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Firm Wins Remand of Negative Indian Lands Determination for California Tribe

07 Oct 22

By Peebles Kidder

Sacramento, CA –  On September 30, 2022, U.S. District Court Judge Amy Berman-Jackson ordered the Department of the Interior to revisit Scotts Valley Band of Pomo Indians’ request for an Indian Lands Opinion, which was denied in 2019. 

A long time client of the Firm, Scotts Valley is one the very few federally-recognized Indian tribes in the United States with no reservation land.  The Tribe has long sought to reestablish its homeland on which it can build a tribal community with housing, a unified governmental headquarters, and economic development ventures including a casino-resort.   In 2016, Scotts Valley requested that the Department acquire an undeveloped 128-acre parcel of land into trust status and requested an Indian lands opinion (“ILO”) that the parcel would be eligible for gaming activity should it go into trust status.  However, the Trump Administration issued a decision denying Scotts Valley’s request for a favorable ILO. 

The Firm filed suit on behalf of the Tribe challenging the decision in May 2019.  

In a 61 page opinion, Judge Berman-Jackson determined that the ILO was arbitrary and capricious and remanded it to the Department for further proceedings.  Although, she found that “the agency examined the relevant data and set forth a reasoned basis for its decision in the ILO,” she went on to explain:   

“However, even if one grants the agency’s analysis due deference, the application of the well-settled Indian canon of statutory construction that the Court is also required to consider leads to the conclusion that the ILO cannot be sustained. The decision involves the application of an ambiguous term in a regulation promulgated to implement an ambiguous provision in a statute passed for the benefit of Native Americans. Resolving all inferences and doubts in favor of the Band, then, the Court finds that the ILO is arbitrary and capricious, does not give fair consideration to the historical circumstances that severed the Band’s connection to its land in the first place, and left the Band in a disadvantageous position compared to other tribes. Therefore, the Court will enter judgment in favor of plaintiff on that issue and remand the ILO to the agency.”

In her opinion, Judge Berman-Jackson said that the decision “failed to grapple with the inescapable historical fact that Scotts Valley was a tribe that had its recognition and land stripped away by the federal government and its people scattered to the winds.” 

Patrick R. Bergin, who represented the Tribe in the litigation, said:  “Scotts Valley is very pleased with the outcome. The Tribe was restored to federal recognition thirty one years ago and to this date it does not have a homeland. The ultimate purpose of our litigation was to provide the Tribal community with a reservation where they can live, work, and thrive together.”

About Scotts Valley Band of Pomo Indians: The Tribe’s ancestors were among the eight bands of Pomo Indians who signed a treaty with the United States in 1851.  The treaty ceded to the United States the lands between Clear Lake and San Pablo Bay, including the Vallejo Property.  The U.S. Senate refused to ratify the treaty, however.  The United States did not establish the reservation near Clear Lake for the Pomo bands which the treaty contemplated.  The Tribe was landless until 1911 when the United States acquired a very small parcel for the Tribe.  The Tribe became landless again when it was unlawfully terminated in 1965.  The Tribe’s status was restored in 1991, but to date, none of its lands have been restored to it.

The case is Scotts Valley Band of Pomo Indians v. U.S. Department of the Interior, case number 1:19-cv-01544, in the U.S. District Court for the District of Columbia.