1. PRESENTATION REGARDING CALIFORNIA TRIBES AND LYTTON RANCHERIA FEE-TO-TRUST FOR TOWN OF WINDSOR by Nancy Thorington August 25, 2015

2. 2 What Is a Tribe? Distinct political entity Distinct political entity Federally-recognized (listed in Federal Register) Federally-recognized (listed in Federal Register) Government-to-government relationship Government-to-government relationship

3. Tribal Sovereignty Sovereignty – authority of political body Sovereignty – authority of political body Determine membership, govern internal and external affairs Determine membership, govern internal and external affairs Tribes are “domestic-dependent nations” ( Cherokee Nation v. Georgia ) Tribes are “domestic-dependent nations” ( Cherokee Nation v. Georgia ) Congress has “plenary power” over Indian affairs Congress has “plenary power” over Indian affairs 3

4. Trust Relationship Protected tribes from state encroachment ( Cherokee Nation v. Georgia ; Worcester v. Georgia ) Protected tribes from state encroachment ( Cherokee Nation v. Georgia ; Worcester v. Georgia ) Established fiduciary relationship between federal government and tribes Established fiduciary relationship between federal government and tribes 4

5. Overview of Indian Lands and Indian Country “Trust” (distinguished from “fee”) “Trust” (distinguished from “fee”) Federal government holds legal title Federal government holds legal title Tribe or individual Indian is beneficiary Tribe or individual Indian is beneficiary Land in trust not subject to taxation Land in trust not subject to taxation Land in trust not subject to local land use regulations, CEQA, etc. Land in trust not subject to local land use regulations, CEQA, etc. 5

6. Overview of California Indian History 1850 – California becomes a state 1850 – California becomes a state 1850-1852 – 18 treaties negotiated 1850-1852 – 18 treaties negotiated Treaties not ratified Treaties not ratified Many California Indians left homeless Many California Indians left homeless California indentured servitude laws California indentured servitude laws Rancherias (small areas of trust land) established Rancherias (small areas of trust land) established 6

7. Overview of California Indian History, cont. 1950’s – Termination Acts 1950’s – Termination Acts Rancheria Act (1958) Rancheria Act (1958) Relinquish trust relationship in exchange for infrastructure (roads, water, sewer, housing) Relinquish trust relationship in exchange for infrastructure (roads, water, sewer, housing) Tribes terminated from federal recognition Tribes terminated from federal recognition Land taken out of trust; transferred to heads of households in fee Land taken out of trust; transferred to heads of households in fee Infrastructure never provided Infrastructure never provided 7

8. Overview of California Indian History, cont. 1970’s―1980’s: Tribes sued the federal government 1970’s―1980’s: Tribes sued the federal government Restored via court cases or congressional acts Restored via court cases or congressional acts Many restored tribes landless when restored Many restored tribes landless when restored 8

9. Lytton Rancheria Lawsuit Lytton and other tribes sued; case settled in 1991 via Stipulated Judgment ( Scotts Valley, et al. v. U.S. ) Tribe was never lawfully terminated Restored right to exist as a sovereign government Re-listed on Federal Register 9

10. Lytton Rancheria Lawsuit Cont. Restrictions on future land acquisitions: 1990 Interior policy for fee-to-trust applies to acquisitions With respect to lands within the exterior boundaries of the former Lytton Rancheria, land uses would have to be consistent with Sonoma County General Plan Tribe agreed not to reestablish the former boundaries of the Lytton Rancheria With respect to lands within Alexander Valley, land could not be used for gaming, unless authorized under County General Plan 10

11. Lytton Rancheria Lawsuit Cont. County of Sonoma agreed to: Assist Tribe in identifying lands within Sonoma County suitable for housing and economic development Provide information on specific areas of Sonoma County suitable for housing or economic development, including identifying parcels where basic services, such as water and sewer are available or easily developable 11

12. Tribal Sovereignty in California Today 1953 – Public Law 280 (PL 280) 1953 – Public Law 280 (PL 280) Federal criminal/limited civil jurisdiction transferred to state Federal criminal/limited civil jurisdiction transferred to state State civil/regulatory laws do not apply to tribal lands (state and local tax, labor, environmental, land use laws) State civil/regulatory laws do not apply to tribal lands (state and local tax, labor, environmental, land use laws) State criminal/prohibitory laws apply State criminal/prohibitory laws apply 12

13. Tribal Sovereignty in California Today, cont. No city or county jurisdiction No city or county jurisdiction Sovereign immunity – express waiver required Sovereign immunity – express waiver required 13

14. Fee-To-Trust Process Pursuant to act of Congress Pursuant to act of Congress Indian Reorganization Act of 1934 (IRA) Indian Reorganization Act of 1934 (IRA) Special Legislation Special Legislation IRA: IRA: “The Secretary of the Interior is authorized, in his discretion, to acquire... any interest in lands... for the purpose of providing land for Indians.” “The Secretary of the Interior is authorized, in his discretion, to acquire... any interest in lands... for the purpose of providing land for Indians.” Requirements to take lands into trust under IRA: Requirements to take lands into trust under IRA: Property located within or adjacent to reservation; Property located within or adjacent to reservation; Tribe already owns land; or Tribe already owns land; or Acquisition necessary for tribal self-determination, economic development or housing. Acquisition necessary for tribal self-determination, economic development or housing. 14

15. Fee-to-Trust Transfer, cont. Factors BIA must consider: Statutory authority for acquisition Statutory authority for acquisition Need of tribe for land Need of tribe for land Proposed use of land Proposed use of land Impact on the state and local governments Impact on the state and local governments of removing land from tax rolls of removing land from tax rolls 15

16. Fee-to-Trust Transfer, cont. Factors BIA must consider, cont.: Jurisdictional issues and conflicts of land use Jurisdictional issues and conflicts of land use Ability of BIA to discharge trustee obligations Ability of BIA to discharge trustee obligations Sufficiency of National Environmental Policy Act Sufficiency of National Environmental Policy Act (NEPA) documentation (NEPA) documentation Location of land Location of land Anticipated economic benefits to tribe Anticipated economic benefits to tribe 16

17. Fee-to-Trust Transfer, cont. Tribe must complete an Environmental Impact Assessment pursuant to NEPA Tribe must complete an Environmental Impact Assessment pursuant to NEPA BIA reviews the application, comments, documentation, etc. BIA reviews the application, comments, documentation, etc. BIA issues a decision (Assistant Secretary) BIA issues a decision (Assistant Secretary) 30 days to appeal decision 30 days to appeal decision Courts give great deference to BIA determinations regarding factors and NEPA review Courts give great deference to BIA determinations regarding factors and NEPA review 17

18. Carcieri Decision IRA authorizes the Secretary of the Interior to take lands into trust “for the purpose of providing land for Indians.” IRA authorizes the Secretary of the Interior to take lands into trust “for the purpose of providing land for Indians.” IRA defines “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction” IRA defines “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction” BIA had interpreted “now under Federal jurisdiction” to mean at the time the land was taken into trust BIA had interpreted “now under Federal jurisdiction” to mean at the time the land was taken into trust U.S. Supreme Court rejected that interpretation and held that tribe must have been “under Federal jurisdiction” at the time the IRA was enacted in June of 1934 U.S. Supreme Court rejected that interpretation and held that tribe must have been “under Federal jurisdiction” at the time the IRA was enacted in June of 1934 18

19. Carcieri cont. In 1934, there was no Federal Register list of “federally-recognized tribes” “Under Federal jurisdiction” not clear as applied to 1934 Since Carcieri, BIA has been liberally applying “under federal jurisdiction” standard; has not rejected fee-to-trust application on Carcieri grounds 19

20. Fee-to-Trust Via Special Legislation Carcieri restrictions don’t apply because not taking land into trust via IRA; Carcieri only applies to IRA fee-to-trust Language of legislation controls If mandatory for land to be taken into trust, then not a discretionary act and NEPA won’t apply 20

21. Huffman Legislation – H.R. 2538 Says land owned by the Tribe (see map) “is hereby taken into trust for the benefit of the Tribe.” Prohibits land taken into trust under legislation from being used for gaming (no time restriction) Says that the MOA with Sonoma County is not subject to review or approval by the Secretary of the Department of the Interior 21

22. Status of Current Fee-to-Trust Has already completed NEPA review Has already completed NEPA review Application doesn’t include newly-purchased land Application doesn’t include newly-purchased land No restrictions on future use of land for gaming No restrictions on future use of land for gaming No mitigation for water, wastewater, traffic, etc. No mitigation for water, wastewater, traffic, etc. 22