In Our View: Appeal BIA Ruling

Clark County commissioners made the correct decision last week when they voted unanimously to appeal the federal decision that would allow the Cowlitz Tribe to establish a reservation near La Center and build a megacasino. That Dec. 23 decision came from the Bureau of Indian Affairs. We’d like to see a second opinion from a more independent source.

Such an objective entity would be the U.S. District Court in Washington, D.C., where county commissioners will file their appeal. That court would be more likely to recognize what The Columbian has said for years, that a gigantic $510 million casino-hotel complex on Interstate 5 would have a net negative effect on the local quality of life. Adverse impacts would be numerous, but social services, particularly, would be severely strained by the increased feeding of the gambling addiction here.

County Commissioners Tom Mielke, Marc Boldt and Steve Stuart reached their decision last week after meeting with legal staff in executive session. Although that session was private, we’re presuming the legal advice might have been based in part on Carcieri v. Salazar (a 2009 U.S. Supreme Court decision) and what could be the BIA’s disregard for that ruling.

“Carcieri,” as it is known, restricts the federal government’s ability to take land into trust for tribes not under federal jurisdiction prior to the 1934 Indian Reorganization Act. The Cowlitz Tribe was federally recognized in 2000. Thus, when the Carcieri decision came down in 2009, it was believed to be a significant, though not permanent, impediment to the Cowlitz Tribe’s casino plans. (A supposed “Carcieri fix” by Congress was the subject of much speculation last year, but the 111th Congress adjourned without addressing the matter. It’s probably too soon to speculate about any plans in the new Congress to legislatively alter the high court’s ruling.)

In issuing the ruling last month that reinvigorated the Cowlitz plans, the BIA mysteriously (in our view) concluded that the tribe has been under federal jurisdiction from at least 1855. The U.S. District Court in Washington, D.C., might find that hard to believe as the tribe wasn’t even recognized by the feds until 2000. How, after all, can a government exercise jurisdiction over a body it does not recognize?

BIA Assistant Secretary Larry Echo Hawk seemed to indicate Carcieri doesn’t even apply, noting in the ruling that “I need not reach the question of the precise meaning of ‘reorganized Indian tribe’ as used in the (Indian Reorganization Act), nor need I ascertain whether the Cowlitz Tribe was recognized in the formal sense in 1934, in order to determine whether land may be acquired in trust for the Cowlitz Tribe.”

To which the District Court could — and we believe should — reply, “Perhaps you don’t need to reach that precise meaning, but we do, because Carcieri came from our bosses at the U.S. Supreme Court.”

Thus, the legal aspects of the Cowlitz casino plans remain tenuous. The only thing that’s certain about this issue is that it won’t be decided anytime soon.

And finally, here’s an interesting side note that demonstrates the strength of our nation and how it’s governed. All three branches of our government — the Executive with the BIA, the Legislative with Congress, and the Judicial with the U.S. District Court — have a hand in deciding this case. Whatever the outcome, it’s good to see this crucial matter being resolved as the Founding Fathers intended.