The Future of Tribal Lands: Gaming Legislation and Land-Divestiture Negotiations

Winter 2005/2006

Tribal Lands Claims and the Gaming Industry

The burgeoning gaming industry has come to dominate the Indian political and legal landscape, especially in California, and the resulting political atmosphere has had a critical effect on legislation on Indian lands. Both the House of Representatives and the U.S. Senate are each considering legislation that would severely limit the growth of tribal gaming in California and that would make it exceedingly difficult for those tribes that either have no reservation lands suitable for gaming, or no reservation lands whatsoever, to acquire new lands for gaming.

State and Tribal Opposition to Gaming

The California State Legislature has refused to ratify state-tribal compacts, ranging from the very large casino proposed in the middle of San Pablo, in the Bay Area, to a small casino located on the Yurok Reservation in rural Del Norte County, to the expansion of the Quechan Tribe's casino near Yuma, Arizona. Much of the opposition to these compacts stems from traditional sources such as those who are morally opposed to the expansion of gaming or those in the community who stand in enduring opposition to tribal and Indian rights. Unfortunately, we now see Indian tribes that have established successful casinos lobbying to keep other tribes' compacts from being ratified and supporting legislation that would make it more difficult for tribes to establish new casinos. These intertribal disputes are becoming more bitter and more public. It has become a lobbyist's field day as millions of dollars are being poured into these battles, with some tribal money ending up at the center of national scandals.

The Spillover Effect

Although at first flush the intertribal dispute appears to be a fight over the proverbial "pie," the history of tribal gaming in California shows that that pie continues to grow beyond anyone's expectations and one can only hope that the current atmosphere of tribe-versus-tribe will pass. In the long-term, it may help many politicians, lobbyists, lawyers and political consultants, and even a tribe or two, but it will certainly reduce public support for Indian and tribal rights on the whole. The controversies and disputes surrounding tribal gaming in California have already had a spillover effect: it has become increasingly difficult for California tribes to place additional lands into federal trust status in order to increase the size of their very small reservations and rancherias. Because of the concern that these lands would be used for gaming, the process now is dramatically slower and much more expensive than it was just a few years ago. Of course, if a tribe doesn't have a casino, it is unlikely to have much in the way of financial resources, and thus the poor tribes continue to remain small and poor. The situation is even worse for California's many unrecognized tribes that have been seeking recognition since before the advent of tribal gaming.

A Stagnant Future?

The process of federal recognition - already painfully slow - is now virtually stagnant, with any attempts by those seeking to restore their sovereignty and their lands viewed through a cynical public eye as being motivated primarily by a desire to establish a casino. The cynicism can only get worse as we see tribes and their lobbyists claim publicly that California Indians should be limited to existing lands and gaming on the reservations they already have because these are their "traditional" lands and reservations. Such claims completely ignore the sordid history of the Missions and the Gold Rush and if they prevail they will continue to relegate California Indians to the smallest land base of any of the western states. All the trust land in California combined is roughly equivalent in size to the Warm Springs Reservation in Oregon, and is less than 5% of the size of the Navajo Reservation.

PG&E Divested Lands and California Tribes

In the face of these dismal facts, some lands divested as a result of PG&E's bankruptcy settlement may represent a source of hope to California tribes. In December 2003, the California Public Utilities Commission (CPUC) approved a bankruptcy settlement agreement for the Pacific Gas and Electric Company (PG&E). As part of the settlement, PG&E agreed to "protect and enhance" more than 140,000 acres located in watersheds throughout the state, divesting selected lands to conservation groups. While the terms of the settlement make much of that land unavailable to tribes, the settlement does require tribal negotiations over the use of some of the land in question, providing a chance for reclamation in the face of the stagnation caused by the political atmosphere surrounding the gaming industry.

Tribal Interests Ignored

A non-profit organization, the Pacific Forest and Watershed Lands Stewardship Council (Stewardship Council), was created to organize and carry out the terms of the settlement agreement. Although many Indian tribes throughout Northern and Central California have cultural and ancestral ties to the lands being considered for divestiture, the settlement agreement did not provide for tribal input on the use and care of these lands. Lands owned by PG&E that are in proximity to hydroelectric projects are under the supervision of the Federal Electric Regulatory Commission (FERC), and PG&E is required by federal law to negotiate with tribes to ensure that tribes have a voice in what happens with these lands and how tribal interests in them can best be preserved. However, land outside of the hydroelectric perimeter is not subject to these negotiations - thereby disabling tribes from protecting and making use of culturally and spiritually important sites that may exist within these areas.

Advocating for Tribal Input

CILS first became involved with this issue in 2004, when a tribal client in Northern California raised concerns about what protections, if any, would guard their interests in lands passed to conservation groups by PG&E. At the urging of CILS and others concerned about Indian interests, the Stewardship Council agreed in 2004 that a representative of California Indian interests should hold a seat on the Council. Larry Myers, Executive Secretary of the Native American Heritage Commission now fills this seat on the Board of the Stewardship Council. CILS is working with the Stewardship Council and Mr. Myers to ensure that tribes have a say in what conservation groups and PG&E can do with divested lands that are important to California tribes.

The Affected Lands

Currently, the Stewardship Council is surveying the lands that PG&E holds to determine which lands will be divested. The 140,000 acres involved in the settlement agreement are spread over twenty-two counties and numerous watersheds that are home to a large number of California tribes, including watersheds of the Feather River (Plumas and Lassen County), the Bear River and Yuba River (Nevada and Placer Counties), the San Joaquin River (Madera and Fresno), the Middle Sierra (El Dorado, Amador, Alpine, and Calaveras), Pit River (Shasta), Whitmore (Shasta and Tehama), Butte Creek and Feather River (Buttes), Eel River (Lake, Mendocino, Glenn, and Colusa), the American River (Placer and El Dorado), Stanislaus River (Calaveras and Tuolumne), and the Kings River (Fresno). By 2007, the Stewardship Council expects to complete its survey and determine which lands should be divested.

Tribes Must Act to Protect Lands

CILS' tribal clients are concerned about the forest and river health, and cultural resources that exist within current PG&E land holdings. Tribal members continue to practice basketmaking and many rely on the rivers for their basic subsistence. In addition, some of these lands may include burial and prayer sites within their boundaries. For the protection of tribal cultural resources and livelihoods, now is the time for tribes to demand a stronger consultation process. Moreover, CILS believes and advocates for the position that tribes should be granted the opportunity to receive lands from PG&E as conservation easements, thereby enabling tribes with cultural and ancestral ties to the lands to care for them much like a conservation organization would. With tribal input and support, this process offers California tribes and other Indian groups the opportunity to participate in a potentially historic return of at least some Indian lands. Continued tribal and Indian existence is inextricably tied to land, and hopefully the PGE land divestiture will gather a small percentage of the interest and resources that tribal gaming does.

About News From Native California

News from Native California is a quarterly magazine devoted to California Indian culture. They have been publishing for fifteen years and currently have a circulation of about 5,000 copies per issue. With its calendar of events, news roundup, feature articles, and regular columns on art, language, traditional skills, grants, and legal concerns, News has kept people informed and at times even inspired. They also sponsor performances, workshops, and other events, as well as several benefits for the Indian community each year, and serve informally as a center for information and connection. To get more information, request a free sample copy of the magazine, or subscribe, please call our offices at (510) 549-2802, email margaret@heydaybooks.com, or visit their website at  http://www.heydaybooks.com/news (opens new window).

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