Federal Acknowledgment and Initial Reservations:  California urban and metropolitan municipalities are on the crest of the next wave of tribal gaming expansion. Herein lays the potential for the mandatory establishment of Indian lands and tribal casinos in the City of San Francisco, San Bernardino and San Diego Counties.  Even metropolitan Counties such as Orange and Los Angeles, which currently have no federally recognized tribes or Indian lands eligible for the establishment of gaming, are now faced with tribal groups involved in the federal process of acknowledgement  who are backed by gaming investors.

California currently has 67 tribal groups seeking federal recognition through the federal acknowledgment process.   Once begun, the process found in 25 CFR Part 83.10 has an inertia all of its own. This process requires seven mandatory criteria to be met in order to achieve federal acknowledgement.  

 In sum, to be acknowledged as an Indian tribe, as distinct from an Indian group, the petitioning entity must establish that:

1) The petitioner must have been identified as an Indian entity on a substantially continuous basis since 1900;

2) The predominant portion of the petitioning group must compose a distinct community in existence as a community from historical times until the present;

3) It must have maintained political influence or authority over its members from historical times;

4) It must have a governing document with membership criteria;

5) The individuals must descend from a historical Indian tribe;

6) The individual members are not also members of any other acknowledged North American Indian tribe, and;

7) Neither the petitioner nor its members have been expressly terminated or forbidden a federal relationship.

These are high standards.  Such a government is a dependent sovereign within our federal system.  That status vastly exceeds most organizations and approaches the power and independence of the individual states.  Upon acknowledgment, the Indian group becomes a tribal government and thereafter deals on a government-to-government basis with cities, counties and states. 

Failure to achieve the status does not mean that the individual Indians are deprived of benefits and programs.  The Bureau of Indian Affairs is required to advise individuals how they may become eligible for services and benefits as individual Indians or become members of an acknowledged tribe.

While a tribe may not meet the criteria and indeed, may receive a negative determination from the federal office of acknowledgment, the process is not yet over. 

The tribal group still has the right to appeal the negative determination through the court system.  This is occurring right now with the Muwekma Band, a tribal group who has claimed ancestral lands in San Francisco and the surrounding Bay Area.  The outcome of the Mewakma Band’s litigation will set a precedent for tribal groups seeking federal recognition in California.

 In Southern California, the Juaneno Band of Mission Indians is in the early stages of the acknowledgment process.  This tribal group has the potential to set a precedent for 11 other petitioning Mission Indian groups.  Many affected cities in both Orange County and Los Angeles are considering participation in the federal process but are hampered by the fact that the federal process is Byzantine and is often conducted in an ad hoc manner without regulations or other published guidelines.

 For example, Orange County Supervisors were approached by tribal group representatives asking for a County Resolution to recognize their existence.  Such a resolution appeared laudable and seemed innocent enough; after all what could it hurt? But unknown to the County Supervisors and not discussed was the fact that the tribal group was in the preliminary stages of the acknowledgment process.  The resolution could then become evidence and a political tool to support one of the most difficult criteria of “continuous existence” and recognition by another government. 

State Recognized Tribe and State Reservation: In 2000/01 the Gabreileno-Tongva attempted to achieve federal recognition and an initial reservation through a Congressional Act authored by Congresswoman Hilda Solis.  The legislation was dropped in part due to opposition from the County of Los Angeles and other local governments. As a result, gaming investors were motivated to create new strategies to develop gaming in metropolitan and urban areas of the State.

 One such strategy is gaming on a State Reservation by a State Recognized Tribe. In 2004, Assembly Member Mervyn M. Dymally authored two bills, one to create a State Reservation (AB 2272) and the other to recognize the Gabreileno-Tongva as a State Tribe (AB 2273). This controversial legislation was never heard in the Legislature, but nevertheless, investors and promoters of this concept have been relentless.  Indeed, as recent as June 2007, Council members from the City of Garden Grove in Orange County have entertained talks with the Gabreileno-Tongva Band tribal group.  The tribe’s attorney, representing one of several factions of the Gabreileno group, promised $100 million upfront for infrastructure and $70 million per year for the next 30 years from the proposed casino project.

The U.S. Constitution provides that Congress has the exclusive power to regulate Indians and Indian tribal governments. (Article 1, section 8, clause 3)  IGRA both regulates and prohibits gaming on Indian lands for federally recognized tribes, but does not address Indian groups that are not federally recognized.

California’s Constitution (Article 1 Section 7(b)) guarantees that “a citizen or class of citizens may not be granted privileges and immunities not granted on the same terms to all citizens.” Arguably, a state-recognized tribe is subject to all the same rights and obligations as any other group of citizens.  Because state recognition does not provide the “political treatment” afforded federally recognized tribes, it is likely that such a tribe, like any other gaming interest wishing to establish a full service casino, must attempt to amend the state Constitution to provide for a further exception to the ban on casino gambling. 

This is unlikely as demonstrated by voters in the 2004 statewide election in an overwhelming defeat of Proposition 68 (83.8% No), a measure to allow slot machines at established race tracks and card clubs all in metropolitan locations in California.