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Thursday, August 7, 2003

A federal judge won't stop the Department of Interior from taking land into trust for a California tribe that wants to open a casino in the Bay Area.

In a 28-page decision, U.S. District Judge David F. Levi rejected a preliminary injunction sought by a group of card club operators and charities. He said the threat they claimed was not serious enough to stop Secretary of Interior Gale Norton from following a federal law that requires a 10-acre site to be held in trust for the Lytton Band of Pomo Indians.

"In short, none of plaintiffs' arguments establishes that plaintiffs will experience significant hardship if the Secretary takes the land into trust," Levi wrote yesterday.

But the ruling left open a question the plaintiffs have raised in the two-year-old case. Levi said there was not enough information on the record to determine whether the Lytton Band, just one of the many victims of termination, was properly restored its federal status in the 1980s.

Yet there is no guarantee that the tribe's federal recognition will even be an issue, Levi observed. "Neither the parties nor the court has found a single case where a court overturned the federal government's recognition of an Indian tribe," he cautioned.

The decision is the second in a suit prompted by legislation signed into law by former President Bill Clinton as he was leaving office. Known as the Omnibus Indian Advancement of 2000, one provision directs the Interior to take about 10 acres of land into trust for the tribe.

The site is the location of a card club called Casino San Pablo, which the tribe intends to turn into a full-blown Class III casino. It is located in San Pablo, less than 20 miles from downtown San Francisco.

The provision drew considerable controversy because it was inserted without serious Congressional debate. It does not allow the Interior discretion for taking the land into trust, foregoing what is usually a lengthy review and public comment process that can take years to complete.

The bill also "back dates" the land acquisition, freeing the tribe from a stringent requirement of the Indian Gaming Regulatory Act that requires federal and state approval, from the governor, before the land is taken into trust.

Still, the way the litigation is proceeding, the casino is far off. Landless as a result of termination, the tribe is currently tied up before the 9th Circuit Court of Appeals. The plaintiffs, which include rivals to Casino San Pablo, are challenging Levi's July 2002 decision that upheld the constitutionality of more than 60 tribal gaming compacts. Yesterday's denial of a preliminary injunction is also appealable.

Even if the land is finally cleared for trust status, there is the issue of a compact. Gov. Gray Davis (D), who is facing a recall election October 7, said he won't negotiate until the tribe obtains land. But he also has voiced opposition to casinos in urban environments.

Officials in San Pablo have embraced the deal, which could temper further political opposition. Democrats and Republicans nationwide have become increasingly critical of what they call "reservation shopping." They say tribes in remote areas are searching for land in better locations only to open casinos.

The Lytton Band has about 250 members. The court's decision notes the tribe's poor economic well-being, a situation that will likely be changed by the casino. "Many of Lytton's members live in economically depressed conditions; 15 percent are homeless, 90 percent do not have health insurance, 40 to 50 percent of the adults are unemployed, and many members experience persistent problems with alcohol abuse, chronic depression, and lack of education," Levi wrote.

Get the Decision:
Artichoke Joe's v. Norton (August 6, 2002

Related Decision:
Artichoke Joe's v. Norton (July 29, 2002)

Relevant Laws:
The Omnibus Indian Advancement Act of 2000 (H.R.5528)

Related Stories:
Battle over urban casino continues (07/30)
Ruling a victory for Calif. tribes (7/30)
Calif. landless tribe faces setback (7/11)
Group challenges California gaming (2/8)
Trust land decision said sneaky (2/5)
Clinton signs a final Indian bill (12/29)

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