By Stephen Nellis Friday, August 30th, 2013

With its 3-2 vote against “government-to-government” talks with the Santa Ynez Band of Chumash Indians, the Santa Barbara County Board of Supervisors may have narrowly avoided handing the tribe one of the three key components needed to clear the way for a casino on a 1,400-acre tract of agricultural land.

The conflict over the development of the so-called Camp Four property at the intersection of highways 154 and 246 in the Santa Ynez Valley escalated in July, when the Chumash applied for a process known as fee-to-trust with the federal government. If successful, the process takes the land into federal ownership for the benefit of the tribe and removes it from local tax rolls and county development constraints.

The tribe’s application says that it plans to use the land for housing the 83 percent of its members and descendants who don’t currently live on its reservation. But opponents, which include groups backed by wealthy landowners in the valley, argue that once the land is taken into trust for the tribe, there’s nothing to stop the Chumash from reversing course on housing plans and building a casino instead.

But it’s not quite that simple. In order to build a new casino, the tribe needs, at a minimum, three things: Eligibility to take the land into trust, a provision in its compact with the California Gambling Control Commission for a second gaming site, and a cooperative agreement with the local government.

The Chumash state gambling compact already allows two gaming facilities, so that element is met. But there are likely still years of litigation ahead over the eligibility of the Chumash to bring land into trust, despite a 2009 U.S. Supreme Court decision that aimed to clarify the situation and a stack of evidence the tribe says proves beyond a doubt that it is entitled to have land placed in trust.

But perhaps the least well-understood of the required elements is the government-to-government talks. Even a simple exchange of letters agreeing to government-to-government talks over terms could be construed as the required evidence of a cooperative agreement to start a gaming application process that would then be very difficult for the county stop.

In the unusual realm of federal Indian laws and rules, even a “no casino” agreement between the county and the Chumash could theoretically be used to start the gaming application process, said Ken Williams, an attorney working for one of the groups that is opposing the Chumash in a different land process. “This is why you have a lot of people objecting to an agreement: The existence of agreement, regardless of the content, is all you need,” Williams said.

The fight over Camp Four could likely take more than a decade. A 6.9 acre parcel that the Chumash moved to have taken into trust is still in legal limbo 13 years after the original application. Here’s a closer look a the legal issues that are likely to figure most prominently over the coming years.

Back to 1934

The fee-to-trust process has its roots in a federal law called the Indian Reorganization Act of 1934, which aimed to allow the federal government to take land into trust for “all persons of Indian descent who are members of any recognized tribe now under Federal jurisdiction.”

In a 2009 decision, the U.S. Supreme Court ruled that the law means only tribes that were recognized by the federal government in 1934 are eligible to have land taken into trust. After the decision came down, the Chumash sought an opinion from the Bureau of Indian Affairs, who ruled that the tribe was on the list for fee-to-trust eligibility and also gave the tribe a legal opinion on the topic.

Sam Cohen, a legal adviser to the Chumash, said the tribe has iron-clad proof that it was recognized in 1934. When the Indian Reorganization Act was under consideration, a federal representative came to the tribe and asked it to conduct an election on whether to accept it. The tribe did so.

“We found the actual election results from the reorganization election for the Santa Ynez Band of Chumash Indians,” Cohen said. “There’s no argument. You can argue the penmanship was bad. But the act was very specific on how you reorganize.”

But Williams, the attorney for opposition groups, disputes that characterization. In opposition to the tribe’s smaller fee-to-trust application, he has argued that the Chumash who voted in 1934, and who saw land taken into trust in 1941, were acting as individuals, just as earlier federal assistance in the 1890s to secure land for the Chumash from the Catholic church centered on individuals. The tribe was not formally organized under a corporate charter and recognized by the federal government until 1964, Williams said.

“There’s no question in my mind that individual Indians were under federal jurisdiction [in 1934]. The federal government had an obligation to look out for them,” Williams said. “You can look through all the documents until 1964 and you won’t find a tribal government.”

But that’s not the end of the story. The 2009 Supreme Court decision, Carcieri v. Salazar, was decided 6-3 that tribes must have been recognized in 1934 to take land into trust. But in a concurrence, Justice Stephen Breyer left open the door for ambiguity. He argued that a tribe that was recognized after 1934 could still be eligible to have land taken into trust if the Department of the Interior determined that the tribe ought to have been recognized in 1934 but was not.

The Chumash could argue that their pre-1934 dealings with the federal government to secure land met the requirements for federal recognition, as did the fact that the government asked the band to vote on the Indian Reorganization Act. While five out of nine Supreme Court justices, still a majority, favored the less ambiguous standards, the themes of Breyer’s concurrence have not yet been tested in federal court. The Chumash could be the first.

Agreements, taxes

Cohen, the tribe’s legal adviser, said that the Chumash attempted the alternative route to taking land into trust, which is an act of Congress. “In that bill, we had a no-gaming clause,” he said. “We have tried to reassure our Congress people that there will be no gaming through legislation.”

But that path has failed for now, and it is far from clear whether Santa Barbara County officials could successfully enforce a no-gaming agreement if they were to negotiate one. The difficulty arises in that the tribe is a sovereign entity and is generally entitled to immunity from everything but the federal government. While the tribe can waive that immunity in some contracts if it wants to, the rules for placing a permanent restriction on land use are even stricter.

In addition to the tribe waiving some sovereign rights, the Department of the Interior would also need to assent, which is virtually impossible because federal agencies aren’t allowed to encumber federal property without Congressional approval. Santa Barbara County officials found all this out in 2005, when the county gave up some appeal rights to a Chumash fee-to-trust application in exchange for a no-gaming agreement that turned out to be unenforceable.

“There have been many attempts to write enforceable agreements. I don’t know that any have succeeded if a tribe wants to change its mind,” said Williams, the opposition attorney.

The county has not yet expressed official concern with the possibility of a casino at Camp Four, though it is considering a legal challenge to the so-called tribal consolidation area approval at the Bureau of Indian Affairs that could make gaming applications less burdensome to the tribe.

Chandra Wallar, CEO of the county, said the primary issues were development — the Chumash plans for 143 houses on the land exceed what the county would allow by an order of magnitude — and property taxes. In its application materials to the federal government, the Chumash argue that the land only generates about $83,000 in property taxes, a drop in the bucket to the $625 million the county collects. But

Wallar pointed out that the land is currently under the Williamson Act, legislation that keeps taxes on agricultural land comparatively low.

“The true value of the property and what the taxes would be is significantly greater. And whatever is developed in the future, the county would be able to tax that development based on its increased value. The county would be giving up all rights to any future property taxes that come as a result of the new development,” Wallar said.

Cohen, the legal adviser for the Chumash, said that talk of a casino on the land is wholly unwarranted at present and the tribe should be taken at its word that it plans to build housing for its members and their descendants. “Everyone wants to stoke the fires,” he said. “This is something new and something big, and therefore, they want to make it as scary as possible.”