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Distrust brewing over tribe's land

Published: Tuesday, November 19, 2013 at 9:44 a.m.
Last Modified: Tuesday, November 19, 2013 at 9:44 a.m.

Despite repeated promises from the Dry Creek Band of Pomo Indians not to build a casino on 277-acres of land south of the city, many Petalumans remain worried that a recent federal land application from the tribe may be a hidden attempt at Indian gaming.

Known as “fee-to-trust,” the land acquisition process enables the federal government to take property out of state and local control, and hold it in trust for a group or entity, such as the Dry Creek tribe. That group or entity then enjoys sovereign control over the land, making it impossible for local jurisdictions to have any say over what is built on the land, or to collect property and/or sales tax from businesses located there.

Petaluma and the county not only face losing control over the land if it is taken into federal trust, but they are also kept out of the loop during most of the opaque, bureaucratic fee-to-trust application process that leaves local jurisdictions with limited options to oppose any decisions.

“I think a lot of people don't trust Indian tribes,” Dry Creek Tribal Chairman Harvey Hopkins said in his first interview with the Argus-Courier since 2009. “I feel like it stems from a lack of understanding about our ways. But we're a regular government and fee-to-trust is just one of our regular government protocols.”

Putting land into federal trust was made legal by the Indian Reorganization Act of 1934 (IRA). The act allowed Indian tribes to expand their limited reservations by requesting that additional property be placed into federal trust for their use.

While the IRA's original goal was to support struggling Indian tribes by expanding their land base, the fee-to-trust process has since drawn strong opposition from the affected communities that must deal with a loss of tax revenue and regulatory control over the land. More than that, the fear of Indian gaming on property taken into federal trust fuels criticism of the process, as is the case with the Dry Creek tribe's Petaluma property.

Historically, most Indian reservations were located in tucked-away, rural corners, far from urban life — much like Dry Creek's Rancheria, a sweeping 93-acre stretch of land located just outside Geyserville's city limits. In these remote locations, Indian gaming casinos have flourished.

Dry Creek has successfully run the River Rock Casino on its Geyerville reservation since 2002. Though nothing close to the size of the Graton Resort & Casino that recently opened Rohnert Park, River Rock has consistently been profitable, generating about $600 a month of extra income for each of the tribe's adult members.

But recently, a new phenomenon known as “casino leapfrogging” has emerged. By getting the federal Bureau of Indian Affairs (BIA) — the agency that handles fee-to-trust applications — to take additional lands into trust, tribes have been able to build casinos closer to urban areas, luring customers away from the remote locations into more convenient ones.

This new method, coupled with the veil of secrecy that surrounds the application process, has Petaluma's City Council and county representatives afraid that Dry Creek will try this tactic at its Petaluma property.

“Our first preference is that the land isn't taken into federal trust,“ said Sonoma County Counsel Bruce Goldstein, who has spent many hours studying the fee-to-trust process for the California State Association of Counties, and who is currently working to obtain more information on Dry Creek's trust application. “We would like the tribe to abide by local governments' laws. But beyond that, we want to ensure that anything developed on that land is forced to undergo stringent environmental reviews and have its impacts mitigated.”

The Dry Creek tribe first purchased the Petaluma land in 2004, and though it already had River Rock Casino, it immediately began working on an application to build a class III gaming casino on the land. In a 2006 advisory vote, 79 percent of Petaluma voters were against any new casino developments. In 2008, the tribe abandoned its proposal for a large-scale casino complete with restaurants and several thousand slot machines, and signed an agreement with the County of Sonoma not to pursue gaming on the site until 2016.

The land has sat vacant ever since, with several attempts at development by the tribe falling short — primarily due to a lack of water and sewer access at the property.

But last year, Hopkins told Petaluma's representative on the Board of Supervisors, David Rabbitt, that he was again seeking to have the land taken into federal trust, this time without gaming. Hopkins said that while the tribe had originally wanted to build a casino at the Petaluma property, things have changed.

“Mostly what's changed is tribal leadership,” Hopkins said. “When I took over as tribal chairman in 2004, the tribe's leaders had been trying to build a casino at that site. But they hadn't discussed it with the tribe's membership, and they really hadn't thought about what it would mean to abandon the River Rock casino. We still owed the entire $200 million of principal on River Rock. The tribe wasn't thinking about what it would mean to bail on our investors at River Rock. Good business isn't to bail on investors who have spent a lot of money getting us set up.”

Instead, Hopkins says he is proposing to build ball fields, tribal housing, an olive grove and a 60-room hotel at the Petaluma site.

“We still don't have any housing for our tribal members,” he pointed out. “We need to be improving life for our tribe, we need to offer them low-income, subsidized housing in an area that is convenient to jobs and possibilities. That's what the Petaluma property is all about. And we have always said that if we are offered water and sewer to the property, we won't ever pursue gaming on the site.”

The Petaluma City Council is currently in talks to take over water service to the site from the North Marin Water District. But extending water service to the tribe would require the approval of voters to extend the urban growth boundary, which dictates where land can be developed ­­— a challenge that could be difficult to attain.

Even with Hopkins' many assurances, local officials remain concerned that if the land is taken into federal trust, the no-gaming provision could change.

“Taking land into federal trust is basically an approval process for the tribes, with no set criteria and no meaningful recourse for local jurisdictions to oppose it,” said Goldstein. “The laws are extremely flawed.”

Much of the concern about the process stems from the fact that the BIA does not have to alert local jurisdictions to a tribe's fee-to-trust application until it is deemed complete.

“Basically, a tribe can be working on their trust application for many years, getting help from the BIA as it goes along, and the BIA only has to tell the affected communities once it's finished,” said Goldstein. “Then, the communities have 30 days to oppose the application — 30 days to oppose something the tribe has spent years compiling. It makes it almost impossible to be adequately prepared.”

Goldstein said that when he and Rabbit have placed calls to the BIA to find out where Dry Creek's trust application is, they are told there is no trust application — despite the fact that Hopkins has repeatedly told Rabbitt that he has been developing one for months. Even U.S. Senator Dianne Feinstein was unable to receive any information from the BIA on the tribe's fee-to-trust application, as she recently indicated in a letter she sent to the Petaluma City Council.

Goldstein said that contrary to what the BIA says, transferring land into federal trust is a relatively simple process for tribes. Once a tribe has purchased a piece of property, the tribe then submits an application to their regional BIA office with an explanation of why the property qualifies to be taken into trust, said Goldstein.

“But the standards the tribes have to meet are not set,” he pointed out. “The BIA is there to assist the tribes, and does little to keep communities in the know. We've learned painfully and expensively that we have limited control over the BIA's decisions on whether they approve a trust application.”

In a 2012 Pepperdine Law Review article called “Extreme Rubber Stamping: The Fee-to-Trust Process of the Indian Reorganization Act of 1934,” the journal studied all of the Pacific Region BIA trust applications from 2001-11. The article states that the office, which oversees most of California, approved all 111 completed applications during the 10-year time period.

“In most cases the BIA has largely avoided significant analysis and replaced it with filler considerations when it comes to concerns about state and local governments' loss of control over land,” the article concluded.

Furthermore, there are several instances throughout the country in which lands have been taken into federal trust without approval for gaming, but still wound up with a casino. This is primarily because once the tribe has sovereignty over the land, it can do as it pleases. The BIA admits it has almost no recourse to stop a tribe from building a casino once land is in trust, though the practice is generally frowned upon and discouraged.

The county recently submitted a Freedom of Information Act request to the BIA, asking for any information the regional office had on the Dry Creek's fee-to-trust application. Goldstein said he also reminded the Dry Creek tribe of language in their agreement with the county that requires them to maintain open communication on major projects.

“We are adamantly against any other casinos being developed in Sonoma County,” said Goldstein. “Both Sacramento and the federal government know our position.” But Hopkins argues that having the land taken into federal trust is a fiscally responsible move for the tribe.

“We're building this for the betterment of the tribe,” he said. “Why would we choose to build our development without taking the land into trust, knowing it would be more expensive for us? It makes no sense. But does that mean we want to completely disregard the county's perspective? Of course not. We want to work together, while still benefiting the tribe.”

(Contact Janelle Wetzstein at janelle.wetzstein@arguscourier.com)

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