Chumash Casino Expansion - How Likely Is It?

We in the valley are constantly being warned by POLO/POSY about how the Chumash have plans to expand their Casino operations… plans they claim that will result in the tribe eventually taking over the valley. Your house, my house, the majority of the businesses will be owned by the Chumash if you believe what they say. We will be a “casino town” they say. They believe the Feds and State government officials are in on this devious plan, and that you and I and our local governments will be helpless to stop any of it.

A few Solvang City Council members recently jumped on the band wagon and wanted to adopt a resolution taking a position against expansion of the Chumash Casino.

If you have read any of the articles, letters, and commentary’s written by members of these groups and published in the local papers, you know exactly what I mean. They believe it is eminent, and once it starts it will snowball very quickly.

Reminds me of one of the songs from the Music Man… one of my favorite movies.

We got trouble my friends… right here in the Valley, trouble I say… and that starts with “T” and that rhymes with “C”and that stands for Chumash. Big, big trouble…

Time for a reality check.

The Bureau of Indian Affairs administers and manages 55.7 million acres of land in behalf of American Indians, Indian Tribes and Alaskan natives.

The largest reservation is the Navajo which comprise some 16 million acres of land in Arizona, New Mexico, and Utah.

The Chumash, compared to the majority of other tribes, have a very, very small reservation.. only 126 acres. The current casino, hotel and parking structures, along with the housing have left the Chumash reservation built out. They have very little space for anything new.

The main reason they are out of space is because, after listening to the local citizens concern over the height of the planned casino back in 2001, the tribe decided to separate the hotel and the casino into two separate buildings rather than put the hotel atop the casino, which is the traditional design of casino/hotel structures like you see in other parts of the state and Vegas. This resulted in leaving less space for parking which led the tribe to reduce the original planned size of the casino to the bare minimum required for the 2000 slots allowed them under their compact.

They could have built up as far as they wanted, and the local communities and governments could not have stopped them. But they didn’t do it. They essentially threw out their original plans and redesigned the complex to accommodate the local community concerns which resulted in holding the buildings max height to 45 feet.

For what it is, no matter what your views on gambling and tribal sovereignty or any other Indian gaming issues are, you have to agree that the Chumash Casino complex is an amazing piece of architecture for its location. You literally cannot visually see any of it until you are right on top of it. Two blocks away in downtown Santa Ynez, you cannot see any of it.

The local opponents of the tribe back then fretted about unregulated construction of the complex, even then taking on the alarmist role.

In addition to making the complex visually aesthetic, it was also built in accordance with the tribal building ordinance that identifies which codes builders must obey.

Foremost among them was the Uniform Building Code, a standard adopted by most of the western half of the United States. The ordinance also specifies other codes to follow: mechanical, plumbing, electrical, Title 24 (energy efficiency), and the Americans with Disabilities Act.

At the outset, the tribe hired independent, non-tribal plan checkers to verify that its plans met or exceeded the codes. These checkers were the same ones cities and counties use. They monitored compliance during construction and signed off when it was done.

In addition, the county fire marshal inspected the development for fire-code compliance. Indian Health Services, which functions as a health department for Indian country, inspected the food service facilities. The local water and sewage districts inspected valves, fittings, pipes, pumps, and manhole covers in the waterworks.

The entire building is 100% building-code compliant. It is 100% fire-code compliant. It is 100% ADA or handicapped-accessible compliant. The building could have been built anywhere in the county and it would have passed any and all State and County building codes.

I’m kinda getting off the subject here, but my point is that this small group of tribal opponents has, from day one, used alarmist tactics to generate false rumors and create fear to try and portray the Chumash as this evil entity whose goal was to destroy the valley.

The above facts exemplify the truth and reality of who the Chumash really are. They are the original citizens of this valley who do care about the land and the other people who live here. If they didn’t, we would have today a 5 story Las Vegas style casino/hotel on the reservation that would be seen for miles around. They are probably kicking themselves right now for doing what they did after all the grief these small groups have given them, but they did the right thing in keeping it low profile.

So… how concerned should we actually be about the Chumash expanding their casino operations?

It is obvious that they have no more room for any more class III slots … not even a couple hundred let alone the 5000 POLO/POSY say the tribe wants.

Even if they did go to the governor to actually negotiate for more slots, the first thing the governor would do is look at the reservation and ask, “Where will you put them?”, and that would be the end of it right there.

So what are the alternatives for the Chumash if they do indeed decide to expand the Casino? Mind you, I am speaking just about gaming. The Chumash may add to their hotel and parking anytime they wish and that is probably something they have either already studied or will be studying in the future. They would have to build up though as that is the only direction available right now.

So, where will they put all these slots that POLO/POSY say we should all be afraid of?

It looks like they would have to acquire more land. Would it be that easy? Could it? You read the articles and letters in the local papers these days and you would think that it’s gonna happen any day now. According to some, there are secret meetings and plans being drawn up right now behind our backs ready to be put into motion that will result in the Chumash acquiring hundreds of thousands of acres from San Louis Obispo to Malibu.

All right… lets get another dose of reality.

Most of the people who frequent this blog already know all of this stuff. Most, if not all know the truth and a lot of them know the truth but disguise it or leave crucial facts out of the story to promote their scare tactics. For those who may have friends who are not well versed in these things but may be interested in learning them, then I encourage you to forward it to them. The more the people who live in our valley know exactly what the reality of these issues are, the sooner these small antagonistic groups will keep their paranoia and fear mongering to themselves.

Land Into Trust - 101

So, in order for the Chumash to acquire more land to use for gaming purposes, they would have to apply to the Federal Government, more specifically, the Department of Interior, to have land placed into trust for them.

Either that or start tearing down houses to make room for more gaming, but I don’t think they will do that. Even then they would have to prepare an environmental report on any potential impacts to areas outside the reservation caused by the new construction related to the casino, as well as allow the public to comment on the report and make good faith efforts to mitigate any impacts.

What exactly does having land put into trust for them mean and why is this allowed?

Why can’t you and I do this?

Between the years of 1887 and 1934, the U.S. Government took over 90 million acres, nearly 2/3 of reservation lands, from the tribes without compensation and gave it to settlers. The ability of the Department of Interior to take land into trust was created in the 1934 Indian Reorganization Act to begin to compensate for unjust takings of those tribal lands.

Since 1934, the DOI has taken about 9 million acres back into trust status. This amounts to only about 10 percent of the total amount of land originally taken from the Indians.

The majority of this land has been within the boundaries of existing reservations, but due to various circumstances such as tribes with extremely small reservations, those in remote areas far from the mainstream of economic life, and for those tribes whose reservations were diminished during the allotment or termination periods, it was sometimes necessary for tribes to acquire land from outside reservation boundaries.

What exactly is the status of land taken into trust?

The Federal government owns the land and holds title to it. Trust status means that the land falls under tribal government authority and is generally not subject to state laws. Trust status also creates limitations on the use of the land and requires federal approval for most actions.

So, can the Chumash apply to the DOI to take land into trust in our valley to expand their gaming activities? Sure they can. But they know, and POLO/POSY knows that it would be long, long process, perhaps taking 10-20 years and be very, very expensive and that the rules and regulations by which these decisions are made these days do not favor the tribes, and that even after spending many, many years and millions of dollars on the process, they most likely would be rejected. Even if the BIA decided in their favor it surely would go to litigation and be tied up for another 5-10yrs.

What would you do if you were the Chumash? As you will see, it is very doubtful that at this point in time they would choose to go down that road.

This issue of tribes taking lands into trust is the source of many heated debates all over the country these days and if you browse this blog you will see many posts concerning this. The future of tribes taking land into trust is and will be hammered out in the nation’s courtrooms. As the BIA makes decisions to accept or deny these applications, they are sued by either the tribe whose application was rejected, or by a city, county or grass roots groups who opposes the BIA’s decision to accept a tribes application. There are many cases in litigation right now.

How does the BIA make decisions on applications by tribes to take land into trust?

A good source to look in detail on what criteria the BIA uses to decide applications for land into trust can be found here:

http://www.access.gpo.gov/nara/cfr/waisidx_01/25cfr151_01.html

…. but for our specific interest, land into trust for gaming, I will focus on that.

What are the historic policies concerning land into trust to be used specifically for gaming purposes?

Specific regulations require that the Secretary of Interior consult state and local governments prior to making a determination on taking land into trust status for any reason and the Secretary must specifically consider the impact on state and local governments of removal of the land from the tax rolls. The regulations also give state and local governments the right to appeal a secretarial decision both within the Interior Department and in the federal courts.

POLO/POSY are constantly telling us that we “have no voice”. Looks to me like we do.

When applications concern Indian gaming, there are much greater limitations on land into trust.

The Indian Gaming Regulatory Act of 1988, 25 U.S.C. §2719, prohibits gaming on off-reservation lands acquired in trust after 1988. There are exceptions and these are:(1) The land is located within or contiguous to the boundaries of the tribe's reservation on October 17, 1988; (2) the tribe has no reservation on October 17, 1988, and the land is located in Oklahoma and is either within the boundaries of the tribe's former reservation, as defined by the Secretary, or is contiguous to other land held in trust or restricted status by the United States for the tribe in Oklahoma; (3) the tribe has no reservation on October 17, 1988 and the land is located in a State other than Oklahoma and is within the tribe's last recognized reservation within the state within which the tribe is presently located; or (4) the land is taken into trust as part of (i) a settlement of a land claim, (ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process, or (iii) the restoration of lands for an Indian tribe that is restored to Federal recognition.

Well, that sheds a whole new light on the chances of the Chumash taking more land into trust to expand their gaming activities, don’t it? Funny how the tribal opponents don’t ever mention any of this. It must have just slipped their mind… or something??

The act of 1988 seems to make it pretty prohibitive to allow gaming on land into trust acquisitions after that date.

Let’s look at how the policy has changed in recent years.

Back in Feb of last year, in a letter to 35 tribes nationwide, James E. Cason, Associate Deputy Secretary of the Interior, indicated that new rules would apply when tribes look to expand to off-reservation sites.

“We anticipate changes to the rules that may result in fewer off-reservation properties being accepted into trust," Cason said in his letter. "In particular, we expect to consider a paradigm where the likelihood of accepting off-reservation land into trust decreases with the distance the subject parcel is from the tribe's established reservation or ancestral lands and the majority of tribal members." Also in the letter he indicated that, ”community opposition will be heavily weighed” when considering off-reservation expansion.

Then in May of last year, George Skibine, the acting principal deputy assistant secretary at the Bureau of Indian Affairs, reiterated the above by saying, "The BIA considers local input when making land-into-trust decisions. We're looking at the local government to tell us if that is detrimental to their community.” He said it will be harder for tribes to open casinos away from reservation as long as Interior Secretary Dirk Kempthorne is around. "If you are a tribe interested in off-reservation gaming, the forecast is gloomy and bleak. There is a changing climate here at Interior."

On Jan. 3 of this year, the Department of Interior, more specifically Assistant Interior Secretary Carl Artman, sent out an internal memo that instructed its employees to greater scrutinize off-reservation land-into-trust applications based on their distance from a tribe's existing reservation.

The memo can be found here: http://www.indianz.com/docs/bia/artman010308.pdf

The next day, Cason sent rejection form letters to 11 tribes who had applications pending claiming the distance the tribal members would have to drive would have a negative impact.

All in all, The Department of Interior rejected 22 of 30 off-reservation proposals in the month of January 08’ based on this new “commuter rules.

This did not sit well with the many tribes. After some tribes who had gone through the long arduous process and where some had been waiting for 12 years or more for a decision on the applications, in one simple, seemingly arbitrary rule change, it all ended abruptly with a rejection notice.

Well now.. it seems to be going from bad to worse for any tribe seeking gaming off their original reservation. Why haven’t POLO/POSY mentioned anything about this?

It should be noted that while anti-Indian gaming groups and states have targeted off-reservation casinos for the past several years, in reality only three such casinos have been allowed in the 20 years since the Indian Gaming Regulatory Act was implemented.

So, what do you think? Given the above information, what is the likelihood of the Chumash being able to acquire more land for gaming expansion very soon, if ever?

Should we believe the noises coming from POLO/POSY and the likes?

One of Steve Pappas’ ads claimed in big bold letters that he went to Washington DC and ”STOPPED CASINO EXPANSION”. Seeing as how there never were any plans to expand and the huge mountain of obstacles in front of them if they ever did decide to try and expand….what exactly did he and his cohorts do there?

I think I’ll fly to DC next week and stop a Federal prison from being built on the flats between Buellton and Solvang. Of course, there are no plans what-so-ever for this, but it will look good on my resume should I ever seek public office.

“STOPPED THE FEDERAL PRISON FROM BEING BUILT”

Impressive…huh?

Here’s some more bad news for any tribes looking for more gaming land.

Just last month, May 20 to be exact, the DOI released refined regulations concerning the criteria for tribes acquiring lands off their existing reservations for casinos.

These regulations set a higher bar for proposals to build casinos on sites distant from reservations, requiring consultation with more affected communities and more scrutiny of a tribe’s justifications for an off-reservation casino.

This will make it even more difficult for tribes seeking to expand their casinos as the new rules restrict the broad terms of the Indian Gaming Regulatory Act.

This “refinement” had been in the works for 2 years.

In the 109th Congress of 2005 and 2006, local opposition to off-reservation gaming proposals had got the attention of a majority-Republican Congress.

Opponents of off-reservation gaming testified that Section 20 hadn't worked and had to be scrapped in favor of new legislation amending IGRA. The legislation failed in the House of Representatives in September 2006, but the BIA's scrutiny of the implementing regulations went on, ultimately resulting in the final regulations of May 20.

Under the new regulations, tribes must meet a commutable distance standard for off-reservation, gaming-related land acquisitions. This is a new standard and fairly pissed off Indian Country as they felt they should have been consulted first before any implementation occurred.

Along with the above refinements to Section 20, the BIA laid out what the cost, time wise as well as dollar wise, would be for tribes seeking to open casinos on newly acquired land would be.

Tribes wait years, and sometimes even decades, to complete the land-into-trust process, then those wishing to open casinos on this land will spend anywhere from two man-years to 20 man-years on their applications, according to the regulations. That's in addition to the one to three man-years the BIA anticipates it will take to review each application.

According to the rule, tribes will spend between two man-years to five man-years -- "or more" -- on a two-part determination application. Consulting local governments and the state will take the BIA one to two man-years, the regulation states.

As for the cost, the BIA estimates the process will have an impact of more than $100 million on tribes and the public. The new rule is an "economically significant regulatory action," the May 20 notice in the Federal Register stated.

The rule requires compliance with the National Environmental Policy Act. This typically means the preparation of a draft, then a final, environmental impact statement on the gaming project.

According to the rule, preparing an EIS will take anywhere between four man-years and 20 man-years "or more." The BIA will then take one to three man-years to review it and take public comments.

Tribes can typically spend millions on an EIS. They usually hire firms that specialize in large-scale environmental projects, a cost they must bear on their own.

The old rules and these new rules and regulations clearly would make it almost impossible for the Chumash to acquire more land in our valley for gaming. That along with the probable 10-20 year time frame or more, and the millions they would have to spend make it an almost no-brainer that they will not go down that road.

So, the next time you see in the local papers someone spewing about passing ordinances and adopting resolutions, and fretting about and worrying about the Chumash expanding their casino off the current reservation… you will be able to smile like I do and go on to the next article or letter.