The Cowlitz Tribe and Clark County are trying to get along better.
After years of arguments and litigation over the tribe’s $510 million, 368,000-square-foot ilani casino and resort, which opened in 2017, officials from each government have signaled they want to improve relations. Last year, Clark County rescinded a resolution formally opposing the casino while the tribe has sought to position itself as a positive community presence.
But David Barnett, a member of the tribal council who was previously involved with developing the casino, said that the tribe hasn’t kept a 12-year-old commitment made to Clark County to pay hundreds of thousands of dollars annually to help shore up its tax base while funding arts and education as well as a program aimed at addressing problem gambling.
“I couldn’t sleep knowing that this is being withheld from them,” said Barnett, who met with county officials last week.
In 2007, the tribe passed an ordinance that sought to mitigate the impact of the casino by agreeing to reimburse the county for law enforcement activity on tribal land, comply with health regulations and mitigate traffic among other commitments.
The eight-page ordinance, provided to The Columbian by Barnett, also committed the tribe to biannually compensate the county and local taxing districts for property tax revenue lost from land being removed from tax rolls and placed in tribal trust. The tribe also agreed to pay at least annually $50,000 for a program designated by Clark County that deals with problem gambling. Additionally, the ordinance committed the tribe to pay 2 percent of net revenues from gaming on tribal lands to an arts and education charitable fund to be overseen by a five-person board appointed by the county and tribe.
Barnett said that the tribe currently is holding over $500,000 that is owed to the county under the ordinance. He said that Philip Harju, the tribe’s attorney and council vice-chair, has resisted making the payments. In addition to his other roles, Harju serves as tribal enforcement and compliance officer, a position created by the ordinance to ensure it’s implemented.
As sovereign nations, tribes are immune from most lawsuits. The ordinance waives the tribe’s sovereign immunity, allowing the county or state to sue to enforce its provisions. Barnett said he’s worried that the tribe is being exposed to liability.
Harju denied trying to prevent the money from being paid out. He said that parts of the ordinance are subject to interpretation, and he said the tribe is negotiating the matter with the county.
“All this is being worked out,” Harju said.
Earlier in February, Barnett and Cowlitz Tribal Council Chairman William B. Iyall met with Clark County Council Chair Eileen Quiring and County Manager Shawn Henessee to bring their attention to the ordinance.
In a brief interview, Henessee said he would be looking into the information presented by Iyall and Barnett. Quiring said she’s not aware of any payments having been made under the ordinance.
“I thought it was a very positive move on the part of Mr. Barnett,” Quiring said.
Give and take
After being recognized by the federal government in 2000, the Cowlitz Tribe began pursuing a casino project just west of La Center. The project was opposed by local governments and others concerned about the project’s impact on traffic, housing, law enforcement, the environment and social services. Legal challenges to the project were finally settled in 2017 when the U.S. Supreme Court declined to hear an appeal from opponents.
In 2004, the then Clark County commission approved an agreement with the tribe requiring it to follow county health and building codes, make street improvements and make payments in lieu of property taxes on land that would be put in trust.
The Growth Management Hearings Board, a state land-use panel, struck down the agreement in 2007. The same year, the Cowlitz Tribe passed the ordinance, which incorporates many of the agreement’s provisions as well as promised money for problem gambling services and arts and education programs.
Barnett said that he was involved in drafting the original agreement along with his father, John Barnett, who served as the tribe’s chair and has since passed away, as a way of showing the Cowlitz would be a positive presence.
“We would always give more to the county than we would take from it,” Barnett said.
Under federal law, states must negotiate gaming compacts with tribes if casino-style gaming is allowed in the state. Robert Anderson, a professor and director of the Native American Law Center at the University of Washington School of Law, said that these compacts may have appendices specifying money a tribe will donate to nonprofits.
He said that while he’s heard of tribes passing ordinances or entering agreements that contain funding commitment, they’re not common.
Since the ordinance was passed, there’s been significant turnover at the county. After voters passed the home rule charter in 2014, the county commission was changed to a county council. The county is on its third manager, and Chris Horne, who served as the county ‘s chief civil deputy prosecutor since 2013, retired in late 2017.
Barnett said that after being elected to the 22-member tribal council in June, he began looking into what happened with the ordinance after running into a Clark County resident formerly involved in politics (he didn’t say whom) who asked about it. He said he started asking questions on the tribal council.
But Harju suggested the situation is more complicated and the tribe has made payments to the county.
“The Cowlitz will keep their word, and we’re good neighbors,” Harju said.
The county has separate agreements with the tribe to provide law enforcement, as well as fire and rescue services. Under the fire and rescue services agreement, the tribe agreed to pay $210,000. Under the law enforcement agreement, the tribe agreed to pay the sheriff’s office $250,000 a year as well as reimbursements for other costs.
Harju said that the tribe paid the sheriff’s office over $300,000 last year and said the amount could be credited to payments owed under the ordinance. He also pointed to other payments for community services mentioned in the tribe’s gaming compact.
He also said there are other issues, such as how to direct $50,000 committed for a problem gambling program.
But Barnett said the tribe shouldn’t be looking for “legal loopholes to avoid paying our fair share.”
“This isn’t something that gets negotiated,” he said. “It’s pretty black and white here.”
After meeting with Iyall, the tribe’s chair, Henessee and Quiring followed up with a letter on Feb. 15. While the letter had an amicable tone, it was clear the county was interested in the money promised by the tribe.
The letter stated that while the tribe has made payments for the problem gambling program, they have not been made in coordination with the county. The letter asked the tribe to contact Director of Community Services Vanessa Gaston to initiate discussions. The letter also stated that the tribe hadn’t made any payments in lieu of property taxes since 2015 and the county wanted to work out an agreement.
The county will be moving forward with appointing members to the board overseeing the education and arts program funded by the tribe, according to the letter.
Iyall told The Columbian that he had a good meeting with Henessee and Quiring and the tribe has been moving forward with other portions of the ordinance. He also said that the tribe is projected to pay out up to $57 million in the next 10 years through the ordinance and other compacts.
“There are huge opportunities between the tribe and the county to move forward,” he said.