Changes made to California Fee to Trust Consortium

Since 2000, a group called the California Fee to Trust Consortium has been expediting tribal land applications in an arrangement which allows tribes to pay the salaries of federal employees. In the wake of a 2006 report by the federal Office of the Inspector General, there appear to have been some changes to the program.

The report found that the Consortium gave “premium service” to tribes that gave the most money. It also suggested that an oversight committee appointed by the tribes themselves may have exercised undue influence over the group.

According to documents recently sent to the Capitol Weekly, the Pacific Regional Office (PRO) of the Bureau of Indian Affairs has more clear control over selecting employees for the consortium. Under the Sept. 2008 Memorandum of Understanding (MOU) that renewed the body for another three years, the Consortium is still governed by a combination of the PRO and a committee elected by the member tribes.

But there are some key differences. The name of the committee of member tribes has been changed from an “oversight committee” to an “advisory committee,” implying that the group has less control over day to day operations at the Consortium.

Another is that the BIA office appears to have more control over selecting and hiring Consortium employees. The MOU states “the PRO will make the final employee selections and will inform the Consortium of the selected employees.”

“It seems like now the BIA is more in charge than the advisory committee is,” said Cheryl Schmit of Stand Up For California, a group that has frequently opposed the expansion of tribal gaming in California. “There is a little more oversight.”

Under the MOU that governed the group from 2005 to 2008, the oversight committee would have “direct participation,” and had a role in writing job descriptions and conducting candidate interviews. The current MOU lays out no such rights to the committee, saying only that it could “make a recommendation” but that the process “will follow federal personnel rules and regulations.”

Another key phrase, singled out in the 2006 Inspector General’s report, is also missing from the 2008 MOU: “Neither consortium funds nor consortium staff will be used to non-consortium purposes.” The report interpreted this to mean that the Consortium would only work on trust applications for tribes that paid into it.

But one critic of the Consortium said it wasn’t clear whether the changes were more than cosmetic.

“I wonder how often the recommendations are exactly what the BIA decides,” said Kathy Cleary, board president of the anti-casino group Preservation of Los Olivos. The group, known as P.O.L.O., has been fighting a local casino tribe, the Santa Ynez Chumash, for years over their efforts to open and expand their tribal casino. “My question would be whether this really has been revised and really is transparent, or if it’s just a looping mechanism where the advisory committee really makes the decisions.”

The activities of the Consortium could be key to the future of tribal gaming in California. In order to build casinos, tribes need land that has been “taken into trust,” that is, officially federally recognized as tribal land. Many tribes do not have enough land, or land in an appropriate location, to build a casino. There are 66 tribes currently enrolled as members in the Consortium.

This list encompasses some of the biggest casino tribes in the state, including all of the “Big Four” tribes that pushed through new gaming compacts by putting $80 million behind Propositions 94, 95, 96 and 97, on the February 5, 2008 ballot: the Agua Caliente Band of Cahuilla Indians, the Morongo Band of Mission Indians, the Pechanga Band of Luiseño Indians, and the Sycuan Band of the Kumeyaay Nation.

But many tribes are also trying to take land into trust for other reasons, such as housing or regaining part of their ancestral area. There is also a huge backlog of land trust applications around the nation, partially due to budget cuts and lack of staff. This is the reason the Consortium was first created in 2000. Several similar consortia were created by the BIA in other areas of the country around the same time. The backlog has only grown worse, “compounded by the increasing number of applications filed each year,” according to the MOU.

One problem identified in the 2006 Inspector General report was that the tribes that put in the most money also seemed to get the fastest results. Like previous MOUs, this one requires member tribes to put in at least $3,000 annually for three years. But some tribes have put in up to $100,000 in a year.

According to documents acquired by the Capitol Weekly in 2008, 15 tribes put in about 80 percent of the $5.5 million gathered by the Consortium between 2000 and 2008. These same tribes received just over half of the land expedited into trust by Consortium staff.

The Chumash have been a key player in the group, contributing $450,000 prior to the 2008 MOU. Only two tribes, the Santa Rosa Racheria ($900,000) and Sycuan ($630,000), had given more. The tribe was not among the top 15 recipients of fee-to-trust land, moving only a 12 acre parcel through the Consortium in 2004. However, P.O.L.O. is fighting the tribe’s efforts to bring two more parcels into trust, totaling 1,700 acres, something Cleary characterized as the tribe “trying to buy up the valley.”

“At this point we have not seen anything that gives us any feeling that the process is transparent,” Cleary said, noting that information about the Consortium only seems to come out through Freedom of Information Act requests.

Several Consortium tribes had not replied to request for comment as of press time.