTIONS FOR DEALING WITH THE DERELICT MAGRUDER BUILDING?
To return then to what to do about the Magruder building it seems that there are four options:
1. Start the legal process against the Indian allottee landowners under the terms of the 1977 agreement. That option appears to have been closed now by the City Attorney's statement. Lawyers among us please correct me if I'm wrong on this, what follows or anything else in this post. I'm not a lawyer.
2. Take the Indian allottee landowner to federal court. The start of that process is actually item 1 above and going down that route would have been a lot simpler had the City enforced its code over the past eight years when it didn't know what the City Attorney told it last Wednesday was the Tribe's position on the matter. But, this could take a long time during which the blight will persist and worsen and will cost a lot of money, probably much more than the cost of demolition.
3. Pay to demolish the building. This option includes finding others to help defray the cost.
4. Do nothing. Let the blight persist. Let local people suffer. Let the problem spread. Let the people who'll buy the new homes at the Cameron Project deal with it - oh wait, why would they buy those homes when they have a vagrants' crack house opposite?
Of these only number 3 seems like a viable one.
My apologies for what is a very long post. I hope that at least it has provided some helpful information.