Tribes seek act of Congress to expand

It’s been said that the only real law of history is the law of unintended consequences. My candidate for good intentions gone haywire comes courtesy of the Bureau of Indian Affairs and its fee-to-trust program.

Considered the capstone of the 1934 Indian Reorganization Act, the program allows the bureau to take non-reservation land into a federal trust on behalf of tribes for housing and economic development free from local regulation and taxes.

The intent of the program is noble — redressing historical wrongs suffered by Native Americans and enabling tribal self-determination.

But those intentions are now yielding some pretty ugly results.

Unelected federal bureaucrats with virtually no restraints continue to grant trust requests at an astounding rate, punching large holes in property tax rolls and land-use plans.

Now tribes are literally getting acts of Congress to expand their lands.

Case in point: The longrunning fight between the Chumash tribe and their neighbors in the scenic Santa Ynez Valley, the setting for the movie “Sideways” just northwest of Santa Barbara.

This week’s hearing before the Senate Committee on Indian Affairs, the Santa Ynez Band of Chumash Indians Land Affirmation Act, HR1491, presented the perfect opportunity for everyone to hit “pause.”

Understandably, the 154member band wants to unite its members by building 143 homes and a 12,000-squarefoot tribal center on 1,400 acres of pristine vineyards and grazing meadows it purchased for $42 million, 5 miles from the reservation.

The plan to build housing and other economic development, unveiled in 2013, has touched off legal and political trench warfare with local residents and Santa Barbara County officials, who have rejected similar plans twice before because they violated the local land-use plan and threatened the Santa Ynez Valley’s rural character.

Yet, despite numerous administrative appeals and at least one lawsuit, the Bureau of Indian Affairs quietly approved the Chumash’s request in the after-hours of the last day of the Obama administration.

Then in March 2017, U.S. Rep. Doug LaMalfa, a Republican who represents Butte County, 300 miles from the Santa Ynez Valley, introduced the bill on behalf of the Chumash “affirming” the decision and containing language that shuts down any right to judicial review.

The rate of requests granted by the bureau is truly astounding, as a 2012 Pepperdine Law Review article shows. Entitled “Extreme Rubber-Stamping,” the analysis revealed that the bureau’s Pacific region approved every one of the 110 trust requests it received between 2001 and 2011.

Such regulatory permissiveness has not been lost on California tribes, which operate 72 casinos that generate $8.3 billion a year.

California continues to see tribes submit requests that stray far from reservation boundaries, as well as from the original intent of the Indian Reorganization Act. For example, a San Diego tribe has petitioned the bureau to put land for a future casino into trust 125 miles away.

Other tribes also are misusing fee-to-trust for “casino creep” or to impose other unwanted projects — like an outdoor gun range near private homes — against the will of neighboring communities.

In Northern California, community groups, my organization Stand Up for California!, and even Indian tribes have been fighting decisions by the bureau to grant trust status that would add thousands of slot machines at new tribal casinos leapfrogging into Madera, Yuba and Sacramento counties.

Rather than wave HR1491 through, the committee should table it and turn to the more important task of fixing the federal fee-to-trust system that produced it.

The fixes should include clear directions that balance tribal self-determination against the rights and powers of states and local governments. They should also incorporate the right to exert some measure of local control by affected communities, making sure those most affected by tribal developments have a credible voice in the outcome.

In short, fee-to-trust should recognize 21st century realities so that it becomes more of an instrument for consensus, not a tool of division and conflict.

Anything less and we will continue to serve Indian tribes and their neighbors the bitter fruits of unintended consequences.