Having lost a series of legal rulings in court, Napa County has turned to lobbying in Washington, D.C., in its ongoing dispute with the Mishewal Wappo tribe of Alexander Valley, which aims to regain federal recognition.
As Napa County officials met in the nation’s capital with the new head of the U.S. Bureau of Indian Affairs last week, lawyers for Napa and Sonoma counties went back to court to attempt to block any settlement that the Wappo could make in ending its lawsuit against the U.S. government that seeks federal recognition.
Napa County fears that tribal recognition could someday lead to the tribe building a casino in the county.
On Nov. 6, Supervisor Diane Dillon, County Counsel Minh Tran and Larry Florin, the director of the county’s Housing and Intergovernmental Affairs Department, met with Kevin Washburn, the new assistant secretary-Indian Affairs for the U.S. Department of the Interior.
Representatives from the local chapter of the Sierra Club and the Napa Valley wine industry accompanied the county officials, Dillon told the Board of Supervisors on Tuesday. The county will cover the costs of the public officials’ trip, while the others paid their own expenses, she said.
Dillon said the meeting produced a fruitful dialogue on how Indian tribes receive federal recognition. Napa County’s position is that only Congress, not a federal court or the executive branch, should be able to federally recognize tribes.
“It’s something we’ve wanted to have for quite awhile — a dialogue,” Dillon said. “And we’ve had a good start with that.”
Florin said the Napa County group wanted to educate Washburn on its experience in the lawsuit, and to explain its interest in protecting its land-use system, including the Agricultural Preserve. Officials fear that a federally recognized tribe with claims within Napa County would be a threat to that. Once recognized, tribes can petition the U.S. government to take land into trust, which exempts that land from local land-use controls.
Florin said the county requested the meeting with Washburn after Napa and Sonoma counties were tossed out of the tribe’s lawsuit last month.
U.S. Rep. Mike Thompson, D-St. Helena, did not attend that meeting but said in a statement that he also plans to meet with Washburn soon.
“I have said from the beginning that our community must have a seat at the table as Department of Interior discusses federal recognition of the Wappo Tribe,” Thompson said in the statement. “(Interior) must make sure our community’s interests are protected, and meeting with folks from our community is the first step towards making sure that happens.”
Wappo Tribal Chairman Scott Gabaldon said Thursday that he had also tried to schedule a meeting with Washburn but was turned down due to the tribe’s ongoing lawsuit, which was filed against the Department of the Interior. Napa and Sonoma counties joined as intevenor defendants in 2010.
U.S. District Court Judge Edward Davila tossed the counties out of the lawsuit in October, so Washburn did not face a similar conflict in meeting with Napa County.
The meeting coincided with Napa and Sonoma counties’ latest legal maneuvering in the Wappo tribe’s lawsuit against the U.S. government. The counties have appealed Davila’s decision to remove them.
As part of its appeal, on Nov. 6 lawyers for the counties asked the 9th U.S. Circuit Court of Appeals to expedite hearing their appeal, and to stop Davila from entering any judgment in the tribe’s lawsuit.
The tribe seeks to end its lawsuit through a summary judgment hearing before Davila that could result in the tribe regaining recognition, Gabaldon said. A case management hearing is scheduled for Nov. 30, and dates for the summary judgment hearing would be scheduled at that time, said Joseph Kitto, a lawyer for the tribe.
In its motion before the appeals court, the counties argued that expedition is necessary because of a settlement between the tribe and the federal government will be reached “soon.”
Gabaldon took that to mean that the counties were accusing his tribe of colluding with the federal government to seek settlement.
“You’ve got the counties accusing us of finding a friend at the (Bureau of Indian Affairs) and settling,” Gabaldon said. “Who’s making friends now?”
Kitto also had strong words regarding the meeting.
“It reeks,” Kitto said. “It really reeks of protecting certain individuals with Napa County — the wine industry.”
As for the contention that his tribe seeks recognition so it can pursue building a casino, Gabaldon said its fight to regain federal recognition predates the Indian Gaming Regulatory Act of 1988, the federal law that regulates casino gaming on Indian lands.
“Everybody thinks we’re a new tribe doing this for a casino,” Gabaldon said. “We started this 25 years ago before there was a casino in California.”
The tribe has maintained that its recognition was illegally stripped from it in 1959, and regaining recognition will allow it to provide federal benefits to its members, including increased access to housing, education and health care. It’s called a casino an option, but no decision has been made on whether to pursue it.
In arguing to support its request to the 9th Circuit, the counties have revived an earlier issue that they felt would end the lawsuit entirely — that Davila lacks the jurisdiction to hear the case because the statute of limitations has expired.
According to the counties, federal law establishes a six-year statute of limitations for filing lawsuits against the U.S. government.
The counties sought to have the lawsuit thrown out on these grounds, among several others, in its motion to dismiss the lawsuit. Davila denied this motion last fall, and the counties again raised this issued when they asked him to appeal his decision in February. Davila denied that request.
With the counties now out of the case, Napa and Sonoma have raised the issue with the appeals court.
Regarding the Wappo, the statute of limitations would have run out in the 1960s. The tribe filed its lawsuit in 2009.
Davila dismisses the county’s contention. He ruled that the statute could be waived in some circumstances, and found that the tribe fit those circumstances, allowing the case to proceed. His ruling relied on a 1997 9th Circuit ruling, Cedars-Sinai Medical Center v. Shalala.
The counties disputed this, and argued that a 2008 U.S. Supreme Court decision, John R. Sand & Gravel Co. v. United States, would overrule the earlier 9th Circuit ruling.
“If the counties are correct, and John R. Sand effectively overruled this Court’s opinion in Cedars-Sinai, then the district court lacks jurisdiction to entertain the action or approve a settlement,” the counties argued in their motion.
In the tribe’s response, Kitto said it will be certain to mention the meeting between Napa County and Washburn.
“They’re trying to enter into the politics of it,” Kitto said. “That’s not really how it should be handled now. You can bet this is going to be in it.”