Napa and Sonoma counties are seeking to appeal a judge’s October ruling that rebuffed their attempt to end a local Indian tribe’s bid for federal recognition.
U.S. District Court Judge Edward Davila denied the counties’ motion to dismiss the Mishewal Wappo tribe of Alexander Valley’s lawsuit against the U.S. government, which seeks federal recognition for the tribe.
In a motion filed Thursday, the counties are asking Davila to allow them to appeal his ruling before the 9th U.S. Circuit Court of Appeals. Davila is set to hear the motion Feb. 3.
The counties oppose recognition because of fears that it could one day lead to an Indian casino operating in the North Bay, including the Napa Valley.
Wappo tribal chairman Scott Gabaldon said the potential appeal is not impacting ongoing talks the tribe is having with the federal government to settle the lawsuit.
“It’s not going to affect us,” Gabaldon said. “We’re in settlement talks right now. I just got a settlement offer that I’m discussing with my attorney.”
David Glazer, the U.S. government’s lead attorney in the lawsuit, did not return a phone call Tuesday seeking comment on the status of the settlement talks.
The counties want the appeals court to determine if the tribe waited too long to file its lawsuit. The tribe sued in 2009, claiming that official recognition of the tribe had been illegally terminated in 1959. Napa and Sonoma counties joined the lawsuit in 2010 as intervenor defendants.
The counties contend that a federal statute of limitations creates a six-year window for claims to be filed against the U.S. government. Regarding the Wappo tribe’s complaint, the counties argue that window expired in the 1960s.
Davila denied those arguments by applying a 1997 9th Circuit decision allowing plaintiffs to circumvent that six-year window in some circumstances.
The counties argued that a 2008 U.S. Supreme Court decision on a similar statute of limitations should trump the 1997 9th Circuit decision and the Wappo tribe’s lawsuit should be tossed.
Davila rejected that argument as well. He noted in his ruling that the 1997 decision, while legally questioned after the Supreme Court’s decision, deals with a different statute and is still applied as law in other federal courts in the 9th Circuit.
The counties want the appeals court to determine if the Supreme Court overruled its 1997 decision. If so, they hope it will bring an end to the Wappo tribe’s lawsuit, according to the motion.
Gabaldon said he wasn’t worried that the counties’ potential appeal could prevent the tribe’s lawsuit from going forward.
“I really can’t say what the judge is going to do, but they didn’t come up with anything new,” Gabaldon said. “The judge already made a ruling on it.”
An attorney for Napa County did not return a call seeking comment on the motion Tuesday.
Gabaldon said that tribe has not made a decision on building a casino — an “option,” he has said in the past — and its focus remains gaining federal recognition.
He did say the counties’ continued fighting of the lawsuit would hamper any future working relationship he might have with them if the tribe does get federal recognition.
“It’s definitely going to have an effect some time in the future,” Gabaldon said. “It doesn’t surprise me they’re going to fight me tooth and nail. What I told them before is, ‘You’re fighting the wrong fight.’ Everybody thinks this is about money — it’s not at all. I’m trying to restore a tribe for the people.”