Close to Home: Challenging conventional myths about tribal sovereignty

I write in response to the Aug. 1 editorial 'Don't relax standards for tribes, casinos.' While it's OK to relax eligibility requirements for individual Indians to receive federal benefits, I do oppose loosening standards to allow yet more tribes to become federally recognized and thus eligible to open casinos.

The editorial asserts that 'once land is taken into trust by the federal government, it's no longer governed by local land-use regulations.' That certainly is the conventional wisdom, which my clients are continuing to question in the legal challenge to the Graton tribe's state gaming compact.

In that litigation, the parties' briefs have all been filed in the Court of Appeal, and we are now awaiting oral argument.

Our core contention is that the federal government's ownership of fee title to land in trust for a tribe does not divest California of its sovereignty over the property. In other words, state law continues to be in effect there, unless and until the state affirmatively cedes its sovereignty and the federal government formally accepts it.

The Graton casino site was owned by a series of non-Indians for 160 years and fully subject to state laws the whole time. Others bought land nearby with the expectation that the entire area was governed by state law and local zoning. A subsidiary of Station Casinos gifted the site to the United States in 2010.

Established law confirms that a state may not be divested of sovereignty over lands with in its borders without its consent. Further, there are only three methods by which a state's sovereignty can be transferred, and it is undisputed that none has been achieved for the Graton site. Nor has the United States accepted a transfer of sovereignty.

The state's brief cites legal decisions involving a Sioux reservation in South Dakota, a Shawnee reservation in Kansas and a Crow reservation in Montana. Those decisions confirm that those tribes exercise sovereignty over their reservations.

And they do, because the acts of Congress admitting those states into the Union 'reserved out' those reservations, meaning they were never part of those states in the first place. 'Reserving out' is one of the three recognized methods. Unsurprisingly, the Graton casino site was not 'reserved out' when California became a state in 1850.

Both California and federal law require that a tribe have sovereignty over its lands – not just beneficial ownership – for the lands to be gaming eligible. The State concedes this requirement in its brief.

When the National Indian Gaming Commission approved the Graton's gaming ordinance in 2008, its chairman emphasized that 'approval is granted for gaming only on Indian lands … over which the Graton Rancheria exercises jurisdiction.'

California knows how to effectively cede sovereignty over lands when it wishes to. During World War II California ceded sovereignty over dozens of military bases to the United States, including three in Sonoma County, and the federal government formally accepted the transfers.

That hasn't happened for the Graton casino site. For that reason, the gaming compact violates Proposition 1A, now part of the California constitution. It would be crazy for the Legislature to consider ceding sovereignty to allow casinos when Proposition 1A's backers promised voters that casinos would be limited to existing Indian lands.

Our lawsuit challenges conventional wisdom, but raises serious questions for which the state has yet to offer a convincing rebuttal.

Mike Healy is an attorney and a member of the Petaluma City Council.