North Bay Tribes Bet Future on East Bay Casinos

Monday, October 18, 2004

By GUY KOVNER
THE PRESS DEMOCRAT

Four North Coast Pomo Indian tribes are placing longshot bets in the hope of opening casinos on the east shore of San Francisco Bay, projects that could each bring in $400 million or more annually.

The tribes, bidding to build mega-casinos that offer thousands of jobs and millions of dollars to economically disadvantaged East Bay communities, are at the forefront of a battle over the spread of Indian casinos from rural reservations to California's big cities.

While some Indian law experts say the proliferation of off-reservation casinos is unlikely, others say the tribes will prevail if they and their wealthy investors are willing to spend sufficient time and money.

"Don't bet against them," said Cheryl Schmit of Penryn, a tribal casino watchdog.

But the odds are long for an uncertain process that winds from Washington, D.C., to Sacramento to Bay Area city halls and community groups.

"A lot of people are crying wolf about reservation shopping (by tribes)," said Heidi McNeil Staudenmaier, a Phoenix attorney who specializes in Indian gaming law. "It just hasn't happened."

To landless Indian tribes, whose reservations were terminated by the federal government more than a half century ago, casinos are about more than money.

"Gaming is a mechanism to get their land back," said Michael Derry, head of economic development for the Guidiville Band of Pomo Indians, one of the four tribes vying to open East Bay gaming facilities.

The Bay Area, with 7 million residents, has a gambling market capacity equivalent to Chicago, Derry said, citing an analysis by gaming-industry professionals.

The Bay Area can accommodate 15,000 slot machines, meaning all four tribes could open casinos with 3,000 slots each and not oversaturate the market, he said. "No one's too concerned about competition," Derry said.

California tribes currently operate 53 Nevada-style casinos with a total of 62,000 slot machines. Slots are the big money-makers, with each machine making from $50,000 to $180,000 a year.

The 112-member Guidiville Pomo tribe, based in Ukiah, is among the four tribes pursuing East Bay casinos with 2,000 to 3,000 slots. They and two other landless tribes - the Kelseyville-based Scotts Valley Band of Pomo Indians and the Lower Lake Rancheria Koi Nation of Lake County - have partially collaborated on anthropological research to support their claim to East Bay turf.

A fourth tribe, Sonoma County's Lytton Band of Pomo Indians, already owns a 9-acre site in San Pablo approved in principle for gaming by the federal and state governments. The 259-member tribe's plans were put on hold in August when the California Legislature refused to approve a gambling agreement, called a compact, that would have set the specific terms for operating the casino.

The compact, negotiated between the tribe and Gov. Arnold Schwarzenegger, is expected to be on the agenda when the Legislature reconvenes in January.

Lytton is "way ahead of everybody else," said Tom Gede, executive director of the Conference of Western Attorneys General, handicapping the four-tribe race to open the first Bay Area casino.

The Lytton band, whose ancestral home is the Alexander Valley, obtained gaming rights on the San Pablo land from special legislation sponsored by Rep. George Miller, D-Martinez, and approved by Congress in 2000.

That's a shortcut to the otherwise cumbersome legal and political process of asking the secretary of the interior to approve gaming by taking land into trust on a tribe's behalf.

"We'd love to have that shortcut but I don't think it would be fair to any of the (East Bay) communities," said Derry, of the Guidiville Pomos.

Instead, Guidiville, Scotts Valley and Koi Nation will pursue the bureaucratic process, known as "restored lands," which is available only to federally recognized but landless Indian tribes.

Under the restored lands process, tribes buy property within their ancestral territories and ask the federal government to take it into trust so they can develop gambling facilities.

Success is by no means certain and the process, at best, could take years. "There are a lot of hurdles to overcome," said Gede, of the attorneys general group.

Objections by state, county or local governments could complicate a tribe's land claim, as could lawsuits by rival tribes or non-tribal gaming entities, such as card rooms, he said.

Critics say the Pomos are overreaching geographically, citing textbook references to their tribal lands in Sonoma, Mendocino and Lake counties.

But Derry said the Pomos' research has found thousands of pages of documents, including Russian fur traders' records and treaties with California tribes in the 1850s, establishing their aboriginal connection to the East Bay.

Modern tribal designations like Guidiville, Lower Lake and Scotts Valley are "white people's names" based on the places Indian bands were assigned to in the early 1900s, Derry said.

Kevin Gover, a former assistant secretary of the interior for Indian affairs, said the federal courts require a "nexus" between the tribes and the restored lands they claim, "but the precise nature of that nexus is elusive."

Gover, an Oklahoma Pawnee Tribe member, is now a consultant to a developer working with the North Bay Pomo tribes.

One thing is clear: The restored-lands process nullifies Schwarzenegger's apparent effort to grant the Lytton Band a Bay Area monopoly on gaming.

In the compact negotiated with the Lytton tribe, Schwarzenegger agreed that if he approved any other casino within 35 miles of San Pablo, the tribe would be relieved of much of its commitment to pay 25 percent of its gaming revenues to the state.

That is not a guarantee that the Lyttons won't have competition, said Vince Sollitto, a spokesman for the governor. If one or more of the other Pomo tribes opens a casino within the 35-mile zone by using the restored lands process, which doesn't involve the governor, the Lyttons would still be required to pay the state 25 percent of their gaming revenue, he said.

The Lytton's compact is, in effect, a gamble by the tribe that no other Indian casino will open in the East Bay.

Schwarzenegger opposes proliferation of urban casinos, but recognizes he must deal with any tribe that wins federal approval of gaming. "He is required to negotiate (a compact)," Sollitto said.