Scotts Valley Band sues Trump administration over homelands decision

Thursday, August 29, 2019

The Scotts Valley Band of Pomo Indians is suing the Trump administration for derailing the tribe's plan for a casino in the Bay Area of California.

The tribe wants to open a gaming facility on a 128-acre parcel in Vallejo, near San Francisco. The land falls within an area that was promised in a treaty that was never ratified, according to a lawsuit filed in federal court.

"The Tribe’s May 2018 supplement demonstrated, among other things: that the Parcel is located within Royce Area 296, known to the United States to have been seasonally occupied by the Tribe and its members in employment as laborers at the time of the 1851 Treaty; a majority of the known minor members of the Tribe were in residence in the vicinity of the Parcel in 1837 for a period of time; that known, major families of the Tribe can be documented in the vicinity of the Parcel from 1870 onward; and that Chief Augustine, the known leader of the Tribe until his death in 1903, was known to reside and work in the vicinity of the Parcel in 1870," the May 24 complaint reads.

Despite the history, the Bureau of Indian Affairs in February issued an Indian lands opinion which said the tribe failed to demonstrate ties to the site, The Vallejo Times-Herald reported. The decision was issued by Principal Deputy Assistant Secretary John Tahsuda, who is a political appointee of the Trump administration.

“The parcel is located approximately 90 driving miles (75 straight-line miles) southeast of the former Scotts Valley Rancheria, near the present-day city of Lakeport,” Tahsuda wrote in the decision, the paper reported. “As such, the distance between the Vallejo parcel and the Band’s historic Rancheria, standing alone, does not evince a significant historical connection."

Tahsuda's decision does not mean the tribe cannot pursue the casino at the site. But if it's upheld, it would force the tribe to pursue the project under the two-part determination provisions of the Indian Gaming Regulatory Act, a cumbersome process that requires approval from the state governor, in addition to the BIA.

It has taken other tribes in California more than a decade to complete both steps of a two-part determination.

But since the Scotts Valley Band was restored to federal recognition in 1991, the lawsuit argues that the tribe should qualify for a "restored lands" exception found in Section 20 of IGRA. Going that route still requires a lot of work for the casino -- just not from the state governor.

The Section 20 regulations that were finalized by the Bush administration in 2008 require newly recognized tribes to demonstrate a modern connection, a historical connection as well as a temporal connection to a proposed gaming site. To qualify for the exception, a land-into-trust application must be submitted within 25 years of recognition.

The Scotts Valley Band already passed the deadline -- 2016 marks the 25th year since restoration and that's when the tribe submitted its request for an Indian lands opinion, the lawsuit notes.Additional information was submitted in 2018, the complaint reads.

Following Tahsuda's decision, the tribe asked Assistant Secretary Tara Sweeney, another Trump appointee, to reconsider but she denied the request, according to the complaint.

The Department of Justice filed an answer to the tribe's complaint on August 5. The parties subsequently filed a joint status report on August 14, agreeing to a briefing schedule that stretches into March 2020.

During the Obama administration, the BIA rejected the tribe's plan for a casino at a different site in California, also due to a lack of ties to the land.