BEFORE THE CALIFORNIA STATE BOARD OF EQUALIZATION 5901 Green Valley Circle, Room 207 Culver City, California REPORTER'S TRANSCRIPT APRIL 28, 2009 ITEM B2 FRANCHISE AND PERSONAL INCOME TAX HEARING APPEAL OF CECILE R. MIGUEL-RUIZ (No. 414379) AGAINST PROPOSED ASSESSMENT OF ADDITIONAL TAX Reported by: Beverly D. Toms CSR No. 1662 1 1 2 P R E S E N T 3 For the Board Betty T. Yee of Equalization: Chair 4 Judy Chu 5 Vice-Chair 6 Bill Leonard Member 7 Michelle Steel 8 Member 9 Marcy Jo Mandel Appearing for John Chiang 10 State Controller (per Government Code 11 Section 7.9) 12 Diane Olson Chief, Board 13 Proceedings Division 14 For Board of John Johnson 15 Equalization Staff: Staff Counsel 16 17 For Franchise Tax Judy Hirano Board: Tax Counsel 18 Bill Hilson 19 Tax Counsel 20 For Appellant: Keith A. Shibou 21 Representative 22 23 ---oOo--- 24 25 26 27 28 2 1 Culver City, California 2 April 28, 2009 3 ---oOo--- 4 MS. OLSON: The next item is B2, Cecile R. 5 Miguel-Ruiz. 6 MS. YEE: Thank you. 7 MS. OLSON: Mr. Johnson will introduce the 8 issues for this hearing 9 MS. YEE: Okay. Good morning. 10 MR. JOHNSON: Good morning, Madam Chairwoman, 11 Members of the Board. John Johnson with Appeals. 12 The issues presented for this appeal are 13 whether Appellant resided in Indian country during the 14 years at issue so that her reservation-sourced income is 15 not subject to California tax. 16 And whether Appellant's reservation-sourced 17 income is exempt from California tax even if she did not 18 reside on the reservation during 2003. 19 MS. YEE: Okay. Very well. Good morning. 20 MR. SHIBOU: Good morning. 21 MS. YEE: Please introduce yourself for the 22 record. You have ten minutes for your presentation. 23 MR. SHIBOU: Thank you. My name is Keith 24 Shibou. I represent the Appellants. Please forgive my 25 voice if it's a little shaky. I was somewhat accosted 26 in the hallways before this hearing and accused of being 27 part of an anti-Semitic conspiracy to rule the world. 28 So my heart rate is still slightly moving at a higher 3 1 pace. 2 I'm the one person, by the way. 3 Appellant is an enrolled member of the Agua 4 Caliente band of Cahuilla Indians. Her income in 5 question relates only to per capita distributions she 6 received in accordance with the Indian Gaming Regulatory 7 Act for the year 2003. 8 At this time at issue is simply whether 9 Appellant, a member of the Agua Caliente tribe, who is 10 living on fee land within the outer limits of the 11 checkerboard pattern of the Agua reservation is living 12 within Indian country for purposes of being exempt from 13 State income taxes. 14 In accordance with the U. S. Supreme Court 15 ruling in McClanahan, all that was necessary for 16 Appellant to be exempt from State income tax on her 17 tribal income was that in 2003 she resided in the Indian 18 country of her tribe. 19 The Supreme Court has opined that McClanahan 20 created a presumption against state tax authorities 21 which extended beyond the formal reservation boundaries 22 to that area defined as Indian country. That's Oklahoma 23 Tax Commissioner. 24 The question therefore is what is Indian 25 country? Congress in response to the problems created 26 by the checkerboard jurisdiction defined Indian country 27 under USC 1151(a) to include all, and I emphasize the 28 word "all", land within the limits of any Indian 4 1 reservation under the jurisdiction of the United States 2 government, notwithstanding the issuance of any patent, 3 including rights-of-ways and pursuant to subsections b 4 and c also included dependent Indian communities. 5 I've provided you with Exhibit A, which is a 6 duplicate copy of 1151. 7 The State, however, will ask you to rule that 8 there is an exception to 1151(a) and that it was not the 9 intent of Congress to include land in Indian country 10 that was never part of the formal reservation trust 11 land. But no such exception exists. 12 If there was such an exception, why was it not 13 written into the wording of 1151? The Agua reservation 14 was created in a checkerboard pattern by an Executive 15 Order of 1876 and subsequently, quote, "extended the 16 limits of the reservation by Executive Order of 17 September 1877." 18 New reservations were not created. The 19 reservation limits were simply extended. Many of the 20 odd numbered sections in the checkerboard were either 21 retained by the Federal government and later patented in 22 fee simple to Indians and non-Indians or had already 23 been patented to the railroad. 24 The timing of the issuance of fee patents, be it 25 before or after the creation of the reservation is 26 irrelevant. The courts have so opined. United States 27 Condon versus Erickson, 8th Circuit Court states that 28 even if title to reservation lands was granted to 5 1 non-Indians this act by itself does not affect the 2 exterior boundaries of the reservation. And also such 3 within the exterior boundaries remain part of Indian 4 country. 5 The creation of a reservation in an impractical 6 checkerboard pattern gave rise to many administrative 7 problems as to jurisdiction, law enforcement and civil 8 issues. Accordingly, Congress addressed these problems 9 by the enactment of 1151 designed specifically to 10 eliminate such administrative chaos. 11 The Courts have confirmed that the enactment of 12 1151 was intended solely to avoid such jurisdictional 13 chaos. De Koto (phonetic) versus District Court. 14 Although the enactment of 1151 expressly deals 15 with criminal jurisdiction, as is relevant here today 16 the Supreme Court has expressly referenced 1151 in the 17 context of State income taxation. Oklahoma Tax 18 Commissioner versus Sauk and Fox Nations. 19 The Franchise Tax Board is now arguing with 20 your Board that for purposes of State taxation that we 21 return to the chaos that was in effect prior to the 22 enactment of 1151 and asking you to rule that Indian 23 country is limited to only that land that was originally 24 set aside for the reservation. This is categorically 25 wrong. 26 Nowhere has the U. S. Supreme Court or any 27 other court ever limited its rulings on Indian country 28 to include only land that was patented to fee after the 6 1 reservation was established. 2 United States Congress has plenary and 3 exclusive powers over Indian affairs. The United States 4 Department of the Interior addressed the question as to 5 what were the outermost boundaries of the Agua Caliente 6 reservation, and in their letter dated July 17, 2002 7 provided a map outlining the reservation limits. 8 Exhibit B. 9 Their ruling was issued prior to the date of 10 the commencement of this litigation and was made in 11 accordance with USC Seymour -- United States Court, 12 Supreme Court, Seymour versus Superintendent, which also 13 opined, quote, "even granting title of reservation lands 14 within the exterior boundaries remains part of Indian 15 country." 16 The Franchise Tax Board is asking your Board to 17 rule in direct conflict with the intent of the U. S. 18 Congress, in direct conflict with the rulings of the U. 19 S. Supreme Court and other courts, and to further have 20 you rule contrary to that which your Board's opined in 21 its non-precedential ruling on four previous cases for 22 the Sobol family heard in October 2007. 23 The facts applicable to Appellant's case here 24 today are no different from those in the Sobol cases. 25 There have been no changes in law since the Sobol cases 26 were decided. 27 The definition of Indian country of the Agua 28 Caliente based on Section 1151 interpretations of the U. 7 1 S. Supreme Court is not subject to any ambiguity. But 2 if there is any ambiguity in the minds of this Board, I 3 would remind you that in matters of treaty 4 interpretations and the establishment of reservation 5 boundaries Indian laws are to be interpreted in favor 6 of the Indians. U. S. Supreme Court, County of Yakima. 7 I would also like you to consider the following 8 facts that further confirm Appellant's arguments. In 9 our briefings we provided a significant list of 10 contracts and agreements entered into between the Agua 11 Caliente and cities over which the area of the Agua 12 reservation boundaries were established. 13 All of these agreements which encompass both 14 fee and reservation lands require the approval of the 15 Bureau of Indian Affairs. 16 There are signs placed on Highway 111 on the 17 extreme northern boundary Section 3, which is a 18 non-trust section, and again on the extreme southern 19 boundary of Section 34, which is trust land, placed 20 there by Cal. Transit stating, quote, "You are now 21 entering the Agua reservation." CalTrans does not have 22 multiple signs entering and leaving at each section. 23 The State of California -- the State of 24 California has recognized under the California 25 Environmental Quality Act, CEQA, and the National 26 Historic Preservation Act, that the non-trust sections 27 within the limits of the Agua reservation, being the 28 odd-numbered sections, are included in the limits of the 8 1 Agua reservation and accordingly provided authority to 2 the Agua Caliente for monitoring necessary to assess the 3 impact on cultural resources as a result of development 4 of these sections. 5 I have submitted here today Exhibit C, a copy 6 of an agreement entered pursuant to CEQA, between the 7 Agua Caliente and a Dr. Sheer provided with his approval 8 relating to Section 35, which was land patented to the 9 railway before the creation of the Agua reservation and 10 never part of the trust lands held by the U. S. 11 Government, but as being defined in his agreement as, 12 quote, "within the Agua Caliente reservation." 13 This is just one example of where the State has 14 actually recognized the boundaries of the Agua 15 Caliente's Indian country. 16 Finally, during the 1950s most of the Agua 17 members were residing on Section l4, which is now the 18 downtown area of Palm Springs. Most of their homes are 19 rundown and some came in conflict with the development 20 plans of the city. 21 On December 5, 1956 the city began to 22 indiscriminately condemn and burn houses of the Aguas 23 and other minority groups residing on Section 14. 24 Believe it or not, homes were often burned without 25 giving notice to the owners while they were at work. 26 The State did not intercede. 27 Aguas and others were forced to scatter to 28 other areas of the reservation to build or buy homes. 9 1 To compound their problems, banks would not provide 2 mortgage funds for homes on the numbered -- on the 3 even-numbered trust sections, thus forcing displaced 4 tribal members to buy homes on odd-numbered sections. 5 Back in the 1700s our Congress defined Indian 6 country to be all that land west of the Mississippi. 7 Genocide and military force reduced Indian country to 8 confined reservations. Subsequently tax and other 9 benefits were granted to reservation Indians. 10 Appellant and her family have succeeded over 11 time in raising themselves to a higher standard of 12 living by utilizing the benefits available to tribal 13 members in Indian country. 14 So, what is the Franchise Tax Board now 15 attempting? For the sole purpose of generating tax 16 dollars they are ignoring the intent of our Congress, 17 misinterpreting the rules of the U. S. Supreme Court, 18 and further ignoring California's own established laws. 19 I urge this Board to simply follow the rulings 20 of our Supreme Court and not subject Appellant to a 21 further improper tax. 22 Thank you. 23 MS. YEE: Thank you very much, Mr. Shibou. 24 Franchise Tax Board. 25 MS. HIRANO: I'm Judy Hirano, representing the 26 Franchise Tax Board. Sitting beside me is Bill Hilson. 27 This case, as Mr. Shibou noted, involves a 28 member of the Agua Caliente band of Cahuilla Indians. 10 1 Appellant's tribe's reservation, the Agua Caliente 2 reservation, was created and enlarged by Presidential 3 and Executive Orders in a checkerboard pattern. 4 The Executive Orders set aside even-numbered 5 sections of public land for the reservation because the 6 odd-numbered sections had been transferred to the 7 railroad company. 8 The issue here is whether Appellant lived in 9 the State outside of a tribe's reservation so that her 10 capita income from her tribe in 2003 is subject to State 11 tax. 12 Appellant lived on fee simple property on Salem 13 Road in Cathedral City that she purchased from a 14 California limited partnership. This part -- property 15 is located in Section 15. 16 There is no evidence Section 15 was ever made 17 part of the Agua Caliente reservation by Executive Order 18 and -- and that it has ever been a part of the Agua 19 Caliente reservation. 20 The U. S. Supreme Court jurisprudence in this 21 area is clear that if Appellant lived outside her 22 tribe's reservation within the State she is subject to 23 State tax on her per capita income as a California 24 resident. 25 Appellant contends her home is located on the 26 Agua Caliente reservation based on her interpretation of 27 the definition of a reservation in a Federal statute 18 28 USC subsection 1151(a). However, the legislative 11 1 history, including the cases cited in the adviser's 2 notes attached to the house report as a -- as a basis 3 for the -- as a basis for the Subsection 1151(a) 4 definition of a reservation does not support Appellant's 5 interpretation. 6 Moreover, the U. S. Supreme Court decisions 7 addressing whether specific land is Indian country both 8 before and after enactment of Section 1151 make clear 9 that a prerequisite to Indian country or reservation 10 status is that the land be lawfully set aside for the 11 use of Indians as their land by Congress or the 12 President through his delegated authority. 13 In this case the Executive Orders that created 14 and enlarged the Agua Caliente reservation set aside 15 even-numbered sections of public land for the 16 reservation. However, Appellant's home is located in 17 Section 15. 18 There's no evidence Section 15 was set aside by 19 Congress or Presidential Executive Order for the Agua 20 Caliente reservation. 21 Section 15 is 640 acres, about one square mile, 22 of developed row property in Cathedral City controlled 23 by a political subdivision of the State of California. 24 If your Board accepts Appellant's 25 interpretation of Subsection 1151(a) that her home is 26 located on the Agua Caliente reservation because it is 27 in between checkerboard sections of land that were set 28 aside by Executive Order for a tribe's reservation, the 12 1 effect would be to expand the reservation and change its 2 physical dimension so that it to no longer would be 3 checkerboard but rather a continuous land area. 4 However, only Congress or the President through 5 his delegated authority can create or enlarge a 6 reservation. 7 In addition, there is no evidence Appellant's 8 fee simple property meets the requirements for a 9 dependent Indian community defined in 18 USC Subsection 10 1151(b). There is no evidence her property, one, was 11 set aside by the Federal government for the use of 12 Indians as Indian land and, two, is under Federal 13 supervision. 14 Appellant has also provided no evidence that 15 her tribe is a partnership for tax purposes. Even 16 assuming partnership tax law applies, Appellant's per 17 capita income is taxable by the State because no tax 18 code or other provision exempts per capita income from 19 State tax. 20 Further, Appellant acknowledges the Indian 21 Gaming Regulatory Act does not expressly preempt State 22 tax on a per capita income and no cases have recognized 23 such preemption. 24 Your Board could make a factual determination 25 Appellant did not live in a tribe's reservation in 2003 26 and thus is subject to State tax on a per capita income 27 as a California resident under Revenue and Taxation Code 28 Section 17041. However, your Board lacks the authority 13 1 to declare a statute unconstitutional or unenforceable 2 unless an Appellant Court has made such a determination. 3 Further, your Board has a long-standing policy 4 of abstaining from deciding constitutional issues such 5 as Federal preemption based been the lack of authority 6 for Respondent to obtain judicial review and your 7 Board's belief judicial review of a constitutional issue 8 should be available. 9 Respondent requests that the Board sustain its 10 action in this matter 11 MS. YEE: Thank you very much. Mr. Shibou, you 12 have five minutes on rebuttal. 13 MR. SHIBOU: Well, firstly I agree with most of 14 what the Franchise Tax Board says. But they are missing 15 the essence of this case. They are missing the point. 16 They keep referring to Appellant is not living on a 17 reservation or what was ever constituted official 18 reservation lands. She does not have to. She is only 19 required to live in Indian country. 20 There is a difference between Indian country 21 and the reservation. And if I might quote, at a 22 conference of State Tax Commissioners, David Ingleses of 23 the New Mexico Taxation and Revenue Department explained 24 that there is a difference between an Indian reservation 25 and Indian country. 26 He went on to say that, quote, "USC 1151 27 defines Indian countries as all lands within the limits 28 of an Indian reservation." 14 1 He further stated that the U. S. Supreme Court 2 has held that 1151 applies in civil context as well as 3 criminal, quoting Justice Clarence Thomas, a 1998 4 decision. 5 Again and again, we are not trying to make the 6 section were the Appellant lived part of a reservation. 7 We can't do that. No one can do that. You can't do it. 8 Only Congress can do it, or an Executive Order. 9 The point is that there was chaos as to the 10 administration -- the Congress recognizes and they said 11 that land encompassed by reservation boundaries is 12 Indian country. The exemption for taxation does not 13 fall with having to be in Indian country, only -- I'm 14 sorry, on a reservation, but only in Indian country. 15 Just imagine the chaos -- and this is the chaos 16 the Franchise Tax Board would ask you to fall back to 17 and which Congress enacted 1151 to prevent. 18 Can you imagine if the interpretation was 19 different? Appellant's grandfather shoots a deer while 20 standing on one section, but the deer is ten yards away, 21 but over a section line. Can he collect the spoils of 22 his hunt or is this illegal? 23 Let's take this room. What if this little area 24 in here was Appellant's section, surrounded by 25 reservation sections. 26 Mr. Leonard says to me, "Mr. Shibou, could you 27 please come up and talk with me over there." And I say, 28 "Well, there's a hypothetical wall here around me. I 15 1 can't get out." Why can't I get out? I can't get out 2 because I'm inside. I'm inside a reservation. 3 I mean, you're either in it or you're out of 4 the boundaries. The Department of the Interior provided 5 a letter. They made a beautiful schematic. They 6 defined the reservation boundaries as to be the outer 7 limits and all that land within the outer limits is 8 Indian country. It's not reservation country, it's 9 Indian country. 10 But the Courts -- United States Supreme Court 11 is very clear in this. You do not have to live on a 12 reservation under 1151(a) to be exempt from tax. You 13 are only required to live on the, quote "Indian country" 14 of the tribe of which you are a member, and Indian 15 country is all -- and I repeat, all that land within the 16 exterior limits of the reservation boundaries. 17 Thank you. 18 MS. YEE: Thank you very much. Questions or 19 comments, Members? 20 Dr. Chu, then Ms. Mandel. 21 DR. CHU: For the FTB, the Appellant 22 differentiates between Indian lands versus Indian 23 country. Is there a legal basis for this? 24 MS. HIRANO: I'm not certain if it's Indian 25 lands and Indian country. 26 MS. YEE: Reservation. 27 MS. HIRANO: Reservation land or -- actually, 28 Section 1151 defines Indian Country and the subsections 16 1 further define the different types of Indian country. 2 And subsection "a" deals with reservations. 3 Subsection "b" with dependent Indian community. And 4 subsection "c" with Indian allotments. And Mr. Shibou 5 had made arguments regarding both the -- the reservation 6 and dependent Indian community. So, we responded to 7 those in our briefs, and I attempted to respond to 8 those. 9 Essentially, though, the requirement that is 10 consistent in all of these definitions is that the land 11 be set aside for Indians for their use. And that it 12 also be under Federal control or Federal supervision 13 regardless of the specific type of particular land. 14 And -- and so, the reason I had focused on 15 reservation is because the tribe itself -- you know, 16 identifies it's Indian country as a reservation, 17 although they are allotted parcels on the reservation 18 and I believe Appellant has acknowledged that she did 19 have a few allotted parcels on her reservation. 20 So, there might be some overlap but here I 21 think the major type of Indian country is reservation. 22 And -- and therefore determining whether Appellant lived 23 in Indian country depends on a determination of the -- 24 you know, what would include -- what would be included 25 in -- in that definition. 26 And we would submit that the land must be set 27 aside for the Indians, and that was not done with 28 Section 15 in which Appellant's property was located. 17 1 MR. SHIBOU: May I respond? 2 MS. YEE: Mr. Shibou, please. 3 MR. SHIBOU: Yeah, I agree. Section 15 was not 4 part of the reservation. No question. I'm not arguing 5 that. But 115 -- but the response from the Franchise 6 Tax Board, as you can see, is somewhat a little mumble 7 jumble in a sense. I don't want to be critical. But 8 1151 was defined -- was established to include all lands 9 within the exterior limits of the reservation. I'm not 10 arguing subsections "b" or "c", simply subsection "a". 11 A reservation was created. That reservation had limits. 12 There was land within that reservation limits 13 that was not reservation land nor was ever reservation 14 land nor will probably ever be reservation land. 15 But the Supreme Court has opined time and time 16 again it does not have to be reservation land or ever 17 was reservation land to be Indian country. All that is 18 necessary is it be within the limits of the Indian 19 country. And that's what I'm -- the Franchise Tax Board 20 and I have our difference on. 21 MS. YEE: Okay. Ms. Mandel. 22 MS. MANDEL: I just wanted to make sure I had 23 all your exhibits, Mr. Shibou, because my package has -- 24 MR. SHIBOU: I apologize -- 25 MS. MANDEL: -- it doesn't have anything 26 between -- after D and E. 27 MR. SHIBOU: It has -- I think it has a D and 28 and an E, and my secretary just made extra tabs in case 18 1 I needed them. 2 MS. MANDEL: Oh, okay. 3 MR. SHIBOU: I apologize. 4 MS. MANDEL: I just -- no, I just want to make 5 sure I had everything. 6 MR. SHIBOU: You have -- you have all my 7 exhibits there, yes. 8 MS. MANDEL: Okay, thanks. 9 MS. YEE: Okay. Other questions or comments, 10 Members? 11 Okay. Mr. Leonard. 12 MR. LEONARD: Madam Chair, your analogy about 13 standing on Section 15 and shooting a deer in Section 14 14 or vice versa, it was basically a question I was going 15 to ask, if -- if in Indian country is there any -- and 16 not on reservation land, this -- this factual situation, 17 is there any Indian government jurisdiction over that 18 non-reservation land? 19 I mean, your example of shooting the deer, if 20 the deer fell over on non-reservation land, I would 21 assert that California Fish and Game would be tougher 22 than the Franchise Tax Board. You think the FTB is 23 tough. Shoot a deer out of season -- 24 MR. SHIBOU: I was referring to her 25 grandfather. 26 MR. LEONARD: Is -- are there examples where -- 27 where the Agua Caliente tribe exercises some civil 28 authority over Section 15? 19 1 MR. SHIBOU: Absolutely. Many of them. In my 2 preliminary briefing submitted I provided a whole 3 list -- multiple agreements that the Agua Caliente have 4 entered into with the cities over which its reservation 5 lands fall. Palm Springs. Rancho Mirage. 6 MR. LEONARD: That's not on point. That's 7 not -- that's not the -- 8 MR. SHIBOU: But they have agreements for 9 monitoring and cross-monitoring those sections. And in 10 my brief today I quoted the -- CEQA, which is giving the 11 Agua Caliente -- that California has given the Agua 12 Caliente the authority to monitor non-reservation 13 sections. 14 MR. LEONARD: That's statewide. I helped 15 author that bill. That -- 16 MR. SHIBOU: Well -- 17 MR. LEONARD: That's not on point. Is there 18 any civil authority exercised by the Agua Caliente tribe 19 over Section 15? Planning. Zoning. Public Works. 20 MR. SHIBOU: In the -- in -- in the -- not in 21 the brief, in the exhibits I provided today -- 22 MR. LEONARD: Yes. 23 MR. SHIBOU: -- but in the preliminary exhibits 24 I provided a number of instances where the Agua Caliente 25 was -- entered into agreements which provided them with 26 authority to exercise certain authorities over non -- 27 non-trust sections. 28 MR. LEONARD: I'm familiar with those 20 1 agreements and as you cited most of those are trying to 2 settle the war between the city and the tribe from the 3 '50s when the city got out of hand and -- and now 4 they've agreed to share decisions. 5 I think that's the city agreeing to share as 6 opposed to the tribe exercising jurisdiction. 7 MR. SHIBOU: Well, prior to -- 8 MR. LEONARD: That's what I'm trying to figure 9 out here -- 10 MR. SHIBOU: Yeah, I believe -- okay. Prior to 11 the enactment of Public Law 280 wherein the Agua 12 Caliente acceded their police force over these sections, 13 okay, the tribe still retains what we call a nominal 14 tribal authority or tribal police force. And they 15 apparently do attempt to -- what's the word, retain 16 or -- or -- I can't think of the right word. But if a 17 tribal member is drunk or doing something improper, the 18 tribal police force has the authority to take care of 19 him regardless of where he is. In any -- in any 20 department there. 21 MR. LEONARD: But that's a Memorandum of 22 Understanding between Palm Springs P.D. and the tribal 23 police. Again, it's a shared thing. 24 I've supported some of your clients in the past 25 on some of the arguments because I thought that the 26 issue of reservation is -- is -- is still not clarified. 27 Should you not prevail today, this -- this may be the 28 kind of case that should go to the Court and have them 21 1 decide whether or not California can -- can and should 2 be enforcing this law or not. 3 It's -- I feel uncomfortable with us trying to 4 define where Indian country begins and ends. The 5 checkerboard is clearly the most egregious example but 6 there's other tribal situations where Indian country 7 could easily extend miles beyond the -- the deeded 8 reservation. 9 MR. SHIBOU: My opinion, personally, whether 10 it's right or wrong naturally, okay, is that I feel that 11 any decision this Board would make today with regard 12 to -- if it makes a decision, okay, with regards to this 13 particular client, would be that similar as in the Sobol 14 case, your decision should be limited to the -- 15 determining the Indian country of the Agua Caliente. 16 There could well be other tribes all over the United 17 States or all over California which have fee land within 18 the limits which were created under different facts and 19 circumstances. Perhaps they were part of trust land at 20 one time and then taken out of trust by the United 21 States government, which then would specifically 22 prohibit them from being considered to be Indian 23 country. And I don't think -- if I was sitting on the 24 the other side of the table here, I personally would not 25 make any ruling which went past the Agua Caliente 26 determination of the Indian country of the Agua Caliente 27 which was well defined by the Department of the Interior 28 in their 2002 letter. And also the reasoning was based 22 1 upon a U. S. Supreme Court case -- I think it was 2 Seymour -- where they provide -- they've provided that 3 schematic of what they consider the outer limits of the 4 Agua reservation. And, again, I said supported by 5 United States -- interpretation of the United States 6 Supreme Court. 7 But as I said, I think for example, you know, 8 there could be -- as you said, there could be all sorts 9 of different issues with other tribes which may not be 10 quite as clear 11 MR. LEONARD: Thank you. 12 MS. YEE: Okay. Thank you very much. 13 Other questions or comments, Members? 14 Hearing none, is there a motion? 15 DR. CHU: Move to take the matter under 16 submission. 17 MS. YEE: Motion by Dr. Chu to take this matter 18 under submission. 19 Is there a second? 20 MS. MANDEL: Second. 21 MS. YEE: Seconded by Ms. Mandel. Without 22 objection, that motion carries. 23 MR. SHIBOU: May I leave a copy of the cites I 24 just presented with the -- 25 MS. YEE: Sure. 26 MR. SHIBOU: Oops, sorry. 27 MS. YEE: Thank you. We'll take that matter 28 under submission -- 23 1 MR. SHIBOU: Thank you. 2 MS. YEE: -- and discuss the case later today. 3 ---oOo--- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 1 REPORTER'S CERTIFICATE. 2 3 State of California ) 4 ) ss 5 County of Sacramento ) 6 7 I, BEVERLY D. TOMS, Hearing Reporter for the 8 California State Board of Equalization certify that on 9 February 1, 2008 I recorded verbatim, in shorthand, to 10 the best of my ability, the proceedings in the 11 above-entitled hearing; that I transcribed the shorthand 12 writing into typewriting; and that the preceding 24 13 pages constitute a complete and accurate transcription 14 of the shorthand writing. 15 16 Dated: May 18, 2009. 17 18 19 ____________________________ 20 BEVERLY D. TOMS 21 Hearing Reporter 22 23 24 25 26 27 28 25