Court hears Cowlitz appeal on March 18

An appeal of a December 2014 ruling that favored the Department of the Interior’s decision to take land into trust for the Cowlitz Tribe near La Center, Wash., was heard Friday, March 18, by the U.S. Court of Appeals for the District of Columbia in Washington, D.C.

The two main appellants – the Confederated Tribes of Grand Ronde and Clark County, Wash. – were represented by attorneys Lawrence Robbins and Benjamin Sharp, respectively, while Department of Justice attorney John Smeltzer represented the Department of the Interior and Robert Luskin represented the Cowlitz Tribe.

The three-judge panel that heard the appeal included Cornelia Pillard, Robert Wilkins and Harry Edwards. Each side received approximately 15 minutes apiece to present their arguments.

At issue was a lower court decision by District Court Judge Barbara Rothstein that favored the department’s decision to take land into trust for a Cowlitz Reservation just 15 miles north of the Vancouver/Portland metropolitan area.

Attending the hearing were Grand Ronde Tribal Council members Chairman Reyn Leno, Vice Chair Jack Giffen Jr., Brenda Tuomi, Jon A. George, Tonya Gleason-Shepek and Denise Harvey. Tribal Attorney Rob Greene, Assistant Tribal Attorney Kim D’Aquila and Tribal Council Chief of Staff Stacia Martin also attended.

Robbins said during the appeal hearing that for the Department of the Interior to take land into trust for the Cowlitz Tribe under the Indian Reorganization Act of 1934, Interior Secretary Sally Jewell must make two independent decisions: That the Cowlitz Tribe was a recognized Tribe and that the Cowlitz were under federal jurisdiction.

“The Record of Decision in this case misconstrues the IRA in both of those separate and independent respects,” Robbins argued.

Robbins said the Record of Decision erred in deciding that the Cowlitz did not have to be recognized by the federal government in 1934.

“If you look at the text of the statute and if you look at the structure of the statute, everywhere you look there are signs pointing to 1934,” Robbins said.

Robbins’ presentation was interrupted often by questions from members of the three-judge panel, who inquired if the Indian Reorganization Act limits the Secretary of the Interior’s ability to take land into trust for Tribes who were only recognized in 1934, as well as trying to determine the exact definition of “federal recognition.”

“The ROD most conspicuously fails to reckon in any serious way with the 2005 proceedings before the National Indian Gaming Commission in this very case with respect to this very parcel,” Robbins said. “In seeking a so-called restored lands exception to IGRA (Indian Gaming Regulatory Act), the Cowlitz admitted and the NIGC determined that any recognition or jurisdiction for the Cowlitz was terminated as of 1934 and had been throughout the entire 20^th century.”

Robbins asked the Court of Appeals to remand the case back to District Court.

“We would hold the agency to its historical position that recognized means recognized in 1934,” Robbins said.

Sharp, who represented Clark County, said that a Tribe had to occupy lands set aside by the federal government in 1934 to be federally recognized, as well as that the Cowlitz were so dispersed in the early part of the 20^th century that they were not considered a Native American Tribe under federal jurisdiction. He also argued that the Cowlitz do not have a historical connection to the land taken into trust for them.

Leno said during the Tuesday, March 22, Legislative Action Committee hearing that a decision from the Court of Appeals might be issued in June at the earliest.

Meanwhile, Clark County and some of its residents are awaiting a Court of Appeals ruling on a motion for emergency relief to halt the current construction occurring at the Cowlitz site west of Interstate 5 near La Center and plans by the Cowlitz Tribe to inject treated wastewater from the casino into the ground, potentially affecting the water quality of the Troutdale Aquifer, which is a primary source of fresh water in the region.

A recording of the Appeals Court hearing can be heard at www.cadc.uscourts.gov/recordings/recordings.nsf/DocsByMonday?OpenView&StartKey=20160320160314&Count=12&scode=2,