SY Band claims super-sovereignty

SY Band claims super-sovereignty
By Lana Marcussen, Guest Columnist

The Santa Ynez Band (Chumash Casino Tribe) on Sept. 16, presented an aggressive version of why they should be allowed to place 1,400 acres of land, an area the size of Solvang, into federal trust status.

The technical presentation by Professor Carl Artman (former assistant secretary of Indian Affairs and an Arizona State law professor and member of the Oneida Tribe of Wisconsin) asserted that the Santa Ynez Band of Chumash Mission Indians is the original local government of the entire area, and all land in the area should be under its “inherent sovereignty.”

There is no question that the Chumash Indian tribal groups were present before the arrival of the Spanish in the Santa Barbara area and had a thriving advanced culture. However, the Santa Ynez Band, recognized by the United States in 1978 as a “tribe,” has no surviving descendants of the Chumash group for which Mission Santa Ynez was founded.

In fact, “Chumash” was added to their name only because the band voted to amend their name, quite probably as the necessary tactic to “re-acquire aboriginal territory.”

According to Professor Artman, the Santa Ynez Band’s sovereignty is completely independent of the federal and state governments and does not derive in any way from the Constitution of the United States, because the tribal governments predate the United States. Indian tribes as “inherent sovereigns” write their own laws, make their own rules and are responsible only to their own members.

Professor Artman then applied his theory of omnipotent tribal sovereignty to explain that the fiduciary trust relationship between the United States and the Indian tribes cannot be terminated or modified by either Congress or the president to diminish or limit the Indian trust relationship. Professor Artman then opined that placing lands into federal trust status, the fee-to-trust process, is part of this unlimited fiduciary trust relationship.

The implication of Professor Artman’s position is that the restoration of tribal land to an Indian tribe by the United States is not subject to challenge by any non-member of the Indian tribe that would receive the land. Non-members include all persons, citizen groups, local and state governments, federal government officials and any other entity that is not part of the benefiting Indian tribe.

Professor Artman attempted to convince the audience that placing private fee land into federal trust status for the Santa Ynez Band – thereby removing it from all federal, state, county and municipal control – somehow restores “local control.” Under Professor Artman’s “super-sovereignty” theory, these extra-constitutional tribal governments were the first governments and therefore the only “legal” governments. Tribal Chairman Vincent Armenta has also publicly asserted this notion.

This theory would be laughable, except that the Santa Ynez Band is not the only tribe attempting to enforce Professor Artman’s position. Currently, there are three Indian tribes suing the United States government, asserting that their sovereignty is inviolate even against officers and employees of the United States.

The Yakama tribe in Washington State is suing the U.S. Attorney General Eric Holder, claiming that all federal officials and employees must request the permission of the Yakama tribe before they can enter upon the Yakama Indian reservation. The Seneca Indian Nation of New York is suing the United States to require the BIA to acknowledge their absolute sovereignty over their “territory,” which is state land. The Cherokee Nation is asserting omnipotent sovereignty in reinterpreting an 1866 treaty with the United States that required them to give tribal membership to their former black slaves.

The Santa Ynez Band will undoubtedly attempt to use Professor Artman’s extreme theory of omnipotent “tribal sovereignty” to intimidate the Santa Barbara County Board of Supervisors, and perhaps other receptive politicians, into entering an intergovernmental agreement over the 1,400 acres or otherwise supporting fee-to-trust.

All over the country, politicians and bureaucrats disregard the tremendous disruption and negative impacts on communities caused by accepting the sovereign authority over land of hundreds of recently created Indian tribes. (Until 1978, there were only about 175 federally recognized Indian tribes. Today there are more than 565 tribes.)

Is the Board of Supervisors again going to undermine the property owners and citizens of the Santa Ynez Valley by allowing the Band to expand their already powerful political base into this “super-sovereignty” by entering into an intergovernmental agreement with the tribe or otherwise supporting expansion of their land or authority? There is no way to negotiate a mutually enforceable intergovernmental agreement when one side is claiming that neither state nor federal law applies to them. According to Professor Artman, only tribal law can be used to interpret any agreement entered into by the Santa Ynez Band and tribal law is whatever the tribe says it is. This also applies to any language for a waiver of tribal sovereign immunity built into an intergovernmental agreement. The tribe can claim that the language applies only as interpreted by their laws, making any possible waiver completely unenforceable.

The Santa Ynez Band is stating they need 1,400 acres of fee land in trust for their tribe for housing their members and descendants. According to speaker Dave Schaffer, executive director of the All Mission Indian Housing Authority, the Santa Ynez Band has 140 enrolled members and 1,300 descendants.

There is nothing that prevents the Santa Ynez Band from developing its property for housing like any other private property owner using the same state processes that everyone else follows. Professor Artman was obviously not familiar with California law when he said that state law gives less protection for development than federal law. According even to the Santa Ynez Bands’ own specific comparison that followed Professor Artman’s presentation, California environmental laws are at least as strict as federal law.

For example, California law requires developers to have utility guarantees that include water use and disposal plans in place before a project can begin. California law requires regional cooperation and coordination of utilities to encourage centralized waste disposal to prevent small dumps and waste treatment facilities from popping up all over an area. Larger waste facilities generally use better technology for controlling odor, insect vectors and controlling runoff. These facilities are then also subject to state inspection and compliance under far more stringent standards than federal law requires.

In addition, all federal military bases and federal building projects are required to meet California’s comprehensive development laws. Why should lands owned by an Indian tribe be subject to lesser requirements?

Accepting the Santa Ynez Band and Professor Artman’s assertion of “super-sovereignty,” by agreeing to place them outside county and state process and the Community Plan, would completely disrupt the justifiable expectations of private property owners in the Valley. As super-sovereigns, they say any property they own, or any property they later purchase, would be subject only to their own rules.

Fortunately, the United States Supreme Court disagrees with Professor Artman’s theory of tribal “super-sovereignty.” Professor Artman is attempting to refute recent changes in federal Indian law that virtually shut down the federal fee-to trust process.

One of these breakthrough legal decisions holding that local people can be harmed by placing private fee lands into federal trust status for a tribe, was won against the Santa Ynez Band by two local citizen groups: Preservation of Los Olivos (POLO) and Preservation of Santa Ynez (POSY).

These same citizen groups after winning “standing” to sue to protect their property and other interests, were then able to cite two recent United States Supreme Court decisions to challenge whether the Santa Ynez Band is eligible under the Indian Reorganization Act (IRA) of 1934 to have any lands placed into trust status, and whether the federal government even has the power to remove land from state jurisdiction by placing the land into trust status.

The Interior Board of Indian Appeals (IBIA), when presented with these questions, dissolved the 2005 decision of the Bureau of Indian Affairs (BIA) Regional Director that the 6.9 acres could be taken into trust status.

Under the IBIA order, the regional director must allow POLO and POSY to participate in any administrative decision-making over the 6.9 acres and must also answer both questions as to the eligibility of the Santa Ynez Band to obtain trust land.

The IBIA order is now 18 months old, and no action appears to have been taken by the Sacramento Regional Office of the BIA on the 6.9 acre fee-to-trust application.

Given the current status of this fee-to-trust application, the Santa Ynez Band has not yet even filed an application to the BIA to have the 1,400 acres placed into trust status.

Even considering supporting expansion of land or authority of an entity claiming “super-sovereignty” directly assaults the rights of all other people under the U.S. Constitution. The Santa Barbara County Board of Supervisors, or any other politicians or bureaucrats that deliberately undermine decisions of the United States Supreme Court are themselves acting without legal authority.

The Board of Supervisors should carefully consider the ramifications of negotiating with the “super-sovereign” Santa Ynez Band.

Lana Marcussen is the legal advisor of Citizens Equal Rights Alliance, CERA, www.citizensalliance.org. CERA is the only national grass roots organization advocating we are all one people under law. CERA and Lana are involved in fee to trust cases from California to New York.