The federal government remains firm in its argument that the St. Croix band of Chippewa has no legal ground to challenge decisions regarding the Beloit Casino Project application, according to a legal brief.
And the tribe stays firm in its stance, too.
“We remain optimistic that our legal arguments are valid and that we will eventually win,” Beloit Casino Project spokesperson Joseph Hunt said.
The months-long legal battle between the tribe and secretary of Interior and assistant secretary for Indian Affairs has led to the parties arguing whether the tribe’s lawsuit against the government officials should be dismissed.
The latest development happened July 1, when the government’s attorneys submitted a 58-page brief explaining its side. Download the document.
“It’s a long document, and the attorneys are still going over it,” Hunt said Monday. “The council is waiting to be briefed by staff.”
He noted he wasn’t surprised by the sections he has read.
“They don’t seem to have changed their arguments,” he said.
The debate stems from the tribe’s lawsuit that alleges former Secretary Dirk Kempthorne improperly changed rules regarding the land-into-trust approval process and policies set by the Indian Gaming Regulatory Act.
“The government has argued that no tribe can challenge a procedure until after it’s been changed,” Hunt said. “Our attorneys are saying that there is ample precedent that when it’s going to be damaging, that, yes, indeed you can.”
U.S. District Court Judge Richard Leon dismissed the case last September, to which the tribe filed an appeal.
That appeal was then dismissed after the Bureau of Indian Affairs denied the Beloit casino application in the final days of the Bush Administration. The government, Hunt has said, argued the appeal was unnecessary since the tribe no longer had a project.
The Court of Appeals in March rejected the government’s motion to dismiss the appeal and ordered the government to respond to the issues the tribe addressed.
Part of the St. Croix Chippewa tribe’s argument includes the Guidance Memorandum the Bureau of Indian Affairs issued in 2008. The tribe asserts it was an unlawful policy change that contributed to the casino project’s rejection. It established a mileage requirement for off-reservation casinos.
The government argued the memo does not constitute final agency action, the brief said.
“The Memo thus advises Interior staff how to analyze such applications to take distant lands into trust under current IGRA regulations,” it said. “The Guidance Memo preserves the Secretary’s discretion to grant or deny applications, and does nothing to disturb the applicable regulatory regime.”
Furthermore, it said, the memo could have only affected the St. Croix in the ruling of a specific fee-to-trust application.
“St. Croix admitted as much in the district court: the only injury it alleged was the increased ‘possibility’ that the Beloit application would be denied,” it said. “Such contingent injury is not sufficient to render the Guidance Memo reviewable agency action.”
The BIA did indeed deny Beloit’s application and supported its rejection with the memo. But, because the application is no longer under review, the government asserts the St. Croix has no legal case.
“Even if St. Croix had set forth a valid claim, however, now that Interior has denied St. Croix’s application, any claim St. Croix might have had is moot,” the brief said.
The tribe has until July 15 to file a response, Hunt said.
“The government response that was filed last Wednesday — it doesn’t change the facts,” he said. “We said Kempthorne would change the rules in order to deny our application, and they did. We showed they had changed their internal procedures to deny applications, and they did.”
The paperwork is leading to oral arguments that will be heard in the U.S. Court of Appeals for the District of Columbia Circuit.