NORTH BEND - A long-awaited project to locate a Home Depot and other commercial businesses on Coquille Tribal property may not come to fruition if a more than 200-year-old federal law is allowed to stand.

Signed into law by President George Washington in 1790, the Indian Nonintercourse Act was designed to protect tribes from being cheated out of their land by speculators. However, it prevents tribes from selling or leasing land except through a treaty with the federal government as a party.

Considered the last major hurdle for the Coquille Economic Development Corp.'s Ko Kwel Wharf project, a 50.5-acre mixed-retail and entertainment development north of The Mill Casino-Hotel, the antiquated law has become a bit of a sticking point for Home Depot. The company's representatives are concerned the lease will not be legal. Home Depot is footing the bill for a large portion of infrastructure needed to support the shopping center.

“When it's our $20 million going into a project, we want to make sure that there is no question about the validity of the lease that has been signed,” said Brian Cannard, the real estate manager for Home Depot's Northwest Division.

But representatives from Home Depot and CEDCO, the business arm of the Coquille Indian Tribe, aren't without hope, thanks to Senate Bill 1286.

Introduced to the U.S. Senate by Sen. Gordon Smith, R-Ore., on May 3, as an exemption for the tribe in current and future projects, the bill, if passed, will allow it to convey land and interests in land owned by the tribe. The exemption would apply only to fee-simple land purchased by the tribe. Fee simple land is a real estate term that refers to conveyable property and does not include reservation land.

Brady Scott, CEDCO chief executive officer, said the Indian act came to his attention while in negotiations with Home Depot. He said the company's legal department discovered it during its due diligence process.

While he doesn't view the law as especially problematic, since he is sure SB 1286 will pass, Scott said it must be resolved before Home Depot will sign a lease with CEDCO and start construction on the waterfront property. He added that the two entities could probably go ahead with the project despite the law.

“We (would) enter into a lease agreement with Home Depot without resolving this, if it weren't an issue for them,” Scott said.

He added that plans for the Ko Kwel Wharf project have not been put on hold, as planners continue to obtain permits and work on designs.

“We're optimistic that it's going to be resolved in the next six months to a year. I don't think this is going to kill the project,” Scott said, adding that there might be a slight postponement depending on when Smith's bill is passed. To move it forward, Scott has encouraged members of the community to write letters to congressional representatives.

“It's not just a tribal issue, it's a community issue. We all want to see this waterfront revitalized,” Scott said.

Cannard, who had little to say about the law, explained that it does not allow an entity, such as Home Depot, to enter into an agreement with a tribe without federal permission. While it does make representatives of the big-box store uncomfortable, he said he is confident the bill will pass.

“We are just waiting. This particular issue, at this point, isn't one that the whole project is going to hinge on.”

Smith's press secretary, Lindsay Jackson, said the proposal has received widespread support, is not opposed and has been referred to the Committee on Indian Affairs. She said the senator took up the cause at the request of the Coquille Tribe and the community. Smith was unavailable for comment at press time.

Jackson added that she expects the bill to pass in a “matter of months,” although such things are impossible to predict.

Both Sen. Joanne Verger, D-Coos Bay; and Rep. Peter DeFazio, D-Ore, support the bill.

Verger said it will probably be looked on as a “fairly simple housekeeping bill” and believes it will pass.

DeFazio agreed.

“I support this project as proposed by the tribe,” he said.

Susan Jane Brown, the natural resources counsel for the congressman, said the Coquille tribe isn't the first to ask for and win a provision to the law.

“(It's) nearly identical to similar legislation for other tribes that has been done for similar reasons,” Brown said, adding that while the tribe and Home Depot could probably ignore the old law, it is better to gain an exemption. “The tribe certainly has a legitimate concern and this is one way to address it.”