Naive Ignorance: Genesee County Officials Made Agreements with the now-Former Bay Mills Leader, Reportedly the Same Day he was Voted From Office

Naive Ignorance:  One must wonder if the Genesee County officials mentioned in the article referenced in this post had even a clue that the Bay Mills Indians were holding an election this week and that now-former Tribal Chair Jeff Parker was facing a re-election challenge. That Genesee officials report making an agreement with Parker on the very day he was voted out of office hardly seems prudent.

Three words to remember for the future:  Homework & Due Diligence.

For a generation, Parker had tightly ruled the Bay Bills Indian Community.  Now there will be a new regime at the helm.  Did Genesse County officials even anticipate that?  Did they anticipate that any agreements with Parker might well be moot, simply unacceptable or even non-binding under the new regime?

It's understandable that local officials have little to no experience dealing with Indian tribes and Indian issues, but before they leap into discussions with or consider agreements with new leaders, they would be best served to survey their experienced counterparts representing communities in and out of Michigan and to also consult with lawyers and others with such expertise. Although they'll try -- their track record suggests so -- the tribal leaders and those behind the tribe's schemes are likely to refer expert lawyers and consultants for consideration by Township and County officials who would be wise to avoid any such referrals and instead seek out such expertise independently. Historically, the people behind the Bay Mills schemes have referred counsel and consultants sympathetic to their interests and those of their Indian partner.

Presently the Bay Mills owned land in Flint Township does not qualify as "Indian Lands." That is the opinion rendered by the State of Michigan, U.S. Department of Interior, National Indian Gaming Commission and District Court.  The only one who suggested otherwise is now the former Chair of the Bay Mills Indian Community.  The Flint Township property is not sovereign, nor held in trust, nor tax exempt; rather, it is subject to the same codes, regulations, laws, fees and taxes expected of others who own local property.  There is no need for special emergency services agreements or other arrangements at this time for negotiated fees in lieu of taxes.  And given the tribe's track record in Port Huron, it could be 20 years or more before anything like that is required or otherwise needed, so why agree to anything now?

Genesee County Road Commission agrees to road pact with Bay Mills Indian Community

11.03.2011

By Ron Fonger

FLINT TWP., Michigan -- No one is certain what will happen to undeveloped land owned by the Bay Mills Indian Community here, but the Genesee County Road Commission has agreed to partner with the tribe on future road improvements in the area.

The Road Commission on Tuesday approved an agreement with Bay Mills than could lead to special funding for roads in the area immediately surrounding the tribe's land at Dutcher and Lennon roads.

Road Commission Manager-Director John Daly said a representative of Bay Mills talked to county road officials last month, suggesting the "acknowledgement of public authority responsibility" agreement.

Tribal leaders had no new information about how the property will be developed and made no requests tied to future road needs... (Complete Story)

BIA to review Barwest/Los Coyotes off-reservation casino plan again

The Bureau of Indian Affairs (BIA) is giving an off-reservation casino in California a second review after it was rejected by former assistant secretary Carl Artman. This latest off-reservation scheme is another attempt by Detroit-based casino syndicators to establish gambling in Barstow, CA.

In a notice published in the Federal Register on 6.06.08, the BIA said it will prepare another Environmental Impact Statement (EIS) on the off-reservation casino sought by the Los Coyotes Band of Cahuilla and Cupeño Indians and its partners at Detroit-based Barwest LLC (Marian Ilitch and Michael J. Malik, Sr.). Ilitch and Malik were behind the push to establish gambling in Detroit, MI; and Ilitch is the owner of Detroit's MotorCity Casino. For more than a decade, Malik has been trying to push plans through Congress for another off-reservation casino in Port Huron, MI.

According to the Notice, the Los Coyotes tribe seeks to acquire 45 acres in Barstow, more than 100 miles from its reservation. The 45-acre parcel, and at least another 50 acres or more, are currently controlled by Barwest's Michael Malik.

Through Barwest, Malik and Marian Ilitch would transfer title over the property to be held in trust for the San Diego-based Los Coyotes tribe. In exchange, the casino syndicators get the exclusive rights to develop and manage the future casino and resort. Malik and Ilitch could take as much as 30% of the tribe's annual casino earnings back to Detroit.

Artman rejected the Barwest/Los Coyotes project in January because he said the gaming site was too far from the reservation. However, the Los Coyotes tribe, encouraged by its financial backers, renewed the proposal.

The Big Lagoon Rancheria was part of Barwest's previous proposal for a dual-casinos resort project in Barstow but the Rancheria is no longer seeking an off-reservation casino. That previous dual-casinos plan would have split the 45-acre parcel between the two tribes.

Now, Barwest seeks to transfer its entire 45-acre Barstow parcel for the exclusive use of the Los Coyotes tribe. A Municipal Services Agreement (MSA) between the Los Coyotes tribe and the City of Barstow allows for a Los Coyotes casino resort project not to exceed 20 acres. This latest scheme is more than twice that size.

In 2004, Governor Arnold Schwarzenegger rejected plans for a Los Coyotes stand-alone casino on 20-acres in Barstow. And in 2006 & 2007, the California Legislature failed to approve plans for the proposed dual-casinos resort.

The 6.06.08 Federal Register Notice gives the public until July 7th to comment on "what should be covered" in the new EIS.

Schwarzenegger aide Andrea Hoch doesn’t have a clue!

Andrea Hoch, Governor Arnold Schwarzenegger’s Legal Affairs Secretary, a member of the California State Bar; and a graduate of Stanford University and the McGeorge School of Law; doesn’t appear to have a clue what she’s talking about when it comes to gaming compacts her predecessors negotiated with Big Lagoon Rancheria and Los Coyotes Band of Cahuilla and Cupeno Indians.

With all due respect, she didn’t take the job with the Governor until October 17, 2005; several months after the conclusion of compact negotiations. However, either Hoch has set out to intentionally mislead the legislature on this matter or ghost writers have done Hoch, the Governor and the legislature a grave disservice.

In a follow up letter Hoch signed and sent on June 14, 2006 to former Assemblyman Jerome Horton (then chair of the Assembly Governmental Organization Committee) in advance of an Assembly GO Committee Hearing on the pair of gaming compacts; Hoch makes some very serious factual errors and perpetuates some of the same half-truths frequently used by Barwest’s attorneys and PR people. Among numerous misstatements and blatant errors she uses as cornerstones to arguments explaining reasons for the Governor’s approval of the two gaming compacts,

Andrea Hoch writes:

“In 2004, the City of Barstow approached the State, seeking a tribal casino on behalf of the Los Coyotes Band pursuant to section 20 of IGRA. At that time, the City of Barstow had an exclusive negotiation agreement with the Los Coyotes Band and had identified a particular site for the Casino.” FICTION

FACT: The City of Barstow has never had an Exclusive Negotiating Agreement (ENA) with the Los Coyotes Indians nor any other Indian Tribe. It was the Detroit casino syndicators, Barwest LLC, that demanded an exclusive negotiating agreement with the City of Barstow; an agreement that made no reference to the Los Coyotes Indian Tribe or any other tribe.

By June 2004, Los Coyotes Tribal Leaders had grown disenchanted with Barwest and soon thereafter would abandon Barwest for another developer; and there was mounting pubic pressure on the City Council to resist a fourth re-authorization of the ENA with Barwest. Barwest threatened to abandon the City of Barstow if the City talked with any other developers; to appease Barwest, the City awarded a Disposition and Development Agreement (DDA) granting Barwest exclusive rights to develop any casino resort regardless of Tribe.

Mayor Dale slipped through a vote on the DDA with minimal advance public disclosure and no record of public debate or dialogue prior to the Council’s vote. A year later when inquiries were made of the City about such an agreement (and a public records request for a copy of the agreement was denied by the new City Attorney who was told by senior staff that no such agreement existed), key City Officials publicly denied the existence of such an agreement and Barwest remained silent. Barwest and city official were exposed and a red-faced city attorney was embarrassed, when several weeks later a copy of the enforceable DDA was “leaked” publicly.

Andrea Hoch reports:

“… the State brokered an arrangement whereby the Los Coyotes Band agreed to share its casino site with Big Lagoon, which allowed the site to serve the clear, independent public policy of preserving the Big Lagoon from commercial development. The arrangement allows the Los Coyotes Band and Big Lagoon to share the identified parcel (now split in two) on which a unified casino project, comprised of two adjacent gaming facilities, would be developed.” FICTION

FACT: The Los Coyotes Band has no land in Barstow. Barwest owns 110 acres or more in Barstow some of which it intends to convey to one or more tribes in the future. On July 1, 2004 the Barstow City Council approved a casino site for the Los Coyotes Band of Indians not to exceed 20 acres carved out of a 48 acre parcel controlled by Barwest.

Specifically the original agreement (MSA) Hoch references between the Los Coyotes Tribe and the City of Barstow reads:

Section 1. Land to be Taken into Trust

The Tribe will request that the United States take into trust for its benefit land not to exceed twenty contiguous acres, absent written agreement of the City, from the parcel(s) identified in Exhibit A appended hereto (“Trust Lands”). The Tribe agrees that it will not seek other or additional parcels within the City to be taken into trust unless and until this Agreement is amended as provided herein to authorize additional trust land acquisition(s). (From MSA the Barstow City Council approved July 1, 2004)

Los Coyotes is not sharing nor splitting the 20-acre site identified by the Barstow City Council.

In fact, the Los Coyotes Tribe goes from a Council authorized 20-acre development footprint to a 24+ acre footprint which is 20-25% larger than what the City Council had originally identified.

Rather, than two casinos on the Los Coyotes 20-acre parcel the City Council identified as a Los Coyotes’ site, Barwest will now have exclusive rights to develop and manage two casinos on its 48-acres (a mega resort project almost 2.5 x larger than originally envisioned); and additional surrounding resort compatible commercial projects on perhaps hundreds more acres.

Neither Los Coyotes nor Barwest have made any true sacrifices as implied by Hoch’s argument; quite the contrary! Both Los Coyotes and Barwest are BIG WINNERS with the addition of Big Lagoon. All they’ve sacrificed is the time and patience it took them to convince Big Lagoon to get on board.

For the first five years of operation Barwest LLC's "take" of operating revenue will be approximately 30% per year. The original Los Coyotes proposal called for 1,000-1,500 slot machines. Now, the combined compacts allow for upwards of 4,500 machines (at least a 300% increase) and "poor" Barwest LLC now stands to gain 30% of operating revenues generated from a 4,500 slots dual casinos resort; a very substantial difference. AND the Los Coyotes Tribe goes from a casino with a max of 1,500 slots to a casino with upwards of 2,250 slots (150% increase over its original Barstow plan).

Hoch indicates, as has Dan Kolkey previously, that Los Coyotes is only included in the Barstow proposal because that tribe already had agreements with the City and was willing to make some sacrifices to accomodate Big Lagoon. Absent any sacrifices, Los Coyotes is only included because it had a previous MSA with the City of Barstow.

So why is it that if for some reason Big Lagoon Rancheria meets all Federal and State approvals but the Los Coyotes Band of Indians does not; Barwest has the right to substitute another tribe in the Los Coyotes position. Given this rational by the Governor's team, it would seem reasonable that if Los Coyotes is turned down and Big Lagoon is approved, then there would only be a Big Lagoon casino resort. Barwest's ability to substitue a second tribe for Los Coyotes rewards only Barwest LLC and means that a second tribe would be forced to contract with Barwest LLC in order to develop its Barstow casino resort.

In the same way that these parties brought embarrassment and shame upon the reputation of Barstow’s then-new City Attorney when they withheld information and she originally affirmed there had never been a DDA between Barwest and the City of Barstow; perhaps these guys have used Ms. Hoch, the Governor’s Legal Affairs Secretary in the same manner. Ms. Hoch is the only one who can set the record straight on how it is that she came to make such gross errors and untrue representations to the legislature.

You may want to review these subsequent posts as well:

• Detroit-based Barwest Gaming taught Schwarzenegger aide Andrea Hoch all she needs to know on Native American history of the Great Mohave Desert
• Here's a tip for Schwarzenegger's legal affairs secretary, you don't have to take the Detroit Developer's word for it

• Casino developer’s representations biased; consultants “specialization” challenged

Casino developer may have mislead Schwarzenegger's negotiator to get approvals for twin casinos

Dan Kolkey may have been duped by Barwest's half-truths and illusions but this should take all that mystery and confusion away

From the very beginning, Barwest LLC demanded secretness and exclusivity. A city employ explained that prior to June 2003, there had been 15 months of top-secret negotiations and that he, a city employee, had signed a confidentiality agreement with the Detroit developer. And when they could no longer moved foward in secret, Barwest demanded and got an Exclusive Negotiating Agreement (ENA) with the City of Barstow (June 2, 2003). There is not one reference in that exclusive agreement to the Los Coyotes Band of Indians nor in the "rationale" provided to the Barstow City Council at the time they were to consider approval of the agreement. That ENA between the Detroit Developer and the City of Barstow was extended in September 2003 and again March 1, 2004 without reference to the Los Coyotes Tribe.

In March 2004, a Desert Dispatch columnist reported that Barwest Principal Michael J. Malik and his attorney Lance Boldrey had threatened to walk away from Barstow if the City engaged in discussions with any other prospective tribes or partners. Overtime you can see a pattern of threats and heavy handed leverage.

By June 2004, pressure was building on the City Council to resist yet a third extension of the Barwest ENA and other sideshows were secretly playing out behind the scenes but wouldn't be disclosed for almost a year:

(1) in March 2004 Governor Schwarzenegger had informed Barwest, Los Coyotes Leaders and Mayor Lawrence Dale that he would not approve a Los Coyotes project;

(2) An original introduction to Big Lagoon Rancheria Chairman Virgil Moorehead in April/May 2004 was not productive;

(3) Los Coyotes leaders were becoming increasingly disenchanted with Barwest; and in fact, would formally split with Barwest a month or two later (August 2004); and

(4) Mayor Dale was facing re-election.

Fearing their original 2-3 year capital "investment" might be flushed away, Barwest conjured up a little scheme that:

(a) guaranteed Barwest exclusive casino development rights to Barstow, regardless of tribe, via a Disposition and Development Agreement (DDA) between Barwest and the City; and

(b) invoked the Governor's name and manufactured a "do or die" sense of urgency in order to convince a majority on the City Council to approve, what amounted to a bogus Municipal Services Agreement (MSA) with the Los Coyotes Tribe for a project Barwest and the Mayor knew was already "Dead on Arrival."

It wasn't a binding contract they sought with the MSA but simply a placeholder for Barwest and a barrier of entry into the Barstow market for anyone else over the following nine months. Barwest and local politicians needed to buy some time: Barwest needed time to regroup after the Governor rejected their plans for Los Coyotes and after Los Coyotes rejected Barwest as its business partner; and local politicians were looking to get through their re-election campaign with little noise and controversy. [Officials seek to dispel rumors; Desert Dispatch 10.02.04]

Understand, Barwest presently controls at least 100 acres in Barstow, maybe more (at one time Barwest's officials indicated hoped to acquire 200+ acres). Barwest has access to thousands of acres of BLM land directly adjacent to its 100+ acres. Neither tribe owns or controls any land in Barstow today (that's the purpose of the federal fee to trust process). The original Los Coyotes casino project approved by the Barstow City Council expressly limited the tribe to a 20 acre development. But now, the project has more than doubled: there are two casinos (twin full-service spa casino resorts) to be developed on almost 50 acres (250% larger); with nearly three times the number of the slot machines and gaming tables originally anticipated in the Los Coyotes proposal. Sound like someone hit a jackpot?

With this in mind, read the following post which substitutes Barwest's name for Los Coyotes name where it would be factually correct to get a true picture of who's pushing things in Barstow.

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The following dialogue between Senators and Daniel Kolkey, Governor Schwarzenegger's former lead gaming compact negotiator is excerpted from transcripts of a March 28, 2006 Senate Governmental Organization Committee hearing, Sacramento, Calif.

SENATOR FLOREZ: So, Los Coyotes without Big Lagoon wouldn’t be a valid use of State policy then?

MR. KOLKEY: No.

SENATOR FLOREZ: So, there lies one issue. So, you have Big Lagoon that normally wouldn’t be eligible is eligible now—excuse me, Los Coyotes—because of Big Lagoon. Is that correct?

MR. KOLKEY: The project is eligible under the Governor’s policy because it facilitates Big Lagoon’s relocation.

SENATOR FLOREZ: So, in essence, what came first then—Big Lagoon or Los Coyotes? Why would Los Coyotes even be on the topic if the Governor’s policy itself wouldn’t allow for that?

MR. KOLKEY: Well, number one, the only way for us to facilitate the relocation of Big Lagoon was to find a site in Barstow. Barstow & BARWEST had already identified this site near outlet malls as part of its plan for renovation of the city. And they had an exclusive agreement with Los Coyotes BARWEST. So, the only way that we could facilitate the Big Lagoon relocation was through the site identified by the City of Barstow with Los Coyotes BARWEST. And these were the facts that the State was dealing with then. Let me just say that having gotten Los Coyotes’ BARWEST's agreement to do this, we felt it was a matter of, really, honor and fair dealing that we stick with Los Coyotes BARWEST throughout this. In other words, they BARWEST facilitated this relocation. As a matter of honor and fair dealing, we were going to stick with BARWEST, Los Coyotes and Big Lagoon as a unified project and not try and find, if we could, some other site in Barstow. This was the site that Barstow had picked. Los Coyotes BARWEST facilitated it, and this accomplished, through a relocation and consolidation, really, of two casino projects, the Governor’s policy of avoiding the environmental impact on the coast. [BARWEST is rewarded with two casinos for taking the Big Lagoon problem off Kolkey's lap.]

SENATOR FLOREZ: Okay. Senator Battin?

SENATOR JIM BATTIN: Mr. Kolkey, I have a couple of questions I don’t understand. So, the City of Barstow got to decide where California was going to allow a casino project?

MR. KOLKEY: No—I wouldn’t put it that way. What we have here is we wanted to relocate the casino project that Big Lagoon had on the coast.

SENATOR BATTIN: But through Los Coyotes’ BARWEST's agreement with Barstow, that somehow became an exclusive. You could not have put Big Lagoon there without Los Coyotes?

MR. KOLKEY: We would have needed a site, and one of the things that the Governor’s proclamation has made clear is that in relocating any tribal casino under the Section 20 authority, is we want support by the local jurisdiction and the local community. We’re not going to relocate a casino against the wishes of the local jurisdiction or the local community. And so, if the local jurisdiction says, Here’s where we would like to have a casino, then we’re going to accommodate that local jurisdiction. We’re not going to force something on the local jurisdiction, so we were going to do it where Barstow wanted to do it.

SENATOR BATTIN: So, if I understood a recent news article that I just read, is that the City of Barstow has actually not. . . . the city council could not take a position on the referendum that is in front of the city right now; whether or not they support having the casino there.

MR. KOLKEY: Well, that local initiative is actually quite different from support of the Big Lagoon-Los Coyotes unified casino project. That is a local initiative that seeks support of casinos in Barstow but at a different site and not the site at the outlet malls that the City of Barstow had identified.

SENATOR BATTIN: The city council of Barstow, then, has passed and made a deal with Los Coyotes BARWEST?

MR. KOLKEY: The City of Barstow has a . . .

SENATOR BATTIN: Exclusive, you said.

MR. KOLKEY: They had at the time we were negotiating an exclusive agreement [with BARWEST not Los Coyotes as Kolkey suggests over and over]. This was in 2004. They had an exclusive agreement with Los Coyotes BARWEST. They also have an MOU MSA with Los Coyotes ...

[Yes, there had been an MSA for a project that had already been aborted long before the Barstow City Council awarded the agreement - in March 2004 the Governor had rejected that proposal. Barwest and Mayor Dale failed to reveal they were no longer pregnant with the Los Coyotes Casino when they asked the City Council to seal the deal with an MSA they knew would not ever be valid. Then weeks before the November 2004 election it was discovered Mayor Dale had never executed the bogus agreement.

It wasn't until almost a year later when Barwest announced it would give birth to twin Casino resorts that the players confessed what had gone on behind the scenes the year before].

click for: complete transcripts