Tribal Government Relations

By Denise Moreno Ducheny

BACKGROUND FOR ESTABLISHING REGIONAL RELATIONSHIPS WITH SAN DIEGO AREA TRIBAL GOVERNMENTS

I. INTRODUCTION

Of the 107 recognized Indian tribes in California, 17 are located in San Diego County. Historically they are the descendants of four Indian nations who resided in this region prior to the Spanish invasion of this area. In these times the people utilized the entire region, migrating from the coast and mountains in the summer to the desert of Anza Borrego in the winter. The four nations were known as the Luiseno, in the territory around the San Luis Rey River in north and northwestern San Diego County; the Cahuilla around the mountain and the northeastern part of the County; the Cupeno Tribe in the Warner Springs and Pala areas; and the Kumeyaay nation in the Southern part of the County centered around the San Diego and Tijuana Riversheds, extending into territory now located in Baja California.

Today, these four Indian nations have jurisdiction on 18 reservations represented by 17 tribal governments. The original inhabitants of the still federally recognized Capitan Grande reservation established in the 1890s were moved to two different ranches in 1932 when the City of San Diego, by act of the U.S. Congress, acquired over 7,000 acres of land inside that reservation territory to build the El Capitan Reservoir. The two ranches are now known as the Barona and Viejas reservations governed by their respective tribal governments.

Accordingly, the existing 17 tribal governments are affiliated in two sub regions both geographically and culturally: 5 Luiseno/Cupeno bands in the Northern part of the County - La Jolla, Los Coyotes, Pauma & Yuima, Pala (the only Band incorporating the traditionally Cupeno peoples), and Rincon; and 12 Kumeyaay/Diegueno bands in the northern and southern part of the county # Barona, Campo, Ewiiaapaayp, Inaja & Cosmit, Jamul, La Posta, Manzanita, Mesa Grande, San Pasqual, Santa Ysabel, Sycuan, and Viejas. (The Cahuilla are now located in Imperial and Riverside Counties, principally around the Salton Sea area.) Together these governments represent over 2500 people and presently have jurisdiction over approximately 10% of the land within the San Diego County region. Each has elected tribal leadership, with tribal councils of varying sizes. Each has distinct rules governing membership in the tribe, relationships among tribal members, and land use on reservation land.

II. HISTORY

Prior to contact with Europeans, the native peoples of San Diego County had a form of self-government that had evolved over thousands of years and was still evolving during Spanish invasion of their aboriginal territory in 1542. The loss of coastal areas to the Spanish forced the native populations to live in the mountain areas year round. Accordingly, during the next three hundred years their way of life changed dramatically.

During the Spanish Mission period, Indian villages in the San Diego region largely remained in tact, though the Indians were forced to receive Christianizing instruction and to farm new crops pursuant to instruction of the Mission Fathers. When the Mexican Republic replaced Spanish rule new conflicts arose as the Mexican government granted Ranchos, including Indian villages and farmed land, to non-Indians and secularized the Mission lands in 1833, allowing non-natives to seize lands the Indians had lived on and farmed under the Mission system.

When the U.S.-Mexican war ended in 1846, with Mexico ceding all of California and what is now the Southwestern United States, the new international border cut the Kumeyaay aboriginal territory in half. Kumeyaay resistance remained strong on the United States side. There is evidence that militias murdered men, women and children to open up land for immigration. Local, State and federal governments supported the genocide of California Indians and sanctioned the taking of Indian lands in violation of provisions of the Treaty of Guadalupe Hidalgo and other U.S. laws.

In 1845, California Indian population is estimated to have been 150,000. By 1900, less than 16,000 survived. In 1850, as California became a State, the federal government sent a delegation to treaty with the Kumeyaay, Luiseno and other tribes in California to avoid further violence between Indians and non-Indians throughout the State. The terms of the 18 treaties agreed to between 1851 and 1853 would have reserved some 7.5 million acres of land to tribes throughout California.

These treaties were signed by tribal leaders throughout California and those relating to the San Diego region would have allowed the majority of then-existing Indian villages in San Diego to remain in tact. A variety of political forces, however, successfully lobbied against U.S Senate ratification of the treaties. This meant that tribes had no legal protections for their lands; therefore, it was impossible for Indians to later press their land and water claims when miners, ranchers and other settlers later seized the land.

No official delegation was sent by the federal or state government to notify the tribes of the failure to ratify the treaties (the treaties were placed in the Senate archives and not rediscovered until 1905). Furthermore, California proceeded to pass aggressive laws that sanctioned confiscation of tribal lands and murder of hostile Indians, authorizing payment of bounty for men, women, and children. During these times most California Indian Nations, were unaware the treaties and failed passage and struggled to retaliate knowing an agreement had been signed. Meanwhile, persistent assault by farmers, ranchers and mining interests, and the population growth encouraged by the "Gold Rush," continued to break down tribal self-governance. During this post-statehood period, Indian-occupied lands were generally designated as "public lands" and homestead settlers moved in to acquire the best lands, taking lands and homes from Indians despite the earlier promises of Mexican and U.S. authorities.

In 1875 four federal Executive Orders were issued establishing four reservations in San Diego County, and by 1891 fourteen other reservations were established, also by executive orders. Many people were evicted from their ancestral lands and forced to combine with other villages and relatives on the newly established reservation lands. During this period, for instance, all residents of the Cupeno villages near Warner Springs were forced to move to the Pala reservation or found refuge with relatives at Santa Ysabel, Mesa Grande, La Jolla, or Los Coyotes. With reservation lands established, Kumeyaay and Luiseno tribes began a new way of life on water-starved, remote lands. Losing their traditional access to the waterways, ocean, fertile farmlands, and hunting grounds destroyed the traditional economies of the tribes, rendering a blow to Indian self-governance.

In 1934, the federal government sought to standardize how tribes governed themselves nationally by enacting the Indian Re-Organization Act. This law provided certain benefits to tribes who elected to adopt a constitution similar to the U.S. Constitution. Many tribes, including most Southern California tribes, chose nonetheless to continue to govern themselves by custom & tradition. Those that elected to adopt a constitution found themselves bound to the approval of the Secretary of the Interior, while those who did not adopt a constitution continued to govern themselves without an approval process by the Secretary of the Interior.

For exchange of lands lost by tribes, certain obligations were stipulated in treaties guaranteeing education, housing, and health care would be provided to tribal members and that tribes would govern themselves on the trust lands they occupied. What they did not provide was any path to sustainable economic development on the less than ideal land tracts provided as reservation territory. In 1921, a federal act authorized appropriations and expenditures for the administration of Indian Affairs by the Bureau of Indian Affairs under the supervision of the Secretary of the Interior.

This was later amended by the passage of another act on April 16, 1934 authorizing the Secretary of the Interior to arrange with the States or Territories for the education, medical attention, relief of distress, and social welfare of Indians. This was further extended in 1975 by the Indian Self-Determination and Education Assistance Act, also known as Public Law 93-638, which gave the Secretary of Interior the authority to enter into contracts with any federally recognized Indian tribe. Meanwhile, in 1924, Indians were officially granted status as U.S. citizens.

In 1953, the federal government enacted legislation known as Public Law 280, which granted certain states, including California, jurisdiction over many aspects of reservation life, including the authority to enforce the state's criminal laws on reservations. However, it specifically left jurisdiction regarding the trust status of Indian lands with the federal Bureau of Indian Affairs.

Until the passage of the Indian Self-Determination Act, tribes had to receive all their funding from the Bureau of Indian Affairs which dictated how moneys could be spent. P.L. 93-638 empowered tribes to identify their needs, prioritize accordingly, and submit a budget. The subsequent Tribal Self-Governance Act of 1994 (P.L. 103-413) further empowered tribes to receive federal dollars directly and determine for themselves the needs and priorities for serving their communities.

III. JURISDICTION

Pursuant to the U.S. Constitution, various court decisions, and numerous federal laws, tribal governments are recognized as "dependent domestic nations." As a result of this status, the duties and responsibilities of tribally elected governments have parallels to responsibilities delegated in non-reservations areas to federal, state, county and municipal authorities. Like the federal government, which determines eligibility for U.S. citizenship, each tribe has rules, which determine eligibility for membership. Some members choose to reside on reservation land, others maintain membership, but reside in off-reservation areas.

Like State governments, tribal governments have direct relationships with the federal government regarding many issues. They are required, for instance to comply with federal environmental laws, like the Clean Water Act, but have authority, like states to establish the regulations related to compliance. For example, The Campo Environmental Protection Agency (CEPA) was created by order of the General Council of the Campo Band of Kumeyaay Indians in July of 1990. CEPA is originally created to address concerns related to commercial development. Its activities have grown to include environmental protection and protection of public health, such as stopping commercial grazing on tribal land to assist in the recovery of wetland species in the riparian areas. CEPA also monitors and participates in the Western Regional Air Partnership to ensure that tribal communities have equitable involvement and influence in regulation development.

Like State Government acting through County Governments, they have responsibility for delivery of health and social services to tribal members. In San Diego County for instance, a consortium of tribes run the Tribal Aid to Needy Families program, an independent program similar to the CalWorks program enacted by the State and implemented by the County for provision of welfare and associated employment-training aid. And, like cities and counties, tribal governments control economic development and land use issues within their jurisdictions, including having responsibility for road maintenance, housing location and development, designating appropriate areas for agricultural and grazing use, and regulating compliance with environmental protection standards.

Similar to the cities and counties of our region, the local tribes have also found it helpful to join together in regional organizations for some specific purposes. As referenced above, 23 tribes have joined together to deliver welfare services in this region. Additionally, seven tribes joined to form the Southern Indian Health Services organization several years ago to provide services similar to those provided by the County's Community Clinics system. In 1988, the settlement reached after 20 years of litigation over water rights between local water districts and Indian tribes in the San Luis Rey River Valley was memorialized by federal statute (Public Law 100-675).

Among other provisions of the settlement statute, it established the San Luis Rey Indian Water Authority. The Authority is recognized as an inter-tribal government composed of representatives from the Pala, La Jolla, Rincon, Pauma and San Pasqual tribes, and has the authority to enter into agreements, and to manage and use the assets of the district to promote economic development of the member tribes and provide for delivery of water to their reservations. Additionally, the Southern California Tribal Chairman's Association (SCTCA) was formed in 1972 to serve as a forum on a wide variety of issues for 27 tribes residing in San Diego, Riverside, Santa Barbara and San Bernardino Counties. By joining together in this fashion tribes have been able to seek community development grants, contract with federal agencies, and engage in provision of social services that might not be cost-effective for a single tribe to successfully pursue or fund individually. More recently, in 1998, 24 southern California tribal governments also joined together to form a tribally chartered organization similar to a 501(c) (3) corporation, the Reservation Transportation Authority, dedicated specifically to addressing issues related to construction and maintenance of reservation roads. Under contract with the BIA for reservation road work, RTA coordinates with the Federal Department of Transportation and CalTrans to improve transportation planning and implement road construction and maintenance projects on lands under the jurisdiction of the participating tribal governments.

IV. FISCAL ISSUES

One of the greatest difficulties faced by tribal governments in developing land use plans, regulatory programs, and providing general governments services to their residents is the lack of stable government funding. Many taxes are paid to federal, state, and local governments by tribal members and businesses, but little is returned to provide government services. On reservations, businesses are subject to state taxation when not owned by Indians, long term leases on reservation property to non-Indians for housing are subject to possessory interest taxes from the county (essentially an in-lieu property tax), state and federal sales taxes are collected on gasoline even when sold on reservation property, Indians living on a reservation are subject to income tax when employed off-reservation, businesses on a reservation must withhold and pay both state and federal income taxes for their non-Indian employees. Yet, no state or local income, sales, or property tax is returned to tribal governments.

The recently enacted federal Transportation Equity Act for the 21st Century (TEA 21) assists directly with funding for reservation road construction and maintenance, but this is a new program and yet to be fully implemented in most areas. Other federal funds are provided essentially as grants, services or benefits for specified purposes, but not as discretionary income that could support general municipal services, economic development or land use planning. Accordingly, tribes have found tribally owned businesses to be the source of income that has provided the greatest opportunity to improve roads, housing and municipal type services.

V. ENVIRONMENTAL/LAND USE ISSES

Tribal Governments' relationship to the federal government in environmental matters is most similar to that of states. They act as the authority delegated to implement federal environmental laws within their respective jurisdictions. They may enact regulation more stringent that the federal government's rules, as California has done in many areas, or default to federal regulation if the tribe chooses not to assume regulatory responsibility. Like state and local governments, as they plan and permit development on tribal lands, tribal governments confront the issue of balancing necessary economic development with environmental protections.

When preparing Environmental Impact Statements in accordance with NEPA, the Indian Gaming Regulatory Act, and tribal-state compacts tribes are compelled to consider off-reservation impacts and may be forced to provide mitigation, even though they had no say or responsibility for the off-reservation development which may have lead to such findings. Conversely, environmental impacts on tribal lands and planned land uses for on-reservation development are rarely considered in Environmental Impact reports under CEQA for projects in areas adjacent to reservation property.

In the San Diego region, particular attention ought to the paid to the relationship of tribally controlled lands to the Multi-Species Habitat Program. Because tribal governments were not involved with the process of developing the current plan, planned tribal land uses and areas where tribes might participate in providing habitat corridors were not appropriately considered. There is often a general presumption that currently undeveloped tribal lands will remain in that status, without consideration for the tribes' need for economic development, and without negotiating appropriate off-sets to tribes who might agree to set aside land that would otherwise have been developed by allowing them to develop in areas with less sensitive habitat which might currently be outside a reservation's boundaries.

VI. SUGGESTED PROTOCOLS for intergovernmental relationships with tribal governments in the regional context. Regardless of what form RGEC recommendations for future regional government in San Diego take, some basic principles for dealing with our region's tribal governments should be acknowledged and some consideration given to recommendations to the legislature which could facilitate future co-operation.

The most fundamental feature of improving these relationships is to understand that, to be fruitful, discussions must be initiated and sustained on a government-to-government basis. Tribal governments may neither be dismissed nor avoided by communication with Bureau of Indian affairs staff. Because of their sovereign tradition and history, they also prefer to speak and act as independent governments, rather than through representatives. Often tribal legal tradition requires even elected tribal leadership to seek the authorization of the entire band, or at least the full Council, before entering into agreements regarding new issues or relationships.

Frequently, as issues have arisen, local governments have directed communications about and pertaining to tribal government actions to state or federal officials. Tribal governments prefer direct communication with their elected members. Just as one city cannot make decisions about issues within another city's jurisdiction, and Nevada cannot make decisions pertaining to California issues, tribal governments must be respected as independent sovereign elected bodies whose status, jurisdiction, and leadership is given appropriate recognition by other elected governmental bodies.

SANDAG indicates that as a Joint Powers Authority, it is not currently permissible to have tribal governments sit on that body as voting members. The Coachella Valley Association of Governments overcame this impediment to tribal participation in its association by utilizing Memorandums of Understanding to define the specifics of the relationship and tribal government participation. However, a possible recommendation to the legislature would be to insure that the option of tribal government participation in such an organization is no longer prohibited by state law. An invitation should be extended to tribal governments encouraging the option of participating in future regional government associations or region-wide advisory councils either as full participants or ex-officio members, as other State, Federal and foreign governments currently participate. Some tribes will perceive the ex-officio status as more consistent with their sovereign jurisdiction than being voting members of a local government body. In either case, and whether they choose to participate in such organizations or advisory councils, tribal governments, and relevant inter-tribal organizations like the RTA and the SCTCA ought to receive notice and be invited directly to participate in discussions related to land use and transportation planning in areas within a given reservation's sphere of influence. Such spheres of influence ought to be recognized for planning purposes around each reservation, just as LAFCO acknowledges such spheres for cities in adjacent unincorporated areas. To the extent any new regional government is charged with developing a Regional Master Plan, tribal governments should be invited to share their plans for reservation development and to participate fully in all discussions regarding plans for habitat conservation and transportation corridors in the vicinity of reservation lands, and their needs for infrastructure to support economic development (i.e. water, sewer, housing, roads) should be taken into account in the regional planning process.

Many forms of cooperative agreements and innovative solutions to tribal government relationships in California's governance institutions are emerging as a result of the economic development which has lead to the emergence of tribes as full commercial participants in the region. These are just the beginning of cooperative communication relationships needed by all parties, but new to all parties. With commitment to the goals of inclusion founded on respect for tribal governments in the region's decision-making, and by developing protocols to which all parties agree, San Diego County tribal governments and non-tribal regional governmental organizations, whatever form they take, can identify vehicles for mutually supportive and co-operative planning.

References

Shipek, Florence. Pushed into the Rocks # Southern California Indian Land Tenure 1769-1986. Published by the Viejas Band of Kumeyaay Indians.

Connolly, Michael. "Socioeconomic Inequity in California Indian Country", Environmental Law News, Vol.8, Issue 2, Summer, 1999.

Connolly, Michael. "Tribal Issues in Watershed Management", a paper presented at the American Bar Association Watershed Management Conference, January 8, 2000 in San Diego,CA.

http://www.Kumeyaay.com

www.Campo-Kumeyaay.org

http://www.slriwa.org

Thanks to:

David Baron, Director of Government Affairs, Barona Band of Mission Indians.

Michael Connolly, former member, Campo Tribal Council

Penny Culbreth-Graft, Tribal Government Manager, Viejas

Louie Guassac, Tribal Representative, Ewiiaapaayp Tribal Office

Bo Mazzetti, Chief Executive Officer, Reservation Transportation Authority; member Rincon Tribal Council

Kenneth Meza, Chairman, Jamul Indian Village

Jack Musick, Chairman, La Jolla Indian Reservation

Nikki Symington, Symington Communications, representing the Viejas Band of Kumeyaay Indians

Dennis Turner, Executive Director, Southern California Tribal Chairmen's Association, Inc. and the members of SCTCA's Board of Directors for their assistance in the development of this document. All the correct information is theirs, any errors are all mine.

DENISE MORENO DUCHENY Presidential Fellow, SDSU Commissioner, RGEC