Supreme Court Ruling Raises Richmond Casino Questions

By Richard Brenneman
Wednesday February 25, 2009 - 08:03:00 PM

A U.S. Supreme Court ruling handed down Tuesday raises new questions about the fate of two Richmond area casino projects. 

But Berkeley entrepreneur James D. Levine, backer of the proposal for a $1.5 billion resort at Point Molate, said his lawyers have advised him that the ruling in Carcieri v. Salazar appears to pose no threat to the resort project. 

The case before the court involved the purchase of 31 acres by the Narragansett tribe of Rhode Island as a site to build housing. The secretary of the Interior Department, the agency responsible for relations with federally recognized tribes, agreed to take the land into trust for the tribe. 

Rhode Island Gov. Donald L. Carcieri filed a legal challenge, and new Secretary of the Interior Ken Salazar had become the defendant by the time the decision was reached. 

The Supreme Court overturned the Department of the Interior decision, ruling that the government had no authority for the action because the tribe was not under federal jurisdiction in 1934, when the Indian Reorganization Act, which grants the interior secretary power to acquire and hold land for Indians, was passed. 

That action is the critical first step before tribes can build casinos on the land. Subsequent steps involve approval by the National Indian Gaming Commission and the negotiation of a gambling compact with the state. 

While the Narragansetts were granted federal recognition in 1983, the court ruled that federal recognition at the time the 1934 law was passed was the critical date, and that the law didn’t apply to tribes recognized later. 

That raises an interesting legal issue and some uncertainty, because while both tribes proposing Richmond casinos had been federally recognized at the key date in 1934, the federal government later stripped them of recognition, restoring it only later.  

Both the Scotts Valley Pomos, would-be developers of the Sugar Bowl casino in North Richmond, and the Guidiville Rancheria Pomos, the tribe that would have its reservation at Point Molate, appear to have been federally recognized at the time of the law’s passage. 

Both tribes lost their recognition after Congress passed the California Rancheria Act in 1958 during an era when the Bureau of Indian Affairs was trying to force Native Americans into cities in an effort to “mainstream” smaller tribes. During the same period, the young of larger tribes were removed to BIA boarding schools with the same goal in mind. 

The Guidivilles lost federal recognition in 1961, “but Guidiville was recognized before 1934,” so the decision would not apply to the tribe, Levine said. The tribe was restored in 1986, and with full recognition in 1992, the group was granted 44 acres near Ukiah, according to the San Diego State University online database of California tribes.  

The two tribes lost all or most of their land after the loss of recognition. 

The Scotts Valley Pomos were restored in 1991, but without a land base, the tribe lost its rancheria status the following year. The tribe is now formally known as the Scotts Valley Band of Pomo Indians of the Sugar Bowl Rancheria, according to the San Diego State database. 

While the Scotts Valley tribe has already finished its initial federal environmental review, it didn’t undertake a state review—an omission that has stalled the project thanks to a court victory by casino foes. 

Stephan Volker, an environmental law attorney, won a courtroom victory when a Contra Costa County Superior Court judge ruled the city had breached the California Environmental Quality Act by failing to conduct a review of environmental impacts of the implications of the November 2006 City Council decision to approve a 20-year agreement with the casino’s developers. 

He was not available for comment by deadline Wednesday. 

The agreement promised the city $335 million over 29 years to provide road improvements and emergency services for the North Richmond casino. 

The city has appealed the decision by Contra Costa Superior Court Judge Barbara Zuniga, who held that the city failed to conduct the legally required review before signing the accord. 

The Point Molate developers had conducted simultaneous federal and state environmental reviews, though the documents have yet to see the light of day. 

“I understand that they’d been completed,” Levine said Wednesday, “and we’re waiting for their release. But the federal government has other priorities right now, like saving the world from the mess these investment bankers have made.” 

Both tribes have been recruiting lobbyists to plead their cause before Congress and the BIA. 

According to federal records, the Guidivilles spent $40,000 on Washington lobbying last year through the firm Hogan & Hartson, Washington’s oldest law firm. (Coincidentally, even white shoe law firms have been hard hit by the economic crisis, with the National Law Journal reporting Feb. 10 that Hogan & Hartson had just offered buyouts to 240 members of its staff.) 

The Scotts Valley tribe shelled out even more, paying $80,000 to Pennsylvania Avenue lobbyists Akermann Senterfitt and $70,000 to Lovetsville, Virginia, lobbyists Franklin Creek Consulting.  

One reason the Guidivilles may have needed to pay less is that one of Levine’s partners in the casino project has his own impeccable political connections. William S. Cohen straddles both sides of the political fence as a former Republican governor of Maine and as secretary of defense to Democrat Bill Clinton. 

Doug Elmets, the Sacramento lobbyist who represents the Lytton Band of Pomos, said the Supreme Court ruling doesn’t affect their already existing facility, Casino San Pablo. That casino offers video bingo and not the more traditional slots that would be featured at the other two still-unbuilt casinos. 

Richmond Mayor Gayle McLaughlin said she had initially heard that the law might block the casino at Point Molate, but later heard conflicting reports about the ruling’s applicability. 

“I’m still strongly opposed to urban casinos,” she said Wednesday afternoon. “I would rather we spend our efforts building strong and healthy services and working to create a truly sustainable community,” she said. 

Approval of either or both of the two planned casinos would give the East Bay California’s first full-scale metropolitan casino. 

The Supreme Court decision was written by Justice Clarence Thomas, joined by five other justices. Two jurists wrote a partial dissent, with only one justice, John Paul Stevens, in full dissent in favor of the tribe.