04.11.2012  
 

Napa Interests Oppose Potential Casino

Native American tribal members sue for federal recognition and land

 
by Paul Franson
 
cache creek casino
 
A bingo hall owned by the Rumsey Band of the Wintun Indians (now known as the Yocha Dehe Wintun Nation) has grown into the Cache Creek Casino Resort in Brooks, Calif. Another group of American Indians, the Mishewal Wappo Tribe of Alexander Valley, is suing for federal recognition and land in Napa and Sonoma counties.
Santa Rosa, Calif.—In response to the possibility of a Native American tribe gaining recognition and land in Napa County, where it could build a casino or other enterprise, an unprecedented coalition of organizations in the county have joined U.S. Sen. Diane Feinstein and U.S. Rep. Mike Thompson in opposing the prospect of such an intrusion on the county’s Agricultural Preserve.

They are motivated by a suit filed by a group calling itself the Mishewal Wappo Tribe of Alexander Valley and seeking recognition as a tribe in federal courts.

The organizations and associations opposing the move represent Napa Valley’s wine community, tourism business, the overall business community and environmental organizations: The Calistoga Chamber of Commerce, Friends of the Napa River, Napa Chamber of Commerce, Napa County Farm Bureau, Napa Valley Grapegrowers, Napa Valley Vintners, St. Helena Chamber of Commerce, Sierra Club Napa Group, Napa Valley Destination Council and Winegrowers of Napa County.

The Mishewal Wappo Tribe has filed the lawsuit against the U.S. Department of the Interior for tribal recognition as well as the ability to take Napa County land into trust. They are in settlement talks with the federal government.

Sonoma County a co-defendant
Napa County, along with Sonoma County, was admitted into the lawsuit as a co-defendant in 2010. Representatives of the Wappo are currently trying to have Napa and Sonoma Counties removed from the suit.

Presumably, they could seek land in Sonoma County, but the large River Rock Casino dominates Alexander Valley, and a recognized tribe plans a casino near Santa Rosa.

Ironically, the concerns voiced by the Napa groups parallel the mission of the Department of the Interior to “protect America’s natural resources and heritage.”

In 1968, Napa Valley established the Napa Valley Agricultural Preserve, the first of its kind in the United States, to ensure that the limited land resources in Napa Valley would be preserved for agriculture first and foremost.

In the 44 years since its creation, amidst urban sprawl creeping throughout the San Francisco Bay Area, the Napa Valley Agricultural Preserve has maintained agriculture as the highest and best use of the land and allowed Napa County to be the only remaining county in the Bay Area to continue to count agriculture as its primary industry.

Voters must approve developments
Napa County residents are so intent on protecting their ag lands that they removed the ability of the Napa County Board of Supervisors to approve any development within the Ag Preserve that is not directly related to agriculture; any such project must be approved by a majority of Napa County voters.

Having a sovereign nation (which the Wappo would be if they obtain federal recognition) receive trust land in Napa Valley could jeopardize the Ag Preserve. Not surprisingly, Napa County supports tribal recognition only through Congress, not the courts, and it opposes Las Vegas casino-style gaming in Napa Valley.

The Napa Valley Grapegrowers organization said that it is opposed to the transfer of any lands into trust for the benefit of the Mishewal Wappo tribe or any settlement agreement between the tribe and the federal government that would enable transfers of lands into trust.

“The Napa Valley Grapegrowers respect the sovereignty of all tribal groups and do not oppose the Mishewal Wappo’s attempt to seek federal recognition and certification. We are very opposed, however, to the transfer of lands in Napa County into trust for the benefit of the tribe,” it said in a statement.

Casino is a possible use
Scott Gabaldon, the chairman of the Mishewal Wappo group, has stated that his goal is to get recognition as a tribe, and he has no plans beyond that. He has added that recognition would allow his group to acquire land, and while acknowledges that a casino is a possible use, there are many others including vineyards.

He also has admitted that someone who hopes to gain financial benefit from the effort is financing his effort, and he’s never identified the investor. When Gabaldon met with representatives from Napa County, however, attorney Joseph Kitto and Greg Akopian accompanied him.

Joseph L. Kitto is a member of the Choctaw Nation of Oklahoma and is admitted to the Virginia Bar, but apparently not the State Bar of California. Greg Akopian, with his brother Grish, is heir to a trucking company in Southern California.

The Akopians own Global Investment Enterprise, which owned land in Southern California that they proposed to use for an American Indian casino with the recognized Timbisha Shoshone tribe.

The recognition process
Napa County published comments on the process of recognizing tribes. The questions and answers below are taken directly from the Napa County Supervisors position paper on the subject:

Q: How do tribes typically get recognition?

A: Congress has the authority to grant federal recognition to an American Indian tribe, but Congress delegated that power in 1950 to the Secretary of the Interior to adopt regulations setting forth criteria for federal recognition.

In 1978, the Secretary adopted the current administrative process managed by the Bureau of Indian Affairs (BIA) to recognize American Indian tribes.

The BIA’s administrative process imposes seven criteria that groups of Native Americans must meet if they are to be treated as a federally recognized American Indian tribe. Further, under that process, counties and other interested parties have substantial opportunity to participate in the proceedings.

The federal Court system does not have power to restore tribal status.

Q: Why and when did Congress terminate the Wappo’s tribal status?

A: In 1958, Congress passed the California Rancheria Act providing for the termination of federal supervision over a number of Rancherias, including the Alexander Valley Rancheria, which a group of local Native Americans had occasionally occupied starting in the early 1900s, when the Rancheria was established for their benefit. The Native Americans in Alexander Valley were of mixed Pomo and Wappo ancestry and had no land of their own.

These Pomo/Wappo Indians largely abandoned the Rancheria by the 1940s. The Secretary of Interior proposed a distribution plan for the land in the Alexander Valley Rancheria on July 6, 1959, and the few American Indians then residing on the Rancheria unanimously voted to accept the distribution plan Sept. 25, 1959. The federal trust lands of the Alexander Valley Rancheria were thus distributed to the few Pomo/Wappos living on the Rancheria, and the relationship of the Alexander Valley Indians with the federal government was officially terminated by Congress in 1961.

In 1979, a group of Native Americans claiming to be related to the Pomo/Wappo Indians who resided on the Alexander Valley Rancheria sued the U.S. government for restoration of their tribal status, as part of the Tilly Hardwick class-action lawsuit. They asserted that the federal government had unlawfully distributed the Rancheria land and otherwise violated the requirements of the Rancheria Act. The claims of the Pomo/Wappo were dismissed while other Native American claims were settled in that case.

Q: Why are the Wappos seeking re-recognition through the Court?

A: A group of Native Americans using the name “Mishewal Wappo Tribe of Alexander Valley” has recently claimed to be the descendants of the historic group of Pomo/Wappo Indians who occasionally resided on Alexander Valley Rancheria. This modern tribal entity has asked Congress to set aside the 1961 termination of federal supervision over the Alexander Valley Rancheria and its American Indians and restore the modern entity as a federally recognized tribe. Various efforts to obtain that relief through Congress have failed.

This group also petitioned the BIA for restoration, but the BIA says that its rules prevent it from restoring tribal status if terminated by Congress. Specifically, assistant secretary of the interior Larry Echo Hawk stated in a June 22, 2009, letter: “Because the Rancheria Termination Act is still in full force and effect, the Department of the Interior does not have authority to restore (the Wappos) Tribe administratively.”

Taking Land Into Trust
Q: How do Native Americans acquire land in trust?

A: The BIA has established a process, whereby specific lands can be taken into trust by the BIA and held for Native Americans. Once taken into trust, such lands are largely removed from the taxing and regulatory authority of the state, counties and local governments. The land-into-trust administrative process accords local jurisdictional governments (e.g., Napa County) the right to be heard with respect to these jurisdictional impacts.

With its lawsuit, however, the Mishewal Wappo Tribe of Alexander Valley seeks to have a judge order the Secretary of the Interior to take unidentified lands into trust that lie within the alleged historic aboriginal territory in Alexander Valley (not limited to the former Rancheria) and thereby evade the administrative process and public comment for such land acquisitions.

Q: What uses could the Wappos have on trust land?

A: Once land is taken into trust for the benefit of the Mishewal Wappo Tribe of Alexander Valley, the tribe exercises governmental jurisdiction over it. The tribe can use the land for any purposes permitted under its tribal laws (as tolerated by the federal government), even if local land-use law prohibits such use. Examples include a hazardous waste dump, an illegal pay-day lender operation, or more mainstream uses such as a big-box store like Wal-Mart, a mega-winery, a housing subdivision or a myriad of uses not otherwise allowed under local land-use law without a vote of the people. There are special rules that enable casino-style gaming; see below.

Q: How do Native Americans acquire land in California for gaming?

A: Congress passed the Indian Gaming Regulatory Act (IGRA) on Oct. 17, 1988, to provide for gaming to occur only on “Indian lands,” which generally means trust lands over which the tribal government exercises jurisdiction.

IGRA further restricts gaming to lands acquired by a tribe prior to IGRA’s 1988 enactment. However, a number of exceptions to the post-1988 land acquisition gaming bar exist and are the source of particular controversy in California.

These exceptions include: initial reservations of newly recognized or acknowledged tribes, lands obtained as “the restoration of lands for an Indian tribe that is restored to federal recognition” (so-called “restored lands”), and a “two-part test,” whereby the secretary of interior and the state governor can concur that gaming would be in the tribe’s best interest and not detrimental to the surrounding community.

The Mishewal Wappo Tribe of Alexander Valley in its lawsuit also seeks a court order to compel the secretary to deem lands taken into trust for them to qualify as “restored lands.” Such action by the secretary would make all lands immediately available to be developed for casino-style gaming purposes, under one of the exceptions described above.

In other words, if the tribe is successful with its lawsuit, it could sidestep the required two-part test and avoid local community input altogether.

Q: Have the Wappos said they want gaming?

A: Yes. In their lawsuit, the tribe seeks a court order to compel the secretary to take unidentified lands in Napa and Sonoma into trust for them and to deem such lands qualify as “restored lands,” which is the specific land status they need to build and operate a casino. This indicates a clear intent on their part to engage in large-scale gaming.

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