A recent decision by a federal district court judge has the two sides in the 10-year legal battle over the Cowlitz Indian Tribe’s efforts to build a mega casino near the La Center I-5 junction in disagreement over what might happen next.
United States District Judge Richard W. Roberts recently denied a request from the Department of Justice for a “voluntary remand’’ to review information it had misplaced. The documents in question were submitted by the parties who are appealing the Bureau of Indian Affairs’ (BIA) December 2010 decision to allow the Cowlitz Tribe to take 152 acres near the La Center junction into trust, thereby paving the way for the Tribe to construct its planned casino on the property.
That decision by the BIA was appealed by the operators of the four La Center cardrooms, Clark County, the City of Vancouver, nearby property owners Al Alexanderson and Greg and Susan Gilbert, and the Citizens Against Reservation Shopping.
In the more than a year and a half since the appeal has been filed, each side filed its briefs and the case was believed to be headed to trial, albeit at a snail’s pace. However, earlier this summer, the attorneys for the Department of Justice (representing the BIA) requested a remand, or a stay, revealing that it had lost or misplaced documents that were part of the historical record of the case and were supplied to them by legal representatives of those parties who filed the appeal.
In his decision to deny the remand, Judge Roberts ordered the federal government to decide by Oct. 5 whether it wants to proceed in its attempt to defend against the appeal or rescind the BIA’s 2010 decision to allow the Cowlitz to take the land into trust.
Perhaps not surprisingly, the two sides in the matter had a far different view as to what the revelation meant to the case and what would happen going forward.
“It’s fixable,’’ said a key person associated with the Cowlitz Tribe’s attempt to prevail against the appeal and build the casino.
Bill Iyall, chairman of the Cowlitz Indian, reiterated the same position.
“Essentially the judge told them they could do what they needed to do in the time frame they allotted themselves in the (request for) remand,’’ said Iyall, referring to the federal government’s legal team. “Our expectation is that they can address the matters they were concerned about in that time frame, then it will come back to court and it will resolve the government’s concerns.’’
Key representatives of the opposition, frankly, didn’t see how that was possible.
“This judge got it just right,’’ said Guy Martin, a Washington D.C.-based attorney for Perkins Coie and one of the leaders of the legal team representing the parties making the appeal. “He went back to them and said ‘no do-overs. The record is the record. I’m not giving it back to you so you can change it.’ ’’
Which is exactly what Iyall said he expected to happen.
“The Department of Justice, on behalf of the Cowlitz Tribe and the BIA, is really in a difficult position,’’ Martin said. “We have gone from being somewhere in the zone in which a decision might have been made to the point where it’s hard to predict when a decision will ever be made if they lose on this appeal.’’
John Bockmier, a Vancouver-based consultant who represents the four La Center card rooms, said the documents in question that the federal government is missing, or failed to review, are central to the case he and others have spent 10 years making against the Cowlitz Tribe’s attempt to claim a historical association with the 152 acres near La Center. Bockmier said it’s that tie to the land that gives the Cowlitz the right to build the casino on that site, as opposed to another.
“From the very beginning, we have advocated for an alternative site,’’ Bockmier said. “We’ve never spoken about the Cowlitz Tribe not having the right to have a casino, or their right to provide for their future well being. To me, this latest legal decision clearly shows that the Bureau of Indian Affairs made a decision on one of their most controversial applications, and by their own admission, they didn’t review critical documents submitted by the opposition.’’
At issue is a U.S. Supreme Court decision in a case known as Carcieri v. Salazar, which prevents the federal government from placing land into trust for a casino to be built by a tribe not federally recognized prior to the 1934 cut-off in the Carcieri ruling. The Cowlitz Tribe gained federal recognition in 2000.
In his December 2010 decision to allow the Cowlitz to take the 152 acres into trust, Assistant Secretary for Indian Affairs Larry Echo Hawk wrote that Carcieri didn’t prevent him from making his decision because he didn’t feel it was necessary to question the exact meaning of “recognized indian tribe.’’
Speculation has run rampant as to what may or may not happen by Oct. 5 and beyond. Here’s some of that speculation:
• Martin was clear that if the federal government attempted to address the current issue by changing the administrative record, there would be an emphatic challenge to that by his legal team.
• If the federal government elects to proceed and defend its case against the appeal, it’s clear Martin and Bockmier feel their side’s chances of winning the appeal are now greatly enhanced.
• If the BIA elects to rescind its December 2010 decision to allow the Cowlitz to take the 152 acres into trust, Martin and Bockmier not only believe that the 10-year legal battle starts all over, but that it does so with their side in a newly-acquired position of strength.
“The government’s decision will be reaffirmed,’’ Iyall strongly reiterated. “The project is certainly on solid legal footing.’’
The Cowlitz Tribe is backed financially in both its legal battle and its attempt to construct the casino by the Connecticut-based Mohegan Tribe. If the clock is turned all the way back on this 10-year battle, there has been speculation as to whether or not the Mohegan Tribe would have the resolve or resources to continue the expensive legal fight.
“We remain fully committed to the project,’’ said Peter Schultz, project coordinator for the Mohegan Tribal Gaming Authority. “The record in this case is very large and very complicated and there are multiple parties involved. It’s going to take some time to resolve.’’