Mohawks take Kempthorne to court

Tribe seeks to compel action on casino

By FRITZ MAYER

WASHINGTON, DC — Frustrated after months of inaction, the tribe planning to open a casino in Monticello has taken legal action against the official who is blocking their progress. The St. Regis Mohawk Tribe filed suit against the secretary of Department of the Interior (DOI) Dirk Kempthorne in Washington, DC on November 1, asking the court to compel Kempthorne to make a decision on the land-into-trust application.

The Bureau of Indian Affairs (BIA) approved the tribe’s environmental assessment of the casino project to be located at Monticello Gaming and Raceway in December 2006, and Governor Eliot Spitzer approved a deal with the tribe in February. Kempthorne’s decision is nearly the final hurdle before the $600 million project can move forward.

The suit charges Kempthorne with acting in bad faith with respect to what the tribe calls its “fully completed, yet inexplicably languishing land-into-trust application.”

“It is unfortunate that we have to file a lawsuit to compel the secretary to do his job, and it is unacceptable that our completed application has been pending at the department for nearly nine months,” said Lorraine M. White, one of three Mohawk chiefs. “The secretary cannot unilaterally ignore the law and simultaneously ignore his fiduciary responsibility to the Mohawk people and his oath of office.”

A spokeswoman for the BIA said the agency does not comment on pending litigation, but in the past, BIA officials have said there is nothing in the law that mandates that Kempthorne must make a land-into-trust decision within a specified period of time.

Kempthorne has made no secret of his opposition to the establishment of off-reservation casinos, and as governor of Idaho, he staunchly opposed such projects there. In February, Associate Deputy Secretary James E. Cason told the United South and Eastern Tribes, “We’re in the process of trying to reconcile his views as governor and his activities as governor with his role as secretary.”

Mohawk Chief James Ransom said, “The New York State legislature passed a state law particularly inviting gaming to Sullivan County. This is unlike the secretary’s experience as governor of Idaho where there was strong opposition on both state and local levels to Indian gaming. The secretary needs to put aside his personal objections.”

Opponents of the casino, on the other hand, argue that if Kempthorne approves this project, it will open the floodgates to dozens of off-reservation casino projects that are currently pending before the BIA.

If Kempthorne does ultimately approve the land-into-trust application, another hurdle to be overcome is a lawsuit filed by the Natural Resources Defense Council (NRDC) and three other environmental groups. The NRDC sued the government in February claiming the environmental review of the casino project, which had been approved by the BIA, was inadequate, and that the law calls for a full environmental impact statement (EIS.)

According to Kate Sinding, a senior attorney for the NRDC, the defense council came to an agreement with the government and the Mohawks in April that the case would be held in abeyance until such time as Kempthorne approved the application. Once approved, the DOI agreed that it would not actually take the land into trust until the NRDC lawsuit was settled by a judge, with a two-month window allowing for an appeal if NRDC loses its case.

Land into trust

In order to operate a casino on land that is not part of a reservation, the land must be taken into trust by the DOI. Once that happens, the land is legally owned by the United States, but the tribe holds a “beneficial title” and exercises sovereignty over the lands.

In this case, the site is about 300 miles away from the Mohawk’s reservation, which is located in northern New York and across the border into Canada.