Wednesday, March 23, 2011

Cowlitz Tribe's Casino Bid Could Take Time

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This installment of The Tribe In The Media is an article in The Columbian newspaper discussing that an appeal to the Cowlitz Tribe's application for reservation land could take a while to resolve.

La Center Casino A High-Stakes Case
By Stephanie Rice
The Columbian
March 20, 2011

A seasonal stream runs through Greg and Susan Gilbert’s property near Paradise Point State Park.

Build a proposed casino nearby, the argument goes, and a proposed 500,000 gallons of treated sewage daily and unknown amount of stormwater runoff will do irreparable damage to the stream and the East Fork of the Lewis River.

The Gilberts are plaintiffs in one of two lawsuits challenging the federal government’s approval of the Cowlitz Indian Tribe’s application to take 152 acres near La Center into trust.

The plaintiffs, which include Clark County and the city of Vancouver, all have concerns about the local environmental, social and economic impacts of the tribe’s proposed casino-hotel complex.

Their local concerns are a part of a case that may set a national precedent.

The fight over the Cowlitz parcel will take place some 3,000 miles away in a Washington, D.C. courtroom.

Members of tribes between here and there will be watching.

The challenge took on special significance after the Obama administration chose to make the Cowlitz land trust case a test case of a 2009 ruling by the U.S. Supreme Court.

In that ruling, known as Carcieri, the court said the government can only put land into trust for tribes that were under federal jurisdiction in 1934.

In saying the Cowlitz could establish a reservation, Assistant Secretary for Indian Affairs Larry Echo Hawk addressed Carcieri at some length.

“For purposes of our decision here, I need not reach the question of the precise meaning of ‘recognized Indian tribe,’ as used in the (Indian Reorganization Act,) nor need I ascertain whether the Cowlitz Tribe was recognized by the federal government in the formal sense in 1934, in order to determine whether land may be acquired in trust for the Cowlitz Tribe,” Echo Hawk wrote.

The Cowlitz were federally recognized in 2000; that ruling was challenged and reaffirmed in 2002.

“The Cowlitz Tribe’s federal acknowledgment in 2002, therefore, satisfies the IRA’s requirement that the tribe be ‘recognized,’” Echo Hawk wrote.

Kathryn Rand, a law professor at the University of North Dakota and co-director for the Institute for the Study of Tribal Gaming Law and Policy, said Clark County’s lawsuit is the first major challenge to the executive branch’s interpretation of Carcieri.

“The question, as Echo Hawk interprets the case, is not whether the Cowlitz Tribe was federally recognized in 1934, but whether the facts indicate that the tribe was under federal jurisdiction,” Rand wrote in an e-mail. “That approach is a reasonable interpretation of the court’s decision, but it’s not the only possible interpretation. The case most definitely will be important, and should speak to the (Bureau of Indian Affairs’) authority in applying Carcieri as narrowly as Echo Hawk did in the Cowlitz (decision).”

Clark County Commissioners Tom Mielke, Marc Boldt and Steve Stuart sent a letter last week to Washington State Attorney General Rob McKenna, asking him to join in the lawsuit.

“Our decision is not based on any opposition to the tribe but follows careful deliberations about the rationale provided by the department in approval of the land into trust and its interpretation of the decision in the U.S. Supreme Court case of Carcieri v. Salazar,” the letter reads. “Moreover, we think the department neglected to consider alternatives and to fully evaluate the environmental and governmental impacts of the tribe’s proposed development at the site as required by the National Environmental Policy Act (NEPA.)”

The state should have an interest in joining the lawsuit, commissioners wrote.

For one thing, “the correct application of the land into trust laws is a matter of importance for our region, where there are many tribes and the precedent arising from (Department of) Interior’s decision may have far-reaching results for many years to come.”

Another long wait
While the La Center City Council recently passed a resolution saying they want to work with the tribe, overturning the previous council’s resistance to the casino project, the lawsuits mean the trust land will likely remain untouched for at least the next few years.

Cowlitz Tribal Chairman William Iyall said the challenges were expected.

“There will be a strategy to delay, delay, delay,” Iyall said last week. He knows his tribe has been selected to be the post-Carcieri “poster child” for landless tribes wanting to establish a reservation.

“There are a lot of other tribes in the United States that will be relying on this issue,” he said.

He said the tribe has a clear record of its existence and the Bureau of Indian Affairs laid a solid foundation for the decision.

He said the delay harms not only the tribe, but the local economy. Construction would provide short-term union jobs.

At completion, the hotel and casino is projected to have 3,151 employees with an average annual wage of $28,000.

“We are going to go ahead with planning,” Iyall said. Once the legal challenges are resolved, “we hope to have everything ready to go.”

Executives from the Connecticut-based Mohegan Tribal Gaming Authority, who have partnered with Cowlitz tribal member and real estate developer David Barnett of Seattle to operate the casino, have already said plans might be scaled back from the $510 million complex that was planned before the economy tanked.

The authority recently scaled back plans for a casino in Massachusetts.

“This isn’t a build-it-and-they-will-come business model anymore,” Paul Brody, vice president of Mohegan Gaming Advisors, told a Massachusetts newspaper. “It is a very tightly margined business, and you have to watch how much you spend.”

The plans for the Cowlitz reservation, which would be west of the Interstate 5 interchange in La Center, call for a two-story casino with 3,000 slot machines, 135 gaming tables, 20 poker tables and a 250-room hotel, plus an RV park, 10 restaurants and retail shops.

The tribe has also expressed interest in building tribal headquarters, elder housing and a cultural center.

For now, everything will be on hold.

In a Feb. 1 letter from the U.S. Department of Justice to one of the plaintiffs’ attorneys, Justice Department attorney Gina Allery wrote that the Department of Interior has said that it will not take the land into trust until 60 days after the date of a U.S. District Court decision.

“The United States is committed to allowing appropriate judicial review of the secretary’s decision. However, I note that Interior continues to be concerned that any delay in the disposition of this case may adversely impact the Cowlitz Tribe,” Allery wrote.

Guy Martin, one of three plaintiffs’ attorneys from the Washington D.C. office of Perkins Coie, estimated the case may take more than three years to resolve.

“This is going to be a long process,” Martin said.

The defendants have until June 10 to respond.

Martin said attorneys will first argue over which documents are included in the official record, which the judge will rely on in making his decision.

Martin said the Department of Justice might also challenge the standing of the Grand Ronde tribe, which operates Spirit Mountain Casino in Oregon and filed a lawsuit the day after plaintiffs, led by Clark County, filed their lawsuit. Both lawsuits were assigned to the same judge.

It will likely be 2012 before the case even gets argued, Martin said. The judge will be asked to overturn or uphold the Cowlitz trust decision.

The ruling likely would then be appealed; from an appellate court, the sides could petition the U.S. Supreme Court for review.

The Supreme Court only accepts a small fraction of cases.

“This case has all the ingredients of a case that the Supreme Court would take, and that’s about all any lawyer could say,” Martin said.

While three pending cases involving other tribes do reference Carcieri, the Cowlitz case “is the only one in which the DOI (Department of Interior) theory about what constitutes ‘recognition’ under Carcieri is fully stated and at issue,” Martin said.

“At least at this moment, this stands to be the principal case testing whether the Interior Department and the BIA can essentially administratively ignore the Carcieri decision in certain cases,” Martin said. “It’s a very important decision.”

What is “Carcieri?
The 2009 U.S. Supreme Court decision in Carcieri v. Salazar has been shortened to refer to Rhode Island Gov. Donald Carcieri. Carcieri sued the federal government (the defendant refers to Kenneth Salazar, secretary of the Interior) for allowing the Narragansett tribe to take an additional 31 acres into trust.

Writing for the 6-3 majority, Justice Clarence Thomas said in order to take land into trust, tribes had to be under federal jurisdiction in 1934, when the Indian Reorganization Act (IRA) was enacted. The Narragansett tribe was not formally recognized until 1983.

Congress debated a “Carcieri fix” last year that would have amended the IRA, but it stalled in the Senate.

Del Laverdure, a deputy assistant secretary, was quoted saying the Carcieri ruling “was not consistent with the long-standing policy and practice of the United States … in treating tribes alike regardless of the date of acknowledgment.”

Joining Thomas in the majority was Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Stephen Breyer and Samuel Alito. Justice David Souter (now retired) filed an opinion concurring in part and dissenting in part, which was signed by Justice Ruth Bader Ginsburg. Justice John Paul Stevens (now retired) filed a dissenting opinion.