Glenda Nelson, the chairwoman of the Estom Yumeka Maidu Tribe of the Enterprise Rancheria, took part in a groundbreaking of the Fire Mountain Casino in California on April 8, 2016. Photo courtesy Enterprise Rancheria

Yet another federal appeals court backs restoration of tribal homelands

The winning streak continues for Indian Country with yet another federal appeals court decision in favor of tribal homelands.

This time it's the Enterprise Rancheria racking up a victory, the seventh of its kind in the last two years. In a unanimous decision, the 9th Circuit Court of Appeals on Wednesday rejected a slew of challenges to the tribe's land-into-trust application in California.

Writing for the court, Judge Carlos T. Bea noted that it took the tribe nearly a decade to secure initial approvals for a casino in the northern part of the state. The Bureau of Indian Affairs did not make any major mistakes during the land-into-trust process, he wrote as he turned away nearly a dozen opponents, including the nearby Cachil Dehe Band of Wintun Indians, which has a gaming facility of its own.

In approving the application for a 40-acre site in Yuba County, the BIA "determined that Enterprise needed economic development; the Yuba Site provides an opportunity for Enterprise to engage in that development," Bea wrote in the 47-page ruling.

Indianz.Com on SoundCloud: Cachil Dehe Band of Wintun v. Zinke

The decision means the tribe can resume work on the long-delayed Fire Mountain Casino, a $170 million development. Groundbreaking took place a little over two years ago but litigation forced a stop to construction after less than four months of work.

“It’s difficult to witness the continual replay of one of the saddest chapters of American Indian history -- the specter of tribe fighting tribe out of greed and ignorance,” Chairwoman Glenda Nelson said at the time. “We’ll get through it, our project will get built, but it’s just tragic and unnecessary – there’s more than enough to go around.”

The Cachil Dehe Band, also known as the Colusa Indian Community, has been fighting the new development out of concern for its own bottom line. The tribe's analysis, which had been drafted by a well-known figure in the Indian gaming industry, claimed Fire Mountain would have a "devastating economic impact" on the Colusa Casino, the 9th Circuit said in a summarizing the dispute.

But Bea pointed out that another study that was accepted by the BIA during the land-into-trust process showed that Colusa would lose just $4.3 million per year, a figure the tribe admitted was not particularly devastating.

"Colusa does not argue that $4.3 million per year represents a detrimental loss," the judge observed.

The Cachil Dehe Band hasn't been the only opponent either. The United Auburn Indian Community, which also operates an existing casino, attempted to derail Fire Mountain with a lawsuit in state court but was ultimately unsuccessful.

The seal of the Enterprise Rancheria can be seen amid construction equipment at the groundbreaking of the Fire Mountain Casino in California on April 8, 2016. Photo courtesy Enterprise Rancheria

Still, the opposition has had a significant impact. State lawmakers refused to ratify a Class III gaming compact with the Enterprise Rancheria due to the uncertainty and Gov. Jerry Brown (D) refused to return to the table when the agreement expired after a two-year delay. Class III games include slot machines, table games and related offerings that are already available at places like Colusa and Thunder Valley.

As a result, the tribe dramatically scaled back plans and was prepared to offer bingo and electronic forms of bingo at a less-lucrative Class II facility until winning its own lawsuit against the state. The BIA eventually approved Class III games for Fire Mountain in August 2016, some five years after the project had cleared a major hurdle in Washington, D.C.

But the "tribe fighting tribe" chapter wasn't over yet. That same year, Cachil Dehe and Auburn leaders turned their sights to the nation's capital and lobbied Congress to pass a bill that would have barred the Enterprise Rancheria from offering Class III games on its new homelands despite the win in court.

The bill, known as the California Compact Protection Act, was written so narrowly that it only applied to Enterprise and a second tribe whose casino also has been held up by opposition. At the time same, it ensured that Cachil Dehe and Auburn could continue operating their facilities without any impacts.

"Once wealthy tribes begin down that road, it will not stop just with us," Maryann McGovran, then-chairwoman of the North Fork Rancheria of Mono Indians, wrote on Indianz.Com of the bill, which ultimately did not advance far in the legislative process.

The North Fork Rancheria has been slowed by some of the same forces affecting the Enterprise Rancheria. But the tribe, one of the many victims of the termination era, also has been victorious when it comes to its homelands -- in January, D.C. Circuit Court of Appeals rejected a long-running challenge to the tribe's land-into-trust application.

"Enough is enough!" Judge David S. Tatel wrote in the ruling. The court has since refused to reconsider its unanimous decision in the case.

The two decisions don't stand alone either. Since 2016, the 9th Circuit, which hears a large number of cases affecting tribes in the West, and the D.C. Circuit, which is considered one of the most influential courts in the nation, have sided with tribes and their homelands in seven high-profile cases.

Despite the steady string of wins, the Trump administration is actively trying to discourage tribes from seeking new homelands, particularly those away from existing reservations. Enterprise and North Fork fall in that category -- they sought off-reservation lands because their original territories were impacted by negative federal policies.

"California is every different than other places in the country, of course," John Tahsuda, who serves as the Principal Deputy Assistant Secretary for Indian Affairs for President Donald Trump, acknowledged at a consultation in January.

During the session, which took place in Sacramento, the state capital, tribal leader after tribal leader criticized proposed changes to the Fee-to-Trust Regulations (25 CFR 151). Many shared the view that the new rules will make it all but impossible for tribes to restore their homelands.

"In little more than half a century, the California tribes, with few exceptions, have been dispossessed of their vast aboriginal homelands and the dwindling numbers of their descendants forced to reside on small, unproductive parcels of land, isolated geographically, socially and economically from neighboring non-Indian communities," Dore Bietz, a planner for the Tuolumne Band of Me-Wuk Indians, said during the January 14 consultation.

Groundbreaking on the Fire Mountain Casino in California took place on April 8, 2016. Photos courtesy Enterprise Rancheria

Tahsuda, who is a citizen of the Kiowa Tribe, is currently the highest-ranking political official at the BIA. The agency has gone without a permanent leader in more than two years.

The situation could soon be changing. Tara Sweeney, an Inupiat from Alaska who has been nominated to serve as the Assistant Secretary for Indian Affairs, will finally go before the Senate Committee on Indian Affairs for her confirmation hearing next week.

Alaska, like California, is also very different than the rest of the country. Tribes there weren't able to follow the land-into-trust process for decades due to a faulty interpretation of federal law at the BIA. The agency approved the first application in early January 2017, just days before Trump took office.

Turtle Talk has posted documents from the Enterprise Rancheria case, Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. Zinke.

9th Circuit Court of Appeals Decision:
Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. Zinke (May 2, 2018)

Recent Appeals Court Decisions in Tribal Homelands Cases:
Butte County v. Chaudhuri (April 13, 2018)
Stand Up for California! v. U.S. Department of the Interior (January 11, 2018)
Amador County v. Department of the Interior (November 27, 2017)
County of Amador v. Department of the Interior (October 6, 2017)
No Casino in Plymouth v. Zinke (October 6, 2017)
Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell (July 29, 2016)

Tribal Leader Opinions on H.R.5079, the California Compact Protection Act:
Maryann McGovran: Don't be fooled by efforts of 'wealthy' tribes (5/13)
Claudia Gonzales: Off-reservation gaming fuels attacks on tribes (5/13)

Federal Register Notice:
Land Acquisitions; Enterprise Rancheria of Maidu Indians of California (December 3, 2012)

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