"Only Congress can do that," Smeltzer said. "The Department of the Interior cannot," he added, rejecting the concept of "administrative termination."
Dozens of people packed a federal courthouse in Washington, D.C., on Friday morning for oral arguments in a closely watched land-intro-trust case.
The hearing was only supposed to last half an hour but the D.C. Circuit Court of Appeals spent twice as much time on a dispute that could have far-reaching impacts in Indian Country. The outcome will determine whether the Cowlitz Tribe of Washington can join the Indian gaming industry.
Construction is progressing quickly on the Cowlitz Casino Project but opponents -- including the Confederated Tribes of Grand Ronde in neighboring Oregon -- are hoping it never opens in the spring of 2017. Their case is largely based on Carcieri v.
Salazar, a February 2009 ruling from the U.S. Supreme Court that threw a wrench into the land-into-trust process.
In that decision, the justices held that the Bureau of Indian Affairs can only acquire land for tribes that were "under federal jurisdiction" in 1934.
The Cowlitz didn't gain federal recognition until 2000 so opponents don't think the tribe meets that critical test.
But the Grand Ronde Tribes are hoping to expand Carcieri in a dramatic way. Attorney Lawrence S. Robbins told the court that a tribe must have been "recognized" in 1934 -- in addition to being "under federal jurisdiction" in 1934 -- in order to benefit from the Indian Reorganization Act.
"Throughout the 20th century, the Cowlitz were terminated," Robbins told the panel of three judges. He said a BIA document from that era proves that the Cowlitz people were no longer a cohesive tribal community in 1934.
"That's all you need to conclude that they were not under federal jurisdiction," Robbins said.
Two of the judges pushed back on that argument, noting that the United States engaged in formal negotiations with the tribe in the late 1800s. That's when Robbins said those talks resulted in a "failed treaty."
"But they're negotiating," Judge Cornelia T.L. Pillard shot back.
"You don't negotiate with someone you don't recognize," added Judge Robert L. Wilkins.
John L. Smeltzer of the Department of Justice
focused on that line of thinking during his presentation. He said the treaty negotiations,
acts of Congress and other activities well into the 20th century clearly demonstrate federal jurisdiction.
"The United States did exercise jurisdiction over the Cowlitz ... because the United States conducted a series of actions and incurred specific obligations to the Cowlitz Tribe," Smeltzer told the court. The failed treaty, for example, led to a land claim and the tribe was eventually compensated for its losses, he said.
As far as whether the tribe is "recognized," Smeltzer pointed out that the BIA's federal acknowledgment decision was never overturned and is not at issue in the lawsuit. And those documents cited by Grand Ronde speak to the BIA's "neglect" of the Cowlitz people, he said, and cannot be treated as a sign that the tribe was somehow terminated.
The BIA's approval of the Cowlitz Tribe's land-into-trust application marked the first decision of its kind for a newly recognized tribe. The D.C. Circuit is the first appellate court to review whether the BIA can survive in the post-Carcieri era without a Congressional fix to the decision.
In a sign of the importance of the issue, the leaders of both the Cowlitz Tribe and the Grand Ronde Tribes, along with members of both communities, attended the hearing. Cowlitz Chairman Bill Iyall has been an outspoken defender of his tribe's effort to restore its homeland. Grand Ronde Chairman Reyn Leno has been equally passionate.
The Cowlitz Tribe's casino is going up near La Center in Clark County -- another opponent. The Grand Ronde Tribes operate the Spirit Mountain Casino more than 90 miles away in Oregon. However, the Cowlitz casino will be a lot closer to Portland, a major market for Spirit Mountain.
A decision from the D.C. Circuit could be months away. Of the three judges on the panel, Pillard asked the most questions and seemed to have a strong grasp of federal Indian law even though she's only been on the bench since December 2013. She was nominated by President Barack Obama.
Wilkins also had a lot of questions. He's another Obama nominee and has been on the D.C. Circuit since January 2014. Prior to that he was a judge on the federal court in D.C. for four years.
Judge Harry T. Edwards was the last member of the panel and asked a few questions but not nearly as many as the others. He's a senior judge and chief judge emeritus of the D.C. Circuit and was one of the first African-American appellate court judges in the nation. He was a nominee of Jimmy Carter.
Federal Register Notices:
Proclaiming
Certain Lands as Reservation for the Cowlitz Indian Tribe (November 13,
2015)
Land
Acquisitions; Cowlitz Indian Tribe (May 8, 2013)
DOI Solicitor Opinion:
M-37029: The
Meaning of "Under Federal Jurisdiction" for Purposes of the Indian
Reorganization Act (March 12, 2014)
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