Archive » September 1, 2011
‘Cooperative agreement:’ An introduction
By James Marino, Guest Columnist
Several members of the Santa Ynez Valley community, including No More Slots, have asked me to review a “cooperative agreement” presented to the Santa Barbara County and Board of Supervisors. It is being presented by the tribe in an attempt to obtain support for the transfer of 1,400 acres of rural, bucolic fee lands that they own near State Routes 154 and 246. They are seeking to transfer title from fee to what is called Indian trust land.
Typically, tribes and casino gambling developers tout the creation of “jobs” without discussing either the fact the jobs are unprotected, low-paying jobs (other than initial construction jobs) and usually hoping that communities in economic distress will do anything for jobs, without considering the many negative impacts that will occur if the land were converted. Impacts that a non-Indian developer proposing any other development project would be required to mitigate heavily.
The Chumash government has a long history of disrespect for the Santa Ynez Valley community dating back to the importation of slot machines one night in 2003 and their opening of an illegal gambling casino that year and including their constant abuse of an outdated court doctrine giving Indian tribes immunity from lawsuit for their misdeeds, and taking advantage of the ability to operate a gambling casino and other businesses without paying needed taxes for public services and infrastructure that place great demands on the county. This is needed tax money that must then be made up by the other non-Indian taxpayers. This outdated legal “immunity doctrine” also allows them to evade the hundreds of laws and rules enacted to protect workers, customers in their casino and businesses and the health, safety, environment and quality of life in the rest of the community.
They attempt to hide the fact they pay no taxes to support public services and infrastructure by making occasional token gifts to police and fire agencies and a few charities. They count on the fact that even though these occasional gifts do not come close to paying for all the public services and infrastructure they use regularly, but the public is unaware these “gifts” do not even equal the millions they still collect in federal welfare and grant monies. Money that could be used by truly needy Indians in this country still living in abject poverty.
This is an especially outrageous practice for a tribe whose members receive more than a half-million dollars paid to each enrolled member every year from the profits generated by massive gambling losses at their casino.
It is for all these reasons and others that so many Valley residents are extremely concerned about the latest efforts of the tribe to take the Camp 4 property into federal Indian trust.
Facts about the Chumash proposalMany years ago the Chumash tribal government made a “proposal” similar to the one they have now presented to the county this time to try to get the county’s support to bring the 1,400 acres of rural ranch property into federal Indian trust status.
The primary reason the tribe wants to bring this land into trust is to evade paying all the local property taxes, bed taxes and other assessments needed by the State, County and local government to fund the many public services and demands and infrastructure the tribe, it’s casino, hotel and other businesses place on the rest of the non-Indian taxpayers who have to foot the bill.
In addition, by placing land into trust that allows the tribe and any businesses on tribal trust lands to operate without complying with the hundreds (perhaps thousands) of laws enacted to protect workers, public customers in those businesses, and the nearby community, including zoning and planning laws enacted to protect the health, safety, welfare and quality of life of the rest of the non-Indian community living in the county and in the Santa Ynez Valley.
The Santa Barbara News Press ran a large article the day after this earlier “proposal” was presented to the county, and it described the tribe’s proposal in a banner headline (front page, above the fold) as a “historic agreement.” What the newspaper didn’t know was the proposal was only presented to get the county not to appeal the proposed transfer of the 6.9 acres of land in Santa Ynez into trust. The following day, the tribal chairman sent a letter to the tribal business committee telling them not to worry; he, the tribal chairman, did not agree to anything and never waived any immunity from laws or lawsuits.
The ploy worked because the county did not appeal, but fortunately P.O.L.O. and P.O.S.Y. did appeal, and when they were successful the county tried to belatedly join the appeal – but the court ruled they were too late. Because of the efforts of P.O.L.O. and P.O.S.Y., the 6.9 acres is not in trust and is still governed by the state and local laws, including taxes to be paid and under local jurisdiction and control.
In the interim, the Supreme Court has ruled in a recent 2009 case [Carcieri v. Salazar 555 U.S. ____ 129 S.Ct. 1058] that tribes like the “Chumash,” that were not under federal superintendence and jurisdiction in 1934, are not eligible to bring land into trust under the Indian Reorganization Act. So now, the tribal government is seeking to bring land into trust by getting some politician to introduce a Bill in Congress to transfer land into trust for them. That is what they are now attempting to do with the 1,400-acre Camp 4 property. Congress is more likely to pass such a Bill if it appears the local government supports the transfer to trust and particularly where handsome “campaign contributions” and lucrative perks and high paying do-nothing jobs may be in the offering. That is what this current “proposal” is all about.
Fact sheet and misinformationIn the so-called proposal, they are calling a “Cooperative Agreement,” the tribal government has made numerous false and inaccurate statements apparently in the hope the County will once again be fooled into supporting this largessé for the tribe and to the grave detriment of everyone else not raking in millions of gambling losses. Money, which is frequently used to buy influence and immunity from the laws and taxes everyone else has to abide by.
1. The tribe says it wants to expand economic development and housing opportunities.
That means it wants to build another casino, hotel and any other unregulated, unpoliced business it wants on the 1,400 rural acreage that would not be allowed under existing laws and zoning. They want to do this on trust land to evade taxes and laws that would apply to every other business.
At a press conference on the 25th of August 2011, they told the media the land was going to be for housing. Why is their reference to economic development in the cooperative agreement? Most of us saw the first plan for the Parker property a few years back that became public by mistake, showing the casino at the center of the property. The tribal government tried to explain that away as a “mistake by the architect.”
2. The tribe says absent this agreement the county has limited opportunity to influence mitigation measures or seek compensation for adverse environmental impacts.
FALSE: The 1,400 acre parcel of land owned in fee by the tribe is currently subject to all the taxes, state and local laws regulating any and all development and the tribe is not entitled to any special privilege and immunities for this fee land. [See the 2005 U.S. Supreme Court case City of Sherrill New York v. Oneida Indian Tribe of New York 544 U.S. 197.] In fact, by entering into such an agreement, the county would in effect be cutting its own throat to support of a Congressional Bill or Administrative Action, which would result in a loss of tax revenue, loss of jurisdiction and control over this 1,400-acre Camp 4 property and the tribal government could thumb their noses at local government, as they have so many times before.
3. The tribe claims that these obviously vague, weak and likely unenforceable mitigation measures proposed in this “cooperative agreement” are made “in good faith.” That phrase was included in the original tribal-state compact signed by now deposed Gov. Davis and was immediately determined by the state to be worthless and unenforceable to compel casino tribes to mitigate their many negative impacts on the community environment and the health, safety and quality of life.
4. The tribe claims the agreement is recognition of “trust” and mutual respect and a government to government relationship. FALSE: The tribe and chairman Armenta have evidently already forgotten the appearance Mr. Armenta made before the County Board of Supervisors in Santa Maria, refused to answer simple questions, insulted the Board and Supervisor Firestone, and told the Board he did not have to consult with them about anything, could not even make a courtesy telephone call, and then basically stormed out. Hardly any example of the kind of trust and mutual respect now being alluded to.
Misstatements contained in the Background
A. THE LAND AT SANTA YNEZ
1. A group of Indians of mixed ancestry including Shoshone, Yaqui, Chumash and others, some of mixed blood, including Hispanic ancestry who may not have had any Indian blood at all were living near the Mission with the permission of the Archdiocese of the Catholic Church. A few began making threats that they had acquired adverse possession of those lands. A lawsuit and an agreement followed, in which the land currently occupied by the tribe (College Tract) was offered to the original five (5) families living on Mission lands for their use and occupancy.
During that period (1885-1925) the federal government authorized purchases of land with federal funds for the use and occupancy of displaced Indians in California. The report of the BIA Indian agency for this region (then it was the Tule agency) reported no such acquisition was needed at Santa Ynez because of the agreement reached with the Catholic church to allow the original five families to occupy, use and farm the College Tract at and adjacent to Sanja Cota, and that agreement was better than what the federal government could provide.
The Indian agent never waived any “rights of the affected Indians at Santa Ynez.” The Santa Barbara Superior Court judgment quieted title to all the disputed lands in the name of the Catholic Church and found against any claim of adverse possession because these Indian occupants were camped there with the Church’s permission.
The Superior Court recognized the private agreement between the Church, the Indian agency and the affected Indians, and that it was no more than an agreement to allow these Indians and part Indians to live on and use the approximately 79 acres of land then in the College Tract including a portion of Sanja Cota Creek. No reservation, trust or restricted fee lands were created by the court judgment or by any federal action or any act of Congress.
The land was never acquired in trust since then by the Department of Interior and no subsequent act of Congress ever created an Indian Reservation there. Later attempts to bring the College Tract lands at Sanja Cota into trust could not be accomplished because the original lawsuit (Cota case) quieted title in the Catholic Church and the College Tract land, that was provided to the Indians at Sanja Cota, contained a residuary clause providing that if none of the heirs and survivors of the original 5 families were living then the land was to revert back to the original owners and grantors who had agreed to let these Indians occupy and use the land.
Consequently, that land is not now and never was a reservation. It is not now and never has been held in federal trust or restricted fee, and it is not land eligible for any class II or class III gambling there, nor any exemption from taxes and state and county laws. [See for example the U.S. Supreme Court case of Yakima County v. The Confederated Tribes and Bands of the Yakima Indian Nation.] [9th Circ. 2004] holding Indian owned lands subject to ad valorem taxation.
“The existence of any recognized or acknowledged tribe”Before any group, band, tribe or community of Indians is entitled to be acknowledged and recognized by the federal government as an Indian tribe they must meet a number of mandatory criteria. These criteria were codified in 1978 in 25 Code of Federal Regulations part 83. Because of sloppy practices and procedures employed by California Indian agencies, these recognition criteria were often overlooked or falsified. Between 1885 and 1935, these agencies would find or buy small parcels of land around California and allow mixed groups of Indians, part Indians and homeless Indians of a variety tribal ancestry even non-Indians to locate on these lands. Within the Bureaucracy, references would often be made to a group of such Indians simply by the location of the land that they occupied. So Indians on a small Rancheria parcel at Jackson California became “The Jackson Rancheria.”
Over the years, this shorthand practice of referring to a particular group or community of Indians simply by the location where they were living morphed into an improper “tribal recognition” without validating the mandatory criteria required by law. Eventually when the federal list act was created in 1978 the names of these bands and groups would appear on lists created by the B.I.A. and by appearing there it was inferred they were properly acknowledged and recognized as a “tribe of Indians” simply because their name showed up on a list with the name of the location where they could be found.
There were several illustrations of this improper practice in California which, in effect, created Indian tribes or bands that never qualified using the mandatory criteria which was, and is, required by law as a prerequisite to be recognized. This is exactly what happened at Santa Ynez. When field agents located the community of mixed-race Indians, from a variety of tribal ancestry, even part Indians and non-Indian Hispanics in the late 1800s, they would be referred to administratively by their location where they were found, not by any tribal/political connection. So in the early years, the “Indians” in the Santa Ynez area were simply referred to in Department of Interior communications as “The Indians at Santa Ynez.” Later on, the B.I.A. and Department of Interior began referring to them as the Santa Ynez Indians, as if they were a homogeneous tribe of Indians by that name, when the reference referred only to where they were living. Before long, the “Santa Ynez Indians” became the “Santa Ynez Band of Mission Indians,” even though the mandatory criteria, later codified in 25 C.F.R. part 83, had still never been verified. The “tribe” began operating an illegal gambling casino in 2003 at the Sanja Cota location using the old Bingo Hall.
In addition the 20 tribes named in the Mission Indians Relief Act did not include any Indians at Santa Ynez by any name or description. Finally, once a gambling compact was lawfully obtained from the state in 2000, when the voters approved Proposition 1A in the March 2000 election, the group of “Indians” at Santa Ynez, then calling themselves the “Santa Ynez Band of Mission Indians” changed their name to the Santa Ynez Band of Chumash Indians, all without ever complying with the many required criteria for recognition and acknowledgement and the complicity of the B.I.A. and D.O.I.
The statement on page 3 of the proposal that “the 99-acre Santa Ynez reservation was conveyed to the United States in trust for the tribe….” is a complete falsehood. That land has never been, nor has it ever been, conveyed to the United States in trust for the tribe. It is not now in trust and has never been a reservation to this day. An attempt was made in 1934 by the Catholic Archdiocese of Los Angeles to convey most of the land to the Secretary of Interior in trust for the Santa Ynez Band of Mission Indians. A deed was prepared and recorded in the county recorders offices but that attempted conveyance in trust was refused and rejected by the United States.
As set out above, the tribe desires to annex or transfer the 1,400 acres of fee land they purchased from Fess Parker, referred to as Camp 4, for the reasons they have privately admitted to. That is to remove the land from all jurisdiction and control of state and local governments, so they can do whatever they want to and ignore the hundreds of laws and rules protecting the public, the community, any workers in businesses located there, including all of the planning and zoning laws and rules, enacted to preserve the character of the Valley community and the quality of life here. They also seek to evade all the state and local taxes needed to pay for the public services and infrastructure used by the tribe and all of its businesses on a daily basis, and which would then become the tax burden of the non-Indian taxpayers and businesses.
The payments in lieu of taxes proposed are not only woefully inadequate; such an agreement is essentially worthless and unenforceable.
The following relevant and important legal facts and principles apply here:
A. The federal government, B.I.A. and Department of Interior do not recognize any restrictions or limitations that purport to have been agreed upon as a binding condition to the approval of a transfer to federal trust and as a condition for obtaining the support of any state or local government for any fee to trust transfer.
The federal government refuses to accept any such condition and take the position, the tribe can simply change its mind after the land is brought into trust, do whatever it wants, and the state and local governments can do nothing about it.
B. Once the land has been transferred from fee into federal Indian trust, it can never be taken back no matter what, unless the tribe and the Department of Interior agree. No one else has any standing or say so, even if there are purported “agreements.”
C. There is no source from which the county could collect monies it claims to be due under any agreement. The agreement purports to limit any and all recovery to the revenue from the casino that is distributed to the tribe. Paragraph 11 (a) No other asset or business can be used to pay money due. In addition, claiming sovereignty, this tribe like most, refuses to divulge any information such as income, expenses, etc., thus making it impossible to determine how much money might be owed, what deductions for overhead and tribal “salaries” and “benefits” are permissible and even if money from gambling losses is being “skimmed off.”
D. Normal methods to collect debts owed are basically useless when the debtor is an Indian tribe. For example, if the land is in trust, the county cannot put a lien upon it because the federal government owns the land and it is not susceptible to an attachment for a tribal debt. The slot machines are typically leased and not subject to any execution for an antecedent debt of the tribe and any other debts are entitled to first priority. A receiver cannot be placed in the casino to collect monies to satisfy any debt because the gambling operation is being conducted under the Indian Gaming and Regulatory Act, giving only lawfully recognized Indians the right to run a casino. A creditor or its receiver would not have any such right even to collect a debt owed.
E. An existing and badly out-dated, court-created doctrine, entitles Indian tribe to a legal immunity from unconsented lawsuits. Currently being litigated before the Supreme Court is the law of New York (maybe all states), which a District Court in New York concluded that even if a tribe owes back property taxes the county (or state) cannot collect them by enforcing a tax sale of the affected Indian tribe’s land.
The court reached that conclusion by stating that in order to foreclose or enforce a tax lien that the county would have to sue the tribe and the tribe had immunity from lawsuits it did not consent to. There are numerous instances of tribal governments owing money under agreements with counties or local governments all over the country and tribes have simply refused to pay it, or delayed payment for years, or demand a “renegotiation,” reduction in amount, etc. These same tribes use and abuse this legal immunity whenever it suits their purposes.
F. Tribes who have appeared to have “waived” the legal immunity via some agreement are often found to have NOT waived it at all. The tribe may claim it was an invalid waiver. Perhaps because the person executing the agreement did not have the authority. It wasn’t approved by (take your pick) a vote of the tribe, a vote of the business committee, a vote of the gaming committee, the Secretary of Interior, not authorized by tribal constitution or any lawfully enacted tribal ordinance or maybe all of the above.
G. Besides the numerous legal hurdles facing any county, state or local government in supporting any fee to trust application which, in a case like this, provides little or no benefit to the county, there are numerous practical considerations. In the event of litigation, the county or other government must use tax revenue to prosecute any action. Typically, the casino tribe has an immense war chest of millions being collected from the massive gambling losses of gamblers rolling in every day. In addition they still collect millions in grant and welfare payments from the federal government and these funds are often mis-applied and not used for their intended purposes and, whenever it suits their purpose, call upon the federal government lawyers to defend them as part of the federal government’s trust obligation to Indians and Indian tribes.
As an example of this attrition strategy, five years ago the Court of Appeals and the National Labor Relations Board ruled that the National Labor Relations Act applied to Indian businesses and their workers. That decision and its fall-out is still being litigated in Connecticut by a gambling tribe claiming it’s so-called sovereignty means it can enact (or decide not to enact) any and all laws regulating wages, hours and the working conditions of its employees, most of which are non-Indians.
Frankly, it would be foolhardy at best for the county to enter into any worthless agreement like this so-called “cooperative agreement” in order to support any proposal or legislation to transfer 1,400 acres of fee land from fee status which they can tax and regulate now, to lawless, untaxable trust lands – thus giving the tribe a license to a demonstrably irresponsible, untrustworthy tribal government, like the Chumash tribal government, allowing them to do whatever they want on it and thumb their collective noses at the state, the county and the non-Indian residents and citizens of the community.
James E. Marino, attorney and consultant on Indian gambling casinos and their impact on non-Indian communities.