The Cowlitz Indian Tribe’s Mitigation Ordinances
Background:
The legal challenge to the County/Tribal MOU has Endangered the Enforceability of the MOU’s Mitigation Measures
The 2004 Memorandum of Understanding (MOU) between the Cowlitz Tribe and Clark County provided for mitigation of potential impacts to the surrounding community which might be caused by creation of a reservation for the Tribe. These mitigation measures took the form of certain protections relating to environment, health and safety. The four non-Indian La Center card rooms attacked the MOU, and by so doing have endangered the enforceability of the mitigation measures. It could be several years before the state courts finish considering whether the MOU is an enforceable agreement.
An Alternative Legal Mechanism:
New Tribal ordinances replicate the MOU obligations and enforcement authorities and meet the requirements of federal law without depending on the outcome of the MOU litigation
Because the card rooms’ litigation has caused uncertainty for the citizens of Clark County, the Cowlitz Tribe has sought to create a new, enforceable legal mechanism to ensure mitigation of any impacts and protect County residents regardless of the outcome of the litigation. To accomplish this goal, the Tribe has adopted two new legally binding tribal ordinances, both of which will be submitted to the federal government on October 17, 2007:
1. Environment, Public Health and Safety (EPHS) Ordinance: This is a stand-alone tribal law which will be submitted to the Department of the Interior. Among other things, this Ordinance:
- Obligates the Tribe to perform the mitigation measures that were included in the MOU;
- Grants an irrevocable limited waiver of the Tribe’s sovereign immunity to Clark County to allow an enforcement action by the County in state court; and
- Creates a Tribal Enforcement and Compliance Officer (TECO), whose duty is to ensure implementation of and compliance with the EPHS Ordinance.
2. Tribal Gaming Ordinance Amendment: This amendment to the Tribe’s existing tribal gaming ordinance (which will be submitted to the National Indian Gaming Commission for federal review and approval) incorporates within it the entire EPHS Ordinance. Among other things, the new amendment ensures:
- That mitigation measures equivalent to those in the challenged MOU will now be part of the Tribe’s gaming ordinance; and
- The federal government (in addition to Clark County) will have enforcement authority to ensure that the mitigation measures are put into place.
By adopting these two ordinances, the Tribe has ensured that the citizens of Clark County will be protected by the same mitigation measures – the same environment, health and safety provisions – as are embodied in the embattled MOU, and that those same provisions will remain in place regardless of the outcome of the MOU litigation.
By adopting these ordinances the Tribe stands by its commitment to the people of Clark County to be a good neighbor and to protect the health, safety and environment of our community.
Questions and Answers
1. Why did the Tribe recently withdraw the tribal gaming ordinance that it submitted in July of this year?
In July of this year, the Tribe submitted an earlier version of this legal mechanism to the National Gaming Commission (NIGC) an amendment to its tribal gaming ordinance that replicated the mitigation provisions contained in the MOU. However, that earlier version only contemplated enforcement of the Tribe’s obligations by the federal government. The Tribe listened to concerns raised by the local community that Clark County (rather than just the federal government), should be able to act to enforce the promised mitigation measures. The Tribe agrees that it would be better if Clark County would have a more active role in enforcement. Accordingly, on October 5, 2007 the Tribe withdrew the July ordinance so that the Tribe could replace it with the new ordinances discussed above which allow for County enforcement action.
2. What impact will the two new ordinances have on the MOU litigation?
If the courts uphold the validity of the MOU: The Tribe will continue to be bound by the terms of the MOU, and will continue to implement its obligations under the MOU.
If the courts ultimately invalidate the MOU: The mitigation and enforcement measures to which the Tribe has bound itself in the MOU will remain through the operation of these two new tribal ordinances. This means that even if the MOU disappears tomorrow, the Tribe will be bound to perform equivalent mitigation measures, and the County will be able to bring equivalent actions against the Tribe, as if the MOU still existed. In other words, because the two tribal ordinances effectively replicate the MOU obligations and enforcement authorities, the outcome of the litigation is no longer relevant to the EIS process.