January 18, 2006
Cascade Locks City Administrator Bob Willoughby believes that casino opponents may be waging the biggest gamble of all in their bid to stop tribal gaming.
He contends the newly formed No Gorge Casino! has begun rehashing arguments that have already been found at fault by a contingent of state and tribal attorneys.
The casino opponent group claims that the Confederated Tribes of Warm Springs could be blocked from housing a casino on trust land just east of Hood River.
But Willoughby, who also holds a law degree, said that could be an expensive bet.
He said no legal action has ever stopped a tribe from gaming on land that is exempt from state or federal regulation. And, according to Howard Arnett, tribal attorney, the Columbia River Gorge National Scenic Area Act contains two provisions that strengthen the tribal right to build south of the Mark O. Hatfield state park.
“None of the opponents who have publicly expressed that opinion about Hood River are members of the Oregon State Bar,” said Willoughby. “They are basically suggesting that Gov. Ted Kulongoski, as a former state attorney general and supreme court justice, is ignorant of the facts — and that’s pretty arrogant.”
He said No Casino could actually do more harm than good in its bid to shut down gaming out of societal and environmental concerns.
“Cascade Locks was approved because the governor and his legal advisors studied the issue and determined that access east of Hood River couldn’t be denied,” said Willoughby.
Last April, Kulongoski signed a compact with the Confederated Tribes of Warm Springs to build a 500,000 square foot casino in Cascade Locks’ industrial park. The governor, after having staffers research the issue, believed the off-reservation site was a better choice than 40 acres of tribal property on the hillside above Hood River.
Not only was there strong opposition toward the project in Hood River, but the access to the tribal land lies over the federally designated Historic Columbia River Highway. And both the trust land and tribes’ newly acquired 175 acres of adjacent property is located within the Scenic Area.
Kulongoski believed the Gorge resources would be better protected by placing the casino in Cascade Locks’ urban center that is exempt from Scenic Area regulations.
In exchange, the tribes agreed to deed the new acreage, not yet given trust status, over to the state.
And allow a conservation easement that prohibited development on its trust parcel.
Kulongoski’s support also factored in an exception allowed under the Indian Gaming Regulatory Act (IGRA) of 1988 to grant an off-reservation casino that ended litigation.
For years, the Warm Springs and state officials have been in dispute about ownership of the section of historic highway adjacent to the trust land.
Although the state claims that a tribal member sold a right-of-way decades ago, no deed has ever been produced to back up that claim.
Arnett said the state has the burden of proof to show ownership. Otherwise, he said the disputed length of roadway remains part of the trust land — even though opponents claim otherwise.
And, even if the state does eventually produce a deed, Arnett said it is still not legal to leave the trust parcel without an access.
In fact, Arnett said the Scenic Act itself protects the Warm Springs’ interests. In Section 544o, Subsection 17, under Savings Provisions, the matter is addressed in two clauses.
The first states that the Act shall not “affect or modify any treaty or other right of any Indian tribe.” The second states that the Act does not “alter, establish or affect lands held in trust by the Secretary of the Interior for tribes or individual members of tribes.”
Arnett said any “ambiguity or gray area” in the language of the Act, approved by Congress in 1986, is required by federal law to be “liberally interpreted” by the courts in favor of the tribes.
“Prior to the passage of the Scenic Act we had long discussions with Sen. Hatfield to be sure the tribal rights were protected,” said Arnett.
He said opponents also argue that the Hood River land does not qualify for a casino under IGRA because it has not been actively “governed.”
However, Arnett said, the Warm Springs have chosen to leave the property in open space to be consistent with neighboring parcels.
“We haven’t developed in the Scenic Area — haven’t clear cut or built houses — by choice,” he said.
He said tribes are even protected by federal court rulings from a governor’s refusal to negotiate a gaming compact.
So, if Kulongoski declined to discuss a Class III compact for Hood River, the Warm Springs could take their case directly to Interior Secretary Gale Norton, who oversees the Bureau of Indian Affairs.
Arnett said a Class II facility, limited to bingo and similar games, could be erected without any involvement from Kulongoski’s office.
He said the BIA is now studying the Hood River site as a reasonable alternative to Cascade Locks.
However, he and Willoughby contend that the Warm Springs have made it clear that they would rather set up a casino operation in a community, such as Cascade Locks, that could also use the economic boost.