Oral arguments were heard Friday in the U.S. Court of Appeals in Washington, D.C., regarding the Cowlitz Tribe’s right to have land taken into trust for a reservation.
A ruling expected to be issued this summer ultimately will settle the fate of the tribe’s $510 million casino-resort currently under construction on the tribe’s 152-acre reservation outside of La Center. Casino opponents have asked the court to stop the construction along Interstate 5 at Exit 16 until the judges have made a decision, but the judges did not issue an injunction Friday. The casino is slated to open next year.
If the court rules that the land isn’t legally the tribe’s for a reservation, the tribe cannot built its casino there.
Here’s the breakdown: Casino opponents say the secretary of the Interior couldn’t give the Cowlitz Tribe land because the tribe wasn’t under federal jurisdiction when the Indian Reorganization Act was ratified in 1934. The Cowlitz Tribe wasn’t federally recognized until 2000. In 2010, the Bureau of Indian Affairs approved the Cowlitz Tribe’s application to take 152 acres of land into trust for a new Cowlitz reservation, which was established last March.
The opponents are appealing District Court Judge Barbara J. Rothstein’s decision in December 2014 to dismiss its lawsuit and reaffirm Secretary of the U.S. Department of the Interior Sally Jewell’s decision. The judge also addressed the 2009 U.S. Supreme Court ruling known as Carcieri, in which the high court said the government can put land into trust only for tribes that were under federal jurisdiction in 1934.
Rothstein thought the wording of the Indian Reorganization Act was ambiguous and, therefore, said she would defer to the secretary of the interior.
The appellants in the case include the city of Vancouver, Clark County, the Confederated Tribes of the Grand Ronde, Citizens Against Reservation Shopping — a group that includes Columbian Publisher Scott Campbell — and the owners and operators of La Center’s cardrooms.
Casino opponents say they’re concerned about the casino’s negative impact on problem gambling, traffic, schools and scarce stock of affordable housing. They also claim the Cowlitz Tribe doesn’t have significant historical connections to the land it was granted for a reservation, which they contend the Cowlitz wanted for its proximity to Portland 16 miles to the south.
Tribe officials contend that opponents are trying to protect their cardrooms’ profits.
Court proceedings
Friday morning, Circuit Judges Robert Wilkins, Cornelia Pillard and Harry Edwards heard the oral arguments of four attorneys. Both sides were supposed to be allotted 15 minutes each, but because the judges interjected questions, the total time stretched out to an hour.
Attorneys Lawrence Robbins and Benjamin Sharp, who represented the appellants, argued that to take land into trust, the secretary of the Interior must find that the Cowlitz Indians were a recognized tribe and under federal jurisdiction in 1934.
“Everywhere you look in this statute, the signs point to 1934,” Robbins said.
Attorneys Robert Luskin and John Smeltzer represented the Cowlitz Tribe and the U.S. Department of the Interior, respectively. They argued that in 1934, there was no such thing as federal recognition as a formal legal matter, which didn’t come about for another 40 years.
“To suggest so in hindsight that what the Cowlitz needs to prove is something that did not then exist simply turns the statute upside down,” Luskin said.
The statute was designed to give the secretary authority to create reservations for previously landless tribes, he said.
Smeltzer said the tribe’s aboriginal lands spanned 2,500 square miles, and that when the tribe failed to reach a treaty with the U.S. government in 1855, the government opened the land for public sale and left the Cowlitz homeless.
Judge Pillard said the tribe might consider itself under federal recognition in the sense that the government was interacting with it in ways that bespeak federal jurisdiction, such as treaty negotiations.
“There was a failed treaty,” Robbins replied.
“They were negotiating,” Pillard said in a sing-song voice.
“How can you negotiate with someone you don’t recognize?” Judge Wilkins asked.
Robbins said the tribe essentially “did not exist” in the 20th century, being dispersed, absorbed into their localities and not existing as a communal entity.
Smeltzer disputed that, saying the tribe was a political and communal entity throughout the 20th century and was entitled to federal recognition in 1934.
“There is no question that the Cowlitz Tribe had a legitimate land claim in 1855,” he said.
Friday evening, Luskin, of the Washington, D.C., law firm Paul Hastings LLP, said the tribe was pleased with the outcome of the day’s arguments and was confident the judges heard a sound case for dismissing opponents’ attempts to appeal.
Attorneys for the appellants did not comment.
Paul Christensen, a board member for Citizens Against Reservation Shopping, however, said, “We think our chances in court for beating the case are very, very strong.”
To listen to a recording of the oral arguments, go to www.cadc.uscourts.gov/recordings/recordings.nsf
