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Governor disputes Lytton’s right to take land into trust
by Matthew Hall
Times Editor
Governor Arnold Schwarzenegger’s office is opposing a proposal to take 92 acres of land bordering Windsor into a Federal Trust for the Lytton Rancheria.
While most local opposition has hinged on the projects environmental impacts, the governor’s office is relying on a 2009 supreme court decision that prevents the Secretary of the Interior from taking any land into trust for an Indian tribe unless that tribe was under federal jurisdiction as of June 1934, the implementation date of the Indian Reorganization Act. The letter said the Governor’s office believes the Lytton tribe was not under federal jurisdiction until 1991 and also makes an argument that the Lytton are not eligible to be recognized as a tribe.
According to the letter, land on Lytton Station Road was purchased by the federal government in 1927 to potentially provide land for homeless California Indians. No specific tribe was listed as the beneficiary of the land, but the Bureau of Indian Affairs said it expected Dry Creek and Geyserville Indians would eventually live there. However, the land remained vacant for another ten years and it wasn’t until 1937 that Berte Steele applied to live on the land. Steele, whose father was a half-blood Pit River Indian and whose mother was a half-blood Nomlacki, was eventually joined on the property by his wife, Mary, who was a Stewarts Point Pomo, her brother John Myers and his wife Delores.
The Rancheria was eventually disbanded in 1961 with the land distributed among the individuals living there.
“Based on these facts, it appears that the Secretary of the Interior lacks the authority to take any land in trust for the Lytton under the provisions of 25 U.S.C. 465. First, no claim has or could be made that the Lytton existed as a tribe prior to European contact, or that Lytton is the successor-in-interest to any previously extant tribe. Indeed, the groups from which Bert Steele and John Myers descend (Pitt River, Nomlacki (Round Valley) and Stewarts Point Pomos) have their own tribal identities and organizations. Second under the definition of the tribe set forth in 25 U.S.C. 479 (“Indians residing on one reservation”), the United States could not have recognized the Indians living on the fifty acres near Lytton Road as a tribe, or asserted jurisdiction over them in 1934 because no Indians resided on that land in 1934. Thus, because Lytton is composed solely of the descendants of Berte Steele and John Myers, it can have no greater status under the IRA than can be attributed to Mr. Steel and Mr. Myers. Because Mr. Steele was not permitted to move onto the fifty acres until 1937, Lytton could not have been under federal jurisdiction until that date. For these reasons, the Governor’s Office respectfully requests that the Bureau reject the Lytton applications.
Douglas Elmets, spokesperson for the Lytton tribe, said the Governor's comments were premature at best because while the environmental assessment had been filed, the tribe has not filed the paperwork to take the land into trust. He said Bureau of Indian Affairs has said the Supreme Court case wouldn't impact the Lytton's proposal and that the Governor has not raised the issue of tribal history in past dealings.
"The interesting irony is the Governor entered into and signed a contract with the Lytton band of Pomo a couple of years ago so the tribe could begin a gaming operation in San Pablo. He certainly never raised concerns then.”
Dale Morris, Regional Director for the Bureau of Indian Affairs Pacific Regional Office said he had not read the letter but said the Lytton band are a federally recognized tribe. While he could speak specifically to the Lytton issue, he said several bills have been proposed in the House and Senate that would allow all tribes to benefit from taking land into trust, regardless of the recognition history.
The Lytton Rancheria tribe of California filed paperwork with federal regulators to begin the process of moving 92 acres of land bordering Windsor into a federal trust in August of 2009.
According to the environmental assessment prepared by the Bureau of Indian Affairs the preferred option includes 147 residential units including 95 single family homes, 24 cottage style houses, 28 high density housing units, a 18,809 square foot community center, 2,500 foot roundhouse and 2,707 foot retreat.
The site is located approximately 150 feet south of Windsor’s town limits but approximately 21 acres fall within the Town’s Sphere of Influence, Urban Growth Boundary and Special Planning area E. The proposed project calls for receiving water and sewer services from the Town, something town officials said was unlikely to happen.
Alternative A calls for police services to be provided by the Windsor Police Department and the Sonoma County Sheriff. Fire services would be provided by CalFire.
The proposal also includes an Alternative B and C. The first contains the same quantity of housing, but uses onsite water production and disposal.
Alternative B describes on-site groundwater production wells and a water treatment plant that would dispose of treated effluent via irrigation, drainage into a ditch along Windsor River Road or discharge into a tributary of Windsor Creek.
The final alternative is for a reduced size project containing a total of 55 residential units.
The project has met with near universal opposition from local government including official opposition from the Town of Windsor at the County Board of Supervisors.
On May 6, the council took a 4-1 vote to accept a resolution formalizing opposition to the proposal which concluded by saying “the Town will oppose any project on the subject property that is not developed in a manner consistent with the General Plan of Sonoma County or the Town’s Urban Growth Boundary.”
Councilmember Sam Salmon was the lone opposition to the resolution.
In their official comment made to the Bureau of Indian Affairs, the Town said “The Town has conducted a thorough review of the Lytton EA and has serious concerns that potentially significant environmental impacts of the proposed project have been improperly or insufficiently analyzed or in some cases, not addressed at all.”
The Board filed comments saying they believed the environmental assessment understated the project’s significant impacts on oak woodland, water and wastewater usage, air quality, greenhouse gas emissions, noise, public service and other environmental issues.
The Windsor Unified School District is also opposing the proposed project based on the impact it would have on Windsor schools. The district has said the proposal doesn’t accurately measure the impact additional students would have on local schools and said taking the land into a trust would cost the district thousands in lost fees.
At the August 18 WUSD board meeting, Superintendent Herrington said if the proposed project were built under county jurisdiction, WUSD could receive more than $300,000 in developer fees. If the project were taken into a federal trust, the district would receive nothing. He told the school board that he would like to see the proposal brought into line with existing policies regarding fees and assessments.
While most local opposition has hinged on the projects environmental impacts, the governor’s office is relying on a 2009 supreme court decision that prevents the Secretary of the Interior from taking any land into trust for an Indian tribe unless that tribe was under federal jurisdiction as of June 1934, the implementation date of the Indian Reorganization Act. The letter said the Governor’s office believes the Lytton tribe was not under federal jurisdiction until 1991 and also makes an argument that the Lytton are not eligible to be recognized as a tribe.
According to the letter, land on Lytton Station Road was purchased by the federal government in 1927 to potentially provide land for homeless California Indians. No specific tribe was listed as the beneficiary of the land, but the Bureau of Indian Affairs said it expected Dry Creek and Geyserville Indians would eventually live there. However, the land remained vacant for another ten years and it wasn’t until 1937 that Berte Steele applied to live on the land. Steele, whose father was a half-blood Pit River Indian and whose mother was a half-blood Nomlacki, was eventually joined on the property by his wife, Mary, who was a Stewarts Point Pomo, her brother John Myers and his wife Delores.
The Rancheria was eventually disbanded in 1961 with the land distributed among the individuals living there.
“Based on these facts, it appears that the Secretary of the Interior lacks the authority to take any land in trust for the Lytton under the provisions of 25 U.S.C. 465. First, no claim has or could be made that the Lytton existed as a tribe prior to European contact, or that Lytton is the successor-in-interest to any previously extant tribe. Indeed, the groups from which Bert Steele and John Myers descend (Pitt River, Nomlacki (Round Valley) and Stewarts Point Pomos) have their own tribal identities and organizations. Second under the definition of the tribe set forth in 25 U.S.C. 479 (“Indians residing on one reservation”), the United States could not have recognized the Indians living on the fifty acres near Lytton Road as a tribe, or asserted jurisdiction over them in 1934 because no Indians resided on that land in 1934. Thus, because Lytton is composed solely of the descendants of Berte Steele and John Myers, it can have no greater status under the IRA than can be attributed to Mr. Steel and Mr. Myers. Because Mr. Steele was not permitted to move onto the fifty acres until 1937, Lytton could not have been under federal jurisdiction until that date. For these reasons, the Governor’s Office respectfully requests that the Bureau reject the Lytton applications.
Douglas Elmets, spokesperson for the Lytton tribe, said the Governor's comments were premature at best because while the environmental assessment had been filed, the tribe has not filed the paperwork to take the land into trust. He said Bureau of Indian Affairs has said the Supreme Court case wouldn't impact the Lytton's proposal and that the Governor has not raised the issue of tribal history in past dealings.
"The interesting irony is the Governor entered into and signed a contract with the Lytton band of Pomo a couple of years ago so the tribe could begin a gaming operation in San Pablo. He certainly never raised concerns then.”
Dale Morris, Regional Director for the Bureau of Indian Affairs Pacific Regional Office said he had not read the letter but said the Lytton band are a federally recognized tribe. While he could speak specifically to the Lytton issue, he said several bills have been proposed in the House and Senate that would allow all tribes to benefit from taking land into trust, regardless of the recognition history.
The Lytton Rancheria tribe of California filed paperwork with federal regulators to begin the process of moving 92 acres of land bordering Windsor into a federal trust in August of 2009.
According to the environmental assessment prepared by the Bureau of Indian Affairs the preferred option includes 147 residential units including 95 single family homes, 24 cottage style houses, 28 high density housing units, a 18,809 square foot community center, 2,500 foot roundhouse and 2,707 foot retreat.
The site is located approximately 150 feet south of Windsor’s town limits but approximately 21 acres fall within the Town’s Sphere of Influence, Urban Growth Boundary and Special Planning area E. The proposed project calls for receiving water and sewer services from the Town, something town officials said was unlikely to happen.
Alternative A calls for police services to be provided by the Windsor Police Department and the Sonoma County Sheriff. Fire services would be provided by CalFire.
The proposal also includes an Alternative B and C. The first contains the same quantity of housing, but uses onsite water production and disposal.
Alternative B describes on-site groundwater production wells and a water treatment plant that would dispose of treated effluent via irrigation, drainage into a ditch along Windsor River Road or discharge into a tributary of Windsor Creek.
The final alternative is for a reduced size project containing a total of 55 residential units.
The project has met with near universal opposition from local government including official opposition from the Town of Windsor at the County Board of Supervisors.
On May 6, the council took a 4-1 vote to accept a resolution formalizing opposition to the proposal which concluded by saying “the Town will oppose any project on the subject property that is not developed in a manner consistent with the General Plan of Sonoma County or the Town’s Urban Growth Boundary.”
Councilmember Sam Salmon was the lone opposition to the resolution.
In their official comment made to the Bureau of Indian Affairs, the Town said “The Town has conducted a thorough review of the Lytton EA and has serious concerns that potentially significant environmental impacts of the proposed project have been improperly or insufficiently analyzed or in some cases, not addressed at all.”
The Board filed comments saying they believed the environmental assessment understated the project’s significant impacts on oak woodland, water and wastewater usage, air quality, greenhouse gas emissions, noise, public service and other environmental issues.
The Windsor Unified School District is also opposing the proposed project based on the impact it would have on Windsor schools. The district has said the proposal doesn’t accurately measure the impact additional students would have on local schools and said taking the land into a trust would cost the district thousands in lost fees.
At the August 18 WUSD board meeting, Superintendent Herrington said if the proposed project were built under county jurisdiction, WUSD could receive more than $300,000 in developer fees. If the project were taken into a federal trust, the district would receive nothing. He told the school board that he would like to see the proposal brought into line with existing policies regarding fees and assessments.
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