San Rafael, CA - Assembly Member Jared Huffman (D-San Rafael) has sent a letter to Governor Arnold Schwarzenegger objecting to any negotiations by his administration with the Federated Indians of the Graton Rancheria for a gambling compact to operate a casino on their proposed land acquisition just outside Rohnert Park.

There has been speculation that Graton and at least two other tribes have been meeting secretly with the Governor.  Huffman met with the Governor’s staff last week to try to confirm these rumors that negotiations were taking place, but came away without an answer.  “It is important to remind the Governor that any such negotiations at this time would be in violation of polices he has previously articulated for compact negotiations,” Huffman stated.  In a proclamation dated May 18, 2005, the Governor proclaimed the he would “decline to engage in negotiations for tribal-state gaming compacts where the Indian tribe does not have Indian lands eligible for class III gaming.”  The Graton Tribe does not have “gaming eligible” Indian land.

Neither the National Indian Gaming Commission nor the Bureau of Indian Affairs has yet ruled on whether the proposed Rohnert Park site would constitute Indian land, as required under case law.  Further, there are numerous issues the Graton Tribe must resolve before this land could legitimately be deemed “gaming eligible,” and disputes surrounding these issues will almost certainly play out in the courts for several years.  “Any premature compact negotiations by the Governor’s administration could prejudice the outcome of these proceedings, including the rights of community members to argue that the proposed site remains under state jurisdiction and not under tribal jurisdiction even if and when it is held in trust for the tribe,” Huffman concluded.

Please see the attached letter that was sent today to Governor Schwarzenegger:

August 30, 2007

The Honorable Arnold Schwarzenegger
Governor of California
State Capitol Building
Sacramento, CA 95814

Re:  Compact Negotiations with Graton Tribe

Dear Governor Schwarzenegger:

I respectfully object to any negotiations by your administration with the Federated Indians of the Graton Rancheria (“the Graton Tribe”) for a gambling compact to operate a casino on their proposed land acquisition just outside Rohnert Park.  Any such negotiations at this time would be in violation of policies you have previously articulated for compact negotiations, and would also be inappropriate for the reasons set forth below.

In your proclamation of May 18, 2005, you recognized the “increasing public concern over the location and expansion of tribal gaming enterprises in California” and proclaimed that you would “decline to engage in negotiations for tribal-state gaming compacts where the Indian tribe does not have Indian lands eligible for class III gaming.”
The Graton Tribe does not have “gaming eligible” Indian land – a prerequisite for compact negotiations under your policy.

Neither the National Indian Gaming Commission nor the Bureau of Indian Affairs has yet ruled on whether the proposed Rohnert Park site would constitute Indian land, as required under case law.  Further, there are numerous issues the Graton Tribe must resolve before this land could legitimately be deemed “gaming eligible,” and disputes surrounding these issues will almost certainly play out in the courts for several years.   Any premature compact negotiations by your administration could prejudice the outcome of these proceedings, including the rights of community members to argue that the proposed site remains under state jurisdiction and not under tribal jurisdiction even if and when it is held in trust for the tribe.

The parcel at issue is not only in an urban setting, but would be the first urban Indian casino in the entire San Francisco Bay Area.  Many local residents, and many of my constituents in Sonoma and Marin Counties, have objected to the placement of an Indian casino at this location due to numerous concerns, including traffic, environmental effects, the socio-economic effects of gambling, and the overall opinion that this activity is inappropriate for this urban environment.  I share those concerns.

Moreover, during California’s 150 year history, the subject parcel has never been considered Indian land.  A strong argument exists that under the U.S. Constitution, the state has jurisdiction over all lands within its borders unless an area was explicitly and permissibly left in the control of Indians when the state was formed or unless the state formally cedes jurisdiction to the federal government.

Case law recognizes certain characteristics of Indian lands, none of which are present here.  The Indians must have a historic retention of sovereignty during the state’s existence; they must have exercised their sovereignty continuously and not be disturbing settled expectations of residents, businesses and local government (City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005)); and the area must constitute a separate Indian community.

None of those elements is present here.  The Graton Rancheria was never treated as sovereign Indian land when it existed, but rather was governed by state laws.  The land in Rohnert Park has never been considered Indian land and residents, businesses, and local governments all have settled expectations that the land is state land.  Further, the proposed site would be one business in the general community, not a separate Indian community.  In fact, the very reason the tribe is seeking a mega-casino on this land is the site’s urban character and centrality to the outside community.  For all these reasons, this site cannot and should not be treated as sovereign Indian land.

More fundamentally, neither NIGC nor the BIA have made a determination that the lands on which the Graton Tribe proposes to conduct gaming would be Indian lands under the Graton’s jurisdiction.  A recent case held that NIGC must, as a threshold matter, determine jurisdiction over Indian lands before taking action.  Citizens Against Casino Gambling in ErieCounty, et al. v. Kempthorne, 471 F.Supp2d 295 (WDNY 2007).  The court wrote, “Whether proposed gaming will be conducted on Indian lands is a critical, threshold jurisdictional determination of the NIGC.” (Emphasis in original.)  There has been no such determination in this case.

The Graton Restoration Act cannot and does not purport to eliminate the state’s jurisdiction over the land without state consent.  Unless the State of California is prepared to take the extraordinary step of ceding sovereignty over urban land that is now, and has historically been sovereign state land, then negotiating a gaming compact would not only be premature, but also legally invalid. 

For these reasons, I respectfully submit that no compact negotiations should occur with the Graton Tribe until NIGC makes a determination whether or not the lands are Indian lands under the Graton’s jurisdiction and the issue is finally adjudicated.  To do otherwise could prejudice the rights of opponents to this casino to raise their valid concerns, and would create an extraordinary and unfortunate precedent for our state.

Respectfully,

Jared Huffman, Assemblymember
6th District