Archive » June 21, 2012
The lowdown on SB 162
By James Marino, Guest Columnist
There have been many “backdoor” efforts to thwart the rights of California citizens engineered by the governments of casino Indian tribes. Their partners in these efforts are often members of the Legislature who would pervert the public rights for monetary favors usually in the form of campaign contributions and a wide variety of “perks” showered on these representatives for “playing ball” with these casino tribes.
The Indian gambling tribes and their gambling investors succeeded in legislating a moratorium on non-Indian card clubs and recently getting that moratorium extended to suppress and eliminate any gambling competition. When the IRS informed them they could not issue tax-free bonds to build casinos because the tax-free bond regulations were intended to fund public works, the tribe simply went to their Sacramento cronies and had the state issue the bonds getting around the IRS prohibition. They even succeeded in opposing efforts by the Catholic churches to conduct Bingo for money which was to be used for charitable purposes.
The Santa Ynez Valley has been the victim of many of these sleazy efforts. It started right after the enactment of Proposition 1A legalizing Indian casino gambling in California. That change in law created tribal state compacts that were “sweetheart/giveaway” deals signed by now deposed governor Grey Davis as payback to the Indian gambling interests who donated millions to his campaign for governor. These compacts ostensibly provided for the establishment of two funds, the Special Distribution Fund and the Revenue Sharing Trust Fund, into which casino tribes were to pay monies in the first fund to mitigate the many negative impacts of gambling casinos on host communities and in the other one, to provide income to “tribes” with no casinos or less than 300 slot machines.
Because the compacts did not provide a means of distributing the mitigation funds to impacted local communities the tribes went to their “friends” in Sacramento and had them pass a law which provided those mitigation funds, needed by casino communities to pay for infrastructure and public services funded by taxayers, were, under this system, to be distributed by a local committee controlled by the casino tribe causing those problems in need of mitigation in the first place. Local governments were then forced to come to that committee, hat in hand, to apply for grants to be given out at the discretion of the casino tribe.
In the Santa Ynez Valley most residents can recall how the Chumash tribal government engineered the renaming of Highway 154/San Marcos Pass Road to the “Chumash Highway” leading to and from their “Chumash Casino.” This was accomplished without any local knowledge or support from the community. They went 300 miles away and made a contribution to Assemblyman Coto (D-San Jose), who then introduced a resolution to rename the roadway. The resolution then went to the Transportation Committee chaired by Assemblyman Nava, to whom the tribe had made a sizeable contribution. Not surprisingly, it flew through that committee in an obscure hearing in Sacramento without any opposition and no local community notice or input. The resolution was then carried and introduced into the Senate by Sen. McClintock, who had received more than $50,000 in campaign contributions from the Chumash and the resolution sailed through the Senate in record time. Not only was there no local notification until the resolution was announced in the media by the tribe, it was also accomplished without a resolution by the Santa Barbara County Board of Supervisors as required by the California Streets and Highways Code.
Then there was the bill sought by the Chumash to evade responsibility to comply with the Williamson Act. The tribe has been seeking to bring some 1,400 acres of bucolic rural ranch land into trust for some time. They made a $15,000 contribution to State Sen. Dean Florez, then Speaker of the Senate and within weeks he introduced a bill to ostensibly relieve all California Indian tribes from complying with the Williamson Act protecting rural land from excessive development. The bill went to the Government Organization Committee, then chaired by the now deceased state Sen. Cox. The community groups, POLO and POSY, went to Sacramento to speak against the bill – and several other groups did also, including the California Association of County Governments, the Sierra Club and others. Only Sen. Florez and a representative of the Chumash appeared in favor of the bill. At the conclusion of a long hearing, Chairman Cox described the bill as a waste of time and told state Sen. Florez, the only reason he was there was because of the Chumash.
There are many examples of these attempts to manipulate and subvert the Legislative process at the behest of Indian gambling casino governments, but the latest is perhaps the most egregious example I think that I have ever seen. On Feb. 2, 2011, two state Senators from the San Diego area, home to numerous Indian gambling casinos, introduced a low-profile bill. This Bill originally proposed to amend the Business and Professions Code to add members to the Gaming Policy Advisory Committee and to protect non-Indian card clubs from liability for the activity of third party proposition players in their clubs.
SB 162 Bill languished in the Legislature in a process called “place holding.” It popped up in the current session and was approved by the Senate and was sent to the Assembly. (After all, it was a harmless and innocuous procedural bill). Then on April 30, 2012, this bill was amended in the Assembly in a process euphemistically called “gut and amend,” much like the unscrupulous practice of inserting unrelated earmarks into appropriation bills to sneak them past careless or uncaring legislators. The “gut and amend” of SB 162 changed the bill from the original proposed amendment to the Business and Professions Code to one now amending section 11019.9 of the California Government Code. This new amendment began by claiming to be a bill to aid economic development of Indian tribes in California.
Reading further, it became clear it was an attempt to prohibit important state agency review and ability to oppose transfers of fee-owned Indian lands into federal Indian trust, which would remove all that land from responsibility for the state and local taxes needed by state and local governments to pay for all the public services and infrastructure these tribes and their businesses use daily, at the non-Indian public’s expense. In addition, Indian trust status eliminates all state and local zoning and developmental controls needed to protect the character and quality of life in every community.
SB 162, by its terms, prohibits state agencies from opposing these fee-to-trust transfers if the tribe seeking transfer simply claims the transfer is for “housing,” “cultural” or “environmental protection purposes.”
Federal Indian law and policy does not recognize any restrictions or limitation on uses of any lands transferred into trust for an Indian tribe. The federal government will not enforce any limitation or restriction, even if they were put into a written agreement or MOU entered into and executed between the tribe and any state and local governments prior to the transfer to trust. The federal Quiet Title Act prevents anyone from suing the tribe or the federal governments if the tribe lied about what it intended the land to be used for, so the provision in section d of SB 162 is worthless and unenforceable. SB 162 can thus be used to silence state agencies until the land is in trust, after which nothing can be done to undo the transfer if it were put to another repulsive use, particularly addition casino gambling.
In addition, the bill includes a provision requiring the state to recognize any purported “Indian tribe” if their name simply appears on a list created by the federal government describing Indian tribes eligible to receive Welfare grants and services provided to Indian tribes. This provision is included despite the fact there are numerous “Indian tribes” in California on that list, many with only a handful of members, who do not qualify as a bona fide Indian tribe, meeting the seven mandatory requirements for federal recognition and lawful acknowledgment as an Indian tribe that are required by federal law.
The bill is probably illegal because it is an attempt to legislate into an area that is exclusively a federal question and pre-empted by federal law. Should this law foolishly get passed and become California law, it will no doubt be challenged as pre-empted by several exclusive and controlling federal laws and rules.
It should, however, be defeated out of hand and buried by our own State Assembly because if it is not defeated, it once again creates – at least the appearance in the Legislature – of being yet again another tool of the Indian gambling casino special interests, as so many Legislators have become so many times before, in recent years.
James E. Marino is an attorney and consultant on Indian gambling casinos and their impact on non-Indian communities.