Law

Dispute over Buena Vista casino continues in court

Tuesday, March 25, 2008

A California county is moving forward with its lawsuit against the Bush administration after efforts to resolve a casino dispute failed.

Officials in Amador County don't think the Buena Vista Rancheria of Me-Wuk Indians has a right to build a casino. A long-running lawsuit says the tribe's reservation doesn't qualify for gaming under the Indian Gaming Regulatory Act.

After nearly three years of inaction, a federal judge allowed the case to advance. In a short decision last Friday, Judge Richard W. Roberts in Washington, D.C., rejected a request by the Interior Department to dismiss the lawsuit.

The move came days after the county nearly withdrew the lawsuit voluntarily as part of an intergovernmental agreement with the tribe. The county would get $18 million up front, plus about $8 million a year, in tribal gaming revenues in exchange for dropping the case.

When supervisors deadlocked on the issue on March 4, the tribe amended the agreement to allow the lawsuit to continue. But when a second vote was called a week later, a key official changed his mind and the deal failed again.

The tribe is now trying to resolve the dispute through arbitration, as provided by the Class III gaming compact it signed with Gov. Arnold Schwarzenegger (R). A decision could come anytime between 30 and 90 days.

Meanwhile, the county is trying to invalidate the compact through the lawsuit. As part of an amended complaint filed in federal court on Friday, officials say Interior allowed the compact to become effective without making an "Indian lands" determination for the gaming site.

Under IGRA, gaming can only take place on "Indian lands," which is defined as follows:

(A) all lands within the limits of any Indian reservation; and

(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.

The National Indian Gaming Commission, in a June 2005 letter, said the Buena Vista Rancheria does quality for gaming. The agency's acting general counsel, Penny Coleman, cited court decisions that treat rancherias in California as reservations, satisfying part (A) of the definition.

In court papers, the Justice Department also said Interior is not required make an "Indian lands" determination when reviewing a compact. IGRA "does not mandate that the [Interior] Secretary undertake an analysis of whether the gaming will take place on Indian lands," government attorney wrote in a motion to dismiss.

This argument appears to contradict a policy that the Bush administration imposed in 2005 in which the "Indian lands" status of a gaming site will be considered. Interior has used this policy -- which was crafted without tribal consultation -- to reject Class III compacts on at least two occasions.

IGRA "does not authorize the Secretary to approve a compact for the conduct of Class III gaming activities on lands that are not now, and may never be, Indian lands of such Indian tribe," associate deputy secretary Jim Cason said in May 2005 when he rejected a compact for an off-reservation casino in Oregon. Another compact, for a casino in California, was rejected as recently as last week.

However, government attorneys attempted to draw a minute distinction based on the way compacts are handled under IGRA. The law requires Interior to approve or reject a compact within 45 days of receipt but it also allows a compact to go into effect without action by the agency.

The latter case -- in which a compact is "deemed approved" to the extent it doesn't violate federal law -- lets Interior off the hook for an "Indian lands" determination, according to government attorneys. "If the Secretary has discretion to take no action at all on a submitted compact, it follows a fortiori, that the Secretary has no duty to render an Indian lands opinion in connection with such inaction," the motion to dismiss said.

The Schwarzenegger administration has declined to get involved in the dispute. Last month, the state refused to help the county with the lawsuit, saying Schwarzenegger stands by the compact he signed with the Buena Vista Rancheria.