San Rafael, CA - Assembly Member Jared Huffman (D-San Rafael) has sent a letter to Assistant Secretary Carl Artman, United States Department of the Interior (DOI), objecting to the Department’s plan to take land just outside Rohnert Park into trust for the Federated Indians of Graton Rancheria for the operation of a massive Las Vegas-style casino.

On May 7, 2008, the Bureau of Indian Affairs published notice of an intent to take approximately 254 acres of land in trust for the Graton Indians.  The area is highly developed, with existing residences, businesses and government infrastructure.  The site is within 500 yards of Highway 101.  “The subject site is not Indian land and is not gaming eligible.  Rather, the land has been under state jurisdiction since the state was formed and the tribe lacks any basis for claiming sovereignty over the site,” Huffman said. “The DOI has failed to consider this fundamental issue.”

Currently the site is owned by SC Sonoma Development LLC, reportedly a wholly owned subsidiary of Stations Casinos.  The company was not formed and had no interest in the land until April, 2003.

Huffman is requesting that the Bureau of Indian Affairs (BIA) make a determination as to tribal jurisdiction, including a specific explanation of if and why the BIA believes the State of California has relinquished its sovereignty.  “Bypassing this jurisdictional determination and taking the land into trust would prejudice the rights of residents, business and governments in the area,” Huffman concluded.

Please see the attached letter that was sent today to the U.S. Department of the Interior.

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May 16, 2008

Mr. Carl Artman
Office of the Secretary
United States Department of the Interior
Washington, DC 20240

Re:       Federated Indians of Graton Rancheria

Dear Asst. Secretary Artman:

I write with grave concerns about the Department of Interior’s (DOI) apparent plan to take land just outside Rohnert Park into trust for the Federated Indians of Graton Rancheria for the operation of an Indian casino.  The subject site is not Indian land and is not “gaming eligible.”  Rather, the land has been under state jurisdiction since the state was formed, and the tribe lacks any basis for claiming sovereignty over the site.  Even if the land were taken into trust, the tribe would lack the jurisdiction required under Indian Gaming Regulatory Act to operate a casino otherwise prohibited by state law.  The DOI has failed to consider this fundamental issue.

On May 7, 2008, the Bureau of Indian Affairs (BIA) published notice of an intent to take approximately 254 acres of land just outside Rohnert Park in trust for the Graton Indians.  The area is highly developed, with existing residences and businesses and government infrastructure. The site is within 500 yards of Highway 101.  On one side of the site is a mobile home park with hundreds of homes and an industrial park.  There are hundreds of more homes and several large apartment complexes in the immediate vicinity.  Less than 500 yards from the site in another direction is a Wal Mart store and a Home Depot.  This site is not in an undeveloped, sparsely populated area on which the tribe could exercise sovereignty as a separate distinct community.  Rather, the site is an integral part of a highly developed and well-populated community, and served by the same utilities and government services.  To allow a competing sovereignty would impact the sovereignty of the state, in violation of the 10th amendment to the U.S. Constitution, essentially nullifying the prohibition on casino gaming under state law.

The site has never been under the jurisdiction of any Indian tribe during California’s 158 year history.  Rather, since formation of the state, this site has always been under state jurisdiction and controlled by state laws.  Currently the site is owned by SC Sonoma Development LLC, reportedly a wholly owned subsidiary of Stations Casinos.  The company was not formed and had no interest in the land until April 2003.

In contrast, residents, business owners, and governments in the area have long-standing and extensive interests in maintaining state jurisdiction over the site.  They have purchased homes and made investments based on certain expectations.  One of the primary expectations is that the land in the area is governed by the laws of the State of California.  

The parcel at issue not only is 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 impacts of gambling, and the overall opinion that this activity is inappropriate for this urban environment.  I share those concerns.

Apparently, the DOI takes the position that once land is taken into trust by the Federal government, the land is no longer under state jurisdiction.  That is not consistent with voters expectations when they approved Proposition 1A.  That is also not the law.  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.  Neither exception to the rule of state sovereignty applies here.

While generally land held in trust is under tribal jurisdiction, that is not the case where tribes buy new lands in urban areas.  Case law makes clear that jurisdiction is based on certain elements.  For one, the tribe must hold aboriginal title, title that was in place when the state was formed.  State of New York v. Shinnecock Indian Nation, 523 F.Supp.2d 185 (EDNY 2007).  Second, the tribe must have continuously exercised its sovereignty.  Absent continuous exercise, new jurisdiction would be highly disruptive of settled expectations of residents, businesses and governments in the area.  City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005).  Third, the tribes exercise of sovereignty must create a separate, distinct political community.  Worcester v. Georgia, 31 U.S. 515.

Here, none of these elements would be satisfied.  The tribe had no title either when the state was formed or at any subsequent time.  The tribe did not continuously exercise sovereignty over the years, and any new assertion of Indian sovereignty would be highly disruptive of the expectations of residents, businesses and governments in the area.  Also, the site would not constitute a separate Indian community.  To the contrary, it is being purchase for the operation of a single business – a massive Las Vegas-style casino - that will cater to the non-Indian community.  To allow the tribe to buy new land and be exempt from state law is to condone an abuse of the notions of Indian sovereignty.

The Graton Restoration Act cannot and does not eliminate the state’s jurisdiction over the land without state consent.  Nor is this an issue of preemption.  The legal doctrine of Indian preemption applies where the tribe has aboriginal title and true sovereignty.  In that situation, the courts will balance the interests of competing sovereigns, and sometimes the interests of Indian sovereignty will outweigh the interests of the state government.  Here, the tribe does not have sovereignty over this land, and the doctrine has never been used to create such sovereignty.

When a tribe wishes to conduct gaming on land, whether the tribe has jurisdiction over the land and the land is “gaming eligible” is a threshold issue.  Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F.Supp.2d 295 (WDNY 2007).  It follows that where land is being purchased for gaming purposes, such a determination should be made at the earliest opportunity.  The DOI should not take the land into trust until it makes a determination that the tribe will have jurisdiction over the land and be allowed to conduct casino gaming.

Bypassing this jurisdictional determination and taking the land into trust would prejudice the rights of residents, business and governments in the area and constitute an attempt to create facts on the ground -- i.e., to affirmatively promote a new urban casino, rather than adhering to legal requirements and honoring the sovereign interests that are expressly reserved to the state under the 10th Amendment of the U.S. Constitution.  I am also concerned that the action will result in financial commitments by the tribe which could be to their detriment when it later is determined that the tribe lacks jurisdiction and the land is not “gaming eligible.”

For these reasons, I urge the BIA to make a determination as to tribal jurisdiction, including a specific explanation of if and why you believe the State of California has relinquished its sovereignty, before taking the land into trust.  Thank you for your consideration of this request.

Respectfully,

JARED HUFFMAN, Assemblymember
6th District (Marin and Southern Sonoma Counties)