Planners concerned over tribal trust lands

With over 12,882 acres of land in San Diego County held in, or in process of being conveyed into federal tribal trusts by area Indian tribes, local planners are concerned about the potential negative impact these transfers would have on the rest of the county’s residents. Primary concerns revolve around the loss of state and county tax revenues and the threat of damage to the visual beauty of rural areas.

In the greater Fallbrook area, the Pala Band of Mission Indians is trying to convert three separate parcels totaling 90.53 acres into federal tribal trust. The parcels they have purchased are not necessarily contiguous to existing tribal land; some have freeway frontage.

“It isn’t just the I-15 corridor that could be affected, parcels could be transferred into sovereign land in counties, cities and unincorporated areas,” explained Eileen Delaney, Fallbrook Community Planning Group member.

Sovereign lands are exempt from all local and county requirements including taxes, zoning regulations, traffic oversight, and more, therefore decisions can be made at the sole discretion of the tribe.

“Besides the loss of tax revenues, which the county sorely needs, the county would no longer have control over the development of the area,” said Roy Moosa, a member of the Fallbrook Planning Group. “There is always a possibility that a huge Las Vegas-style electronic sign like the one that went up about a year ago [near State Route 76 and Interstate 15] could be erected again, along with another casino or other development that is not in harmony with the surrounding area.”

Moosa said the County currently collects $90,154 in taxes each year on the three parcels that Pala is working on.

“If these properties are transferred, the county and state would lose the current taxes,” he explained. “These are all funds that would normally go to local parks, local schools, the local fire district, and healthcare district, just to name a few.”

Michael Drake, communications officer for the County of San Diego Land Use & Environmental Group, confirmed the severity of the potential loss.

“Overall, the County of San Diego concerns on this go well beyond loss of tax-base revenue, such as property tax and sales tax revenues, but cover a wide range of issues,” said Drake. “Other concerns include loss of jurisdiction, lack of required permitting processes, and land use principles. There are also issues of increased traffic and need for additional road improvements and repairs, law enforcement and fire protection, and other concerns that range from water to air quality, and from water to habitat – all issues that impact area residents as well as those in surrounding communities.”

In a letter dated October 26, members of the Fallbrook Community Planning Group (FCPG) and the Fallbrook Design Review Board collectively expressed their concerns of these lands in San Diego County to the County of San Diego planning groups, sponsor groups and design review boards and said they were “wholeheartedly joining San Diego County’s Lane Use and Environmental Group in objecting to the transferring of land into tribal trusts.”

Unfair business competition

One statement made by the FCPG in its letter was that the land conveyances would lead to unfair business competition.

“Business competition would be unfair because existing business owners who pay property taxes, gasoline surtaxes, and income taxes must compete with sovereign businesses that do not pay those,” said Moosa.

“This country was founded on the principles of equal opportunity for all,” wrote FCPG Chairman Jim Russell. “This includes the freedom to pursue a livelihood, operate a business, and otherwise compete in an open marketplace. This is essential to any free enterprise system. Public commercial ventures cannot compete fairly with trust-originating businesses that do not pay sales tax, property tax, income tax or any other business taxes. This creates an unfair advantage and leads to a loss of business and jobs in the public sector.”

Delaney explained a few ‘worst case’ scenarios.

“There are several worst case scenarios. First, a proliferation of businesses on sovereign land which are not subject to the usual taxes and regulations giving them an unfair competitive advantage over businesses without those privileges; second, developments that are completely out of character with surrounding communities; and third, the potential loss of millions of dollars in tax revenues,” she said

Russell wrote that commercial development was a major concern of his as well.

“Examples of commercial development proposed on tribal land include gas stations, shopping plazas, hotels, resort facilities, and restaurants. If these commercial activities existed on non-trust lands within the unincorporated area, a portion of the sales tax revenue would go towards funding programs and services which benefit the community impacted by such development activity,” said Russell. “The County does not receive sales tax revenue from commercial activities on tribal land; yet the County remains responsible for addressing ongoing offsite impacts associated with use of these commercial parcels. Further, tribes are not required to pay Transient Occupancy Tax (TOT) for hotels and resorts,”

The result of Prop 1A

Planners have reflected back to March of 2000 when California voters passed Proposition 1A to allow Indian tribes to become self-sufficient and to continue to operate their modest casinos on existing reservation lands. Voters clearly showed their support for Native Americans to be able to improve their quality of life. Today, some question if the aggressive moves by the tribes to buy land and have it converted into federal trust has gotten excessive.

“It has gone beyond improving quality of life to creating a class of wealth that is not required to adhere to the rules, regulations and tax requirements that affect most citizens,” said Moosa. “At this point, it is not a matter of improving one’s life; it is a matter of increasing holdings and control.”

Delaney said what started as a reasonable opportunity for Native American tribes has resulted in unintended liberties being taken.

“I think that building casinos and other businesses on existing reservations (sovereign lands) is much different than the ability to buy land which is non-contiguous to a reservation, and in many instances a great distance from a reservation, and then being able to transfer it into a tribal trust.”

Moosa expressed his opinion of what should take place.

“The transfer of property into tribal trusts should be reviewed and capped at a certain point,” he said.

Impact on critical services

In discussing public services that may be in peril if tax revenues are lost on parcels transferred into tribal trust, those under consideration are fire, water, and schools.

Fire service is a mixed bag when it comes to Pala.

“The Pala Tribe has its own fire department with 30 full-time suppression personnel – a chief, assistant chief, battalion chief, six captains, six engineers and 15 firefighters,” explained Moosa. “The department’s equipment consists of a 100-foot ladder truck, a type one structure engine, a type three brush engine, two water tenders, three chief vehicles and one utility pickup.” Over that, back up has to come from county or state-funded agencies.

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is backed up by the County fire resources when needed,” added Moosa. “The tribe also funds a small police force, which has concurrent jurisdiction with the County Sheriff’s department over crimes committed on the reservation.”

A loss of taxes on those parcels means funding dollars will no longer be provided to the appropriate county agencies for those services.

“[Local governments] must still provide a full range of public services even though they cannot collect property taxes to compensate for the expense,” wrote Russell in the FCPG’s letter. “This creates serious cost-shifting between local and state revenues for services provided to entities that pay no local or state tax. This also reduces the services and resources for the general public, who are taxpayers.”

Russell stated that in 2002, “statewide Indian Casinos cost California counties more than $200 million in non-reimbursed road, water, sewer, fire, and law enforcement costs. The Special Distribution Fund has only provided $21.9 million in total to offset the costs. In just eight California counties with tribal casinos, the burden of costs continues to mount, exceeding $20 million annually.”

Impact on rural environment

The next greatest negative impact to county residents outside of critical services will likely be the disturbance of the rural environment, specifically visual and light pollution and contamination.

“Approximately two years ago [when] the Pala Tribe erected an enormous Las Vegas-style sign with flashing multi-colored lights along the I-15 freeway south of SR76, homeowners in the area adjacent to this sign lost their tranquil rural environment by having bright animated lights glare into their homes from dusk to dawn,” Russell wrote. “The illumination from the sign created a perpetual daytime environment. The electronic sign was completely out of character for the area and in complete violation of the county zoning ordinances and the I-15 Corridor Design Guidelines. As a result, there were hundreds of complaints forcing County Code Enforcement and the local county supervisor to get involved.”

The offensive sign was removed, but it and others could be reconstructed if the property if allowed to become sovereign land, Russell said.

“There’s also a general concern that someday a major casino could be located adjacent to an existing residential neighborhood and three proposed residential developments with over a thousand homes, along with Palomar Community College and a possible elementary school,” Russell continued. “This is one example of the unintended consequences that will arise when lands are removed from any form of public and governmental control.”

That’s just one possibility.

“Far more disastrous projects could easily be developed on this or any other trust property that is exempt from local regulations,” Russell stated, adding that tribes are immune to lawsuits and “most of the standard legal collection mechanisms used by the state to collect its taxes.”

Concerns over contaminants are valid, Russell said, because “states are restricted to statutes that prohibit certain acts, such as the sale or use of specific pesticides or chemicals in packaging or products. State statutes that are regulatory in nature - that permit certain actions and govern how they are to be carried out - are not applicable to tribal members on Indian trust land.”

No desire to comment

After numerous attempts by the Fallbrook/Bonsall Village News to gain the perspective of and collect comments from the Pala Band of Mission Indians, its administration requested that questions on the subject be directed to its public relations firm, Elmets Communications in Sacramento.

“The Tribe does not wish to comment on the subject,” said Elmets Communications owner Doug Elmets.

Planners strongly recommend that the public make its opinion known.

“We urge <all residents> to review and consider the cascading effect of the transfer of public lands and we encourage the development of a plan to address these issues so that the public welfare can be best served,” stated Russell.

Drake said the County of San Diego “recognizes and values the need for good government-to-government relations with each local Native American tribal government.”

“Ultimately, it is necessary to negotiate a binding Intergovernmental Agreement to address mitigation of off reservation impacts that would result from any planned or future proposed development,” said Drake.

Under the Freedom of Information Act, based on information from the Federal Bureau of Indian Affairs, the Associated Press reported that from 1998 to 2007 Native American tribes have absorbed more than 840,000 acres into trusts. That is roughly the equivalent in size to the state of Rhode Island.

“Once public land is transferred into a tribal trust, the act is irrevocable,” Russell stated.

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