Mount St. Helens can be seen in the distance from iliani, the Cowliz Tribe's fast-rising gaming facility in Clark County, Washington. Photo: ilani

Land Acquisitions | Litigation | Openings & Closings

Cowlitz Tribe wins major court ruling on land-into-trust application

Friday, July 29, 2016

The Bureau of Indian Affairs can place land in trust for the Cowlitz Tribe of Washington, the D.C. Circuit Court of Appeals ruled on Friday in a closely-watched gaming case.

By a unanimous vote, a three-judge panel of the court said the Cowlitz people were "under federal jurisdiction" in 1934 even though their formal government-to-government relationship wasn't finalized by the BIA until 2000. That means the tribe can follow the land-into-trust process, the 32-page decision stated.

Writing for the court, Judge Robert L. Wilkins said the BIA considered a slew of evidence before approving the tribe's land-into-trust application. Failed treaty negotiations that led to the illegal taking of the tribe's land and other actions are proof of federal status, he said.

"The Cowlitz refused to sign an 1855 land cession treaty proposed at the Chehalis River Treaty Council, whereby Governor Stevens of the Washington Territory and other federal agents sought to move the Cowlitz to a reservation on the Pacific Coast," Wilkins wrote. "The Cowlitz resisted relocation and refused the treaty, but years later the United States offered the Cowlitz’s land for sale to settlers without compensation anyway."

"As the district court explained, the fact that the government nevertheless took the Cowlitz land even after the tribe resisted the treaty corroborates that the government treated the Cowlitz as under its jurisdiction," Wilkins added.

Indianz.Com SoundCloud: D.C. Circuit Court of Appeals Oral Arguments in Confederated Tribes of the Grand Ronde Community of Oregon v. Sally Jewell

The decision represents a strong rebuke to opponents of ilani, the tribe's fast-rising casino in Clark County. Construction started earlier this year despite the lawsuit and the facility is due to open on April 17, 2017.

The casino will be the closest tribal gaming facility to Portland, Oregon, and that's one of the reasons why the Confederated Tribes of Grand Ronde are trying to stop the new development. The Grand Ronde operate the Spirit Mountain Casino about 90 miles from Oregon's most populous city.

"The tribe continues to believe it is wrong for the Cowlitz to build a casino in Clark County, a region historically belonging to the tribes and bands of the Confederated Tribes of Grand Ronde," Chairman Reyn Leno said in a statement on Friday. "We are reviewing the decision and are evaluating our next steps."

Leno's tribe could ask a larger panel of judges on the D.C. Circuit to rehear the case. Or the trie could take the dispute to the U.S. Supreme Court -- which is still down one member following the death of Justice Antonin Scalia in February.

Artist's rendering of ilani, the Cowlitz Tribe's casino in Washington. Image: ilani

Back in February 2009, the Supreme Court ruled that the BIA can only place land in trust for tribes that were "under federal jurisdiction" when the Indian Reorganization Act became law in 1934. But the Carcieri v. Salazar decision did not define the exact meaning of that phrase.

That left an opening for the Obama administration to develop a two-part test that takes into account numerous factors to determine whether a particular tribe meets the test. A federal judge and now, the D.C. Circuit, have upheld the validity of the analysis with respect to the Cowlitz people.

"The [Interior] Secretary’s two-part test is furthermore reasonable. It makes sense to take treaty negotiations into account, as one of several factors reflecting authority over a tribe, even if they did not ultimately produce agreement," Wilkins wrote in the D.C. Circuit's decision.

The BIA's approval of the Cowlitz Tribe's land-into-trust application was the first one of its kind in the post-Carcieri era. It is also the first to survive a court challenge.

D.C. Circuit Court of Appeals Decision:
Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell (July 29, 2016)

Federal Register Notices:
Notice of Final Federal Agency Actions on Transportation Project in Washington State (May 3, 2016)
Proclaiming Certain Lands as Reservation for the Cowlitz Indian Tribe (November 13, 2015)
Land Acquisitions; Cowlitz Indian Tribe (May 8, 2013)

Department of the Interior Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)