Trump administration backs Cowlitz Tribe in Supreme Court brief

Tuesday, March 7, 2017

The ilani Casino Resort in Washington is due to open in late April 2017. Photo: Construction Feed

UPDATE: The Cowlitz Tribe expects to open its long-awaited casino in late April. The previously reported opening date of April 17 is no longer solid.

The Trump administration has survived its first Indian law test and is defending the Cowlitz Tribe as it prepares to open a $400 million casino in Washington in a matter of weeks.

After securing three extensions, the Department of Justice finally responded to Citizens Against Reservation Shopping v. Jewell last Wednesday. Government attorneys are urging the U.S. Supreme Court not to hear the case because they say the Bureau of Indian Affairs made the right call on the tribe's land-into-trust application.

"The BIA officially acknowledged the Cowlitz Tribe in 2002 only after a rigorous historical, anthropological, and genealogical investigation, which demonstrated that the tribe was officially recognized in the late 1800s and maintained tribal relations through the present," the 31-page brief, which was signed by senior Trump officials at Justice, reads.

Based on that history, the government argues that the tribe can follow the land-into-trust process because it was under "federal jurisdiction" in 1934 even though formal recognition didn't arrive until decades later. That's the same conclusion that was reached by the D.C. Circuit Court of Appeals when it ruled in favor of the BIA last summer.

Construction crews prepare to raise the "ilani" sign at the facility in Washington. Photo: ilani

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But non-Indian opponents back in Washington are hoping the nation's highest court will take on the case and derail the ilani Casino Resort before its anticipated opening in late April. They see the dispute as a follow-up to Carcieri v. Salazar, a 2009 decision that disrupted the land-into-trust process by injecting the "federal jurisdiction" question into the equation.

With Carcieri as a backdrop, casino foes are hoping to make it harder, or even impossible, for tribes like the Cowlitz to restore their homelands. In addition to the "federal jurisdiction" standard, they argue a tribe must have been "recognized" in 1934 to follow the land-into-trust process.

"If a tribe was not a 'recognized Indian tribe' in 1934, it cannot have been a 'recognized Indian tribe now under federal jurisdiction” in 1934," the petition filed by Citizens Against Reservation Shopping and other non-Indian opponents reads.

The Cowlitz Tribe responded to the petition on March 1, the same day the Trump administration filed its brief. Tribal attorneys are also urging the Supreme Court not to accept the case.

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.

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"Given the great weight of the evidence, the court of appeals correctly found that the record was more than sufficient to support the Department of the Interior’s determination that the Cowlitz Tribe was under federal jurisdiction in 1934," the 30-page brief reads.

Casino opponents will be able to file one reply before the justices decide whether or not they will hear the case. The timeline puts the matter very close to the expected opening of ilani, whose name comes from the Salish word for "sing."

Republican President Donald Trump, during his days as a casino mogul, in fact visited the site himself in search of a partnership with the tribe. Cowlitz leaders turned him down because they said his terms were not favorable, The Columbian newspaper reported last year.

As part of his pitch, Trump essentially apologized for incendiary comments he made about tribes and Indian gaming in the 1990s. He never meant to "impugn" the sovereignty of "recognized" tribes, according to a letter sent to the late Cowlitz chairman John Barnett.

"I want to assure you and all of the members of the tribe that I do now, and always have, supported the sovereignty of Native Americans and their right to pursue all lawful opportunities," Trump wrote.

Trump further noted that "recognized" tribes are entitled to follow the Indian Gaming Regulatory Act.

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)