Litigation | Openings & Closings

Trump team gets another extension in Supreme Court tribal casino case

Monday, February 20, 2017

The Cowlitz Tribe plans to open the ilani Casino Resort in late April 2017. Photo: ilani

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.

A closely-watched Indian gaming case is still awaiting a response from the new Trump administration.

The Department of Justice was supposed to file a brief in Citizens Against Reservation Shopping v. Jewell by Friday. But the U.S. Supreme Court granted another extension -- the third so far -- and the response is now due by March 1, according to Docket No. 16-572.

At issue is whether the Bureau of Indian Affairs should have approved the land-into-trust application for the Cowlitz Tribe, which paved the way for a $400 million casino in Washington. The expected response would be for the federal government to the defend the acquisition, which was more than a decade in the making.

But as the last month has shown, anything is possible with Republican President Donald Trump in office. Yet the new occupant of the White House has an unusual connection to the matter -- he once tried to partner with the tribe and even visited Washington to check out the site, The Columbian reported last year.

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.

“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 paper for a story published in May 2016.

Fast forward more than a decade later, the ilani Casino Resort, whose name comes from the Salish word for "sing," is slated to open in late April. Non-Indian interests, with their petition to the Supreme Court, are hoping to derail the celebration.

Opponents -- which include a group called Citizens Against Reservation Shopping, non-Indian card rooms and three local property owners -- think their case is attractive because it goes back to the Supreme Court's 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.

Indianz.Com SoundCloud: D.C. Circuit Court of Appeals Oral Arguments in Confederated Tribes of the Grand Ronde Community of Oregon v. Sally Jewell

"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.

The D.C Circuit ended up siding with the BIA and the tribe and that's what prompted the non-Indian interests to ask the Supreme Court for one last shot at reviving the case.

Non-Indians aren't the only ones interested in the dispute, though. 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.

The Department of Justice is now under the leadership of Jeff Sessions, who was confirmed as Attorney General by a party-line vote on February 8. Democrats said he expressed questionable views on tribal jurisdiction and protections for Native women but Republicans, who hold a majority in the Senate, were able to approve him anyway.

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)