California tribes paying salaries of feds reviewing land applications

A little-known body known as the California Fee to Trust Consortium has been expediting California tribal land trust applications since 2000. California tribes pay the salaries of federal employees working for the body. An oversight committee made up of member tribes has major input over hiring and firing of many consortium employees.

Arrangements in which organizations and industries pay for their own regulation and application processing are common across many levels of government, such as the state Department of Insurance.

But some critics of tribal gaming are now questioning the consortium arrangement. A report issued by the federal Office of the Inspector General in September 2006, recently made public via the Freedom of Information Act, has raised conflict-of-interest issues.

It is widely acknowledged that the land trust application process — by which tribes add land to their reservations or get land approved for different uses — has moved extremely slowly over the years. Both the Bureau of Indian Affairs and its parent, the Department of the Interior, are chronically underfunded and understaffed, according to many. Some tribes say they have waited years and even decades to get action on their land applications.

At least 60 California tribes have paid about $5.5 million to the consortium, which has placed more than 11,000 acres into trust, according the OIG report. Yet many people intimately familiar with tribal and gaming issues in California had never heard of the consortium, while others said they were only slightly familiar with it. Spokespersons for several prominent California gaming tribes indicated that they had heard of the consortium but did not know if they were members; several said they did not want to speak on the record.

One who did was spokeswoman Nancy Conrad of the Agua Caliente Band of Cahuilla Indians. She said the tribe “is a member of the consortium as a matter of support for other tribes seeking to reinstate their traditional lands.” Land and real estate issues are very important to a wide variety of California tribes, Conrad said, and they represent one of the largest departments in Agua Caliente’s 150-employee tribal administration — just like they would for any local government. Conrad took issue with the idea that the consortium could be motivated by gaming interests.

“My understanding is that tribes that have land applications must say if it’s going to be used for gaming,” Conrad said.
BIA spokeswoman Nedra Darling said her agency was aware of the OIG report and was looking at ways to follow its recommendations.

“We’re looking at the findings, and we will be making changes in continuity with the inspector general’s report in the near future,”  Darling said.

However, critics have claimed the consortium is suspect because it lacks transparency.

“This is a very flawed process,”  said Kathryn Bowen, a spokeswoman for Preservation of Los Olivos, the anti-casino group that filed the FOIA request for the OIG report back in January. “The public has the right to be involved.”

The OIG report is heavily redacted; it does not include the names of member tribes, and all the names of people who were interviewed were omitted. The visible portions of the report contain no references to gaming.

However, it does lay out the history of the consortium, as well as the tribal committee that largely overseas it. The consortium was originally created in 2000 by an agreement between dozens of California tribes and the BIA’s Pacific Regional Office. The report goes on to lay out how it hired several staff members to speed up land trust claims, placing 5,553 acres into trust in its first three years.

The report lays out how the BIA received an unsigned memorandum of understanding written between the PRO and the  “California Fee to Trust Consortium Tribes” in November 2005 to create a body known as the Consortium Oversight Committee, “comprised solely of tribal representatives, that possesses a wide variety of powers and authority with respect to the consortium staff [federal employees].”

The BIA’s Darling identified Dale Miller, chairman of the casino-owning Elk Valley Rancheria, as a past chairman of the oversight committee; he did not return a call by press time. Another official with a different tribe said that most of the land applications currently in front of the consortium come from small, non-gaming tribes.

It goes on to state, “Regarding the legality of the consortium, a recent legal opinion rendered by the Office of the Solicitor General (SOL) determined …” The rest of the section was redacted. The reason given for this redaction, as well as that of a later full-page section on a July 2006 SOL ruling about the legality of the consortium, was that the information was compiled  “for law enforcement purposes” and releasing it would “constitute an unwarranted invasion of personal privacy.”

A later section notes that the SOL — the legal review arm of the Department of the Interior — never reviewed the MOU creating the committee. Nor is there any record that it reviewed the creation of the consortium itself back in 2000: “In retrospect, (redacted) stated it was ‘pretty stupid’ of (redacted) to not ensure the MOU was reviewed by SOL.” Nevertheless, in 2004 the BIA’s Midwest Region Office participated in the creation of a similar consortium there to expedite tribal land claims in that region.

The report goes on to lay out several potential conflicts of the consortium arrangement. Consortium employees were forbidden from doing reviews of land applications by non-consortium tribes. Consortium employees “worked closely with tribes” and gave them advice “as to what they needed to do in order to get a favorable recommendation,” something it called a “premium service.” With participating tribes contributing anywhere from $3,000 to $100,000 per year, “the tribes that donate higher amounts of money to the program ‘ultimately receive more attention.’”

The oversight committee, the report found, participated directly in the hiring of staff, to the point “that the committee’s approval was the “final word” on some staff selections. In one instance, the committee rejected all three interviewed applicants for one position, which was then re-advertised. As of January 2006, the report said, the consortium had seven staff members and three open positions.

The report later states that “all interviewed indicated that it is the underlying goal of the consortium staff to favorably recommend all of the applications.” The next page notes that  “consortium position were more tenuous”  than other positions at the BIA.

“The problem with these ‘consortium facilitation’ agreements is that the BIA officials, that are supposed to be weighing the interests of the state and local governments and the nearby communities, are working for the tribes seeking the transfer,” said attorney Jim Marino, who has done work for POLO and several other anti-casino groups.  “This is a clear and egregious conflict of interest.”

Casino opponents acknowledge that putting land into trust is not the same as building a casino, and that much of the land acted upon is not intended for gaming operations. However, getting land into trust is a prerequisite for building a casino.

“I want to know how much investor money went in there,” said anti-casino activist Butch Cranford of No Casino in Plymouth, who note
d that numerous non-tribal gaming operators from Las Vegas and elsewhere have invested money in California tribal gaming efforts.

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