Judge dismisses lawsuit over gaming land determination

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The Bush administration is facing tribal criticism for its land-into-trust policies but officials have at least one court victory under their belts.

In a 16-page decision issued last Thursday, a federal judge in California dismissed a suit against Interior Secretary Dirk Kempthorne and Assistant Secretary Carl Artman. The two officials were accused of violating federal law with a legal opinion that said the Ione Band of Miwok Indians could open a casino in Amador County.

Officials in the county said the legal opinion was flawed because it treated the Ione Band as a "restored" tribe. The designation allows the tribe to open a casino without state approval.

But Judge Lawrence K. Karlton said the lawsuit was filed too early. Until the Bureau of Indian Affairs actually takes the land into trust -- which could be many months away -- the legal opinion carries no weight, the decision stated.

"Taking land into trust without making a gaming determination may be reviewable (because it has independent effect); but making a gaming determination without subsequently taking land into trust is not," wrote Karlton, a nominee of former president Jimmy Carter.

After the loss, the county said it was considering an appeal. "The court ruled that the county's lawsuit was premature, but could be re-filed when and if the Department of Interior grants the Ione Band's application to take the land into trust," Terri Daly, the county administrative officer, said in a statement.

It's not clear when the Bush administration will take action on the Ione Band's application. It was filed in November 2005 and despite the September 2006 legal opinion favoring the tribe, no decisions have been made on the project.

Such inaction has led tribes across the nation to question whether there is a land-into-trust moratorium. Artman, a member of the Oneida Nation of Wisconsin who wrote the legal opinion before he became assistant secretary at the BIA earlier this year, has denied the claims.

But Artman last month said he is delaying decisions on off-reservation casinos until he develops a new policy on the issue. He's also waiting for the official publication of regulations that apply to land-into-trust applications like the Ione Band's.

The Indian Gaming Regulatory Act bars casinos on lands taken into trust after 1988. But there are several exceptions -- including one for tribes that were restored to federal recognition.

Artman, in the September 2006 legal opinion, said the Ione Band was taken off the list of federally recognized entities sometime in the 1970s until the Clinton administration restored the tribe's status in 1994.

Amador County doesn't think the Ione Band qualifies for a restored lands exception. Instead, the county wants the tribe to go through the two-part determination process outlined in Section 20 of IGRA.

The lengthy process requires federal and state approval of any casino project. Since 1988, only three tribes have successfully completed both steps of the two-part determination.

The Bush administration has since make the process more cumbersome by putting all pending two-part determinations on hold. Artman has instituted a new policy that requires the BIA to make the land-into-trust application decision first.

The change, though minor, gives the BIA more discretion to reject the land-into-trust application because state and local community views are taken into account. Amador County says it will continue to oppose the Ione Band's application.

The BIA last week agreed to put the change on hold for one Wisconsin tribe in response to a lawsuit filed by the St. Croix Band of Lake Superior Chippewa.

In a separate lawsuit, the St. Regis Mohawk Tribe of New York has asked a federal judge to force the BIA to make a decision on its land-into-trust application. Gov. Eliot Spitzer (D) has approved the tribe's casino project as part of the two-part determination process but Artman has delayed a decision on the land-into-trust application until he makes the new policy.

Court Decision:
Amador County v. Kempthorne (December 13, 2007)

Relevant Documents:
Ione Band Land Determination (September 19, 2006)

Relevant Links:
Ione Band of Miwok Indians - http://www.ionemiwok.org
Amador County - http://www.co.amador.ca.us

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