The D.C. Circuit Court of Appeals last week heard oral arguments in the case of the Cowlitz Tribe of Washington, which is fighting attempts to prevent it from opening a casino resort in La Center in 2017 on 152 acres recently put into trust.
Opponents include the Oregon-based Confederated Tribes of Grand Ronde, Clark County, the city of Vancouver, card rooms in La Center and a group called Citizens Against Reservation Shopping. They argue that the Department of the Interior acted incorrectly when it put the land in La Center into trust. They cite the U.S. Supreme Court’s 2009 Carcieri v. Salazar ruling that said that the Bureau of Indian Affairs may only put land into trust for tribes that were “under federal jurisdiction” in 1934. The tribe was recognized by the federal government in 2000.
An attorney for the opponents, Lawrence S. Robbins provided proof for his contention that the tribe was not recognized in the 20th century and so did not fit the requirement.
The motion asserts “A landless tribe that went unrecognized until 2002 cannot have been ‘recognized’ and ‘under federal jurisdiction’ in 1934.”
Two members of the three-judge panel pointed out that the tribe was involved in negotiations with the U.S. in the 1800s, which to them indicates that the U.S. recognized the tribe.
John L. Smeltzer of the Department of Justice argued that the recognition of the tribe in the 1800s was not overturned by neglect, something the opponents describe as “administrative termination.” Only Congress can take away recognition, Smeltzer argued.
The tribe seeks to open a $510 million casino in La Center, which is 90 miles from the Spirit Mountain Casino operated by the Grand Ronde. The two casinos would be competing for the Portland market. The casino would have 2,500 slots, 80 gaming tables, 15 restaurants, and assorted taverns and retail shops.
Despite the court case the tribe continues to move ahead on its project. Last September the tribe began site preparation, has reached agreements to buy services from Clark County Fire and Rescue and has begun work on a wastewater reclamation project that injects treated water into the aquifer.
The county, alarmed by this, has issued a stop work order, which the tribe has ignored. The county sought an injunction in federal court on March 3. It argues, “The tribe commenced construction in January, fully aware that this court will be the first appellate court to review the Secretary’s new interpretation of the IRA, in the wake of the Supreme Court’s decision in Carcieri v. Salazar … The tribe’s decision to build as much of the casino as possible before this court rules is calculated risk — one that also appears intended to undercut the court’s review and limit available remedies.”
Opponents have been alarmed by the quick progress the tribe is making and seek to get an injunction in place to prevent the tribe from doing so much that any court will be reluctant to roll back the work.
