Nonetheless, workers began terracing the driveway Friday in preparation for building retaining walls for a wider road on the reservation.

The constructionstems from the court victory, said tribal Chairman Bill Mesa.

“It’s very definitive,” Mesa said about San Diego federal Judge Irma Gonzalez’s decision to dismiss claims by former reservation residents that construction would disturb Indian graves and related objects.

Walter Rosales and Karen Toggery, who were evicted from the six-acre reservation in March, sued the federal government. They asked Gonzalez to prevent construction on the land 20 miles east of downtown San Diego.

Key among the claims that their lawyer, Patrick Webb, pursued in years of litigation is that the group Mesa leads isn’t the federally recognized tribe and that its land isn’t a reservation.

“Judge Gonzalez recognized us as a tribe and as an Indian reservation,” Mesa said.

After finding that the 50-member tribe is legitimate and its land is sovereign, the judge said the federal government can’t step in to prevent construction there under a federal anti-grave-desecration law.

Gonzalez said protection of those objects is up to the tribe, which has hung a sign on the reservation fence saying as much.

Webb is expected to appeal Gonzalez’s decision. He filed an appeal in March after a Washington, D.C., federal judge ruled that the Bureau of Indian Affairs properly recognized the Jamul Indian Village as a tribe.

In that decision, federal Judge Gladys Kessler went over more than a decade of the tribe’s history, noting that the dispute goes back to a 1994 recall election that led to a split within tribal leadership.

The Bureau of Indian Affairs recognized one side of that split, now headed by Mesa, as the duly elected leadership of the tribe. The other side, which includes Toggery and Rosales and opposes the casino, was not recognized.

While the driveway is being built, engineers will move forward on designs for the casino, which would have about 1,000 bingo-based slot machines.

The tribe has a compact for Nevada-style gambling but doesn’t plan to use it because it would require approval from county officials, who tribal leaders say are opposed to the casino.

The driveway is on reservation land, and the tribe says it needs no permission from county officials to grade it or do other work on the reservation.

Mesa said the tribe is confident it will get approval from Caltrans for turning lanes and a traffic light at the Route 94 intersection.

“We want to work with Caltrans,” Mesa said. “We want to make that driveway as safe as possible.”

Mark Bobotis, a Caltrans employee who is working with the tribe, said the department doesn’t have enough information to approve changes to the state highway.

He said planners need to know what the tribe is going to build and how much traffic it’s likely to put on the road.

Once Caltrans has that information, an environmental review under state law would consider several options, and the public would get a chance to comment, Bobotis said.

Caltrans has suggested in the past that the Jamul tribe build a driveway off nearby Melody Road, something tribal leaders say is impossible because of opposition from county Supervisor Dianne Jacob, who represents the area.

Jacob said she is “appalled” by the construction.

“The Jamul Indian Village needs to play by the rules just like any other private landowner,” she said.

She also said the timing of the construction is suspicious, given that the tribe doesn’t have finished plans for the casino.

It’s a stunt, Jacob said, meant to placate investors in Lakes Entertainment, the publicly traded company backing the casino effort.

Mesa denied that, saying the tribe isn’t “making a big show.”

Jacob was also adamant that Caltrans would need to issue a permit for the tribe to use the state highway to bring in construction equipment.

Bobotis said that issue isn’t quite so clear.

The state could require a permit if traffic on Route 94 is adversely affected, but it’s unclear what exactly that means and how many trucks that entails, he said.

“I can’t give you a definitive answer,” Bobotis said.

Onell Soto: (619) 593-4958; onell.soto@uniontrib.com
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