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Indian Country secures victory with end to long-running land case

Filed Under: Law | National | Politics | Trust
More on: bia, carcieri, cowlitz, dc circuit, doi, doj, grand ronde, land-into-trust, massachusetts, ryan zinke, supreme court, wampanoag, washington

Leaders and citizens of the Cowlitz Tribe at their recently-established reservation in Washington. Photo: Cowlitz Tribe

UPDATE: Statement from Cowlitz Tribe: 'A triumphant moment' after waiting 160 years for homeland
The U.S. Supreme Court has delivered some good news to Indian Country by putting an end to a long-running land dispute.

Without comment, the justices on Monday denied a petition in Citizens Against Reservation Shopping v. Zinke. The action, which came in an order list, ensures that the Cowlitz Tribe can restore its homelands through the land-into-trust process.

But, more broadly, the development represents a win for Indian Country. It means the federal courts will continue to defer to the Bureau of Indian Affairs when it comes to land-into-trust.

And it gives the Trump administration an easy and early victory on a matter that has created uncertainty in legal and policy circles for more than a decade.

"Sovereignty should mean something," Secretary Ryan Zinke, whose name was put on the lawsuit after he became the new leader of the Department of the Interior, said in his first appearance on Capitol Hill last month.

The Trump team was given extra time to respond to the closely-watched lawsuit before the Department of Justice came down firmly in the Cowlitz Tribe's corner. In a March 1 brief, government attorneys said the BIA made the right call by approving the tribe's land-into-trust application for a 152-acre reservation in the southwestern part of Washington state.

But opponents were hoping the Supreme Court's decision in Carcieri v. Salazar -- a case named after one of Zinke's predecessors -- would derail the tribe's return to its aboriginal territory. In that ruling, the justices held that the BIA can place land into trust only for those tribes that were "under federal jurisdiction" in 1934.

Although the United States engaged in treaty negotiations with Cowlitz leaders, issued land allotments, finalized a land claim and took other actions that treated the Cowlitz people as a distinct entity, the tribe was never formally acknowledged as a sovereign entity until the BIA approved its federal recognition petition in 2000. Opponents believed the long period of uncertainty would stop the establishment of the reservation in Clark County.

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

But the federal courts repeatedly deferred to the BIA's interpretation of the Carcieri ruling throughout the course of the lawsuit. The agency reviews each tribe's history to determine whether it falls "under federal jurisdiction" in 1934 even if formal recognition didn't come until later. The BIA also has concluded that a tribe need not be "recognized" in 1934 in order to benefit from the land-into-trust process.

"At the end of the day, there is a large and complex record of Interior interactions with the Cowlitz for almost a century," Judge Robert L. Wilkins of the D.C. Circuit Court of Appeals wrote in a unanimous decision last July.

The ruling is now the law of the land since the Supreme Court has refused to overturn it and the precedent could help other tribes whose land-into-trust applications are facing Carcieri challenges.

Leaders of the Mashpee Wampanoag Tribe, like many others in Indian Country, have been closely watching the Cowlitz case. But Chairman Cedric Cromwell remains confident that his people's land-into-trust application will survive an ongoing lawsuit in Massachusetts

A federal judge ordered the BIA to reconsider the application in light of Carcieri. In a message printed in the tribe's April newsletter, Cromwell said Secretary Zinke will be an ally in that fight.

"He has a strong record of being pro-sovereignty and someone who has made it a priority to protect the land," Cromwell said after meeting with the Cabinet official in Washington, D.C., last month. "I’m certainly optimistic that Interior Secretary Zinke will do right by our tribe."

A sneak peek inside the building… We can’t wait for you to see it soon!

Posted by ilani on Sunday, April 2, 2017

ilani on Facebook: 'Sneak Peak'

For the Cowlitz Tribe, the precedent carries a more immediate benefit after going more than 160 years without a permanent homeland. Now that the status of the reservation is secure, the tribe is expecting to open the doors to the ilani Casino Resort by the end of the month.

The tribe made infrastructure, transportation and other improvements at the site after the BIA finalized the land-into-trust application in March 2015. Construction activities began later in the year and a ceremonial groundbreaking took place in February 2016.

Opponents included non-Indian card clubs whose business would be affected by the casino. Two in the city of La Center, only a few miles from the Cowlitz Reservation, already shut down operations in the last couple of years, including one whose employees left in order to seek employment at ilani.

The Confederated Tribes of Grand Ronde at one point were part of the challenge but withdrew after the D.C. Circuit issued the decision last July. The tribe has feared revenue losses at its Spirit Mountain Casino in Oregon, because ilani will be much closer to Portland, the state's most populous metropolitan area.

D.C. Circuit Court of Appeals Decision:
Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell (July 29, 2016)

Federal Register Notices:
Cowlitz Indian Tribe Liquor Ordinance (March 23, 2017)
Proclaiming Certain Lands as Reservation for the Cowlitz Indian Tribe (November 13, 2015)
Land Acquisitions; Cowlitz Indian Tribe (May 8, 2013)

Department of the Interior Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)

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