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 78 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. 

 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.