- The Washington Times - Thursday, May 19, 2016

Second of two parts

SANTA YNEZ, Calif. — As far as Rep. Lois Capps is concerned, the ongoing skirmish over development fueled by tribal gambling in her Santa Barbara County district is a local matter — not a platform for lawmakers like U.S. Rep. Doug LaMalfa, who lives hundreds of miles away.

Over her objections, however, Mr. LaMalfa has become a key player in the feud over a 1,400-acre parcel known as Camp 4. His bill would take into federal trust the property on behalf of the Santa Ynez Band of Chumash Indians, allowing the tribe to bypass the appeals process and develop the acreage free of local zoning restrictions.

Ms. Capps’ message to Mr. LaMalfa? Mind your own business.

“The issues at the core of this matter are fundamentally local in that they involve housing, zoning, and land use,” Ms. Capps, a Democrat who is retiring in January, said in an email. “These issues have historically been addressed at the local level by the people who understand the matter best and will produce the best long-term outcome.”

Clashes between California’s casino-rich tribes and their development-averse neighbors are now being fought in the corridors of power in Washington some 3,000 miles away, where Indian country is increasingly turning to Congress to weigh in on its behalf.

In the case of the Chumash, the 140-member tribe seeks to build housing 2 miles from its crowded reservation, but locals fear the proposed 143 houses could lead to bigger projects — such as another casino.

The Chumash have found a champion in Mr. LaMalfa, a Republican who says he feels an obligation to intervene as the senior Californian on the House Natural Resources subcommittee on Indian, insular and Alaska Native affairs. His 1st District takes up much of the state’s northeast corner, bordering Nevada and Oregon.

He has clashed with Santa Ynez residents fighting the tribe’s annexation attempt, calling them “anti-growth extremists.”

His legislation would short-circuit the appeals process and bring Camp 4 into trust with the Bureau of Indian Affairs immediately, but would ban a casino in a nod to the concerns of the wealthy agricultural community.

Chumash tribal Chairman Kenneth Kahn said he is grateful for the support.

“Mr. LaMalfa has 13 tribes in his district. He understands government-to-government relationships, and he understands the need in Indian country for housing and infrastructure. The bottom line is, he gets it,” Mr. Kahn said.

But locals are suspicious of Mr. LaMalfa’s motives, saying his interest in their community may have more to do with cash than conscience.

“In his current run for Congress, 10 out of 20 top contributors to LaMalfa’s campaign are Indian gambling interests. And, 80 percent of his money comes from outside the 1st District,” Los Olivos resident Mike Brady said in a March 31 letter to the Red Bluff Daily News.

Mr. Kahn called the pay-to-play accusations “ludicrous.”

On the other side, citizens groups in Santa Ynez alone have spent millions of dollars on appeals and lawsuits related to Camp 4, which the LaMalfa bill would “completely emasculate,” Doug Herthel, who heads Preservation of Los Olivos, said at a public hearing.

His organization’s lawsuit, now before the 9th U.S. Circuit Court of Appeals, would throw out the Chumash’s Camp 4 application based on a 2009 Supreme Court decision in Salazar v. Carcieri, which ruled that the federal government cannot take into trust land on behalf of tribes not federally recognized before the 1934 Indian Reorganization Act.

That decision has become a lifeline for communities nationwide fighting tribal efforts to gain trust status for property acquired in the recent land-buying spree fueled by casino riches. The ruling would appear to apply to the Chumash, who were not federally recognized until 1964.

What outrages locals is that the Bureau of Indian Affairs has continued to take land into trust on behalf of post-1934 tribes despite the Carcieri decision. At the same time, the ruling has provided an opportunity for federal lawmakers grappling with the unforeseen consequences of Indian gambling sites.

Playing with a stacked deck

Rep. Jared Huffman knows a thing or two about the surge in gambling issues: The Democrat has 30 tribes in his Northern California district. He was introduced to conflicts in fee-to-trust applications several years ago with the Federated Indians of Graton Rancheria.

He recalled how he and others were convinced that the Graton would never build a casino on fee-to-trust land because of its proximity to other Indian gambling operations. He was wrong: The Graton Resort & Casino opened in November 2013.

“I kind of cut my teeth on this opposing a very large casino project further south in Sonoma County on Highway 101 in Rohnert Park that was by the Graton tribe. That’s the biggest casino in the North Bay by far,” Mr. Huffman said.

Mr. Huffman has come under fire in his district for a bill, H.R. 2538, that would allow another tribe, the Lytton Band of Pomo Indians, to take 124 acres into trust “for housing and other non-gaming purposes.” In other words, no casino.

The legislation faces staunch opposition by a Sonoma County citizens group, Citizens for Windsor, led by Eric Wee.

“Congressman Huffman’s whole raison d’etre is to say, ‘We’re going to stop a casino from ever being built there.’ He says that’s the reason he’s doing this: It’s going to go into trust anyway, and so there’s this whole inevitability argument,” Mr. Wee said. “But anyone who knows this area knows that that argument doesn’t really hold water.”

He pointed to the Graton resort. “When Graton went up, everything north of Graton became economically unviable in the casino area,” Mr. Wee said.

That may be what a rational economic analysis would indicate, but that’s not the way to bet, Mr. Huffman said.

“I opposed [the Graton casino], and it’s a little bit surreal hearing the arguments by Mr. Wee and others that they think could carry the day with the Lytton tribe,” Mr. Huffman said. “All of that and more was thrown against the wall with Graton, and I know that because I was throwing it against the wall. And we lost at every turn.”

As a result, Mr. Huffman said, “There’s a bit of a sobering effect when you go through a fight like that and just get nowhere. You begin to realize just how strongly stacked in favor of the tribes these BIA land-to-trust processes are.”

In addition, “I can assure [you] that any tribe along Highway 101 that can build a casino would love to build a casino,” Mr. Huffman said. “It may not be the Taj Mahal, but there’s money in it. That’s why you have tribes from the Smith River near the Oregon border on down trying to be the one closest to San Francisco.”

Unlike Mr. LaMalfa, Mr. Huffman lives in the district affected by the bill. The Huffman bill also has the support of the Sonoma County Board of Supervisors.

In Santa Ynez, however, the county board has made some powerful enemies on the Indian affairs subcommittee. At a June hearing, subcommittee Chairman Don Young, Alaska Republican, threatened to move the LaMalfa bill unless the board of supervisors sat down again with the tribe.

The board has since held seven meetings with the Chumash, but talks were suspended in March after the Chumash introduced a zoning map that included commercial development as well as housing. Locals opposed to the annexation were flabbergasted.

“This latest proposal by tribal government seems to be a giant step out of bounds and undermines the progress that has been made on both sides,” Joan Hartmann, a planning commissioner running for supervisor in the June 7 election, said at a public hearing. “It risks compromising the good will that has characterized discussions between the county and tribal government thus far.”

With the threat of the LaMalfa bill hanging over its head, however, the board has little choice but to continue negotiations, which are slated to resume in August.

Some locals believe the bill is dead, but Mr. Kahn said that is not the case.

“Right now, we are certainly working behind the scenes on this bill,” Mr. Kahn said. “I know there are some challenging things in Washington right now that have overshadowed fee-to-trust bills, but we are still working on H.R. 1157. We’re still pushing it.”

The ‘Carcieri fix’

The Santa Ynez feud may be unique in its longevity and intensity, but similar tensions can be found throughout California. Many tribes have struck agreements with local governments on issues such as traffic, water and sewage, public safety and environmental concerns arising from new hotels and casinos on trust land — but there is no requirement to do so.

Members of Congress have worked for years to try to forge a compromise: Giving tribal advocacy groups what they want — an end to the distinction between pre- and post-1934 tribes — in exchange for what local governments want, namely more input in a process that now effectively shuts them out.

“We’re asking Congress if they can establish a statutory framework for notification, for comment period, for incentivizing these agreements so that we do have a cooperative way forward,” said David Rabbitt, co-chairman of the California State Association of Counties’ tribal gambling workshop. “Not sacrificing anything the tribes need in terms of sovereignty or economic development but really just trying to put some framework around it that we all can understand and follow that’s transparent and gives people the opportunity to comment.”

The “Carcieri fix” best poised to pass this year is S. 1879, sponsored by Sen. John Barrasso, Wyoming Republican and chairman of the Senate Committee on Indian Affairs. The measure would establish a framework for fee-to-trust decisions instead of relying on the Bureau of Indian Affairs‘ administrative process, which is subject to change with administrations.

Approved by the committee in July, Mr. Barrasso’s bill would also require the Bureau of Indian Affairs to notify local communities when a tribe applies to take nearby land into trust, instead of having them learn through the grapevine or after the application has been approved.

“Just give us notice of what is happening. Encourage or incentivize, however you want to do it, to have the tribes and local jurisdictions that are impacted to sit down and come up with a cooperative agreement that takes care of those impacts,” said Mr. Rabbitt. “That way, you have a working relationship from Day One rather than getting yourself caught up in court down the line.”

Democratic splits

Not everyone agrees. Some lawmakers, led by Sen. Jon Tester, Montana Democrat, want a “clean Carcieri fix” that would end the two-tier system without concessions to local governments.

“This bipartisan bill was built with tribal input and eliminates unnecessary hurdles for tribes to increase economic development opportunities,” Mr. Tester, the ranking Democrat on the Indian Affairs Committee, said last year after introducing his latest bill.

At the opposite end of the spectrum is Sen. Dianne Feinstein, California Democrat, who has fought to give localities more control over land taken into trust by casino-rich tribes as well as curb the practice of “reservation shopping,” in which tribes seek trust status on parcels with little or no ancestral connection but are well-situated for casinos.

Cheryl Schmit, who heads the Indian-gambling watchdog group Stand Up For California, said the Barrasso bill unnecessarily limits the rights of appeal to government entities, but she agrees that reform is needed.

Although most of the attention has been on conflicts between communities and tribes, she points out there have also been success stories. One of those occurred in her own backyard.

“In Placer County, we were very, very fortunate,” said Ms. Schmit. “We have the United Auburn [Indian] Community, and when they saw that the community was upset, they said, ‘Hey, we’ve been here forever. Let’s work together.’ They listened, the citizens listened, we came up with ideas.”

The United Auburn got its casino, hotel, restaurant and parking without inflaming the neighbors. The community got improved roads and a project that adhered to the California Environmental Quality Act, even though tribes aren’t required to do so, without having to go to court.

“If they to sell the casino today and change it into a non-reservation casino, everything is in compliance with California state law. Did it hurt that tribe’s ability to make money? No, I think it probably increased it,” Ms. Schmit said. “The thing that’s probably the most important is they got respect from the community the old-fashioned way: They earned it.”

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