U.S. Rep. Jaime Herrera Beutler sent a letter Monday to Interior Secretary Sally Jewell, questioning why Jewell’s department would make a promise to the Cowlitz Tribe to take land into trust for a reservation while the legality of the land transfer remains tied up in federal court.
Last month, an acting assistant attorney general filed notice in U.S. District Court in Washington, D.C., alerting the judge and plaintiffs that the Department of the Interior, one of the defendants in the case, “will acquire the approximately 151.87 acres of land in Clark County, Washington, in trust for the benefit of the Cowlitz Indian Tribe no sooner than the earlier of Jan. 21, 2015, or thirty days after a court order granting summary judgment in favor of defendants.”
Tribal Chairman William Iyall heralded the decision as a significant moment in Cowlitz history, given that the tribe has been fighting for a dozen years to establish a reservation west of La Center.
Herrera Beutler, however, wrote in her letter that the premature decision sets a bad precedent and “has become a great source of concern and confusion in Southwest Washington.”
“For this acquisition to take place while the court is still considering a case to determine whether the department even has the authority to take this land into trust is not only a major shift in the department policy, but also potentially a violation of federal law,” she wrote.
“Several of my constituents, including Clark County, the City of Vancouver, and individual citizens opposed to this casino, are following the appropriate legal process to challenge this trust land acquisition under the federal Administrative Procedures Act. The department’s decision severely undermines those efforts. Why is the department so willing to deny my constituents their day in court?” Herrera Beutler wrote.
Monday’s letter marks the second time the Camas Republican has written to the federal agency about the proposed reservation.
In a Feb. 1, 2011, letter to Larry Echo Hawk, at the time assistant interior secretary in charge of the Bureau of Indian Affairs, Herrera Beutler argued his Dec. 17, 2010, decision allowing the Cowlitz Tribe to place the land into trust was “inappropriately influenced” by the tribe.
“This has been a highly controversial proposal from the beginning, in no small part because questions have been raised as to the tribe’s historical connection to Clark County,” she wrote in the 2011 letter. “I would like to understand if the bureau is allowing a tribe to acquire land outside of its historical lands, and if so, under what authority,” she wrote.
In Monday’s letter, she urged the department to think about the complications that would ensue if plaintiffs end up winning in court.
“Given the fact that casino-style gaming may be operating on this land — employing hundreds of people and serving thousands of patrons — why has the department not thoroughly considered the legal and practical problems involved in reversing this land transfer if it loses this case?” she wrote.
“Thank you for your attention to this important matter. The people of Clark County and all of Southwest Washington are well aware of the potential consequences of the department’s decision and will be eagerly awaiting your response,” wrote Herrera Beutler, who recently won a third term.
Tied up in court
The Cowlitz were federally recognized in 2000; that ruling was challenged and reaffirmed in 2002.
That year, the tribe applied to take the land into trust. Echo Hawk’s 2010 decision was appealed by the city of Vancouver, Clark County and other plaintiffs, who challenged, among other things, the federal ruling that the landless tribe has historical ties to the proposed reservation site.
In March 2013, a federal judge threw out Echo Hawk’s 2010 decision, and a new one was issued and appealed.
The list of plaintiffs includes nearby property owners Al Alexanderson and Greg and Susan Gilbert; Citizens Against Reservation Shopping, a group that includes Scott Campbell, publisher of The Columbian; Oregon Dragonslayer Inc. and Michels Development, operators of La Center cardrooms; and the Confederated Tribes of the Grand Ronde, which operates Spirit Mountain Casino in Oregon and draws players from the Vancouver-Portland area.
The tribe’s lands and tribal offices are 24 miles north of the proposed casino site, plaintiffs argue, and “most tribal property is even farther away.”
Plaintiffs argue the Cowlitz just want easier access to the Portland gaming market. They also argue, and the defendants deny, that current development plans have inadequate mitigation for stormwater, traffic, light and noise issues.
Following the Oct. 22 announcement by the Department of Interior, attorneys’ written arguments have focused on whether the East Fork of the Lewis River will be sufficiently protected from runoff from the site or whether an additional environmental impact statement needs to be completed.
In a Nov. 18 filing, attorneys for the tribe said no more studies are needed and the judge needs to issue a favorable decision.
“It bears repeating that for over 100 years the tribe has held together its people, its traditions, and its government without the benefit of a single acre of reservation land,” wrote Heather Sibbison and Suzanne Schaeffer of Dentons US in Washington, D.C.
“The agency decisions here at issue would remedy this historic injustice. Prior to making those decisions, Interior spent more than a decade preparing an (environmental impact statement), reviewing and responding to public comments, and carefully re-evaluating its environmental analyses. The administrative record demonstrates that this exceptionally thorough, public process resulted in a full and fair evaluation of all relevant environmental issues. There is no just reason for further delay. Summary judgment should be entered in favor of the tribe and the federal defendants.”
Even when the judge makes a ruling, the decision is likely to be appealed, as the case stands to be a test case of a 2009 ruling by the U.S. Supreme Court.
In that ruling, known as Carcieri, the high court said the government can put land into trust only for tribes that were under federal jurisdiction in 1934.
While the federal case remains in limbo, the tribe cleared one regulatory hurdle with the state earlier this year.
In April, a tentative tribal-state compact was released by the state gambling commission.
The compact allows for two gaming facilities. One could have as many as 75 gaming tables, and a second could have up to 50 tables.
Initially, the wager limit would be set at $250, but after a year the limit could increase to $500.
The tribe could also have as many as 3,000 “tribal lottery player stations,” which to the users resemble slot machines, with as many as 2,500 in one facility.
Any terminals beyond the tribe’s allotted 975 terminals would have to be leased from other tribes, however.
In addition to the casino, the tribe intends to have space for shopping, dining and a 250-room hotel. The tribe plans to share more revenue with the surrounding cities than other casinos of its size in the state, Iyall said.
