Tribe says racism behind Fallon’s refusal of utility service

Tuesday, Jan. 11, 2000 | 1:08 a.m.

The state Public Utilities Commission is scheduled to hear from both sides about the dispute later this month. Commission staff has concluded the city is wrong to deny the service.

"It is racially based," said Treva J. Hearne, lawyer for the tribe. "The city claims it's an issue of sovereignty but the only people capable of having such an issue are Native Americans. Of course it's racial."

Michael F. Mackedon, Fallon city attorney, said race has nothing to do with the dispute. He said the issues are far-reaching dilemmas of law.

"The heart of it is that there are two sovereigns occupying the same area," he said. "This can't be reducible to racism. It's a question of an area being subject to the authority of the city or the authority of the tribe."

The controversy revolves around 36 acres of land dubbed the Fox Peak development near Churchill County Hospital in Fallon. The tribe bought the land in 1997 at a cost of $1.3 million - money coming from a water settlement and specifically earmarked for the tribe's economic development.

Under the federal water settlement law, the tribe was authorized to buy land for economic development purposes. The tribe- like all American Indian tribes - is a sovereign nation and the land is reservation land not subject to local laws and regulations.

The land has 500 sewer connection credits. A sewer line extension, paid for by the tribe, runs through the property.

The tribe wants to develop the area and long-term plans may include retail shops, office space, and an assisted-living development for elders.

The first phase of the property was to be the gas station and convenience store. When the tribe applied for sewer service for those buildings last year, the city council not only refused the application but also said it would not grant the tribe any utility service on the property.

Fallon's position is that unless the tribe takes its land out of trust reservation status with the federal government and cedes jurisdiction to the city, Fallon won't grant any city services to the development.

Hearne said taking the land out of trust reservation status and giving up sovereignty would take an act of Congress.

"It's not going to happen," she said. "The tribe has a right to the same utility service as any other developer."

Mackedon said other developers, unlike the tribe, are subject to the city's authority.

"(The tribe) is not subject to our health codes, police powers, zoning, anything," he said. "There are so many questions to be answered before we can make this work. It's a profoundly serious matter to the city."

Hearne said the tribe has offered to make contracts about all of its concerns and those contracts would be enforceable no matter who is in office on either council. She said other cities, such as Palm Springs, Calif., share land with tribes and make all kinds of agreements for fire protection, zoning, police services, and other matters.

"The bottom line is that Fallon officials don't like the tribe opening up businesses in downtown Fallon," she said. "They don't like them trying to compete."

Mackedon said the matter is complex and the city must study every aspect of the question before it gets in front of a judge.

"This is a deep, deep controversy with profound consequences," he said.

The Public Utilities Commission is scheduled to meet to discuss the tribe's petition on Jan. 27. The PUC staff has already concluded Fallon should provide the utility services and that the "island" of Indian land is no different from any other undeveloped parcel within the city.

The PUC staff concluded "as a matter of federal law, denial of services to a federal enclave constitutes discriminatory treatment which could subject the city to antitrust and equal protection legal claims."