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I, Lester J. Marston, declare:
1. I am an attorney licensed to practice law in the State of California. I
am submitting this declaration in support of the defendant's motion
challenging the method by which the County of Mendocino selects jury panels
in criminal cases where the defendant is an American Indian. The
information contained in this declaration is of my own personal knowledge
and if called as a witness to testify in these proceedings, I could
competently testify thereto. My resume setting forth my educational
background and work experience is hereby incorporated by reference and
attached hereto as Exhibit A.
2. In my opinion, American Indians are under-represented on criminal jury
panels in Mendocino County. This under-representation is a direct result of
the method that the County of Mendocino Jury Commissioner utilizes to
select jury panels in criminal cases in general and in particular cases
where the defendant is an American Indian. In Mendocino County, the Jury
Commissioner selects persons to serve on criminal jury panels from voter
registration lists and a list from the California Department of Motor
Vehicles of those individuals who hold valid driver's licenses and reside
within the county. Because of the political, economic, and social
conditions which exist on Indian reservations, a high percentage of Indians
residing on Indian reservations in Mendocino County do not register to vote
in state and local elections and do not possess valid California driver's
licenses. These Indians are, therefore, systematically excluded from
criminal jury panels in Mendocino County.
3. Reservation Indians in Mendocino County are citizens of the United
States, citizens of the state in which they reside, and tribal citizens who
receive governmental services from their tribal, rather than local state,
county, and city governments and who participate in tribal, rather than
state and local city and county elections. As such, very few Indians in
Mendocino County register to vote in state and local elections.
4. In Mendocino County there are ten (10) federally recognized Indian
tribes. A federally recognized Indian tribe is one in which the United
States Government maintains a govern-ment-to-government relationship with
the tribe and recognizes the right of the tribe to organize its own
government and govern itself on its reservation. The federally recognized
Indian tribes in Mendocino County are the Coyote Valley Band of Pomo
Indians, the Hopland Band of Pomo Indians, the Cahto Indian Tribe, the
Manchester-Point Arena Band of Pomo Indians, the Potter Valley Band of Pomo
Indians, the Pinoleville Indian Community, the Little River Band of Pomo
Indians, the Covelo Indian Community, the Sherwood Valley Band of Pomo
Indians, and the Guidiville Band of Pomo Indians.
5. In addition to the federally recognized Indian tribes listed above,
there are two non-federally recognized Indian tribes in Mendocino County.
These non-federally recognized Indian tribes are the Yokayo Tribe of
Indians of the Yokayo Rancheria and the Noyo River Indian Community in Fort
Bragg.
6. Each of the federally recognized Indian tribes in Mendocino County is
organized under a constitution which has been approved by its tribal
citizens. Each of the tribe's constitutions set forth criteria for
membership and for voting in tribal elections. Pursuant to these
constitutions each of the federally recognized Indian tribes has
established and maintains a voter registration list showing which members
of the tribe or band are eligible to participate and vote in tribal
elections. Under each of these constitutions, if a person is eligible for
membership in the tribe, they are automatically eligible to participate and
vote in tribal elections upon obtaining the age of 18. Thus, each tribal
government in the county maintains a tribal voter registration list which
contains one hundred percent (100%) of the tribe's adult voting member-ship.
7. The majority of the Indians who are members of the federally recognized
and unrecognized tribes of Mendocino County that reside on or near the
tribe's reservations, meet the poverty guidelines established by the Legal
Service Corporation for receiving free legal services. With the exception
of Indian Casinos on the Sherwood Valley Indian Reservation, Coyote Valley
Indian Reservation, and Hopland Indian Reservation, there are no tribally
or Indian owned and operated businesses on any of the reservations,
recognized or unrecognized, in Mendocino County. With the exception of the
Sherwood Valley Band of Pomo Indians, Hopland Band of Pomo Indians, and
Coyote Valley Band of Pomo Indians, the unemployment rate on each of the
federally recog-nized Indian reservations in Mendocino County is
approximately seventy-five to eighty-five percent (75%-85%). As such,
Indians sixteen (16) years of age or older who would otherwise be eligible
for a California driver's license do not have the financial resources to
purchase motor vehicles or pay for the annual cost to maintain and insure
these vehicles. As a result, American Indians residing in Mendocino County
possess a disproportionately low number of California driver's licenses
compared to the non-Indians residing within the county. Moreover, the State
of California and the County of Mendocino do not have jurisdiction to
enforce their civil regulatory laws against reservation Indians on their
reservations. As a result, a reservation Indian does not need a valid
California driver's license or vehicle registration to operate a motor
vehicle on his or her reservation. In addition, those tribes, here in
Mendocino County, that have revenue being generated from their casinos to
fund tribal governmental programs, benefits, and services on the
reservation are beginning to develop their own motor vehicle licensing and
registration codes. Thus, a tribal citizen within the county would be able
to operate a motor vehicle within the state both on and off the reservation
without needing a valid California driver's license or registering his or
her vehicle with the State of California, as long as that tribal citizen
had a valid tribal driver's license, registration, and vehicle license
plates issued by his or her tribe.
8. The Jury Commissioner in Mendocino County refuses to utilize Mendocino
County tribal voter registration lists as one of the lists in selecting
jury panels for criminal cases here in Mendocino County, even though these
lists are available and even though they contain one hundred percent (100%)
of all of the enrolled members of every federally recognized Indian tribe
located in Mendocino County. In my opinion, the utilization of the tribal
voter registration lists by the Jury Commissioner would eliminate the
disproportionate under-representation of American Indians on jury panels in
criminal cases in Mendocino County.
9. The reason that a majority of American Indians residing within the
County of Mendocino do not want to participate in state, city, and local
county elections is because they view the State of California, and its
political subdivisions, as their enemy. For this reason, they do not want
to register to vote or participate in local city and county elections. To
understand why American Indians view, even to this day, the State of
California and County of Mendocino as their enemies, you have to understand
the historical relationship that has existed between tribal, state, county,
and city governments and between Indians and non-Indians in this county.
10. Prior to contact with non-Indians there were approximately 310,000
American Indians living in the State of California. In a relatively short
period, from 1830 to 1910, that population decreased from approximately
245,000 Indians to approximately 16,000. Three factors contributed to the
death and decline of American Indians in the State of California: (1)
disease, (2) starvation, and (3) murder. While diseases, such as the small
pox outbreak here in Mendocino County among the Pomos in the 1840s,
contributed to the death of approximately 60,000 Indians during this time
period, the greatest decline in the population of Indians in Mendocino
County and the State of California during this time period can be
attributed directly to starvation and murder caused by non-Indians. With
the discovery of gold in 1848, the state began to fill rapidly with a new
wave of white immigrants. Those portions of the Indian territory that, up
until this point, had escaped direct contact with non-Indians, now was
invaded by miners, ranchers, and farmers. The remote areas of the state,
such as the Sierra Nevada, Cascades, and Siskiyous attracted miners, while
the remote areas of the central valley and coastal ranges, such as
Mendocino County, were overrun by non-Indians seeking to log timber, ranch,
and farm.
11. The overwhelming assault upon the subsistence, life, and culture of all
California Indians during the short period of time from 1848 to 1865 has
seldom been duplicated in modern times by an invading race. This has been
set forth in extensive detail and testimony submitted to the Indian Claims
Commission in the Clyde Thompson cases and other cases filed by California
Indian tribes with the Indian Claims Commission in the 60s and docketed as
Docket Nos. 31 and 37.
12. The Indian population declined and was reduced still further to a
population of about 100,000 by 1850. The decline during the worst decade,
1845 to 1855, was incredible. Approximately 150,000 Indians were reduced to
a population of 50,000 persons. This reduction in the Indian population was
accomplished by a ruthless flood of miners and farmers who literally
annihilated the Indians without mercy or compensation. The direct causes of
death were disease, the bullet, exposure, and acute starvation. The more
remote causes were the insane passion for gold, abiding hatred for the "red
man" and a complete lack of any legal control to stop the miners from
murdering Indians.
13. By 1865, many of the surviving Indians had discovered remote niches
where they might exist undisturbed or had been settled on reservations.
Nevertheless, the great upheaval of the 1850s was still felt and the
population continued to de-cline. Agents of the Bureau of Indian Affairs
began to make annual reports of the numbers which included those Indians
under direct government supervision, plus others living near the
reservations. The United States census reported 20,385 Indians living in
California in 1880, 16,624 Indians living in Califor-nia in 1890, and
15,377 Indians living in the State of California in 1900.
14. During this same time period, laws in California fostered the
institutionalization of kidnapping Indian children. Evidence indicates that
this practice was widespread throughout California, including the County of
Mendocino. An editorial in the Marysville Appeal of December 6, 1861
illustrates this practice: "But it is from these mountain tribes that white
settlers draw their supplies of kidnapping children, educated as servants,
and women for purposes of labor and lust.... It is notorious that there are
parties in the northern counties of the state, whose sole occupation has
been to steal young children and squaws from the poor Diggers ... and
dispose of them at handsome prices to the settlers, who, being in the
majority of cases unmarried but ... willingly pay $50 or $60 for a young
Digger to cook or wait upon them, or $100 for a likely young girl."
15. In addition, during this time period, the State of California
encouraged private citizens to form militias to hunt down and kill
California Indians. The Clear Lake massacre is just one example of a
typical militia expedition against the Pomo Indians of Mendocino and Lake
County. Under the leadership of Captain Nathanial Lyon, the soldiers,
equipped with boats: "sent across [the lake] in their long dugouts, the
Indians saw they would meet them in peace. So when the whites landed, the
Indians went to welcome them, but the white man was determined to kill
them. Ge-Wi-Lih said he threw up his hands and said "No harm me, good man,"
but the white man fired and shot him in the arm ... men, women and children
were killed around this island. One old lady ... saw two white men coming
with their guns up in the air and on their guns hung a little girl, they
brought it to the creek and threw it in the water ... two more men came ...
this time they had a little boy on the end of their guns and also threw it
in the water. A little ways from her ... two white men stabbed the woman
and the baby ... all the little ones were killed by being stabbed, and many
of the women were also. This old lady also told about the whites hanging a
man on Emerson's Island ... the Indian was hung and a large fire built
under him. Another was tied to a tree and burned to death." (Benson 1932:
271, 272)
16. In order to clear the way for white settlement, the Senate of the
United States in 1853 authorized three commissioners to negotiate treaties
with the Indian tribes in California to extinguish their aboriginal title.
Eighteen treaties were negotiated with the Indians along with promises that
if the Indians moved to the reservations, that the United States
government, and its army, would protect them from white settlers. The
Indians negotiated the treaties in good faith and bartered away millions of
acres of land in the State of Califor-nia in exchange for the Government's
promise of protection and lands with adequate water and game to sustain
themselves and their way of life. The Indians began moving to the
reservations only to find out later, once they had settled upon the
reservations, that the Senate failed to ratify the eighteen treaties. After
they had moved from their aboriginal territory, they found themselves
squatters with no legal title to the land they occupied and no United
States government willing to protect their interests. As a result, the
United States government began setting up military reservations within the
state and specifically within the County of Mendocino. The purpose of the
reservations was to round up and force march all of the Indians to the
reservations for their own protection. Two reservations were created within
the County of Mendocino. The Nomecult or Round Valley Indian Reservation
and the Mendocino Reservation on the coast. Life for the Indians on the
reservation wasn't much better than life off the reservations. Records of
the Bureau of Indian Affairs documents the dishonest and unscrupulous
nature of the Indian agents who operated the reservations between 1854 and
1910. Non-Indian squatters were allowed to set up business-es and farm the
most productive agricultural lance within the reservations. Reservation
supplies were not distributed to the Indians, but rather were sold to
non-Indians for profit. As a result, Indians on the reservations did not
have land available to them to farm. In addition, they were afraid to leave
the reservation to hunt and fish for fear of being murdered by non-Indians.
As a result, Indians on the reservation began to literally starve to death.
17. In response, Congress, in 1906, appointed C.E. Kelsey, a San Jose
attorney, as its special agent for the purpose of assessing the condition
of the Indians of California and submit-ting a report to Congress. Kelsey
found that the majority of Indians, including the Indians of Mendocino
County were land-less, squatting on lands that they had no title to,
uneducated, and starving to death. These Indians also experienced a high
incident of infant mortality. Mr. Kelsey recommended that Congress
appropriate money to purchase lands for homeless California Indians and to
create reservations within the state near where the Indians were squatting
so that the Indians could live peaceably and safely from non-Indians. He
recommended that the lands that were purchased have a good source of water,
wood for the Indians to construct homes, and be located where there would
be an abundance of fish and game. In response to Kelsey's recommendation,
Congress appropriated monies between 1906 and 1910 for the purchase of land
for homeless California Indians in Mendocino County. This included the
purchase of the Coyote Valley, Pinoleville, Potter Valley, Guidiville,
Hopland, Sherwood, Cahto, and Manchester-Point Arena Reservations within
the county. After these reservations were established, and the Indians
moved to these reservations, the United States govern-ment began setting up
schools on the reservation or removing Indian children residing on the
reservation from their families and sending them to Bureau of Indian
Affairs' (BIA) boarding schools in other states to be educated. This
occurred between 1910 and 1930. During this time period, some of the most
cruel and harshest penalties were imposed upon American Indian chil-dren of
Mendocino County. The experiences of the late Frances Jack, a Pomo Indian
from the Hopland Reservation are typical of the experiences of most Indian
children of Mendocino County during this time period. Frances stated that
she and the children from Hopland were forced to dress in non-Indian
cloth-ing and were required to attend the BIA school on the reservation.
Any Indian student who was caught speaking their native language or did not
dress or act appropriately was severely beaten. Frances was routinely
beaten because she refused to stop speaking her native language. During
this same time period, Indians were not allowed to attend white schools
here in Mendocino County. In fact, in the late 1930s, a lawsuit had to be
brought against the Ukiah Unified School District to obtain a Court order
to force the School District to admit Indians to the District.
18. Things were not very much better for American Indians in Mendocino
County during the 50s and 60s. The United States government, in 1954,
decided that it was going to get out of the Indian business. It adopted a
formal policy of termination, that is, to end the special reservation
status of the Indians' lands, break up tribal land holdings, destroy tribal
governments, and integrate the Indian into white society whether they
wanted to or not. The United States targeted the small tribes of California
to test their new termination policy. In 1958 Congress passed the
California Rancheria Act. That Act allowed the Secretary of the Interior to
negotiate an agreement with the Indians to divide up a reservation among
its tribal members, bringing an end to the tribal government, in exchange
for the United States providing the Indians with good roads, good water
systems, good sewer systems, new houses, and, most important of all, good
legal title to their land. Despite the fact that termination was
discretionary under the Act, agents for the Bureau of Indian Affairs told
the Indians that termination was mandatory. Though Congress had
appropriated $300,000 to make improvements on the reservations, a secret
agreement was worked out between key members of the U.S. Senate and high
ranking officials of the Bureau of Indian Affairs in which the Bureau of
Indian Affairs agreed that they would not utilize any of the money
appropriated by Congress under the Act for making improve-ments on the
reservations.
19. As a result, the Indians of Mendocino County agreed to terminate their
reservations in exchange for the Government's promise that sufficient funds
were available under the Act to build new homes, roads, and water and sewer
systems for the Indians as part of termination. Instead, the United States
government used existing inadequate BIA budgets to construct inadequate
water systems, utilizing small 19 foot wells that easily became
contaminated and ungalvanized lead pipe, which contributed later to a high
rate of cancer among the Indians. Under the Act, the United States
developed distribution plans in which Indians received title to their land
but which did not conform to local county building, zoning, or subdivision
laws. As a direct result, when the reservation status of the Indians' land
was removed and the Indians were subjected, for the first time, to county
jurisdiction, the county moved to tax the Indians' land, red-tag their
homes and evict them from their homes because the homes and lots did not
meet uniform building codes, zoning laws, and Subdivision Map Act
requirements. In desperation, the Indians who could, sold the majority of
their land, so they would not lose it at a forced property tax sale,
holding onto small remainder parcels. They would use the profits from the
sale of their land to fix up their homes to uniform building code standards
so they could continue to live in them. The Indians that couldn't sell
their land lost it at a forced tax sale. As a direct result of the
termination policy, Indians in Mendocino county lost 95% of their
reservation lands.
20. In addition, during this time period, from 1954 through 1975, the
United States government began relocating Indians off the reservations into
large metropolitan areas. They would send them to a vocational school to be
trained for a job, find an apartment for them, paying one month's rent in
advance, and then leave them in the city to fend for themselves. Because
most of these individuals had been born on the reservation and lived on the
reservation all their life, they were not able to cope with city life.
Homesick and unable to deal with the cultural shock, the majority of them
lost their jobs due to alcoholism and returned to the reservation or what
was left of it.
21. In 1975 the United States Government adopted a policy of
self-determination for Indian tribes. The policy of self-determination was
for the United States government to recognize the tribes as governments and
to assist them in strengthening their governments and exercising
jurisdiction on the reservations. From 1975 to the present, tribes in
Mendocino County have begun asserting their sovereignty. In almost every
case when the tribes have attempted to exercise jurisdiction on their
reservations, the State of California and the County of Mendocino have
challenged their jurisdiction and authority. This has resulted in lawsuits
being filed over: whether the tribes or the State of California, here in
Mendocino County, have the authority to regulate the hunting and fishing of
Indians on the reservations, whether the County of Mendocino or the tribes
of Mendocino County have the authority to zone their reservation lands,
whether the tribes or the State of California have the authority to
regulate gaming on the reservations and whether the tribes or the County of
Mendocino could enforce local animal control laws on the reservation to
name but a few of the lawsuits.
22. This is an overview of the historical relationship between American
Indians and Indian tribes in the State of California and the County of
Mendocino. As this overview illustrates, the relationship between the two
has been one of constant conflict. For these and other reasons, the
majority of Indians in Mendocino County literally do not want anything to
do with the State of California, the County of Mendocino, or local
non-Indians. For those reasons, many Indians today and particularly mixed
bloods, who are part Hispanic or Italian will not even identify themselves
as being Indian to non-Indians, including census takers for the United
States Census Bureau.
I declare under penalty of perjury the foregoing is true and correct.
Executed this 8th day of January, 1997, in Ukiah, California.
Lester J. Marston
Attorney at Law
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