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Critics of Land Into Trust Have it Backward

It’s time to correct the record. At a hearing on May 14, 2015, before the House Subcommittee on Indian, Insular and Alaska Native Affairs, the California State Association of Counties made a number of misstatements about land into trust issues. This is important because the Santa Ynez band, like so many tribes across the country, sees this issue through the lens of history.

The Chumash historically occupied an area from Morro Bay to the north, Malibu to the south,Tejon Pass to the east and the four Northern Channel Islands encompassing some 7,000 square miles. Chumash Reservation life began with the Spanish Missions during which occupation, once a vibrant population of Chumash in the Santa Ynez River area, was reduced from 3,000 to a few hundred in a space of 74 years.

After the secularization of the Missions and California statehood, the few remaining Chumash were forced to live in the shadow of the now declining Missions. The Chumash of the Village of Kalawashaq, from where most modern day Tribal Members descend, found refuge in the Zanja de Cota riverbed near the town of Santa Ynez—mostly because no one else wanted to live in that flood plain. Today, the Santa Ynez Reservation consists of about 137 acres of that land (plus an extra 7 acres in June of 2015). That’s a far cry from the 7,000 square miles of aboriginal Chumash lands prior to the reservation period.

Then in 1934, the Indian Reorganization Act was enacted to strengthen tribal governments — and to give tribes a mechanism for restoring homelands.

The history is important because our differences with the California State Association of Counties (or CSAC) start there.

In one sense, it is worth examining why communities incorporate as cities. Communities incorporate as cities when they are tired of paying taxes to an unresponsive county, desire to perform their own land use planning and are willing to protect the environment. Tribes, of course, are not cities. But thanks to the Indian Reorganization Act, Tribes do purchase and annex land through the fee-to-trust process when they want to increase the land base for their members and operate as any government, performing land use planning and designing services that fit the needs of tribal citizens.

What’s unfortunate is that CSAC misrepresents the fee-to-trust process itself. Federal law says the Secretary of the Interior “must consider the need of the individual Indian or tribe for the additional land and the purposes for which the land will be used when evaluating trust acquisition requests.” So the purpose of the land transfer has to be clearly stated in the application.

This process is even more complex when it involves environmental compliance. While county authority is governed by the California Environmental Quality Act, Tribes operate under the framework of the federal National Environmental Policy Act and the U.S. Environmental Protection Agency. So applications for land into trust must be documented under a complex compliance grid that includes the purpose of the land acquisition, environmental and socioeconomic factors — and even impacts to surrounding jurisdictions. All of this paperwork actually starts with county records, ranging from environmental compliance reviews to title searches.

Another issue that CSAC misrepresents concerns public notice. Cities and Counties are given a 30-day notice when a land into trust application has been filed and is finally complete. The BIA gives local governments at least 30 days to respond, but in practice it’s often 60 days or more after extensions. The BIA only issues a notice of application to local governments at the end of the process, which can take years. This is by design; there is no need to burden already overworked and understaffed local governments with applications that may never be considered.

After the 30-day notice, local governments also have the opportunity to respond to Draft Environmental Assessments, the Final Environmental Assessment, and determinations, such as the Finding of No Significant Impact and the Notice of Decision.

Perhaps the greatest misrepresentation by CSAC is the idea that the BIA process is biased, approving land into trust with little review. This argument is entirely backward.

First of all: The goal of the Indian Reorganization Act’s is to increase tribal lands, restoring a small fraction of land that was stolen through history. But for Tribes, the land into trust process is extraordinarily complex, slow and requires enormous investment. Second, after a Tribe winds through a long maze of regulations, local governments still have additional opportunities to appeal, first to the Interior Board of Indian Appeals, then federal District Court, the Ninth Circuit Court of Appeals (for California); and ultimately to the U.S. Supreme Court.

Congress did the right thing in 1934 when it set in motion a mechanism for Tribes to restore our land base. It’s still the right policy. And it’s plain wrong when critics demand more regulations that will only slow down the process even more.

Vincent Armenta is the Tribal Chairman of the Santa Ynez Band of Chumash Indians.