Text: S.Hrg. 115-253 — H.R. 597 AND H.R. 1491
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[Senate Hearing 115-253]
[From the U.S. Government Publishing Office]
S. Hrg. 115-253
H.R. 597 AND H.R. 1491
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
APRIL 25, 2018
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
JOHN McCAIN, Arizona JON TESTER, Montana,
LISA MURKOWSKI, Alaska BRIAN SCHATZ, Hawaii
JAMES LANKFORD, Oklahoma HEIDI HEITKAMP, North Dakota
STEVE DAINES, Montana CATHERINE CORTEZ MASTO, Nevada
MIKE CRAPO, Idaho TINA SMITH, Minnesota
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
----------
Page
Hearing held on April 25, 2018................................... 1
Statement of Senator Hoeven...................................... 1
Statement of Senator Udall....................................... 2
Witnesses
Healy, Hon. Mike, Councilmember, City of Petaluma, California.... 21
Prepared statement........................................... 23
Kahn, Hon. Kenneth, Chairman, Santa Ynez Band of Chumash Indians. 6
Prepared statement........................................... 8
Krauch, William ``Bill'', Chair, Santa Ynez Valley Coalition..... 26
Prepared statement........................................... 28
LaCounte, Darryl, Acting Deputy Bureau Director, Office of Trust
Services, Bureau of Indian Affairs, U.S. Department of the
Interior....................................................... 3
Prepared statement........................................... 4
Mejia, Hon. Marjorie, Chairperson, Lytton Rancheria of California 11
Prepared statement........................................... 13
Appendix
Gore, Hon. James, Chairperson, Sonoma County Board of
Supervisors, prepared statement................................ 39
Letters Submitted for the record by:
Hon. Salud O. Carbajal, U.S. Representative of California.... 42
Hon. Doug LaMalfa, U.S. Representative of California......... 43
Das Williams, Chair, Santa Barbara County Board of
Supervisors................................................ 41
Santa Ynez Band of Chumash Indians, supplemental information
submitted for the record....................................... 43
H.R. 597 AND H.R. 1491
----------
WEDNESDAY, APRIL 25, 2018
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. Good afternoon. We will call this legislative
hearing to order.
Today the Committee will examine two bills: H.R. 597, a
bill to take lands in Sonoma County, California, into trust as
part of the reservation of the Lytton Rancheria of California,
and for other purposes; and H.R. 1491, a bill to reaffirm the
action of the Secretary of Interior to take land into trust for
the benefit of the Santa Ynez Band of Chumash Mission Indians,
and for other purposes.
On January 20, 2017, Representative Denham introduced H.R.
597, the Lytton Rancheria Homelands Act of 2017. The bill
passed the House of Representatives on July 11, 2017, and was
received by the Senate on July 12, 2017. H.R. 597 would take
511 acres of land owned by the Lytton Band of Pomo Indians of
California into trust for the benefit of the tribe.
The Lytton Rancheria has spent years negotiating with the
local county of Sonoma to form and approve a memorandum of
agreement that would mitigate any potential off-reservation
impact from land being moved into trust. The land, once in
trust, would assist the tribe in further developing their
economy and provide for additional housing.
On March 10, 2017, Representative Lamalfa introduced H.R.
1491, the Santa Ynez Band of Chumash Indians Land Affirmation
Act of 2017. The bill passed the House of Representatives on
November 28, 2017, and was received by the Senate on November
29, 2017. H.R. 1491 would reaffirm the Secretary of Interior's
decision to place 1,427.28 acres of California land in trust
for the Santa Ynez Band of Chumash Indians, resolving years of
litigation regarding the Secretary's decision.
After negotiating over the county's concerns, the tribal
and the local county of Santa Barbara have also entered into an
effective memorandum of agreement. This MOA provides for the
mitigation of potential impacts once the land is in trust.
On January 18, 2018, Senators Feinstein and Harris
requested this Committee hold a legislative hearing on these
two California tribal bills. I look forward to hearing the
feedback from our witnesses on both these pieces of
legislation.
With that, I will turn to Vice Chairman Udall for his
comments.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Hoeven, for calling
today's legislative hearing.
As many of you know, Congress' enactment of the Indian
Reorganization Act in 1934 marked a significant turning point
in the Federal-tribal relationship. Through this Act, Congress
sought to empower, rather than undermine, tribal governments.
The authority of the Secretary to take land into trust is the
crowning achievement of the IRA.
This authority represented a clear rejection of the
allotment era, when Indian tribes lost tens of millions, by
some estimates hundreds of millions, of acres of their land in
less than 50 years. The loss of a tribal land base decimated
tribal governments and destroyed tribal economies.
Since passage of the IRA, tribes have successfully restored
millions of acres of homelands. That includes more than 500,000
in the past eight years. I hope we stay the course. Indian
Country deserves no les. That is why I remain concerned about
the Department's proposal to revise its land into trust
regulations, potentially placing additional hurdles in the way
of tribes.
The importance of tribal trust acquisitions cannot be
overstated. After all, the authority to govern is rooted in the
authority to exercise jurisdiction. The authority to provide
safe refuge to tribal citizens, the ability to house tribal
members and exercise jurisdiction, ensuring their well-being.
I appreciate, as the opposition here today demonstrates,
that not all trust acquisitions will be without controversy.
But this legislation before us demonstrates what local
governments and tribes can achieve through mutual respect and
cooperation. I would like to thank the witnesses for coming
here today. It is a long flight from California. Again, thank
you, Mr. Chairman, for calling this hearing.
The Chairman. Thank you, Vice Chairman Udall.
With that, our witnesses today are Mr. Darryl LaCounte,
Acting Deputy Bureau Director, Office of Trust Services, Bureau
of Indian Affairs, U.S. Department of the Interior; the
Honorable Kenneth Kahn, Chairman, Santa Ynez Band of Chumash
Indians, Santa Ynez, California; the Honorable Marjie Mejia,
Chairperson, Lytton Rancheria of California, Santa Rosa,
California; the Honorable Mike Healy, Councilmember, City of
Petaluma, Petaluma, California; Mr. William ``Bill'' Krauch,
Chair, Santa Ynez Valley Coalition, Los Olivos, California.
I want to remind the witnesses that your full written
testimony will be made a part of the official hearing record.
Please keep your statements to five minutes so we have time for
questions. With that, we will begin with Mr. LaCounte.
STATEMENT OF DARRYL LACOUNTE, ACTING DEPUTY
BUREAU DIRECTOR, OFFICE OF TRUST SERVICES, BUREAU OF INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR
Mr. LaCounte. Good afternoon, Chairman Hoeven and Vice
Chairman Udall.
My name is Darryl LaCounte. I am the Acting Deputy Bureau
Director for Trust Services for the Bureau of Indian Affairs in
the Department of Interior. I am happy to present the
department's views on H.R. 597, the Lytton Rancheria Homelands
Act of 2017, and H.R. 1491, the Santa Ynez Band of Chumash
Indians Land Affirmation Act of 2017.
Let me begin with this. The department supports tribal
self-determination, which at times include tribes electing to
voluntarily proscribe activities that may legally be conducted
on their lands. Therefore, the department supports the
congressional efforts being made in H.R. 597, the Lytton
Rancheria Homelands Act.
The bill will assure a homeland for the Lytton Rancheria of
California where tribal housing as well as governmental
community facilities are needed and can be constructed. In
addition, the lands will also provide economic opportunities,
including the continued use of a portion of the lands for
viniculture.
The Lytton Rancheria Homelands Act of 2017 addresses the
long history of Federal Indian relations in California and
provides for a viable homeland for members of the tribe. The
tribe's original homeland was purchased in 1926, pursuant to
Congressional authority.
On August 1, 1961, the tribe was terminated in accordance
with the Rancheria Act of 1958. As a result of termination, the
tribe lost their original homelands that were purchased in
1926. In 1987, the tribe joined other tribes in a lawsuit
against the United States, challenging their termination. Based
on an agreement between parties, in the case of Scotts Valley
Band of Pomo Indians of the Sugar Bowl Rancheria v. United
States, the tribe was restored to federally-recognized status.
The lands identified in H.R. 597 will ensure that the
Lytton Rancheria has permanent protected homeland as it enjoyed
prior to termination. The ability for tribes to acquire land in
trust and the certainty that such lands remain in trust is an
essential tool for fostering tribal self-determination.
Administering trust lands is an important responsibility that
the United States undertakes on behalf of Indian tribes. The
Congress, through its plenary authority over Indian affairs,
can direct the department to acquire and administer trust lands
as it does in H.R. 597.
Also, we understand the Department of Justice may have
technical comments on H.R. 597. Therefore, we support the
Congressional goals embodied in H.R. 597, the Lytton Rancheria
Homelands Act.
And now for H.R. 1491, the Santa Ynez Band of Chumash
Indians Land Affirmation Act of 2017. This legislation would
reaffirm the action of the Secretary of the Interior to take
land into trust for the benefit of the Santa Ynez Band of
Chumash Mission Indians. The department supports the tribe's
efforts to voluntarily proscribe the activities that may
legally be conducted on its lands through H.R. 1491.
H.R. 1491 would reaffirm the decision dated January 19,
2017, that the Principal Deputy Assistant Secretary of Indian
Affairs Lawrence S. Roberts take approximately 1,427 acres of
land in Santa Barbara County, California, into trust for the
benefit of the tribe. On January 20th, 2017, the Pacific Area
Regional Director accepted the land into trust. Since that
time, the tribe has worked with Santa Barbara County on a
memorandum of agreement between the two parties regarding lands
into trust.
On October 31, 2017, the Board of Supervisors for the
county approved the MOA and the department approved the MOA
pursuant to Section 2103 of the revised statute, 25 U.S.C.
Section 81. The tribe has further agreed that gaming will not
be conducted on the identified lands taken into trust for the
tribe. When a trust acquisition is finalized and the title
transferred in the name of the United States, tribes in the
United States should be able to depend on the status of the
land and the scope of the authority over such lands taken into
trust. H.R. 1491, with amendments, would provide such certainty
regarding the ownership status of this land.
In conclusion, administering trust lands is an important
responsibility the United States undertakes on behalf of Indian
tribes and the Secretary's authority to acquire lands in trust
for the tribes and a certainty concerning the status of and
jurisdiction over Indian lands after such acquisitions, are at
the core of the Federal trust responsibility.
This concludes my statement on both H.R. 597 and H.R. 1491.
I would be happy to answer questions the Committee may have.
[The prepared statement of Mr. LaCounte follows:]
Prepared Statement of Darryl LaCounte, Acting Deputy Bureau Director,
Office of Trust Services, Bureau of Indian Affairs, U.S. Department of
the Interior
H.R. 597
Chairman Hoeven, Vice Chairman Udall, and members of the Committee,
my name is Darryl LaCounte and I am the Acting Deputy Bureau Director-
Trust Services at the Department of the Interior. Thank you for the
opportunity to present the Department's views on H.R. 597, the Lytton
Rancheria Homelands Act of 2017.
The Departments supports tribal self-determination, which at times
includes tribes electing to voluntarily proscribe activities that may
legally be conducted on their lands. Therefore, the Department supports
the congressional efforts being made in H.R. 597. The bill will assure
a homeland for the Lytton Rancheria of Califorina (Tribe) where tribal
housing, as well as governmental and community facilities, is needed
and can be constructed. In addition, the lands will also provide
economic opportunities, including the continued use of a portion of the
lands for viniculture.
Background
The Lytton Rancheria Homelands Act of 2017 addresses the long
history of Federal-Indian relations in California and provides for a
viable homeland for the members of the Tribe. The Tribe's original
homeland was purchased in 1926 pursuant to congressional authority
designed to remedy tragedy that befell the Indians of California. On
August 1, 1961, the Tribe was terminated in accordance with the
Rancheria Act of 1958. As a result of termination the Tribe lost their
original homelands that were purchased in 1926.
In 1987, the Tribe joined other tribes in a lawsuit against the
United States challenging their termination. Based on an agreement
between the parties, in the case of Scotts Valley Band of Pomo Indians
of the Sugar Bowl Rancheria v. United States, the Tribe was restored to
federally recognized status. The Stipulated Judgment, however, contains
provisions that prohibit the Tribe from exercising its federal rights
on its original homelands. Through agreements in the Stipulated
Judgment, the Tribe must depend on lands outside of their original
homelands to support their government. The lands identified in H.R. 597
will ensure that the Lytton Rancheria has a permanent protected
homeland as it enjoyed prior to termination. The ability for Tribes to
acquire land in trust and the certainty that such lands remain in trust
is an essential tool for fostering tribal self-determination.
H.R. 597
H.R. 597 will place approximately 511 acres of land into trust for
the Tribe. Section 4 of H.R. 597 references a map titled ``Lytton Fee
Owned Property to be Taken into Trust'' dated May 1, 2015, that
identifies lands to be placed into trust for the Tribe pursuant to the
bill. Under H.R. 597, once the land is in trust for the Tribe, valid
existing rights, contracts, and management agreements related to
easements and rights-of-way will remain. H.R. 597 also includes a
restriction that the Tribe may not conduct any gaming activities on any
land placed into trust pursuant to this Act and places a time
prohibition on gaming on any future lands placed in trust in Sonoma
County for the Tribe until March 15, 2037, an approximately 19-year
prohibition.
H.R. 597 also references a Memorandum of Agreement between Sonoma
County and the Tribe. The MOA affects not only the trust acquisition
covered in the legislation but also future acquisitions and subjects
the Tribe to the land use/zoning authority of the County for most of
the property identified in the legislation for the term of the MOA, 22
years, and imposes negotiated restrictions on the Tribe's residential
development. H.R. 597 also includes a permanent gaming prohibition on
those lands located north of California State Highway Route 12 as it
crosses through Sonoma County at Highway 101, and extending to the
furthest extent of Sonoma County.
Administering trust lands is an important responsibility that the
United States undertakes on behalf of Indian tribes. The Congress,
through its plenary authority over Indian Affairs, can direct the
Department to acquire and administer trust lands as it does in H.R.
597. The Department is also supportive of counties and tribes
negotiating agreements to resolve their differences.
We understand that the Department of Justice may have technical
comments on the bill.
Conclusion
In conclusion, The Departments supports tribal self-determination,
which at times includes tribes electing to voluntarily proscribe
activities that may legally be conducted on their lands. Therefore, we
support the congressional goals embodied in H.R. 597, the Lytton
Rancheria Homelands Act. I would be glad to answer any questions the
Committee may have.
H.R. 1491
Chairman Hoeven, Vice Chairman Udall, and Members of the Committee,
my name is Darryl LaCounte and I am the Acting Deputy Bureau Director-
Trust Services at the Department of the Interior (Department). Thank
you for the opportunity to present testimony on H.R. 1491, the Santa
Ynez Band of Chumash Indians Land Affirmation Act of 2017. This bill
would reaffirm the action of the Secretary of the Interior to take land
into trust for the benefit of the Santa Ynez Band of Chumash Mission
Indians (Tribe). The Department supports the Tribe's efforts to
voluntarily proscribe the activities that may legally be conducted on
its lands through H.R. 1491.
Background
By decision dated January 19, 2017, the Principal Deputy Assistant
Secretary--Indian Affairs, Lawrence S. Roberts affirmed the December
24, 2014, decision of the Bureau of Indian Affairs (BIA) Pacific
Regional Director to take approximately 1,427 acres of land in Santa
Barbara County, California, into trust for the benefit of the Tribe. On
January 20, 2017, the Regional Director accepted the land into trust.
Since that time the Santa Ynez Band of Chumash has worked with
Santa Barbara County on a Memorandum of Agreement between the two
parties regarding the lands taken into trust. On October 31, 2017, the
Board of Supervisors for the County approved the MOA and the Department
approved the MOA pursuant to section 2103 of the Revised Statutes (25
U.S.C. 81). The Tribe has further agreed that gaming will not be
conducted on the identified lands taken into trust for the Tribe.
The Department agrees that certainty of title is important, as it
provides tribes, the United States, and state and local governments
with the clarity needed to carry out each sovereign's respective
obligations. Such certainty is pivotal to the tribe's ability to
provide essential government services to its citizens, such as housing,
education, health care, and promote tribal economies.
Once the trust acquisition is finalized and title transferred in
the name of the United States, tribes and the United States should be
able to depend on the status of the land and the scope of the authority
over the land. H.R. 1491, with amendments, would provide such certainty
regarding the ownership status of this land.
H.R. 1491
Section 3 of H.R. 1491 provides that the action taken by the
Department on January 20, 2017, to place approximately 1,427 acres of
land located in Santa Barbara County, California, into trust for the
benefit of the Santa Ynez Band of Chumash Indians, is hereby ratified
and confirmed as if that action had been taken under a Federal law
specifically authorizing or directing that action.
H.R. 1491 also provides that nothing in the legislation shall
enlarge, impair, or otherwise affect any right or claim of the Tribe to
any land or interest in land in existence before the date of the
enactment of H.R. 1491; affect any water right of the Tribe in
existence before the date of the enactment; or terminate or limit any
access in any way to any right-of-way or right-of-use issued, granted,
or permitted before the date of the enactment of H.R. 1491. The
legislation would also restrict lands already taken into trust to
preclude the Tribe from conducting gaming activities on the land, as a
matter of claimed inherent authority or under any Federal law,
including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq) and
regulations promulgated by the Secretary or the National Indian Gaming
Commission under that Act.
Conclusion
Administering trust lands is an important responsibility that the
United States undertakes on behalf of Indian tribes. The Secretary's
authority to acquire lands in trust for tribes and the certainty
concerning the status of and jurisdiction over Indian lands after such
acquisitions are at the core of federal trust responsibility. This
concludes my statement and I would be happy to answer questions.
The Chairman. Thank you. Mr. Kahn?
STATEMENT OF HON. KENNETH KAHN, CHAIRMAN, SANTA YNEZ BAND OF
CHUMASH INDIANS
Mr. Kahn. Mr. Chairman, Mr. Vice Chairman, thank you for
the opportunity to appear before you today. I am proud to be
here representing the members of the Santa Ynez Band of Chumash
Indians in support of H.R. 1491, the Santa Ynez Band of Chumash
Mission Indians Land Affirmation Act of 2017.
This legislation ratifies the actions taken by the
Department of the Interior to place the land in trust for our
tribe. If enacted, it will allow us to expedite the
construction of 143 homes for tribal members and descendants,
and will provide us with much-needed land to protect and grow
our cultural heritage.
The Santa Ynez Band of Chumash Indians is the only
federally-recognized tribe of Chumash heritage. Our Chumash
people inhabited the California coast from Monterrey to the
north to Malibu in the south. The Chumash were the first
California Indians encountered by the Spanish explorer Juan
Cabrillo when he landed in what is now known as the city of
Ventura, California, in 1542.
Like many California Indians, we were forced into Spanish
missions for generations, destroying much of our culture,
confiscating our lands and decimating our populations.
Following the mission era in 1906, the United States granted
our tribe 99 acres in Santa Ynez, California. We subsequently
voted to organize under the Indian Reorganization Act in 1934.
While most of the reservation lacked running water and
electricity, the tribe secured several HUD grants in the 1960s
and 1970s to build housing for our members. Today, those
renovated 50-year-old HUD houses remain the primary housing on
our reservation. As a result, only 17 percent of our tribal
members and descendants live on tribal land.
After Congress passed the Indian Gaming Regulatory Act, our
tribe elected to take advantage of the opportunity. We entered
into a compact with the State of California and have run a
successful gaming operation for almost 20 years. Like many
tribes, gaming was a catalyst. It provided us the resources to
rebuild our government and rebuild our culture. Like any
government, one of our greatest needs is housing. As I
mentioned, only a fraction of our tribal members and
descendants live on tribal land. And with no space left to
construct new houses, we knew that we needed to acquire more
land.
We purchased roughly 1,400 acres known as Camp 4, just over
a mile from our existing reservation that was part of our
aboriginal territory. With this purchase, we committed to our
members that we would ensure each tribal family have a tribal
land assignment to build a home on this new tribal land, once
Camp 4 was taken into Federal trust. Before even attempting to
place the land into trust, we approached our community. We know
there are often misunderstandings about tribal lands, and we
wanted to put our plans out in the open. We even went so far as
to propose a cooperative mitigation agreement with the county
before we attempted to pursue the legislative or administrative
avenues for placing the land in trust.
Sadly, we were met with resistance. Some in the community
questioned our motives and made false accusations about our
plans for the land. To be clear, we do not want to build a
casino on the land and we do not want to export the water.
After years of sharp criticism, it was clear our word was
not enough. So we redoubled our efforts to reach an agreement
with those who would work with us. It took seven years, but I
am proud to say that we got there.
On October 31, 2017, after 22 public hearings and hundreds,
if not thousands, of public comments, the tribe and the county
entered into a binding mitigation agreement for development on
Camp 4 lands. The tribe agreed to build 143 housing units, a
small tribal meeting hall, and an administrative building, and
protecting the vast majority of the property as agricultural
land or environmental open space. We agreed to fairly
compensate the county for services it provided in the area.
I want to be clear: we entered into this agreement because
it was the right thing to do, not because we were forced to do
so.
In the midst of our negotiation with Santa Barbara County,
the Department of the Interior placed our lands in trust. Some
believed that there was no need for an agreement. The tribal
leadership was committed. We wanted to proceed, hoping we could
improve relations in the valley and establish a precedent for
future collaboration with the county. Our decision to continue
working with the county, even after our land was placed in
trust, is a big reason why we have such strong community
support for the bill.
On that note, Mr. Chairman, I would ask that the statements
from Santa Barbara County, our local Congressman, Salud
Carbajal, and the bill's sponsor, Congressman Doug Lamalfa, be
added to the hearing record.
The Chairman. Without objection.
Mr. Kahn. I would also request that the Committee accept
the statements of 37 individuals who spoke in support of the
tribe and its agreement with the county at a public hearing on
October 31, 2017. These statements include those of former
Congressman Lois Capps and former county supervisors where the
tribe is located, Dorene Farr, and Gail Marshall.
In conclusion, I want to thank the Committee once again for
the opportunity to be here today. The bill will expedite much-
needed housing for tribal members and will set a precedent that
good faith negotiations between tribes and local governments
will be rewarded.
Thank you, Mr. Chairman, thank you, Mr. Vice Chairman. I
look forward to answering any questions you may have.
[The prepared staetmetn of Mr. Kahn follows:]
Prepared Statement of Hon. Kenneth Kahn, Chairman, Santa Ynez Band of
Chumash Indians
Mr. Chairman, Mr. Vice Chairman, Members of the Committee, thank
you for the opportunity to appear before you today. I am proud to be
here representing the Members of the Santa Ynez Band of Chumash Indians
in support of H.R. 1491, the Santa Ynez Band of Chumash Indians Land
Affirmation Act of 2017.
This legislation ratifies the actions taken by the Department of
the Interior to place land in trust for our Tribe. If enacted, it will
allow us to expedite the construction of 143 homes for tribal members
and descendants, and will provide us with a much needed land base to
protect and grow our cultural heritage.
I want to begin by providing a brief history of how we got here.
The context is important, and should give you a good lens with which to
view this legislation.
The Santa Ynez Band of Chumash Indians is the only federally
recognized tribe of Chumash heritage. Our Chumash people historically
inhabited the California coast from Paso Robles in the North, to Malibu
in the South. The Chumash were the first California Indians encountered
by the Spanish explorer Juan Cabrillo when he landed in what is now the
City of Ventura, California in 1542.
Like many California Indians, we were forced into Spanish missions
for generations, destroying much of our culture, confiscating our
lands, and decimating our population.
Following the Mission era, in 1906, the United States provided our
tribe 99 acres in a swampy riverbed in Santa Ynez, California. We
subsequently voted to organize under the Indian Reorganization Act in
1934.
Even while most of the reservation lacked running water and
electricity, the Tribe secured several HUD grants in the 1960s and
1970s to build housing for our members. Today, those renovated 50-year-
old HUD houses remain the only housing on our reservation. As a result,
only 17 percent of our tribal members and descendants live on tribal
land.
After Congress passed the Indian Gaming Regulatory Act, our Tribe
elected to take advantage of the opportunity. We entered into a compact
with the State of California, and have run a successful gaming
operation for almost 20 years.
Like many tribes, gaming was a catalyst. It provided us the
resources to rebuild our government and our culture.
By 2010, the greatest need in our community was tribal housing. As
I mentioned, only a fraction of tribal members and descendants live on
tribal land, and with no space left to construct new houses, we knew
that we needed to acquire more land.
We were fortunate to find a landowner just down the road from our
existing reservation that was willing to sell us land that was a part
of our original land grant from the Catholic Church, clearly within our
aboriginal territory. When we purchased the roughly 1,400 acres known
as Camp 4, we committed to our members that each family would have a
land assignment on tribal land once Camp 4 was taken into trust.
Before even attempting to place the land in trust, we approached
our community. We know there are often misunderstandings about tribal
lands, and we wanted to put our plans out in the open. We even went so
far as to propose a cooperative mitigation agreement with the County
before beginning the legislative or administrative avenues for placing
the land in trust.
Sadly we were met with resistance. Some in the community questioned
our motives and made false accusations about our plans for the land. It
was frustrating. No, we don't want to build a new casino just a mile
away from our existing casino. No, we didn't want the land in trust so
we could export the water.
To be candid, some of what was said was extremely disappointing.
We heard wild, baseless allegations such as the Tribe was not a
political jurisdiction eligible for government-to-government
negotiations. We were told that it is inadvisable for sovereign tribal
trust lands to exist in America. Some even asserted that our Chairman
was a Mexican, not a Native American.
After more than a year of sharp, baseless criticisms, it was clear
that our good faith effort to resolve local issues prior to beginning
the Fee to Trust process had failed. So, in July 2013 we filed the
Administrative fee-to-trust application for Camp 4.
Not surprisingly, our opponents immediately filed suit opposing the
action. Knowing this group would use the administrative and legal
appeals process to delay our application for as long as possible, we
also sought to place the land in trust via an act of Congress.
Tribal leaders also redoubled our efforts to reach an agreement
with those who would work with us, starting with the County Sheriff
Department. The Tribe had developed a wonderful relationship with our
Sheriff through years of joint programs and jurisdictional cooperation,
and we believed we could negotiate with them in good faith.
Our faith was well-placed. The Chumash Tribe and Sheriff Bill Brown
entered into a new cooperative agreement that improved public safety in
the region by having the Tribe provide funding for a new police cruiser
and four deputies (that has now grown to six deputies) at a cost of
more than $1 million each year. These deputies didn't just serve the
Reservation, they responded to emergencies all across Santa Barbara
County. Next, we moved on to the Fire Department, and secured an
agreement in which the Tribe contributes more than $1 million each year
to improve County-wide emergency services for our community.
Those two agreements came as we began to see movement on both the
administrative and legislative fee-to-trust routes.
In late 2014, the Bureau of Indian Affairs Sacramento Regional
Office issued a Notice of Decision regarding the Department's intent to
accept the Camp 4 land in trust. The Department had determined that the
tribe's application met the criteria for federal acquisition, and in
accordance with federal regulations, proposed accepting the land for
the benefit of the Tribe.
However, once again, our neighbors chose litigation over
cooperation. The Department of the Interior was sued more than half a
dozen times over their decision, including by the County of Santa
Barbara.
Fortunately, in early June 2015 the House Resources Committee's
Subcommittee on Indian Affairs held a hearing on an earlier version of
this legislation. This marked a turning point.
Upon Congressional examination, the weakness of the opposition's
position came to light. For House Resources Committee Members, who
routinely deal with issues dealing with Native American Tribes, the
issue was black and white. The Tribe proposed taking land in trust,
proposed development that was consistent with the surrounding
community, and attempted to mitigate impacts even though that step was
not required by federal law. This should have been an open-and-shut
case--and Committee Members said so in no uncertain terms.
That hearing was a real wake up call for the County of Santa
Barbara. For too long, the County had allowed a vocal minority within
the community to steer the official County position. When the details
were examined by a neutral third party, the error in their ways became
clear.
And to the County's credit, they responded positively. Promptly
after we returned from the hearing in Washington, the County reached
out and expressed an interest in re-examining their position. We
happily agreed to come back to the negotiating table. Our leadership
knew that neither the Tribe nor the county were going anywhere, so it
was in both of our best interests to find ways to get along.
After some discussion, the County and Tribe initiated the Ad Hoc
Subcommittee Regarding Santa Ynez Valley Band of Chumash Indians
Matters on August 15, 2015. The group was made up of two Members of the
Board of Supervisors and two members of the Chumash Business Committee.
I have served on this committee since its inception, first in my
capacity as Vice Chairman, and since April 2016, as Chairman of the
Tribe.
Like any negotiation, there were fits and starts. Sometimes we hit
fundamental disagreements, and talks slowed to a trickle. Sometimes
there were bursts of progress when we made a breakthrough. Many were
skeptical, but I am proud to say we got there. On October 31, 2017,
after 22 public meetings and hundreds, if not thousands, of public
comments, the Tribe and the County entered into a binding mitigation
agreement for development on our Camp Four lands.
The agreement stipulates that the Tribe will build 143 housing
units, and a small Tribal Meeting Hall/administrative building. Under
the agreement the vast majority of the property will be protected as
agricultural land or environmental open space. And we agreed to fairly
compensate the County for the services it provides in the area.
Under the terms of the agreement, the County dismissed its lawsuit
against the Department of the Interior. The County also agreed to
support the Legislation being considered here today.
I would like to take a moment to recognize the County's
representatives who are in the audience today--since we turned the
corner, they have really been wonderful partners. In particular, I want
to recognize the singular leadership of Supervisor Joan Hartmann, who
represents our Supervisorial District, Chaired the Ad Hoc Subcommittee,
and served as Chairwoman of the Board of Supervisors until this year.
Supervisor Hartmann was a force to be reckoned with, and I want to
thank her for her personal efforts and commitment to getting us to
where we are today.
I will return to some of the specifics of our agreement in a
moment, but I want to briefly underscore an important point: we entered
into this agreement because it was the right thing to do--not because
we were forced to do so.
In the midst of our negotiations with Santa Barbara County, the
Department of the Interior placed our lands in trust. On January 19,
2018, Acting Assistant Secretary-Indian Affairs Larry Roberts completed
our Fee-to-Trust process and dismissed the pending challenges against
the action. Secretary Zinke subsequently upheld this action in the new
Administration.
We had already won; there was no need for the agreement, according
to many of my members.
But tribal leadership was committed. We hoped that by going through
with negotiations, we could improve relations in the valley and set a
road map for how we work with the County on future projects.
Looking back now, I believe that was the right decision. Our
agreement demonstrated to many in the Community that good faith
negotiations between the County and the Tribe are possible, and that
they can be fruitful. I also believe that our decision to work with the
County even after our land was placed in trust is a big reason why we
have such strong support for the bill.
On that note, Mr. Chairman, I would ask that following the
conclusion of my remarks, the Committee accept several key statements
of support from Santa Barbara County, our local Congressman, Salud
Carbajal, and the bill's sponsor, Representative Doug LaMalfa. I would
also ask that the committee include comments in support of the
agreement from Former Congresswoman Lois Capps, Former Supervisor
Doreen Farr, and more than two dozen other local leaders, chambers of
commerce, labor groups, environmental organizations, and other
community members.
I will be the first to acknowledge that not everyone is happy with
this agreement. As you will hear from Mr. Krauch, some of our neighbors
are still unhappy, even after all of the concessions we made willingly.
They have every right to raise concerns, and I am glad that they
did. Mr. Krauch and others brought up a number of tough issues, and
because of the open, transparent public hearing process, we were forced
to respond to their comments. More importantly, we made changes to the
agreement based on their concerns. Don't take my word for it. Look back
to our initial offer to the County nearly ten years ago; I think it is
clear as day that we made substantial concessions to the community.
It is worth mentioning a few of the more substantive concerns that
were raised, and how we addressed them in the agreement referred to in
Section 2 of the legislation.
Gaming is often cited as a major concern with fee-to-trust
applications across the country. Our application was not, is not, and
will never be for gaming. It is about housing. That is why the only
component of the agreement that lasts in perpetuity is the prohibition
on gaming. The tribe does not feel that this was a major concession--
our existing gaming facility is less than two miles down the road. It
would make no sense to build a new casino on this land, so we were
happy to take that off the table. As you will notice, this was done in
Section 3(g) of the bill.
Concerns about land use were, without question, the most common
issue raised prior to the formal negotiations with the County and
throughout the public process. Sovereign tribal land is not subject to
county zoning ordinances, and this really got under the skin of some of
the no-growth community members. But as members of the Santa Ynez
Valley community, we share many of the goals of our neighbors. We don't
want high density multi-family urban-style development. And we
certainly don't want to spoil the bucolic scenery of the valley.
That's why the agreement with the County puts reasonable
restrictions on what and where the Tribe can build. We voluntarily
limit our construction projects to 143 homes, and a tribal hall/
administrative building. The rest of the land will be open space,
remain in agricultural production, or be actively managed to maximize
environmental benefit for the region.
The size of the buildings we construct will be limited, as set
forth in the Environmental Assessment that we submitted to the
Department of the Interior. The agreement simply requires us to follow
our original plans.
Moreover, in an effort to address concerns about preserving the
rural character of the Valley, the Tribe agreed to develop the Camp 4
property in a manner that was less dense than the neighboring housing
development. We propose 143 homes on our 1,427-acre property, while our
neighbors in the Rancho Santa Ines Estates development have 137 homes
across 1,058 acres.
A few of our more creative opponents have raised the concern that
the Tribal Hall and Administrative building will be used to throw large
parties. Nothing could be further from the truth. Events are limited,
per the enforceable environmental assessment document. And, as with all
tribal government facilities on our reservation, tribal law prohibits
the consumption of alcohol. In reality, the 12,000 square foot space--
which are coincidentally about the size of some of our neighbors'
homes--will be used for offices, and to hold tribal council meetings,
youth education events, and traditional/cultural events.
Another common concern we heard was that by placing the land in
trust, the County loses out on tax revenue. This is true, and we set
out to make it right.
We asked the County to quantify the cost of services provided;
after a thorough review, they requested $178,500 annually for the life
of the agreement (until 2040). We felt this was fair, and happily
agreed to the request. As such, in Section III, 9(d), on page six of
our agreement, the Tribe agrees to provide the County with these
payments.
Water was another important concern we heard. Some accused us of
just wanting the land to sell the water during the drought. This was
absurd, of course, because we need to use the water for housing. But we
addressed the concerns none the less. Under the terms of the agreement,
the new development will be water neutral during drought years. We will
accomplish this by removing up to 50 acres of the existing agriculture
on the property and by recycling all wastewater. It is also worth
noting that the Indian Non-Intercourse Act prohibits the removal of
water from tribal trust lands without express statutory authorization.
So, to export water off the reservation we would require subsequent
legislation from Congress.
The last concern was also among the most frustrating. Many that
opposed the agreement claim that it is not enforceable in a court of
law. While the Santa Ynez Band of Chumash Indians is a federally
recognized Indian Tribe that has sovereign immunity, Section V of the
agreement includes a limited waiver of that immunity based on our
enforceable gaming compact with the State of California. Put simply, if
the Tribe fails to up hold its end of the deal, the County has legal
remedies to address our failure.
I have just run through a sampling of the issues that came up
during the many months of public hearings, open dialogues, and
Congressional consideration of this bill. There are many more issues
that were raised, and each one received a written answer that is posted
on the Santa Barbara County Board of Supervisors webpage (https://
www.countyofsb.org/tribal-matters.sbc).
In conclusion, I want to thank the Committee once again for the
opportunity to be here today. The bill will expedite much needed
housing for our tribal members and will set a precedent that good faith
negotiations between tribes and local governments will be rewarded.
Thank you Mr. Chairman, and I look forward to answering any
questions you may have.
The Chairman. Thank you, Chairman Kahn. Chair Mejia?
STATEMENT OF HON. MARJORIE MEJIA, CHAIRPERSON, LYTTON RANCHERIA
OF CALIFORNIA
Ms. Mejia. Good afternoon, Chairman Hoeven, Vice Chairman
Udall and members of the Committee on Indian Affairs. My name
is Margie Mejia, and I am the Chairperson for Lytton Rancheria,
located near Santa Rosa, California. Thank you for inviting me
here today to speak in strong support of H.R. 597, the Lytton
Rancheria Homelands Act of 2017.
I would like to take this opportunity to recognize Sonoma
County Supervisor David Rabbitt, who is sitting behind me
today, and thank him and the entire board for their steadfast
support of H.R. 597. I would also like to thank the chairperson
of the county board of supervisors, James Gore, for his written
testimony in support of this vital legislation.
This bill would place land currently owned by the tribe in
Federal trust status, creating a tribal homeland for members of
the tribe. The creation of this homeland would fulfill a
promise made by the Federal Government in a 1991 Federal court
stipulation that restored the tribe's status as a federally-
recognized tribe.
We have worked hard to develop agreements and
understandings with local non-Indian communities. Agreements
with Sonoma County, the Windsor Fire Protection District and
the Windsor Unified School District reflect our commitment to
work with local governments in a mutually respectful manner. We
appreciate the support of these governmental entities as well
as the State of California for this bill restoring us to a
homeland.
I want to also confirm that we have agreed not to conduct
gaming on the lands that will be taken into trust for the
homeland in this bill. We have also agreed not to conduct
gaming within the county of Sonoma, pursuant to the terms
contained in our MOA with the county.
I would like to announce today that at the request of
Senator Feinstein and the county of Sonoma, the tribe has
agreed to further amend the MOA with Sonoma County to prohibit
gaming by the tribe in perpetuity in the county, as long as the
tribe is not involuntarily prohibited by governmental decision
or action from operating its casino in San Pablo, California,
pursuant to IGRA. The Lytton Tribe has endured many hardships
and has experienced a number of delays and broken promises in
its attempt to establish a homeland for its members. No matter
how difficult the situation, we may have become discouraged,
but we have never given up.
As you know, all tribes, all Native American tribes in all
circumstances need a tribal homeland that is adequate to
support economic activity and self-determination. We want and
need to live in a community where we can thrive and prosper.
Please give us that opportunity by passing our homeland bill.
Thank you for your time, and I would be happy to answer any
questions.
[The prepared statement of Ms. Mejia follows:]
Prepared Statement of Hon. Marjorie Mejia, Chairperson, Lytton
Rancheria of California
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Chair Mejia. Mr. Healy?
STATEMENT OF HON. MIKE HEALY, COUNCILMEMBER, CITY OF PETALUMA,
CALIFORNIA
Mr. Healy. Thank you, Mr. Chair and honorable members of
the Committee. I am here today in two different roles. First,
as an elected member of the Petaluma City Council, and
currently our city's vice mayor. My colleagues and I have
submitted two letters opposing H.R. 597 which I will briefly
summarize and are included in my full testimony. Secondly,
because the opponents of the bill have been allocated only one
witness, I will speak on behalf of the grassroots group,
Citizens for Windsor.
Petaluma has a population of 61,000 and is located on
Highway 101 in southern Sonoma County. We are 25 miles south of
the town of Windsor, which has a population of 27,000 and is
located in central Sonoma County. The lands that are the
subject of H.R. 597 are adjacent to Windsor.
My colleagues' and my concerns with H.R. 597 are two-fold.
First, the more narrowly--I am going to skip this part of it,
because I believe the Chair has actually responded to this
question. Thank you for that.
Second, and more broadly, we are very concerned that H.R.
597 represents another unsavory step in the reservation-
shopping saga in the north bay, both by newly-recognized and
long-established tribes. All nine cities in Sonoma County are
surrounded by voter-approved urban growth boundaries to prevent
sprawl-type development. Layered over that are voter-approved
urban separators and county zoning that support the same policy
goals.
Cities in our region are surrounded by privately-owned
ranches and farms outside urban growth boundaries in areas
zoned for agriculture. These lands are off-limits to intense
development. There are enormous financial incentives to find
ways to develop such lands, especially in the Bay area. And
that financial pressure will only intensify in the future.
The Lytton proposal on H.R. 597 provided a blueprint for
frustrated landowners and anti-zoning developers to partner
with the tribe and override carefully designed regulations
limiting sprawl development on lands adjoining cities
throughout the region. And for those reasons, even with the
amendments that we have requested, my city council urges a
``no'' vote on H.R. 597.
There are other significant concerns. This land has not
gone through the BIA's normal fee-to-trust review process and
would not qualify for trust status. The BIA has never approved
fee-to-trust applications for the Lytton Rancheria. The tribe
was recognized in 1991 and the Carcieri decision holds the
Federal Government cannot take land into trust for lands that
were not recognized after 1934.
H.R. 597 is in effect a Carcieri fix and would benefit only
one tribe. This evasion of the BIA fee-to-trust application
process will set a bad precedent for new Indian policy in
Sonoma County, California and the entire United States.
In 2000, Representative Miller added a paragraph to the
Indian Omnibus Bill to take nearly 10 acres of land into trust
as a homeland for the Lytton so that they could operate a
casino on it. That land is located in San Pablo in Contra Costa
County. This was one of the few reasons that California then-
Attorney General Kamala Harris' office opposed land into trust
in Windsor and in a 2011 letter to the BIA said, ``To the
extent that the Act describes those 10 acres of land as
Lytton's reservation, this provision makes clear that the
Lytton's tribal location should be considered to be Contra
Costa County, rather than Sonoma County.''
In that letter, then-Attorney General Harris' office
further argues that the land under consideration never received
a complete environmental review and should not be considered
until this is done. The EA for the proposed housing in Windsor
is almost 10 years out of date and covers just 124 acres. There
has been no environmental review for the entire 500 acres H.R.
597 takes to put into trust adjacent to Windsor.
This homeland bill purports to be about housing, but the
Lytton have plans for a large commercial project, a 200-room
hotel, restaurants, shops, event center, a 200,000 case per
year winery on land that is currently zoned agricultural. This
commercial development is outlined in the 2015 memorandum of
agreement that the Lyttons signed with the County of Sonoma,
but it is not mentioned anywhere in the bill. The County
negotiated the MOA, obligating it to support the Lyttons' fee-
to-trust efforts after the count mistakenly assumed that the
land might be taken into trust by the BIA.
Because this land is outside of Windsor's open growth
boundary, where a vote of Windsor residents is legally required
to extend utilities, there are no assurances of the use of
municipal water or sewer. There are many other irreparable
environmental impacts, such as clear-cutting of growth of 1,500
historic oak trees. In addition, the proposed development is on
narrow country roads, inaccessible to Highway 1 in an
emergency.
In 2017, the Lytton purchased from Salvation Army 564 acres
of contiguous land adjacent to their historic rancheria at
Lytton Springs near Highway 101. If it is determined that it is
appropriate to help the Lytton to have a homeland in both
Contra Costa and Sonoma counties, then this is a site that is
far more appropriate for the proposed Lytton development, given
its proximity to Highway 101, its past uses for residential and
commercial purposes. It should be given serious consideration
before any action on H.R. 597.
Finally, a compromise is certainly possible that would
place a second Lytton reservation at an appropriate location.
Thank you, Mr. Chair.
[The prepared statement of Mr. Healy follows:]
Prepared Statement of Hon. Mike Healy, Councilmember, City of Petaluma,
California
Mr. Chairman and honorable members of the Committee. I am here
today in two different roles. First, as an elected member of the
Petaluma City Council and currently our city's vice-mayor. My
colleagues and I have submitted two letters opposing H.R. 597, which I
will briefly summarize.1A\1\, \2\ And secondly, because
opponents of the bill have been allocated one witness, I also will
speak on behalf of the grassroots group, Citizens for Windsor. Mr.
Chairman,
Petaluma has a population of 61,000 and is located on U.S. Highway
101 in southern Sonoma County. Petaluma is 25 miles south of the Town
of Windsor, which has a population of 27,000 and is located in central
Sonoma County. The lands that are the subject of H.R. 597 are adjacent
to Windsor.
My colleagues' and my concerns with H.R. 597 are two-fold. First
and more narrowly, Section 5 of H.R. 597 paints a bull's eye on my city
by offering only a 20-year prohibition on gaming on additional lands
taken into trust for the Lytton in southern Sonoma County. Petaluma is
the most logical place for a new casino in Sonoma County. My colleagues
and I have offered specific statutory language to fix this serious
problem.
Second and more importantly, we are very concerned that H.R. 597
represents another unsavory step in the reservation-shopping saga in
the North Bay, by both newly recognized and long-established tribes.
All nine incorporated cities and towns in Sonoma County are surrounded
by voter-approved Urban Growth Boundaries (UGB) to prevent sprawl-type
development. Layered over that are voterapproved community separators
and county zoning that support the same policy goals. Voters in each of
Sonoma County's nine incorporated communities have approved UGBs,
drawing distinct lines where communities can and cannot grow. For
example, in November, 2017, Windsor voted to renew their UGB for
another 25 years with over 70 percent approval.
Cities in our region are surrounded by privately owned ranches and
farms outside Urban Growth Boundaries in areas zoned for agriculture.
These lands are off limits to intense development. There are enormous
financial incentives to find ways to develop such lands, especially in
the Bay Area, and that financial pressure will only intensify in the
future. The Lytton proposal and H.R. 597 provide a blueprint for
frustrated landowners and anti-zoning developers to partner with a
tribe and override carefully designed regulations limiting sprawl
development on lands adjoining cities throughout the region. Denise
Athas, current Novato City Council member, also recognized this. \3\
For those reasons, even with amendment to Section 5, The City Council
of Petaluma urges a ``no'' vote on H.R. 597.
There are other significant concerns with H.R. 597. This land has
not gone through the normal review process for fee-to-trust land with
the Bureau of Indian Affairs, and does not qualify for trust
status.\4\, \5\, \6\, \7\ The BIA has
never approved any fee-to-trust application for Lytton Rancheria.
In 1927 the U.S. Department of Interior Office of Indian Affairs
purchased 50 acres at Lytton Springs, north of Healdsburg, in Sonoma
County for ``homeless California Indians.'' In 1937, Bert Steele, a \1/
4\ blood Indian from Round Valley, with his wife Mary, a Sonoma County
Pomo, and their children, requested permission to occupy a portion of
the land. They were permitted to build a house there. In 1938, the
brother of Mary Steele, John Myers and his wife Dolores, also requested
permission to occupy a part of the Lytton parcel. They were permitted
to build a house there.
In the 1950s the family members petitioned their Congressman to
receive titles to the parcels and supported the passage of a bill that
would terminate the Rancheria and enable them to secure a deed to their
property. Following the passage of the Rancheria Distribution Act in
1958, the Rancheria was dissolved in 1961, and the property was divided
into eight parcels, which were distributed to eight family members.
Following this, all eight parcels were sold by the distributees to non-
Indians.
In 1986, lawyers for the Scott's Valley Band of Pomo Indians of the
Sugar Bowl Rancheria filed suit in federal district court saying
termination of their rancheria in 1961 was illegal. In 1987, the
``Lytton Indian Community'' joined the Sugar Bowl Rancheria lawsuit.
In 1991, without a jury trial and negotiated in closed session, a
consent agreement was reached between the plaintiffs, the U.S.
Department of Justice and Sonoma County Counsel. The settlement
stipulated that the Lytton Community would be listed as a tribe in the
federal register. \8\
The Supreme Court's decision in Carcieri v. Salazar holds that the
federal government cannot take land into trust for tribes that were
recognized after 1934, which includes the Lytton. H.R. 597 is in effect
a ``Carcieri fix,'' which will benefit only one tribe. This evasion of
the BIA fee-to-trust application process will set a bad precedent for
new Indian policy in Sonoma County, California, and the entire United
States.
In 1998 a group of investors bought a former card room in San Pablo
on nearly 10 acres for the Lytton. In 1999, the Lytton, backed by their
investors, applied to have the 10 acres, in the heavily urbanized East
Bay, put into trust for them. The BIA told them this land would not
qualify for an exception to the rule that lands acquired after 1988
cannot be used for gaming.
In 2000, Congressman George Miller added a paragraph into the
Indian Omnibus bill directing the Secretary of the Interior to take the
land with the cardroom in San Pablo, Contra Costa County, into trust as
a reservation for the Lytton, and to backdate the acquisition to 1988,
so that they could operate a casino on it.
Lytton investors, known as Sonoma Entertainment Partners LP, also
purchased 50 acres of land west of Windsor in Sonoma County in 2002,
which they promised to give the Lytton once the San Pablo site became a
casino. \9\ In 2007 following the opening of the casino in San Pablo,
they gave the tribe the 50 acres. Lytton Rancheria purchased additional
land with funds from their San Pablo casino. In 2009, they submitted a
fee-to-trust application to the Bureau of Indian Affairs to develop a
housing project, which did not conform with local land use zoning. \10\
A draft environmental assessment on 92 acres was released in 2009 for
public comments. \11\ After the public comment period, when an amended
fee-to-trust application was submitted, an additional 32 acres was
added in the final environmental assessment in 2011.\12\,
\13\
In response to the Environmental Assessment of Lytton Rancheria's
newly acquired Windsor lands, Attorney General Kamala Harris' office
had considerable concerns.\14\ Her office stated in a letter to the
Bureau of Indian Affairs, ``. . .to the extent that act [Omnibus Indian
Advancement Act of 2000] describes those 10 acres of land [San Pablo]
as Lytton's `reservation,' this provision makes clear that Lytton's
tribal location should be considered to be Contra Costa County rather
than Sonoma County. . .''
The Attorney General's office also argued in that letter that the
land under consideration never received a complete environmental review
and should not be considered until this is done. Her office noted,
``The final Environmental Assessment (EA) includes 32 additional acres
that were neither included in the Tribe's application nor evaluated in
the draft EA.'' And, ``The draft EA contained no assessment whatsoever
of the environmental impacts arising from the acquisition of the 32
acres or from the placement of project features on them.'' One aspect
of the proposed project revealed for the first time in the current
Final EA is the construction of a large effluent retention basin on a
portion of the additional 32 acres immediately adjacent to an existing
housing subdivision. Her office noted that the inclusion of the 32
acres in the final EA constituted a shortening of the environmental
review process, which ``deprives the public of the opportunity to
comment on that portion of the proposed acquisition with the prospect
of any response and modification by the Tribe.'' In addition, the AG's
office noted that Proposed Alternative ``A''--wherein the tribe's
housing units would be served by City of Windsor water and sewage
treatment facilities--is precluded by a voter initiative limiting the
boundaries of that area. ``Alternative A is therefore illusory.''
The Attorney General's office noted that the National Environmental
Policy Act of 1969 (NEPA) requires the preparation of an environmental
impact statement (EIS) for major federal actions significantly
affecting the human environment. Agencies are required to make diligent
efforts to involve the public in preparing and implementing their NEPA
procedures. In light of this 35 percent increase in acreage, and ``in a
diligent effort to involve the public in the decisionmaking process,''
the AG's office recommended the tribe be required ``to produce a full
Environmental Impact Statement (EIS) concerning this large project
adjacent to the Town of Windsor.''
In his 2009 letter to the BIA at the time of the Environmental
Assessment, Paul Kelley, then-Chairman of the Sonoma County Board of
Supervisors agreed with the Attorney General's office that the EA was
insufficient.\15\ He wrote, in a letter to Dale Morris at the Bureau of
Indian Affairs, ``the project is substantial in size, scope and
affected resources. The project is inconsistent with the general plans
and land use regulations of both the County and the Town of Windsor,
and may have additional significant effects on [the] oak woodland and
other biological resources, groundwater supplies, regional water
quality, air quality, and climate, noise, traffic, and aesthetics.''
Supervisor Kelley noted that ``. . .the County's fundamental interest
is full and fair disclosure of all adverse environmental impacts
proposed in the County--before final action is taken. Meeting that
interest here and complying with the National Environmental Policy Act
(NEPA), requires preparation of an environmental impact statement (EIS)
rather than an EA.'' Kelley also asserted that an EIS is necessary to
correct the EA's misstatements, ``Without an EIS that provides correct
information, neither the BIA nor the public can make a proper informed
evaluation of the proposed project.''
This ``homeland'' bill purports to be about housing, but the Lytton
have plans for a large commercial development--a 200-room hotel,
restaurants, shops, event center, 200,000-case-per-year winery--on land
that's currently zoned agriculture and rural. The proposed project does
not conform with local land use zoning. This commercial development is
outlined in a 2015 Memorandum of Agreement the Lytton signed with the
County of Sonoma, but it is not mentioned anywhere in this bill.\16\
The County negotiated its MoA with Lytton--with no public input--
obligating the County to support Lytton's fee-totrust efforts, after
the County mistakenly assumed that the land might be taken into trust
by the Department of the Interior.
Although ultimately in 2012 the Final EA of the 124 acres received
a Finding of No Significant Impact (FONSI), \17\ there has been no EA
(nor EIS) of the entire 511+ acres the Lytton propose to take into
trust through H.R. 597, including the large commercial project
referenced in the County's MoA. The existing EA for the proposed
housing in Windsor is almost 10 years out of date and it covers just
124 acres of the 511+ acres in this bill. In its MoA with Lytton
Rancheria, the County proposes a separate EIS on the winery/resort
project; however, to determine the full impact on the region, and
enable proper public input, it is necessary to complete an EIS on the
entire Lytton acreage referred to in H.R. 597, including all proposed
projects. Completing an EA or EIS as separate, piecemeal projects, does
not adequately demonstrate the full environmental impact of the
projects on the region, including the Town of Windsor.
And, because this land is outside of Windsor's Urban Growth
Boundary (UGB), there is no assurance of receiving environmentally
responsible municipal water or sewer. A majority vote of the Town of
Windsor residents is required to extend the Town of Windsor's water &
sewage services to this--and any--property outside of the Town's UGB.
There would be many other irreparable environmental impacts, for
example, clear-cutting a grove of 1,500 historic oak trees. In
addition, the proposed commercial developments outside of Windsor are
on narrow country roads inaccessible to Highway 101. This is a key
consideration in times of emergency--such as the devastating fires the
County experienced in October, 2017.
The Town of Windsor has recognized these significant concerns with
two resolutions in 2002 and 2009 ``Opposing Reduction of Health, Safety
and Zoning Standards by Development on Land Adjacent to the Urban
Growth Boundary by the Lytton Band of Pomo Indians.'' \18\
In 2017, the Lytton purchased from Salvation Army 564 acres of
contiguous land adjacent to their historic rancheria at Lytton Springs,
and to Highway 101. \19\ If it is determined that it is appropriate for
the Lytton to have a reservation in both Contra Costa County and Sonoma
County, then this site is a far more appropriate location for the
proposed Lytton development, given its proximity to Highway 101, and
its previous uses for both residential and commercial purposes. The
Lytton Springs property should be given serious consideration before
any action is taken on H.R. 597.
Supporting Documents *
---------------------------------------------------------------------------
* The information referred to has been retained in the Committee
files.
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1. Petaluma City Council to Senators Feinstein and Harris, Sept.
18, 2017
2. Petaluma City Council to Senators Feinstein and Harris, November
6, 2017
3. Athas to Senators Feinstein and Harris, March 13, 2018
4. Office of the Governor to BIA, Oct. 8, 2009
5. Lytton Historical Documents from the National Archives, 1927-
1953
6. Mitchell to BIA, Dec. 20, 2016
7. History of Lytton Rancheria by Mike Bojanowski, 1990
8. Scotts Valley Band of Pomo Indians of the Sugar Bowl Rancheria,
et al. Plaintiffs, v. United States of America, et al., Defendants,
Stipulation for Entry of Judgment (Lytton), 1991
9. ``Pomos Homes on Hold,'' by Sam Kennedy, The Press Democrat,
August 4, 2002
10. Fee to Trust Application for Lytton Rancheria, 2009
11. Lytton Draft Environmental Assessment, 2009, http://
www.lyttonhousingea.com
12. Amended Fee to Trust Application for Lytton Rancheria, 2011
13. Lytton Final Environmental Assessment, 2011, http://
www.lyttonhousingea.com
14. Office of the Attorney General Kamala Harris to Bureau of
Indian Affairs, 2011
15. Sonoma County Board of Supervisors Chairman Paul Kelley Letter
and EA Comments, October 8, 2009
16. County of Sonoma Memorandum of Agreement with Lytton Rancheria,
2015
17. FONSI, http://www.lyttonhousingea.com
18. Windsor Town Council, Resolutions No. 1300-02 and No. 2458-09
19. Map, Town of Windsor, San Pablo, Lytton Springs
The Chairman. Thank you, Mr. Healy. Mr. Krauch?
STATEMENT OF WILLIAM ``BILL'' KRAUCH, CHAIR, SANTA YNEZ VALLEY
COALITION
Mr. Krauch. Thank you, Chairman Hoeven and Vice Chairman
Udall, for holding this hearing today, and for the opportunity
to testify on H.R. 1491.
We strongly oppose this bill because of its significant
adverse effects to the community in the Santa Ynez Valley. I
also want to especially thank Senators Feinstein and Harris for
ensuring this legislation receives careful examination and
thoughtful consideration.
While this is a California-specific issue, all Committee
members need to be made aware of how the abuse of the Federal
fee-to-trust process would be endorsed by this bill and could
also increasingly affect communities in your own home States.
I am Bill Krauch, Chair of the Santa Ynez Valley Coalition
and resident of the valley for 36 years. The coalition is a
local citizens group whose members have worked for years to
preserve the undeveloped and agriculture areas in the Santa
Ynez valleys. The property addressed by the bill at Camp 4 and
its uses have been the subject of much discussion over the
years. It is 1,400 acres of farmland and open space that is the
gateway to the Santa Ynez Valley.
In 2010, the tribe purchased Camp 4 from the heirs of
former TV star Fess Parker for $44 million. Parker had
unsuccessfully tried to develop Camp 4 into a million-square
foot resort by himself and in partnership with the tribe. All
were rejected as an affront to the county's land use plan and
the result that would destroy the character of our valley.
Shortly after the Chumash acquisition, the tribe commenced
efforts to have the Federal Government take the land into trust
on their behalf. After an inadequate analysis, the BIA approved
this request, as they have every other fee-to-trust request in
the western region. Santa Barbara County, other local
organizations and individuals legally challenged the BIA's
actions. However, our administrative appeal rights to challenge
this, what we believe to be an illegal fee-to-trust decision,
were taken from us in the waning hours of the Obama
Administration when the BIA approved the Chumash fee-to-trust.
The application notwithstanding, there was strong local
opposition without a sufficient record to make a final
decision.
The coalition has now gone to Federal court to challenge
the BIA's approval of fee-to-trust for Camp 4, which brings us
to the bill you are hearing testimony on today. We strongly
believe that absent significant changes, the Committee should
reject this bill. It is the product of a badly-flawed
negotiating process between the tribe and Santa Barbara County,
where the board of supervisors was effectively bullied into
signing a weak, fiscally irresponsible memorandum of agreement.
As was repeatedly disclosed by the board of supervisor chair,
house congressional leaders effectively demanded that the
county sign an agreement with the tribe, or they would enact
1491 with few restrictions on the tribe's use of Camp 4.
Specifically, we think the following changes are needed to
resolve issues associated with the development of Camp 4.
First, we must address the tribe's housing and community
facility needs, but not on Camp 4. The tribe owns property
better suited to safely accommodate these interests with much-
reduced impact on the existing community.
Second, extend the length of the agreement. The MOA expires
in 2040, approximately 22 years from today. Third, protect
Santa Ynez's water. We are very concerned about what water
rights are conveyed to the tribe from this legislation, and
that this issue must be clarified in H.R. 1491 to avoid
substantial litigation in the future.
Fourth, allow citizen suits to enforce the MOA. Santa
Barbara County is the only part that can enforce the MOA's
terms on behalf of the county's citizens. Given the county's
lack of leverage, as evidenced in the Chumash negotiations, we
only seek this request to ensure that the obligations regarding
Camp 4 are enforced.
Finally, prevent a gaming bait and switch. While H.R. 1491
permanently prohibits gaming on Camp 4, it does not prevent
expansion of gaming by the Chumash. When the new homes are
built on Camp 4, the homes on the existing reservation could be
razed, and that land could be used to build a second casino or
significantly expand the existing one.
In closing, rather than legislate outcomes on individual
land disputes like this one, the Committee should instead act
to reform the fee-to-trust process, as the Senate came close to
doing in the last Congress. Thank you for the opportunity to
share our views. We understand and recognize that the Chumash
are our neighbors, and we are committed to helping them address
their housing needs. All we are asking is the same thing that
is asked of every non-tribal resident in the valley, to help us
conserve its character and resources for all future
generations. Thank you.
[The prepared statement of Mr. Krauch follows:]
Prepared Statement of William ``Bill'' Krauch, Chair, Santa Ynez Valley
Coalition
Introduction & Overview
Thank you Chairman Hoeven and Vice Chairman Udall for holding this
hearing today and providing us the opportunity to testify on H.R. 1491,
a bill we strongly oppose because of its significant adverse effects to
the community in the Santa Ynez Valley of California. I also want to
especially thank our Senators, Senator Feinstein and Senator Harris,
for their commitment to ensuring that this legislation receives close
examination and thoughtful consideration. While this is a California-
specific measure, all Committee members need to understand that this
legislation's endorsement of an abuse of the fee-to-trust process could
very well set a national precedent and lead to an avalanche of similar
requests for Congress to intervene in fee-to-trust requests in Members'
home states.
I am Bill Krauch, the Chair of the Santa Ynez Valley Coalition and
a resident of the valley for the past 36 years. The Santa Ynez Valley
Coalition is a local citizen's advocacy group whose members have worked
for years to preserve the undeveloped and agricultural areas around
Santa Ynez from over-development. The mission of the Coalition is to
ensure that Santa Ynez Valley residents have a strong voice in land use
decisions affecting our water, environment, public safety, and economy.
Our education and outreach efforts focus on the need to maintain local
control of land use in our community, a principal at grave risk if H.R.
1491 is enacted.
Our members--many lifelong neighbors and friends of the Chumash--
are strongly supportive of the Tribe's efforts to better address their
housing and community facility needs. However, whatever steps that are
taken should be done in a manner consistent with existing local land-
use planning guidance and regulations which every other property owner
in the County must comply. Numerous Administrations have been before
this Committee in recent years to implore action to reform the fee-to-
trust process to protect the jurisdiction rights of local communities,
and we join them in that call. Congress is ill equipped to insert
itself as zoning commissioners in communities with tribal interests.
Background & History
To better understand our concerns about the impacts of H.R. 1491,
some context is in order regarding the land which would be placed in
trust for the Chumash, and how it may be developed in a way
inconsistent with the community's wishes. The Santa Ynez Valley--
located in central Santa Barbara County between the Santa Ynez and San
Rafael Mountains--has a population of just over 20,000 with its small
towns linked by rural roads weaving through fertile farmlands, ranches,
and open space. The Los Padres National Forest, home to the condors,
overlooks this Valley, as does President Reagan's beloved Rancho Cielo.
The local economy in the Valley revolves around agriculture and tourism
and its land use plan restricts building heights and prohibits
commercial box stores and fast food restaurants. \1\
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\1\ Santa Ynez Valley Community Plan, October 2009--http://
longrange.sbcountyplanning.org/planareas/santaynez/syv_cp.php
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One-mile northeast of the Town of Santa Ynez lies Camp 4, a 1,400-
acre parcel of open space and agricultural land--the land that the
Tribe wishes to put into trust via H.R. 1491. As you cross through the
San Marcos pass in the Santa Ynez Mountains on Highway 154, Camp 4 is
the gateway to the Santa Ynez Valley. It features the largest aquifer
in the area as well as supporting wildlife and plant species that are
important to conserve, with its variety of habitats including
grasslands, oak savannas, and riparian. In fact, much of the Camp 4
parcel is presently covered by ``Williamson Act Agreements'' which are
stateenforced contracts entered into with local landowners to keep land
in agricultural use or to conserve it as open spaces. It is presently
zoned as such to allow a density of only one house per 100 acres.
In 1998, Camp 4 was purchased by a private landowner, the former TV
star Fess Parker, and he sought to up-zone the property to increase
development density so that he could build a large resort and
additional residential units. He was denied that rezoning repeatedly by
Santa Barbara County, who believed that such a use was highly
inconsistent with the local, lightly travelled roads and surrounding
agricultural lands. In 2004, Parker and the Chumash jointly announced a
plan to place Camp 4 into ``trust'' and make it part of the reservation
to circumvent these local land use restrictions. If successful, this
scheme would have allowed Parker's vision of massive development on
Camp 4 to become a reality. However, after this announcement the
proposed partnership was never finalized.
In 2010, the Tribe purchased Camp 4 from Parker's heirs for $44
million and shortly after that, commenced efforts to have the federal
government take the land into trust on their behalf. In June 2013, the
Pacific Regional Director of the Bureau of Indian Affairs (BIA)
approved the Tribe's application for a Tribal Consolidation Area (TCA)
covering 11,500 acres within which the 1,400-acre Camp 4 parcel is
located. If enacted, this TCA would have significantly reduced the
standard of review of the Tribe's development plans for Camp 4 and all
lands within the TCA. Later that year, faced with appeals and public
protests, the Tribe withdrew its application for the TCA which the BIA
dismissed without prejudice. However, the BIA nonetheless then
improperly and illegally used these reduced standards to analyze the
Chumash's fee-to-trust application for Camp 4. As a result, Santa
Barbara County, members of the Santa Ynez Valley Coalition, and other
local organizations and individuals all legally challenged the BIA's
actions in this regard.
While the County and community were still in the process of
exercising our rights to appeal the BIA's actions, our right to appeal
was unceremoniously stolen from us in the waning hours of the Obama
Administration in the dark of night. The BIA approved the Chumash fee-
to-trust application notwithstanding the strong local opposition and
without a sufficient record to make a final decision. In doing so, the
BIA denied due process for the non-Indian communities and residents
adversely impacted by potentially unregulated land use on an expanded
Chumash reservation. This action vitiated pending administrative
appeals of affected communities, organizations and residents who were
following the current laws to have their point of view heard. Despite
this action, the current Administration is still reviewing the matter
and has refused to publish a final decision in the Federal Register,
which is one reason why the Chumash are here asking the Congress to
over-ride the process the Congress itself put in place to adjudicate
such matters.
The Coalition is now supporting litigation in federal court
challenging the BIA's approval of the Chumash's Camp 4 fee-to-trust
application. The suit asserts that the Department of Interior's
decision to take this action was based on an insufficient analysis of
its environmental and other impacts as required by the federal law. If
this suit prevails in Court, the decision to take Camp 4 into Trust
will be reversed, and the federal government will be required to
undertake a more thorough analysis of the impacts of this action. \2\
H.R. 1491 would also dismiss these appeals, further disenfranchising
the citizens of the valley.
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\2\ Detailed Camp 4 history--http://syvcoalition.com/wp-content/
uploads/2018/04/Camp-4-Timeline.pdf
---------------------------------------------------------------------------
Reasons to Reject H.R. 1491
We strongly believe that absent significant changes, the Committee
should not support this bill. It is a product of a badly flawed
negotiating process between the Tribe and Santa Barbara County where
the Board of Supervisors was effectively bullied into signing a weak,
fiscally irresponsible memorandum of agreement (MOA) whose limited
restrictions sunset in just over two decades.
The Committee will no doubt hear much about this MOA between the
County and the Chumash from the bill's proponents. They will assert
that its mere existence should justify the Senate passing this bill
with no changes. Do not be fooled by these claims. This agreement is
lopsided and short-term, and likely sets in motion an eventual
overdevelopment of Camp 4 in a manner that Fess Parker proposed two
decades ago.
The Committee should carefully examine the back-story about this
agreement and the evolution of the County's position so it can judge
for itself whether it represents a meaningful agreement between the
County and the Chumash.
Before last year, Santa Barbara County was a staunch opponent of
both the redevelopment of this land at all, and the Camp 4 fee-to-trust
application. In fact, the County was so strongly opposed it testified
in opposition to similar legislation in the previous Congress and filed
both administrative and judicial challenges against the BIA Camp 4 fee-
to-trust decision. However, in the fall of last year, all of that
changed.
As the Chair of the Board repeatedly stated during several public
meetings in 2017, House Congressional leaders effectively demanded that
the County sign an agreement with the Tribe or they would enact H.R.
1491 with few restrictions on the Tribe's use of Camp 4. Hence, the
County was forced to accept a deal of far too limited duration, with
anemic payments for utilities and other infrastructure related to Camp
4 that is a fraction of their actual cost and which would in no way
replace the lost tax revenue from the parcel being placed into trust.
These were NOT good faith negotiations--evidenced by the fact that
the MOA now requires the County to only advocate for a version of H.R.
1491 that includes the MOA--a gag order that shows how lopsided this
framework is. This condition alone shows why our Coalition must now
speak for the vast majority of the Valley's residents who oppose the
MOA as now crafted and who vigorously oppose this bill in its current
form.
While the MOA does limit the development on Camp 4 through 2039 to
143 houses on one-acre improved lots and a community center, and even
permanently bans gaming on Camp 4, it does not address the broader fee-
to-trust problem in the Santa Ynez Valley nor does it address the
expansion of gaming in the rest of the Valley.
Proposed H.R. 1491 Fixes to Address Community Concerns
The leaders of the Santa Ynez Valley Coalition have spent thousands
of hours studying the MOA and speaking to our neighbors in the Valley
about their views on its contents. From those conversations, we see a
handful of issues that are insufficiently addressed in the MOA and H.R.
1491 that show how flawed they really are and which must be corrected
to resolve the development of Camp 4 in a way that the community and
the Tribe can live in relative harmony.
1. Address the Tribe's Housing & Community Facility Needs--But Not on
Camp 4
The Tribe has legitimate needs for housing and community
facilities, but they are best addressed on smaller, but more than
adequate parcels of land better suited to safely accommodate these
needs. After filing for fee-to-trust status for Camp 4, the Chumash
purchased approximately 369 acres near Camp 4 that is a superior
alternative because:
It satisfies the stated needs of the Tribe for 143 homes on
one acre improved lots and a 30 acre tribal center which would
consume about 200 acres of the parcel, virtually separated only
by a 2 lane roadway;
It is physically closer to the existing reservation;
It is adjacent to existing town infrastructure and would be
an extension of existing residential development areas versus
``leapfrogging'' to Camp 4;
It is located so that the County would probably grant zoning
thereby avoiding the fee-to-trust process on that parcel
altogether;
It lowers building cost to the Tribe versus a development
spread out over 1,400 acres; and
It is bounded by two major highways, versus two rural roads
adjacent to Camp 4, thereby providing superior ingress and
egress.
We would respectfully request that the Committee and tribe consider
these other, more suitable options closer to town for the tribal
housing and community facility needs that would prevent fracturing the
undeveloped 1,400 acres of Camp 4.
2. Extend the Length of the Agreement
As currently configured, the restrictions contained in the Tribe/
County MOA will expire in 2040, approximately 22-years from today--even
though most homeowners secure 30-year mortgages. Presumably, the Tribe
is then allowed to do anything it wants on Camp 4 except gaming,
including building a massive additional amount of commercial and
residential development, as it proposed in a public meeting in March
2016--a plan very similar to that first proposed by Fess Parker.
As such, the Coalition strongly recommends any action on H.R. 1491
include a provision that continues the use restrictions for Camp 4
contained in the MOA beyond 2040 until subsequently changed by a future
Congress. If the Tribe says its intention for Camp 4 is only 143 houses
on one-acre improved lots and a tribal center, we should take the Tribe
at its word and make that use permanent. Stability of local land use
values and preservation of the Valley's fundamental character and
quality of life are only protected with a far longer term of land use
restriction than the current 2040 date.
3. Insufficient Protection of the Valley's Water Supply
We are very concerned that the agreement is unclear about what
water rights are conveyed to the Tribe from this legislation and that
this issue must be clarified if H.R. 1491 is to help avoid substantial
litigation over these rights in the future. Camp 4 sits on the Valley's
major aquifer. The Valley has suffered from severe drought for a number
of years as attested to by devastating wildfires earlier this year and
has as a result imposed water use restrictions on residents.
The Tribe's current hotel and casino facilities nearby are already
the largest users of local water in the Town of Santa Ynez and H.R.
1491 does not limit water use to that which would support the 143 homes
on one-acre improved lots and tribal center or prohibit the export of
water to other Tribal-held lands. While the Non-Intercourse Act limits
off reservation water marketing unless approved by the Department of
Interior, the reserved water rights or Winters doctrine is less clear
in what uses a Tribe can exercise so long as the water supports ``the
purpose of the reservation.'' Agricultural use is presumed under
Winters, but other uses such as commercial, domestic and municipal
activities are generally permitted here too.
Suffice it to say that the precedent setting framework embodied in
H.R. 1491 must be clarified to guarantee that ranchers and farmers and
other homeowners in the Santa Ynez Valley have access to this precious
commodity to maintain their livelihood. The legislation must clarify
these rights and prevent a compromised position for the thousands of
local residents who will not live on the Camp 4 parcel.
4. Third Party Enforcement of the MOA
Under the Chumash-County MOA, and the terms of H.R. 1491, Santa
Barbara County is the only party that can enforce its terms on behalf
of the County's citizens. Inspections to determine compliance are to be
done by third parties hired and paid by the Chumash, a mechanism
fraught with potential conflicts of interest. The County's severe
financial position--well documented by the Board of Supervisors in
virtually every public meeting they hold--makes it unlikely they will
spend scarce resources on legal help to compel the Tribe's adherence to
the terms of the MOA or any subsequent restrictions. Given this fact
and the County's weak negotiating posture over the last year, the
Coalition believes H.R. 1491--if it advances--must be altered to allow
third party enforcement of the County's obligations to enforce the
agreement. We do not seek with this request to interfere with the terms
of the County's agreement with the Tribe, only to make sure that the
Tribe lives up to its obligations to ensure the restrictions on Camp 4
are enforced.
5. Prevent a Gaming ``Bait and Switch''
While H.R. 1491 permanently prohibits gaming on Camp 4, it does not
prevent expansion of gaming by the Chumash. We believe that the bill
should prohibit a ``bait and switch'' where existing houses are
demolished on the present reservation after homes are built on Camp 4
or elsewhere, and that land is then used to build a second casino or
significantly expand the existing one. H.R. 1491 has been widely
advertised by its proponents as having absolutely nothing to do with
gaming. Unfortunately, the bill as drafted could lead to a dramatic
expansion of this activity despite the fact that the Valley already
struggles with the crime, drug trafficking, public health challenges,
traffic congestion and other public safety issues associated with the
current gaming facility.
What's Really Needed--Fixing the Broken Fee-to-Trust Process
No one has to remind this Committee that there are serious problems
with the existing fee-to-trust program as authorized by the Indian
Reorganization Act. This program is in pressing need of reform,
according to the testimony before this Committee by numerous recent
Administrations. Bills have been introduced, and hearings held. The
current Administration has stated to you recently that it is presently
debating recommendations to reform the process.
In our own back yard, the Western Regional Office of the BIA
approved every fee-totrust application from 2001 through 2011--acting
as little more than a rubber stamp for California Tribes and in the
process and ignoring the legitimate concerns of local communities. \3\
We believe strongly that the process must be transformed to ensure a
balance between tribal and neighboring community interests--to avoid
frivolous obstructive tactics but simultaneously guarantee that fee-to-
trust applicants abide by rules that protect our natural resources like
water and avoid leaving local taxpayers to foot the bills for traffic
congestion and other public infrastructure. We believe strongly that
the Camp 4 trust acquisition is an abuse of the fee-to-trust process
and that if a more neutral analysis were undertaken of it, other more
suitable options would be identified that would enable the tribe to
address its housing and community facility needs with much-reduced
impacts to the surrounding community and environment.
---------------------------------------------------------------------------
\3\ Waples, Kelsey. ``Extreme Rubber-Stamping: The Fee to Trust
Process of the Indian Reorganization Act of 1934.'' Pepperdine Law
Review, 2012, 101-53. http://syvcoalition.com/wpcontent/uploads/2018/
04/Pepperdine-Law-Review-Waples-Apr12.pdf.
---------------------------------------------------------------------------
Abuses of the fee-to-trust program such as what is occurring in the
Santa Ynez Valley hurt the program for ALL tribes that have legitimate
needs to increase the land base of their respective reservations. We
believe that further consideration of H.R. 1491 should be suspended
until fee-to-trust reforms are considered by Congress and the
Administration.
Conclusion
In closing, thank you for the opportunity to share our views. As we
stated at the outset, enactment of H.R. 1491 in its current form
represents a dangerous erosion of the ability of local governments to
engage in meaningful land planning, the consequences of which will
spread far beyond the Santa Ynez Valley. Additionally, we understand
and recognize that the Chumash are our neighbors, and we are committed
to helping them address their housing needs. All we are asking is the
same thing that is asked of every nontribal resident in the Valley, to
help us conserve its character and resources for all future
generations.
The Chairman. Thank you, Mr. Krauch.
Mr. LaCounte, how do we incentivize local, non-tribal
governments to work with tribes on these types of trust
applications? In other words, what can you do to bring the
parties together?
Mr. LaCounte. We certainly will encourage tribes to enter
into MOAs with local governments. We strongly advise it
throughout the process, from start to finish. It always works
better when there is a clear communication line and there is
clear land use plans in place.
The Chairman. Do you have recommendations in this case?
Mr. LaCounte. I believe that this case, these cases, they
have done an adequate job, the tribes have. And I think they
have reached out to the local governments and entered into
agreements with them. I was very happy when I read the briefing
on this that they had done that.
The Chairman. For the Chumash land referred to as Camp 4 in
H.R. 1491, it has already been taken into trust by the
Department of Interior. As you know, the bill would essentially
reaffirm the Secretary's decision to take Camp 4 into trust for
the benefit of the tribe.
Unlike the memorandum of agreement for the Lytton trust
acquisition, under H.R. 597, the Secretary himself has approved
the memorandum of agreement pursuant to Section 2103 of the
revised statutes. What is the purpose of having the memorandum
of agreement approved by the Department of Interior?
Mr. LaCounte. My understanding is that the regional
director at that time and the region folks from the Bureau of
Indian Affairs took it to our solicitor's department, our legal
people, and they made a determination in Santa Ynez that that
particular one needed to be approved under 25 U.S.C. Section
81. It was purely advice we received from our attorneys.
The Chairman. So was that request, this is not a standard
practice or requirement for taking land into trust?
Mr. LaCounte. It is not.
The Chairman. Or should it be?
Mr. LaCounte. Tribal governments are sovereign nations
within this Nation. They should be able to negotiate with other
governments within this Nation without our interference. We
feel that perhaps it might infringe upon tribal sovereignty.
The Chairman. Chairman Mejia, during a recent staff visit
to the area where you seek to move land into trust, it was
apparent that your neighbors utilize a high level of water for
the nearby wineries. It is my understanding that the
surrounding businesses have all agreed to follow the county's
general use water agreement. Does the Lytton Band intend to
follow the Sonoma County general use plan as it pertains to
water usage?
Ms. Mejia. We have dealt with the county, we are willing to
work with our neighbors and the county to ensure that any use
or increases, if any, are mitigated. The tribe uses water on
the property currently, as it owns the land in fee, and plans
to use the same amount or less water on the property in the
future.
The Chairman. And you have already indicated that you agree
to forego all gaming on the land parcels that are being moved
into trust?
Ms. Mejia. Yes, sir.
The Chairman. Mr. Udall.
Senator Udall. Mr. LaCounte observed in his testimony that
certainty of title is pivotal to the tribe's ability to provide
essential government services to its citizens, such as housing,
education, health care, and promote tribal economies. Can you
both explain how passing this legislation, I am asking the
chairman and chairwoman, can you both explain how passing this
legislation would provide your tribes the certainty Mr.
LaCounte described? Chairman Khan, why don't you start out?
Mr. Khan. Mr. Vice Chairman, self-determination is vital in
Indian Country. Federal programs and services that are
available on Federal lands are imperative to success of tribal
governments. Enhancing our housing opportunities is really a
continued opportunity for us to thrive culturally, through our
customs and our traditions. It is our perspective, if we didn't
have the ability to have trust lands, that we would probably be
extinct today. So it is about cultural survivability for the
future.
Senator Udall. Chairwoman Mejia?
Ms. Mejia. It is vital for Lytton Rancheria to establish a
land base for our homeland as we have been promised. Our tribe
was subject to a wrongful termination which forced us to live
apart from our community. It is our way of life as Indian
people to live as a community and to provide governmental
services to our people.
Senator Udall. Thank you very much for that answer.
I also understand a number of tribal officials from both of
these tribes have traveled here a long way from California, so
welcome to all the tribal officials who are here in the
audience. I think also a county supervisor from Sonoma County
is also present today. So thank you for coming to the hearing.
As I noted in my opening, I am concerned with the
department's proposed revisions to the land-into-trust process.
As NCAI, the National Congress for American Indians, observed,
off-reservation acquisitions are vital for Indian tribes. Some
tribes are landless. Others have only small, diminished land
bases. For an Administration supposedly focused on
streamlining, it strikes me as odd that the department is
looking at regulations that will make the process more
difficult, more time-consuming and more costly, all at Indian
Country's expense.
Mr. LaCounte, I have some factual questions for you on this
issue. How many land-into-trust applications have tribes
submitted to and are pending with the BIA?
Mr. LaCounte. There is a little over 1,300 that are
pending.
Senator Udall. And these are since the start of the new
Administration, or just these are pending?
Mr. LaCounte. Just pending.
Senator Udall. Okay. How many applications relate to off-
reservation acquisitions?
Mr. LaCounte. A little over 200.
Senator Udall. Two hundred out of that 1,300. How many of
those applications are for gaming?
Mr. LaCounte. My understanding is there are 21.
Senator Udall. Twenty-one out of the 1,300. Since this
Administration began, how many acres of land has the department
acquired under its IRA authority to take land into trust?
Mr. LaCounte. Just under 16,000.
Senator Udall. Sixteen hundred?
Mr. LaCounte. Sixteen thousand.
Senator Udall. Sixteen thousand acres that you have taken
into trust in the 14, 15 months?
Mr. LaCounte. Correct.
Senator Udall. To the two chairs, your testimony highlights
why the land-into-trust process is so important for tribes,
particularly those with little or no land base. Could you
please elaborate on your testimony and explain why a permanent
homeland is so important to your tribe? Why don't we reverse
the order and have Chairwoman Mejia begin there?
Ms. Mejia. Having a permanent homeland for our people
provides a continuity for the tribal government and for taking
care of our members as time goes on. As you know, Indian people
think seven generations ahead. So having this land enables the
tribal government to plan for the future of its members.
Senator Udall. Thank you. Chairman Kahn?
Mr. Kahn. I certainly agree with Chairwoman Mejia. But
tribes, we look at land in a way that is perpetual. When we set
foot on land and inhabit, we look into the future, hundreds and
hundreds of years into the future. So again, it is vital for
self-determination and for the strength of our customs and
traditions through many, many generations. It is about planning
for all eternity.
Senator Udall. Thank you very much for those answers. Thank
you, Mr. Chairman. I yield back.
The Chairman. I would ask Mr. Healy and Mr. Krauch, are
there any provisions that they could include in the memorandum
that would garner support for putting land into trust?
Mr. Healy. If I may start, Mr. Chairman. Two points on
that. First of all, I very much appreciate the Chair's offer to
modify the MOU with the county to permanently ban gaming on any
future lands, as well as this property taken into trust in
Sonoma County, if that is what I understood the offer to be. I
would suggest that that should not be accommodated through
modifying the MOA with the county, because Section 5 of the
current bill has this rather strange set of compromise
provisions on restrictions on gaming for limited periods of
time.
And I really think that Congress should say what it means
and use precise language in these bills, because this would
essentially be an override of the language in Section 5 of the
current bill. I think Section 5 should actually be modified to
include that proposal. Because that would be permanent until
Congress changes it. But the MOA between the county and the
tribe could be change by those parties at any point in the
future.
So I think that would require an amendment to the current
bill. I assume it would mean it would have to go back to the
House for concurrence and amendments. But that would
memorialize what the offer is on the table now in a very
permanent way.
The second thing I would say, this isn't just a problem
with the Federal process, but the process that was followed
locally lacked transparency as well. What the public understood
to be coming forward initially for a long time until the last
moment was essentially just a housing, a land-into-trust
application, which I think the community would largely be fine
with. It is this large commercial development that hasn't had
an environmental analysis that is causing a lot of the angst,
the 200,000 case winery, the 200-room resort, which the
environmental assessment has not been done. It has been
promised for the future. But it seems to be putting the cart in
front of the horse to be approving the land into trust without
that work having been done. I will stop at that point.
The Chairman. To the extent that the tribe is likely or
willing to enter into that discussion, it also would probably
mean on your part, or the community's part, that they would
then have to get to the point of agreement. In other words,
they don't have too much incentive to make those adjustments if
you are still going to impose the legislation, do you follow
me? So it seems to me if you offer those as potential
solutions, then it would also require your approval, that if
there is some accommodation that is agreed to.
Mr. Healy. I think there is a willingness to have that kind
of a conversation. The problem is that this MOA with the county
was kind of cut between the parties without any public input.
And now it is locked in and there is no ability to revisit
those issues. If this legislation passes, there would be no
further opportunity. But if this is put on hold, and people are
told to reopen it and talk about it, then that is a
conversation that can certainly take place. I would certainly
be willing to be part of it.
The Chairman. I am just suggesting that you have that time
now to have that conversation, should you desire to have that
conversation.
Mr. Healy. Thank you, Mr. Chairman.
The Chairman. Mr. Krauch?
Mr. Krauch. Yes. We obviously understand that the tribal
community has the right of self-determination to foster
economic development, and the Chumash have done an outstanding
job with their economic development. But what they do need is
the housing. We have proposed an alternative site that is
closer to the reservation, bounded by better roads, better
ingress and egress and can accommodate the needs of 143 one-
acre lots and a 30-acre community center.
If that is not possible, what we would like to see is an
agreement that extends beyond 20 years, because after 20 years
the tribe has the right to develop the property in any way they
see fit. We would also like further clarification and better
legalese on the water rights. We understand the Intercourse Act
is probably not an issue here. Our concern is with winters.
Third party enforcement, we are a little bit concerned
about the county making any enforcement, since they have a lot
of deficits that are being faced as a result of the floods and
the fire. The casino expansion probably concerns the community
to a great degree. They recently expanded it with a 12-story
hotel. It has resulted in increased traffic and other issues,
burdening the community, that we don't want to see increase. So
we would hope that there would not be another casino or an
expansion of the existing casino which they have the right to
do under the California compact.
The Chairman. Chairman Kahn, any thoughts in regard to
those comments?
Mr. Kahn. I certainly appreciate the alternative land
bases, but we purchased the property, Camp 4, in 2010. Started
negotiating with the county in 2011. The property Mr. Krauch
refers to as an alternate was purchased by the tribe in 2015.
So we are already four years into the process.
In addition, the tribe tried to purchase two contiguous
parcels for purposes of housing. Some of the same members of
the Coalition and some of the opponents actually purchased one
of the parcels, rather than the tribe being able to purchase
it, so we could not develop it, or take it into trust, and
convinced other neighboring landowners not to sell to the
tribe.
So Camp 4 was the first available parcel within a
reasonable amount of distance within our aboriginal territory
that made sense for housing. And it is right next to a housing
development that I believe Mr. Krauch actually, certainly
resides in as well.
And the other question, I think you had a two-part
question.
The Chairman. Well, it is just that in both cases, in
regard to both pieces of legislation, you have some period of
time you are to have a dialogue. Both those have passed the
House, true?
Mr. Kahn. Yes, sir.
The Chairman. So if you are going to have your dialogue,
now is your time. You have some period of time to get that
done. So I am just encouraging parties on both sides to have
that dialogue. Clearly, you have been doing some things, which
I commend you for. I am just trying to find out if there is
some way to reach resolution here, or it will be done through
the legislation. We have yet to predict that outcome. Both
bills did pass the House, which I would think would encourage
both of you gentlemen to find some common ground.
On the flip side, in the Senate, there is a lot of
procedural rules, which means you have some incentive as well,
both chairmen. So I am just encouraging you to have that
dialogue.
And then just a couple questions for Mr. LaCounte before I
turn to the Vice Chairman to see if he has any final questions.
What is the average time it takes for land into trust under
Part 151? How long does that process typically take?
Mr. LaCounte. A very long time.
The Chairman. It does, right.
Mr. LaCounte. The quickest I have ever seen one done was
six months, and I used to study this stuff. And that was very
fast for this process.
The Chairman. Typically, we are talking years?
Mr. LaCounte. Correct.
The Chairman. In some cases, quite a few years.
Mr. LaCounte. Quite a few years, yes.
The Chairman. And then I have one question for you, Mr.
LaCounte, on an unrelated subject, so I had better turn to my
Vice Chair to see if he has any other questions. All right.
As you know, in the recent government funding bill, we
worked to include Department of Interior's Facilities
Replacement and New Construction Program for Indian Tribal
Justice Facilities. Will the BIA abide by the intention of this
program and allocate sufficient funds to tribes to reconstruct
and replace facilities?
Mr. LaCounte. Yes, sir.
The Chairman. As the Committee report states, the BIA had
compiled a list of facilities in need of replacement, and
Congress directed them to use that list when allocating funds
for this program. In allocating these new funds, will BIA use
the current list of facilities in need of replacement as
directed by Congress?
Mr. LaCounte. Yes.
The Chairman. Will tribes that have been waiting the
longest and have shovel-ready projects be given priority?
Mr. LaCounte. I don't have the answer to that. I tried to
find the answer to that question, but no one responded to me.
But I will certainly get back to you with an answer to that
question.
The Chairman. Thank you, Mr. LaCounte. I appreciate it very
much.
Vice Chairman?
Senator Udall. I am good.
The Chairman. Okay. With that, I would like to thank the
witnesses. Members may submit follow-up questions, so you may
get some follow-up questions. We would request that that be
done within two weeks. So for two weeks, you may get some
written questions. So again, thanks to all of you for your time
today. We appreciate it.
With that, the hearing is adjourned.
[Whereupon, at 3:29 p.m., the hearing was concluded.]
A P P E N D I X
Prepared Statement of Prepared Statement Hon. James Gore, Chairperson,
Sonoma County Board of Supervisors
On behalf of the Sonoma County Board of Supervisors I would like to
thank Chairman Hoeven, Vice Chairman Udall, and members of the
Committee on Indian Affairs for the opportunity to submit this
testimony in support of H.R. 597--the Lytton Rancheria Homelands Act of
2017. My name is James Gore, and I serve as the Chairperson of the
Sonoma County Board of Supervisors and in this position I submit this
letter on behalf of the entire Board. This bill, in many ways,
exemplifies the type of relationships that tribes and local governments
must pursue given a flawed fee-to-trust process which is characterized
by both a lack of transparency from the Bureau of Indian Affairs on
roles and authorities, and a lack of objective criteria for decisions.
Ironically, the failures in the existing process serve to more often
pit local governments and tribes against each other rather than
facilitate identification of mutual interests.
As you know, the California State Association of Counties (CSAC),
of which Sonoma County is a member, has been very vocal about reform of
the fee-to-trust process. Cooperation between local jurisdictions and
tribal governments goes a long way towards the goal of overcoming the
impediments of the current process. One concern often voiced is that
impacts related to the acquisition be fully mitigated--both for the
short and long term. The best way to demonstrate that the off-
reservation impacts of a project have been sufficiently addressed is
through a voluntary intergovernmental agreement between the tribe and
local jurisdictions. Sonoma County believes that the Sonoma County--
Lytton Rancheria Memorandum of Agreement (MOA) is an example of the
type of intergovernmental understandings that must be reached on fee-
to-trust projects to ensure that off-reservation impacts are mitigated.
Sonoma County is home to five federally-recognized tribes, two of
which operate casinos. While the County opposes gaming, we nonetheless
have intergovernmental agreements with three of the five tribes,
including the two that operate gambling facilities. We are also in
conversation with the other two tribes to work towards memoranda of
agreement with respect to pending fee-to-trust requests. We commend the
leadership of the Lytton Rancheria of California for engaging in a fee-
to-trust consultation process where we could work together on a
government-to-government basis to ensure that the Tribe's objectives
were met and that the off-reservation impacts were mitigated through a
judicially enforceable agreement.
Memorandum of Agreement (MOA)
The MOA is the product of hard work among the parties that started
about 10 years ago with the County working with the Lytton Tribe to
address what the County saw as inadequacies in the Environmental
Assessment of the Tribe's initial trust proposal and community concerns
regarding gaming. The Tribe and County worked together to accurately
identify the off-reservation impacts and, as the project changed over
time, to build a framework that met the parties' respective interests.
We believe the MOA, which is approved by both the Tribe and County and
which is supported in the legislation, is now a model for cooperation
on future development on tribal lands.
From the County's perspective, H.R. 597 has two critical
components. First, the legislation ensures that, in perpetuity, no
gaming will be conducted on the lands taken into trust. While the
Lytton Tribe did not have a stated intention to acquire the land for
gaming purposes, the legislation helps address community and government
concern on the issue for the long term. Second, the legislation
recognizes and protects the MOA from any potential interference from
the Department of the Interior. While the Tribe entered into the MOA as
an exercise of its sovereignty, under 25 U.S.C. Section 81, the
Department of the Interior reserves the ability to substitute its
judgment for the Tribe's and, historically, has not played an active
role in facilitating these types of agreements. The legislation helps
ensure that the mutually beneficial MOA will not be disturbed.
The MOA specifically addresses potential off-reservation impacts in
several important respects by: (1) specifying current development
limits and providing for tailored mitigation; (2) setting land use
parameters and providing for environmental review of future tribal
projects (and a conflict resolution process if there is disagreement
over necessary mitigation); (3) prohibiting gaming (which provision is
enhanced by the legislative ban); (4) ensuring that applicable building
and fire code standards are met; and (5) making the MOA and compliance
with prior NEPA identified mitigation measures judicially enforceable.
One of the unique provisions of the MOA addresses changes in use. As
stated above, a review process was established in the MOA by creating
some broad parameters for future use and building in a voluntary,
tribal driven, environmental review process, the focus of which would
be to determine any off-reservation impacts of a proposed project. The
MOA then puts in place a negotiation and binding dispute resolution
process if the parties are not able to agree on appropriate mitigation.
This approach respects sovereignty while also ensuring that off-
reservation impacts are adequately addressed in the County's view.
The County has heard some concerns that once the prohibition on
gaming in the MOA expires, the Tribe would be able to establish gaming
facilities anywhere in the County without being subject to IGRA. The
County believes this a strained reading of the language in the MOA and
that the concerns are unfounded. However, the County requests
clarifying language in the conference report to make clear that this is
not the intent of the legislation.
Conclusion
As part of the 1991 judicial settlement agreement which restored
the Lytton Tribe, the County committed to assist the Tribe in finding
suitable housing and economic development opportunities. The passage of
H.R. 597 and the resulting implementation of the MOA would deliver on
that commitment. Enactment of H.R. 597 will reestablish an historic
homeland for the Tribe in Sonoma County while setting a course for a
constructive intergovernmental relationship and addressing community
concerns regarding gaming.
Thank you for the opportunity to share these views.
______
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Supplemental Information Submitted by the Santa Ynez Band of Chumash
Indians
Chairman Kahn, testimony received by the Committee raises several
questions about utilization of the Camp 4 property and the Agreement
between the County and the Tribe. Can you address the following
questions that were raised?
1) The Camp 4 site is not the best site for this housing project.
The nearby, 369 acre parcel would be a ``superior alternative'' rather
than the Camp 4 property. Do you agree and why not proceed with
development on the 369 acre parcel?
Answer. This assertion is inaccurate for a variety of reasons. The
Tribe has pointed out that this parcel has been designated by the
County of Santa Barbara as a Special Problem Overlay area. Special
Problem Overlay (SPO) areas are so designated by the County of Santa
Barbara Board of Supervisors' resolution. The SPO areas are proposed by
County Public Works to identify properties that may be inappropriate
for development. SPO areas have been identified as having one or more
physical or geological barriers to development, such as high
groundwater, steep slopes, flood areas, limited access, unconsolidated
or expansive soils, or other geological problems in the County
otherwise subject to development.
For landowners that apply for development in a Special Problem
Overlay area, additional permit processing steps are required in what
is already a very difficult and expensive permit process in Santa
Barbara County. These permits must be reviewed by the Special Problems
Committee (SPC) which consists of all the County departments involved
in permit approvals (Fire, EHS, Building & Safety, Flood Control,
Roads, Surveyor). The SPC scrutinizes these development applications by
requiring detailed engineering studies. Without approval from the SPC,
development projects cannot move through the normal permit process.
These additional upfront costs and mandatory SPC committee approval
process dissuades landowners from seeking substantial development for
property under a Special Problem Overlay.
The parcel offered up by Mr. Krauch was first designated as a SPA
in 1979. We do know that there has never been a request for review of
this designation under the SPC process for this 379 acre parcel. We
have attached the original Resolution by the County creating the SPA
process with the field notes by the County recommending the designation
for the 369 acre parcel.
Finally we point out that attempting to build 143 home sites on a
369 acre parcel would dramatically alter the density patterns that we
have been able to ensure with the Camp 4 property. An increase in the
density that would be required for the 369 acre parcel is totally
inconsistent with the density patterns on all neighboring housing
tracts.
2. The Agreement with the County referenced in HR 1491 expires in
2040. Why not extend the Agreement to provide greater certainty to
interested parties past 2040?
Answer. This Agreement is consistent with the term of the first
Cooperative Agreement proposed by the Tribe in 2010 with a ten (10)
year term until the expiration of its first 1999 compact which expired
in 2020. The new Memorandum of Agreement with the County has a term of
more than twice as long and its over twenty (20) year term now expires
in 2040 which is the expiration date of the Tribe's new Compact.
A core element of the Agreement is the funding that the Tribe has
agreed to pay to the County during the term of this Agreement to
address services needed by these residents. The commitment of the Tribe
to this payment level must be dictated by the Tribe's ability to
realize revenues to meet the requirements of the Agreement. The source
of these funds is, of course, the revenues realized by Tribal gaming,
which is controlled by the terms of the Compact with the State. The
Tribe's compact with the State runs through 2040 at which time a
renewal of the Compact and a renewal of the Agreement can be addressed
concurrently. The Tribe's commitment to enter into an obligation to pay
for services in the future runs contrary to every other government that
cannot obligate its citizens to future appropriated funds requirement.
This prohibition is clearly outlined under Federal Government
regulations.
In addition, planning restrictions and controls extended beyond 20
years is contrary to the planning guidelines for any other level of
government. Most governments have 20 year planning horizons and such a
timeframe is essentially reflected in this Agreement.
3. There is concern that HR 1491 would allow the Tribe to market
off reservation water sales. Do you feel that there are adequate
protections in the Agreement to prevent exporting water from the Camp 4
parcels?
Answer. The existing Chumash economic development and housing is
actually water-neutral, thanks to tertiary treatment and recycling
which allows reuse of water for a wide array of purposes. The passage
of HR 1491 will not allow the Tribe to export water from the Camp 4
trust lands and the Tribe testified under oath during the Committee
hearing that it has no intention of doing so. As Mr. Krauch
acknowledged in his testimony to the Committee, the Non-Intercourse Act
would prevent the Tribe from exporting water from the reservation.
Further, his concern that the Tribe could export water under the
Winters Doctrine is a misplaced concern.
The Winters Doctrine recognizes a reserved water right appurtenant
to the land reserved, (here the Camp 4 trust lands), to be used on that
land. Because the reserved water rights are appurtenant to the land,
that water cannot severed and exported for other uses or purposes. In
addition, reserved rights are measured as of the date the federal
government accepts the land into trust which in the case of Camp 4 was
January 20, 2017, which makes them junior to every other water right in
Santa Ynez Valley.
4. While H.R. 1491 explicitly prohibits gaming on Camp 4, testimony
was provided that the Tribe may expand its gaming by accessing the
existing Tribal home sites and developing there. Are these concerns
valid?
Answer. The erroneous argument that the Tribe would convert these
homes, on the existing reservation, to any type of a commercial
enterprise fails to acknowledge the responsibility that the Tribal
government has to its citizens. Ownership of the existing homes on the
Reservation does not terminate with the Camp 4 home sites. Camp 4 was
purchased in 2010 by a vote of every tribal member over 18 years of age
with a promise that every tribal member alive on that date would get a
home site on Camp 4 that could be inherited by their children. The
Tribe cannot trade Camp 4 homes for those on the existing reservation.
The Tribal Government has no desire or ability to condemn existing
housing on the Reservation for any reason including the future casino
alleged by Mr. Krauch and his group. The same people opposed for 14
years a tribal museum project across the street from the existing
casino again making the unsubstantiated contention that the Tribe also
intended to build a second casino across the street from its existing
one.
5. The Agreement allows only the County to bring suits against the
Tribe for failure to adhere to the tenants of the Agreement. Why not
allow any citizen to bring suit for failure to comply with the
Agreement?
Answer. The Agreement between two sovereign governments elevates
these concerns to a public and transparent level. Violations by either
party of any provision of the Agreement can still be appealed by
individual citizens to their locally elected government officials. This
was the process that Mr. Krauch and his coalition used with the County
until the larger citizenry of the County encouraged the County to work
with the Tribe on an Agreement. This is the essence of representational
government. The Tribe's commitment to this Agreement is so strong that
it has agreed to a waiver of its sovereign immunity for any violations
of or failure to adhere to, the terms of this Agreement.
Subsequent Question Pertaining to Existing Easements on Camp 4
After the hearing on H.R. 1491, we are aware that the Senate Indian
Affairs Committee also received correspondence dealing with a question
of easements on the Camp 4 property. The correspondence asserts that
there are existing easements on the Camp 4 property that have not been
properly recognized or recorded.
In fact, there are two easement issues that need to be clarified
and are addressed by the incorporation of the Environmental Assessment
(EA) into the Memorandum of Agreement (MOU) between the County and the
Tribe. The first is a road easement that runs North-South on the
Western edge of the Camp 4 property but not onto the property itself.
This easement would allow a land owner (i.e., Ms. Shepard) with
property adjacent to the Camp 4 property to enjoy the opportunity to
access Baseline Avenue and have a second access point to her property
which is West and adjacent to the Camp 4 parcel.
The EA recognizes all easements of record and explains that they
are not affected by the fee to trust transfer. In addition, in response
to a comment letter by the landowner referenced above, the EA further
agrees to recognize all access easements and specifically includes the
Shepard easement. That EA/environmental document, recognizing this
easement, was included and adopted by the County as part of the MOU and
therefore is enforceable against the Tribe.
The second issue with the easement is actually an issue between the
County and the Tribe regarding responsibility for maintenance of the
internal roads running through the Camp 4 property. These internal
roads represent almost 21 acres of impacted land within Camp 4. While
there may be some issue as to whether these are County roads or Tribal
roads, the Tribe has decided to take this issue off the table by
assuming the responsibility of maintaining the roads through their
property. There are no private property interests affiliated with this
easement.
RESOLUTION NO. 79-302--RESOLUTION OF THE BOARD OF SUPERVISORS OF THE
COUNTY OF SANTA BARBARA, STATE OF CALIFORNIA
a resolution implementing subsection (b) of section 10-21
(modifications) of the santa barbara county code by designating an old
``townlot'' subdivision near the town of santa ynez in the county of
santa barbara as having present or anticipated flooding, drainage, road
access, domestic water, wastewater disposal and location problems, and
hereby delineating the same as a ``special problems area''.
WITH REFERENCE TO THE FOLLOWING:
A. The Board of Supervisors of the County of Santa Barbara has
amended Subsection (b) of Section 10-21 (Modifications) of the Santa
Barbara County Code which amends Subsection (a) of section 302 of Page
30 of the Uniform Building Coder 1976 Edition, to provide for
designating certain areas as ``Special Problem Areas'' on maps to be
kept by the Development DivisTon of the County Department of Public
works, which areas have present or anticipated flooding, drainage,
grading, access, road width, sewage disposal, water supply location or
elevation problems.
B. Grading riders shall not be issued for requested building
permits in such ``Special Problem Areas'' unless and until plans and
specifications for the proposed buildings or structures have been
reviewed by the Santa Barbara County ``Special Problems Committee'' and
any and all reasonable and necessary conditions have been imposed as
conditions of approval of said building permit application, as provided
in said amended Section 302.
NOW, THEREFORE, IT IS RESOLVED as follows:
1. The unincorporated area near the township of Santa Ynez, of the
County of Santa Barbara as delineated on a map, a copy of which is
attached to this Resolution \1\ and by this reference made a part
hereof, is an area having present or anticipated flooding, drainage,
road width, domestic water. and wastewater disposal and location as to
fire hazard problems and is hereby delineated as a ``Special Problems
Area'' all as provided in and for the purposes of Subsection (b) of
Section 10-21 (Modifications) of the Santa Barbara County Code.
---------------------------------------------------------------------------
\1\ The map referred to has been retained in the Committee files.
---------------------------------------------------------------------------
2. The said attached map of the said ``Special Problems Area'' is a
true and correct copy thereof and is hereby ordered to be kept by the
Development Division of the County Department of Public Works to be
used as provided in said Subsection (b) of said Section 10-21 of the
Santa Barbara County Code.
3. Copies of this Resolution shall be forwarded by the Clerk of the
Board of Supervisors to the Director of Public Works; the Flood Control
Engineer; the Transportation Director and Road Commissioner; the
Director of County Health Services, the County Fire Department, and the
County Counsel.
PASSED and ADOPTED by the Board of Supervisors of the County of
Santa Barbara, State of California, this 21st day of May, 1979.
[all]