Smoke Signals 5
DECEMBER 1,2013
Court off Appeals affirms governor's ability
to sign gaming compacts with Oregon Tribes
By Dean Rhodes
Smoke Signals editor
The Oregon Court of Appeals
ruled Thursday, Nov. 14, that the
Oregon Legislature authorized the
governor to enter into agreements
with Tribes to ensure that the state
does not infringe on Tribal rights
granted under federal laws, such
as the Indian Gaming Regulatory
Act.
The ruling came in response to a
lawsuit that started in December
2003 when four Florence residents
- Susan Dewberry, Carol Hol
combe, Suzanne Danielson and
Arnold Buchman - argued that
Gov. John Kitzhaber did not have
the constitutional authority to
enter into a gaming compact with
the Confederated Tribes of the
Coos, Lower Umpqua and Siuslaw
Indians.
"We are very pleased with the
decision," said Senior Assistant At
torney General Stephanie Striffler,
who is also the state Department of
Justice's Native Affairs coordina
tor. "We've been at this litigation
for 10 years and it is gratifying to
see the Court of Appeals agree with
our view of state law that the gover
nor can enter into gaming compacts
with Tribes."
In 2002, the Coos, Lower Umpqua
. and Siuslaw Indians began ne
gotiating a gaming compact with
Kitzhaber to authorize casino-style
gaming on a 98-acre parcel of land
in Florence that lies within the for
mer Siletz Reservation, from which
the Tribe was removed in 1862.
In 1998, the Secretary of the In
terior acquired the land in trust for
the Tribe and a subsequent federal
district court ruling supported the
secretary's decision that the proper
ty constituted restored lands under
the Indian Gaming Regulatory Act.
The act prohibits gaming on Indian
lands acquired after Oct. 17, 1988,
unless they are restored lands.
In February 2003, the Bureau of
Indian Affairs approved the Tribal
state compact and Three Rivers
Casino & Hotel opened in the sum
mer of 2004.
Meanwhile, the four Florence
residents attempting to halt the
casino's development sought a
ruling in September 2003 against
Gov. Ted Kulongoski, who sup
ported Kitzhaber's compact, from
the Oregon Supreme Court to stop
further development of the casino.
The Supreme Court denied that
request in November 2003.
The next month, the residents pe
titioned Lane County Circuit Court,
which dismissed their request in
early 2004. They appealed the cir
cuit court decision, but the Oregon
Court of Appeals held off hearing
the case while they filed another
complaint under the Oregon De
claratory Judgment Act in March
2004. The second case was moved
from Lane County Circuit Court to
U.S. District Court for the District
of Oregon.
The District Court eventually
File photo
Three Rivers Casino, owned by the Confederated Tribes of the Coos, Lower
Umpqua and Siuslaw In Jians, is located in Florence, Ore.
ruled that the four residents lacked
standing because their alleged inju
ries were not sufficiently "concrete
or particularized."
After losing in U.S. District
Court, the residents returned to
their original challenge to the
gaming compact with the Oregon
Court of Appeals, which ruled that
Lane County Circuit Court Judge
Karsten Rasmussen erred in dis
missing their first petition.
On return to Lane County Circuit
Court, the Tribe was allowed to in
tervene after waiving its sovereign
immunity. Almost every other Or
egon Tribe, including the Confeder
ated Tribes of Grand Ronde, filed
friend of the court briefs, support
ing the Coos, Lower Umpqua and
Siuslaw Tribe and the state.
In 2010, Rasmussen ruled in fa
vor of the state and Tribe. He said
in a 27-page opinion that federal
law allows Tribal casinos in states
that allow other entities to oper
ate games of chance, as long as the
state and Tribes negotiate a gaming
compact.
Rasmussen's ruling then took
the case back to the Oregon Court
of Appeals.
On Nov. 14, a three-judge Court
of Appeals panel ruled that the
Indian Gaming Regulatory Act is
a "comprehensive federal statutory
scheme for the regulation of gaming
on Indian lands that preempts the
application of state gaming laws."
In addition, the Court of Appeals
rejected the contention that the
power to enter in to a Tribal-state
compact rests only with the Legis
lature. "We conclude that ORS 190.110,
which addresses agreements by the
state and local governments with
American Indian Tribes, provides the
governor with statutory authority to
enter into a variety of agreements
on behalf of the state," Judge Lynn
Nakamoto wrote in her opinion.
"We do not find persuasive (the)
suggestion that the Legislature's
omission of one specific federal
statute under which Indian Tribes
have rights and privileges ought
to bear significant weight in the
textual analysis of ORS 190.110,
which is broadly written and which
contains no reference to specific
federal statutes."
The Appeals Court panel also
rejected several other arguments,
including a contention that the
Legislature's statutory delegation
of authority to the governor to co
operate and negotiate with Indian
Tribes is an abdication of its legis
lative function, in violation of the
separation of powers clause of the
Oregon Constitution.
"We conclude that there is no
clear separation-of-powers viola
tion," Nakamoto wrote. "Assuming
that casino gambling policy is a
legislative function, the Legislature
has set that policy in Oregon, allow
ing limited casino-style gaming. In
accordance with governing federal
law concerning the Tribes' rights
to conduct gaming on their lands
under IGRA, Oregon's legislative
policy undergirded the governor's
entry into negotiations and the
final gaming compact with the
Tribes. ... The governor did not vio
late the 'underlying principle that
separation of powers seek to avoid
the potential for concentration of
separate powers' in one branch."
Ultimately, Nakamoto wrote,
'The trial court correctly concluded
that the governor acted lawfully
... in negotiating and entering into
the Tribal-state compact with the
Tribes."
The four residents' attorney,
Kristian Roggendorf of Lake Os
wego, said he was not sure if they
plan on appealing the decision to
the Oregon Supreme Court.
"We're very pleased the Oregon
Court of Appeals decided the case
in their favor and upheld the gov
ernor's authority to negotiate and
enter into gaming compacts," said
Grand Ronde Tribal Attorney Rob
Greene. "This decision helps pro
tect the substantial benefits Tribal
casinos have made to reservation
economies, as well as local and
statewide economies." D
Conference room construction
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Photos by Michelle Alaimo
Andrew Whisler, foreman for Whisler Construction, works on the
framing for the expansion of Tribal Council's conference room in
the Governance Center on Wednesday, Nov. 20. The expansion will
almost double the size of the room and should be complete by the
end of December. The extra space will accommodate more people,
enabling Tribal Council to bring more visitors to meet with and
educate them about the Tribe.
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During construction two 30th Restoration coins, one showing the
front and one showing the back of the coin, were placed in the new
foundation. The coins will be covered by flooring so in the future if or
when more construction is done, the coins will be discovered, sort of
like a time capsule.