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The Elem Pomo Tribe v. John Nady

The Struggle For Rattlesnake Island

by WILL PARRISH

The oldest human remains so far discovered in California belong to the Elem Pomo Nation, who have lived on the eastern and southern shores of the Clear Lake basin for at least 10,000 years, also inhabiting much of the peninsula between eastern and southern arms of the lake. For a minimum of 5,000 of those years, the Elem’s way of life has centered on an island, roughly 56 acres in surface area, located just off the north shore of the lake’s eastern arm. The island has been the home of five documented Elem village sites, as well as dance houses, cremation pits, human burial sites — in short, the major hallmarks of the people’s religious, cultural, and political life.

In spite of nearly 200-year history of Euro-American encroachment into the Pomo nation’s ancestral territory, no development has ever taken place on the island. It has been called “arguably the lushest place in Lake County.” Located a mere 60 yards offshore the Elem’s current 50-acre reservation, just outside the sleepy Lake County town of Clearlake Oaks, it is one of the last pristine sacred places to Native Americans in California.

Without it, the Elem Pomo would cease to be who they are as a people.

In 2004, a wealthy Bay Area electronics mogul named John Nady assumed paper title to the island, proposing to build a vacation home along with various supporting structures. Nady says these buildings will be constructed “sustainably,” by which he means an array of solar panels and other accouterments of “green technology.” He asserts that his private property rights ought to trump the Elem’s ability to use the island. Since gaining his paper title, he has even refused to allow the Elem access to the island for ceremonies and other traditional purposes.

Nady’s fanatical devotion to the American system of private property relations is understandable, given the way in which it has worked to his material benefit.

He founded his company, Nady Systems, Inc., based in that well-known sustainable community of Emeryville, in 1972. The company manufactures audio equipment, including wireless microphones that have long had a dominant share in the American music market. As of 1987, 73 out of the top 100 touring musicians ranked by Billboard magazine were using Nady Wireless. The company’s market share of this product category is likely every bit as commanding today. Its patriarch doubtless wields tens of millions of dollars in wealth.

Yet, there are a number of major problems with Nady’s proposal to construct his dream home on Rattlesnake Island, one of which is that even under the strictest definition of AngloAmerican property law, he is not the land’s rightful owner. Rather, as Elem traditionalists have consistently maintained throughout the decades, they never gave up title to the land. In 2005, their position received a boost when former Clearlake resident Liam Griffin completed a 104-page dissertation at the University of New Mexico law school establishing beyond any reasonable doubt the Elem’s rightful ownership.

“Rattlesnake Island was stolen, plain and simple,” Griffin says. “I know that today’s sentiment is typically ‘Well, we can’t undo the past,’ and that’s what the perpetrators were counting on when they represented that the island was not occupied.”

Griffin is referring to the initial 1877 patent on the island signed by then-California Governor Irwin, which ostensibly furnished title to the land to a pair of wealthy Bay Area entrepreneurs. The island’s new paper owners claimed, in spite of all available evidence, that the land was uninhabited. It would be many years before an “Indian” could legally testify in a US court, let alone bring forth a complaint. Thus, the Elem had no legal recourse in California court for challenging this judicial fleecing. Behind this fig leaf of legal propriety, a false title to the land has changed hands among a series of wealthy Anglo Americans for the past 134 years.

That’s the title now in the possession of Nady.

But Governor Irwin’s grant failed entirely to mention the rights of the Native people who lived on the island. Rather, it based its authority on three acts of Congress, none of which actually gave the authority for such a land patent. The Indian Non-Intercourse Act, signed into federal law in 1834, proclaims that aboriginal land title can be extinguished only by an act of Congress. Thus, title to the land still rightfully belongs to the Elem.

“Spurred by the first real threat of development in the 160 years since the arrival of white men,” Griffin’s dissertation reads, “there is an effort now underway, led by the Elem, to clarify their aboriginal rights to the island, with the hope of preserving the island on behalf of all people. Research conducted for this article reveals that the Elem have probably always had a valid claim based on the principle of aboriginal rights, but so far have failed, or been denied the standing, to properly assert it.”

In the years since the initial Euro-American encroachment into their land, Rattlesnake Island has come to signify not only the Elem’s ancient culture, but also something relatively new: the Elem’s steadfast refusal to relinquish that culture, in spite of intense pressure. Remarkably, the Elem continued to use the island for ceremonial and other traditional purposes up to the present day, even when they have had to violate California’s laws to do so.

In the early 1970s, for example, a contingent of Elem traditionalists and supporters occupied Rattlesnake Island to block construction of a subdivision by Boise Cascade Corporation, which today stands as the United States’ 13th largest pulp and paper company, and which owned more than 126,000 acres in real estate holdings in 13 states at the time. Their occupation took place in close proximity to a similar occupation of Alcatraz Island, mounted by a coalition of native people in 1969. Before long, Boise Cascade negotiated with the Elem.

“We’ve been here all this time, and we’ve never lost our culture,” says the Elem’s traditional cultural leader and primary historian, Jim Browneagle. “That’s what I’m more proud of than anything.”

Brown’s pride is particularly understandable considering that the process by which the Elem and other California Indian nations were dispossessed of their land was characterized by gut-wrenching, almost entirely one-sided white-on-native violence. While some of the many incidents of savage Anglo-American slaughter of American Indian nations are far better known, such as those that occurred at Wounded Knee, South Dakota in 1890 and Sand Creek, Colorado in 1864, the bloodbaths that took place in Lake County — as with those that occurred in Mendocino County were neither less brutal nor less historically significant.

One of the largest such massacres took place in 1843, when a Spanish military expedition under the command of Salvador Vallejo burned approximately 200 Pomo villagers alive inside their traditional roundhouse on Kamdot Island in Clear Lake, located on Koi Pomo territory. The natives’ crime was that they refused to submit to slavery at Salvador Vallejo’s 66,000-acre rancho, a parcel that spanned much of Sonoma, Napa, and Lake counties.

From May 15-17, 1850, the US Army carried out what is today known as the Bloody Island massacre. After a group of Pomo men retaliated for years of murder and rape by settlers Andrew Kelsey and Charles Stone (the town of Kelseyville is named after the former), the US Army responded by slaughtering roughly 60 Pomos near Kelsey’s ranch, followed by the arbitrary slaughter of 75 Pomo far away from where the incident took place, along the Russian River.

BrownEagle, 58, is an engaging, energetic man who comes from a long line of spiritual and cultural leaders. His father, Jim Brown II, was the recognized spiritual and cultural leader of the Elem prior to him. His mother, Elvina Brown, was a native of the Big Valley Pomo who also became a recognized Elem cultural leader. He inherited the role of Rattlesnake Island’s most dedicated defender from his uncle, Dewey Barnes, Sr., the acknowledged spokesperson of the early-70s occupation.

Browneagle’s ability to marshal information pertaining not only to his own people’s history, but also various related strands of US history, global geopolitics, and current events is reminiscent of a university history professor. Yet, as Browneagle likes to say, he has been forced to exist in two worlds. He estimates that he devotes roughly half his time to leading and participating in traditional ceremonies and other cultural activities. For the vast majority of his adult life, he has also been a tribal administrator. Along with his wife, Gail, a Yokayo Pomo from the Ukiah Valley, he hosts a weekly public affairs program on KPFZ Radio out of Lakeport entitled “Tribal Voices.”

“I really feel so great about this,” BrownEagle says while brandishing Griffin’s report. “I feel in my heart that if I walk onto that land right now, it’s going to go into court, and I have my case already set up.”

Throughout most of his adulthood, BrownEagle has regularly given presentations on Elem culture in local schools and in other settings. He says his father would talk about the importance of not judging people by any visual criteria, but rather by “hearing each person’s spirit. Then, you really know who they are.”

Choking up as he recalls his late father’s counsel, he adds, “Wow, growing up, that was great for me.” The philosophy has led to a number of important collaborations with supportive non-native people.

For his part, Liam Griffin first became interested in helping protect Rattlesnake Island after he met Browneagle in the 1980s. The two men lost touch for years. But the experience of meeting BrownEagle, as well as having attended school with a number of Pomo people, stuck with him until he made it to college.

Another persistent ally of the Elem has been archeologist John Parker, who lives in the sleepy Lake County town of Lucerne and received his undergraduate degree at Sonoma State. In the early 70s, not long after he first enrolled at the Santa Rosa campus, Parker says, he decided that because his archeological interest was to study “how people live, rather than how they die,” he decided to go door-to-door at the Elem Pomo Colony to ask for their advice on what he should study.

“The first door I knock on, it turns out it was the spiritual leader of the tribe, Jim Brown II,” he recalls. Brown politely listened as Parker explained his intentions but said little, and the two parted ways. By 1978, however, Parker had developed enough of a trusted relationship with cultural leaders of the tribe that they invited him to lead an archeological study of Rattlesnake Island: the first and only time they have done so.

Parker has continued to work closely with the Elem ever since. In 2008, he submitted a proposal have Rattlesnake Island listed in the National Historic Register of Historic Places, the US government’s official list of districts, sites, buildings, structures, and objects deemed worthy of preservation. As a result, the Island has been deemed eligible for the register, though it has not yet been fully approved for the list.

If it is, then any development that occurs there would have to meet more rigorous criteria than is normally required. Remarkably, John Nady’s attorney, a man by the name of Frederick Schrag, wrote a roughly 50-page rebuttal of Parker’s application — a move that had to cost Nady a small fortune, such is his wealth of his one-trick pony as he attempts to ram the project through.

Throughout the process of attempting to ram through his building proposal, John Nady has demonstrated a continual disregard even for basic regulations. In 2004, the Lake County Community Development Department (CDD) erroneously granted him a permit to built a septic system despite his not having conducted an archeological inspection, which the California Environmental Quality Act mandates take place in potentially archaeologically significant areas. The County quickly revoked Nady’s permit. A few months later, Nady began excavation work on the septic system anyway. The Board of Supervisors called a special session with Nady to ask him to stop the work. He told them “No.” The Supervisors were forced to initiate legal proceedings a few days later, with County Counsel sending him a Cease and Desist order.

Investigations by the Elem and their allies have revealed that Nady has conducted at least 7,960 feet of scraping, grading, and trenching work on the island without bothering to obtain any permits, including 1,328 feet of roads, 4,316 feet of foot paths, 1,826 feet of water pipe trenches, 498 feet of power line trenches. Nady openly admitted at a public hearing that that he “cleaned stuff off the island,” much of this “stuff” being historically significant artifacts of the Elem’s habitation of the island in the period since the 1800s. Elem Tribal members have complained numerous times to the County Community Development Department, which has so far declined to follow up on the matter. Nady has repeatedly threatened to sue them.

Most recently, Nady has appealed the County Planning Commision’s unanimous decision that he must submit an Environmental Impact Review to the Board of Supervisors. At their August 16th meeting, the Lake County Supes deliberated on Nady’s appeal. After hearing four hours of testimony, they postponed their decision until September 6th. in their chambers in Lakeport, in a session that begins at 1:30.

Thus far, Nady has retained and fired four different archeological consultants, because they all indicated that the resources on Rattlesnake Island were very significant. At the August 16th Supervisors meeting, his latest archeologist revealed that Nady has categorically refused to allow cultural artifacts to be removed from the island so that they can be scientifically evaluated, as required under CEQA.

Yet, Nady again stated at a separate hearing that he had “cleaned stuff off the island” which also consisted of historically significant artifacts. Nady’s caretaker later confirmed that he was the one who was given the task of “removing the trash.”

Summing up one of Nady’s basic positions, Brown says, “All they [the Pomos] want to do is put a casino on an island, and all I want to do is put my summer home on there.” But the idea that the Elem will put a casino there is extremely far-fetched. In the 1990s, their tribal chairman was recalled explicitly because he supported building a casino there.

At the August 17th Lake County Supervisors meeting, a large contingent of native people from various tribes turned out in support of the Elem’s struggle. One of them was Wounded Knee DeOcampo, a traditional leader of the Coast Miwok people, who recently helped conduct a 104-day occupation of a Miwok burial ground called Glen Cove, which was slated to be developed into a parking lot by the Vallejo Parks and Recreation District. After 99 days of the occupation, the Vallejo City Council unanimously voted to grant the Corina Band of Wintun Indians and the Yocha Dehe tribe a Cultural Easement that allows them the legal right to oversee and protect their sacred grounds. It was the culmination of a struggle that DeCampo says lasted more than a dozen years.

Many of those who took part in the successful struggle at Glen Cove, he says, are ready to take part in a similar action at Rattlesnake Island should the Lake County Supervisors approve Nady’s proposal. “I’ve known Jim Brown for many years, and he has a very strong spirit,” DeCampo says. “I will support the Elem to protect Rattlesnake Island because desecration of sacred sites has to come to a stop.”

Another unyielding defender of sacred sites who attended the hearing was Morning Star Gali of the Pit River Nation of northeastern California.  At the time I spoke to her, Gali was in Arizona supporting blockades organized to stop development of a ski resort in the San Francisco Peaks near Flagstaff, a mountain range considered sacred to 13 different American Indian tribes.  Gali is a former Flagstaff resident. Among her other activities to support self-determination for native people, Gali is one of the hosts of the weekly KPFA radio program “Bay Native Circle,” where she had Jim Browneagle’s son, Eagle Brown, as a guest this past week to discuss the Rattlesnake Island struggle. She says she is also working with others to help develop a web site promoting defense of Rattlesnake Island.

This is far from the first time that Nady has trampled on native people’s spirituality as part of a development he proposed. His production plant in Emeryville is built atop a portion of one of the most sacred sites of the Ohlone people of the San Francisco Bay and Central Coast regions, the Emeryville Shell Mounds.

Also at the August 17 Lake County Supervisors meeting, Jim Browneagle was given a unique opportunity to present an extensive PowerPoint concerning the Elem’s aboriginal rights on Rattlesnake Island. This authoritative presentation was based on Liam Griffin’s dissertation, condensed now into 12 pages with slides. Immediately at issue in the hearing was whether Nady should be exempt from the California Environmental Quality Act. The fact that issues concerning aboriginal title were raised at the Supervisors meeting marked a breakthrough for the Elem.

Ultimately, if the Elem are to gain paper title of the island that is rightfully theirs, it will likely require an act of Congress. Last year, BrownEagle, Griffin, and other Elem representatives met with Congressman Mike Thompson to try to convince him to sponsor legislation bringing the federal government in to perform eminent domain on Nady’s paper title, thus granting Rattlesnake Island back to the Elem. The “grape-obsessed” Thompson, as the New York Times recently put it, wavered at the possibility that such a course might lead to a casino being constructed “in Wine Country.” However, he also indicated he might be inclined to support such legislation if the Lake County Supervisors first approve of it.

“Application of the federal power of eminent domain is the most practical and equitable solution, and the time to do so is now, before this ancient sacred homeland and sacred tribal landscape is destroyed and lost forever,” BrownEagle’s distilled verison of Griffin’s dissertation reads. “We are requesting tribal and public support to prevent the outright destruction of Elem’s 6,000 year old homeland village on Rattlesnake Island.”

Will Parrish can be reached at wparrish@riseup.net

This article originally appeared in the Anderson Valley Advertiser, which will feature ongoing coverage of this issue.