Proposed Rule Could Increase Federally Recognized Tribes in California and Potentially Growth Gaming

CSAC has been closely following federal efforts to reform the acknowledgement process for Indian Tribes. CSAC respects the rights of Indian Tribes to seek federal recognition and in so doing be granted sovereign status and gain access to a host of federal programs and services. While acknowledgement by the federal government is a necessary step for a Tribe to have land taken into trust, recognition does not guarantee that a Tribe will seek trust lands. However, since the acknowledgement process can be a precursor to Tribes taking land into trust for gaming and other non-gaming development, counties have an interest in the regulations governing decisions related to federal acknowledgement.

The Proposed Rule is the first attempt by the Department of Interior (DOI), Bureau of Indian Affairs (BIA) at making a substantive overhaul of the federal acknowledgement process since it was established in 1978. The current process has been criticized as expensive, burdensome, less than transparent, and inflexible. A report released on June 9 – California Indian Petitioners and the Proposed Revisions of the Federal Acknowledgment Regulations – found that the overall impact of the Proposed Rule would, “significantly relax the standards for Federal Acknowledgement and vest considerable discretion in the decision-maker, the Assistance Secretary.” This net effect is achieved via changes to four of the seven existing mandatory criteria petitioners must meet to achieve federal recognition: 1) external identification as a tribe since 1900, 2) social cohesion as a community, 3) tribal political influence and authority, and 4) descent from a historical tribe.

With respect to California, with more existing federally recognized Indian Tribes than another other state, the report finds the Proposed Rule would likely increase the success rate of Indian Tribes petitioning for recognition. It would also allow previous denied petitioners an opportunity to re-petition under certain circumstances (California has 6 previously denied Indian groups). While granting recognition to additional Indian Tribes does not necessarily mean more gaming in California, the report suggest that as many as 34 Indian Tribes could gain recognition with potentially 22 new casinos. Existing casinos are largely located outside of urban areas, but these potential federally recognized Indian Tribes may be located in very urbanized areas including the counties of Los Angeles, Orange, San Mateo, Santa Clara, and Ventura. The regulations could also impact coastal areas such as Monterey, San Luis Obispo, Santa Cruz, and San Benito and other counties such as Kern, Mariposa, and Trinity. A map of potentially impacted areas was also included in the report.

CSAC is primarily concerned about changes to the rights of local governments to participate in the federal recognition process, as noted in our September 2013 Comment Letter to the BIA. California is currently home to 68 Indian Tribes with pending acknowledgement applications. Depending on the final outcome of the Proposed Rule, California could experience an increase in the number of applications as well. The current process does provide for limited and constructive participation of Informed and Interested Parties, however, we find the Proposed Rule would effectively eliminate counties voices in the process.

We encourage individual counties to review the report and map and weigh in with CSAC staff with your feedback. Comments on the Proposed Rule are due August 1, 2014. While CSAC requested, at minimum, a 60-day extension on the comment period recognizing the complexity and potentially broad sweeping impacts the Proposed Rule could have, no extension has been granted to date. CSAC staff will keep members apprised of new developments via the CSAC Bulletin.

Strategic Growth Council Developing Affordable Housing and Sustainable Communities Guidelines

Counties will recall that the adopted state budget included $130 million in cap and trade auction proceeds funding for affordable housing and sustainable communities infrastructure to be distributed through the Strategic Growth Council (Council). The program also includes a component to protect and preserve agricultural lands at risk of conversion to other uses to promote infill development. Specifically, the statutorily-eligible uses for the funding include, affordable housing, complete streets projects, agricultural preservation, transit, active transportation, transit-oriented development, and Sustainable Communities Strategy implementation plans. Half of the funding must be used to benefit disadvantaged communities or provide housing opportunity to low income households.

On July 10, the Council took action to set up a basic framework and timeline for program implementation. The Council will hold three public workshops on guideline development in mid-August, with a release of draft guidelines expected in early October. The draft guidelines will also be reviewed in public workshops, with final guidelines anticipated to go before the Council in December. The Council anticipates releasing the funding solicitation in January 2015 and making grant and loan awards in June 2015.

The Council elected to charge the Department of Housing and Community Development (HCD) with implementing (contracting with awardees, managing contracts, etc.) the housing, transportation and infrastructure components of the program. HCDs Transit-Oriented Development and Infill Infrastructure Grant programs, which funded affordable housing and supporting infrastructure, including complete streets, utilities, and transit stations, were discussed as potential models for the new Sustainable Communities program guidelines. The Council has opted to establish a separate component for the Sustainable Communities Agricultural Land Preservation Program, which would be implemented separately by the California Natural Resources Agency or the Department of Conservation. For both programs, the Council will retain discretion over policy direction, approval of guidelines, approving projects for funding, and oversight of implementation.

CSAC encourages counties to review the meeting materials, available here, and participate in the upcoming workshops regarding program eligibility. While there is a limited amount of funding this year, the 2014-15 budget included an ongoing appropriation of 20% of future cap and trade auction proceeds. CSAC staff will keep counties informed as to the location of public workshops and development of the guidelines.