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Trump team gets more time for brief in Supreme Court tribal casino case

Tuesday, January 31, 2017

The Cowlitz Tribe is planning to open the ilani Casino Resort on April 17, 2017. Photo: Construction Feed

Republican President Donald Trump is getting ready to announce his pick for the U.S. Supreme Court as a tribal gaming case hangs in limbo.

The Cowlitz Tribe cleared numerous legal, regulatory and political hurdles in its quest for a casino in Washington. The ilani Casino Resort is due to open on April 17, just 14 months after construction began in early 2016.

But opponents are hoping to derail the celebration. A petition filed with the nation's highest court seeks to overturn the land-into-trust decision that paved the way for the $500 million project.

The change in administration, though, has delayed resolution of the matter. On January 18, just two days before Trump was sworn into office as the 45th president of the United States, the Supreme Court agreed to give the Department of Justice more time to come up with a response to the petition, according to the docket sheet for the case.

The response is now due February 18, leaving the tribe's fate in the hands of a new set of officials at Justice. That team is supposed to include Sen. Jeff Sessions (R-Alabama), who is Trump's pick to serve as Attorney General, although Democrats have succeeded in delaying a vote on his nomination.

But Sessions already has eyes on the ground. One of his former aides, Jeff H. Wood, is heading up the division that handles Indian law and environmental cases, a division whose advice is often relied upon when the department is responding to Supreme Court cases.

Democrats have questioned Sessions about his record on tribal issues but it's not clear whether his stance, or that of the Trump administration, will change how the department handles the Cowlitz petition It would be highly unusual for Justice to walk away from the Bureau of Indian Affairs, the agency that approved the tribe's land-into-trust application.

Still, anything is possible, as Trump has demonstrated in recent days with his order on immigration causing upheaval across the nation and his actions to revive controversial crude oil pipelines drawing strong reactions from Indian Country.

"Across the board, what the guy is doing looks like that to us — the predator-in-chief," activist Winona LaDuke of Honor The Earth told Democracy Now!

Donald Trump wrote to then-Chairman John Barnett on November 20, 2000, just a few months after the Cowlitz Tribe's federal recognition was finalized.

After winning approval of its land-into-trust application, a decision that was sanctioned by a federal appeals court last summer, the Cowlitz Tribe has kept its eye on the opening date for ilani, which comes from the Salish word for "sing." Over 2,000 people have applied for jobs at the facility, more than than twice the number of available positions.

But a provision in the tribe's Class III gaming compact might cause some headaches. The agreement could be read as preventing the opening of ilani "until a final disposition" of the BIA's land-into-trust decision.

If the Supreme Court does not resolve the petition by April 17, foes could argue that a "final disposition" has not been reached. And if the justices end up taking the case, the casino could be delayed indefinitely.

Opponents -- which include a group called Citizens Against Reservation Shopping, non-Indian card rooms and three local property owners -- think their case is attractive to the Supreme Court because it goes back to the February 2009 decision in Carcieri v. Salazar. The ruling states that the BIA can place land into trust only for those tribes that were "under federal jurisdiction" in 1934.

The Cowlitz didn't gain formal recognition until 2000. But the Obama administration concluded the tribe met the "federal jurisdiction" standard because, among other actions, the government had once attempted to negotiate a treaty with the tribe's ancestors.

"You don't negotiate with someone you don't recognize," a judge on the D.C. Circuit Court of Appeals said during a hearing in the case in April 2016.

But non-Indian groups aren't the only ones interested in the case. Four tribes from California submitted a friend-of-the-court brief that goes against the BIA and the Cowlitz. Three of those tribes operate casinos on lands that were recently placed in trust although they argue that their situations are different.

Trump is due to announce his Supreme Court pick from the White House on Tuesday evening. It's expected to take months before his nominee is confirmed by the Senate because Democrats are vowing a thorough examination of the individual's record. Many are upset because Republicans refused to hold hearings after president Barack Obama named a replacement for the late Justice Antonin Scalia, who died in February 2016.

Incidentally, when Trump was in the gaming business, he tried to partner with the Cowlitz Tribe, going so far as to visit the 152-acre site in Washington where ilani is now rising.

“Trump said it was the most incredible site he had ever seen, incredible," council member Dave Barnett, who is the son of the late Chairman John Barnett, told The Columbian for a story published in May 2016.

The tribe decided against working with Trump because Barnett said he was asking for too much money. But in a letter to Cowlitz leaders that was published by the paper, the real estate mogul said he has "always" supported tribal sovereignty.

Trump also noted that only "recognized" tribes can pursue gaming -- an odd foreshadowing of the litigation now before the Supreme Court. Opponents are claiming that the Cowlitz were not "recognized" in 1934, a position the letter seems to counter some 17 years ago.

Barnett told The Columbian that he's glad the tribe kept the correspondence: “In case he becomes the president someday."

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

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