Here are the materials (from the ACLU website).
And news coverage here.
Month: April 2010
Commentary on Rincon Band Case and Seminole Tribe Compact
From Dave Palermo at Gaming Compliance via Pechanga:
A recent landmark appeal court ruling in California which found that Governor Arnold Schwarzenegger had strong-armed tribes over revenue sharing agreements is unlikely to be enough to reverse a growing tide of anti-sovereignty sentiment.
For two decades American Indians have complained that states have been extorting unreasonable if not illegal revenue sharing agreements from tribal governments in exchange for the right to operate casinos.
Tribal leaders claim revenue sharing called for in the agreements, referred to as “compacts” under the Indian Gaming Regulatory Act of 1988, violate the intent if not the letter of the act, which prohibits taxation of tribal governments.
Indigenous Americans got a measure of satisfaction in an April 20 decision by a three-judge panel of the 9th Circuit Court of Appeals in San Francisco which ruled California Gov. Arnold Schwarzenegger negotiated in bad faith by demanding an illegal taxin tribal-state compact negotiations with the Rincon Band of Luiseño Indians, a small but prosperous tribe near San Diego.
“We applaud this decision because it confirms one of the basic foundations of the relationship between American Indian tribes and states, that Indian tribes are sovereign governments, which, like other governments, cannot be taxed,” Rincon Chairman Bo Mazzetti said.
The ruling also was a respite from what tribes believe is a backlash against Indian gambling and a growing public perception of tribes not as sovereign governments and culturally rich first Americans, but wealthy purveyors of casinos.
Legal experts believe the 2-1 ruling, should it be upheld on appeal to a full panel of 9th Circuit judges and the US Supreme Court, will not influence compacts in the other 27 states with tribal casinos. They contend it will only impact California compactswith some 61 tribes.
But tribal leaders found comfort in the harsh language of the court’s ruling, not to mention newspaper headlines which claimed Schwarzenegger “broke the law” and “strong-armed” tribes into paying onerous revenue sharing payments in exchange for the right to increase their volume of slot machines.
“We are mindful that many states, and especially California, are currently writhing in the financial maw created by the clash of certain mandatory state expenditures at a time when state revenues have plummeted from historic levels,” wrote 9th Circuit Judge Milan Smith Jr.
Eleventh Amendment Does Not Bar Discovery in IGRA Bad Faith Action (In Cal. Only)
Here are the materials in Big Lagoon Rancheria v. California (N.D. Cal.):
DCT Order on Motion for Protective Order
Cali Motion for Protective Order
Prior materials on this case (holding that Cal. has waived its 11th Amendment immunity under IGRA) are here.
N.Y. Appellate Court Reverses Eminent Domain Acquisition of Land that Includes “Historic Indian Remains”
Here is the opinion in In re Courtland County.
An excerpt:
Petitioner argues that the taking should nevertheless be upheld on the alternative ground that it was exempt from the hearing requirements of EDPL article 2 because the taking was de minimis ( see EDPL 206[D] ). The fact that the amount of land is not substantial does not necessarily render a taking de minimis ( see Matter of Marshall v. Town of Pittsford, 105 A.D.2d 1140, 1140-1141 [1984], lv denied 64 N.Y.2d 606 [1985] ). Initially, we are reluctant to retroactively find compliance with the EDPL under the facts of this case where petitioner opted to attempt to pursue condemnation under a separate statute with different procedures. In any event, we are unpersuaded that this record supports a de minimis determination in light of the close proximity of the project to land with significant historic remains (there are two letters in the record from Native American groups articulating concerns), together with the fact that petitioner expanded the scope of the project from what was originally proposed and such expansion resulted in the State Office of Historic Preservation suspending its earlier approval.
Navajo Allottees’ Trespass Suit against Federal Government and Public Utilities Fails
Here is the lengthy opinion in Begay v. Public Service Co. of New Mexico et al. (D. N.M.): Begay DCT Order
An excerpt:
Because the claims against the Federal Defendants are not ripe for review and because the Plaintiffs lack standing to bring this action individually or as a class, the Court will grant the Federal Defendants’ motion to dismiss. Because the Plaintiffs fail to allege a claim upon which relief can be granted under their constructive trust theory, the Court will grant El Paso Corporation’s motion to dismiss pursuant to rule 12(b)(6). Because the Federal Energy Regulatory Commission (“FERC”) has exclusive jurisdiction over claims involving interstate gas line pipelines, the Court will also grant Transwestern Pipeline Company, LLC’s motion to dismiss regarding ejectment, removal of pipeline and trespass. Accordingly, the Court will dismiss Plaintiffs’ Complaint without prejudice.
Seminole Nation of Florida Gaming Compact Materials
Interestingly, I cannot find a copy of the compact online. I must be getting old. Ah, here it is. [Thanks T.W.!]
Minnesota Indian Law CLE, June 17th and 18th, Northern Lights Casino
Mexico Issues Travel Advisory re: Arizona
From the AP:
The Mexican government warned its citizens Tuesday to use extreme caution if visiting Arizona because of a tough new law that requires all immigrants and visitors to carry U.S.-issued documents or risk arrest.
President Barack Obama also criticized the law, saying it could lead to harassment of Hispanics, and he called for bipartisan support to fix America’s broken immigration system. Two senior officials in his government said the Arizona law may face a legal challenge by federal authorities.
“Now suddenly if you don’t have your papers, and you took your kid out to get ice cream, you’re going to get harassed — that’s something that could potentially happen,” the U.S. president said of the measure. “That’s not the right way to go.”
Arizona’s law — slated to take effect in late July or early August — makes it a state crime to be in the U.S. illegally and allows police to question anyone they suspect of being an illegal immigrant. Lawmakers said the legislation, which has sparked huge protests and litigation, was needed because the Obama administration is failing to enforce existing federal laws.
Mexico’s Foreign Ministry issued a travel alert for Arizona after the law was signed, warning that its passage shows “an adverse political atmosphere for migrant communities and for all Mexican visitors.”
The alert said that once the law takes effect, foreigners can be questioned at any moment and detained if they fail to carry immigration documents. And it warns that the law will also make it illegal to hire or be hired from a vehicle stopped on the street.
Materials in Opposition to Cape Wind Project from Gay Head Wampanoag
The decision’s in but surely there will be litigation.
Here are some interesting materials in opposition to the project, sent to us by the Gay Head Wampanoag:
Chair Cape Winds ACHP to MMS Letter 11-18-09
Chair Cape Wind Correspondence Documentation As of 03-29-10
Chair Cape Wind ACHP Final Comments to Deny Permit 04-02-10
Chair Cape Wind Letters of Support Through 04-09-10
Chair Cape Winds Legal Opinion SG 03-29-10
Why the Oneida Foreclosure Case Will Not Go to the Supreme Court
Despite much speculation at Indianz, and grandstanding by Judge Cabranes and the anti-tribal parties, it seems very unlikely the Supreme Court will agree to grant a petition for cert in Oneida Indian Nation v. Madison County. To be sure, the question whether tribal sovereign immunity can prevent foreclosure actions against tribally-owned fee lands is certworthy, and there may already be a split in authority of sorts (the Second Circuit and the Mass. Supreme Judicial Court in a case involving the Aquinnah Wampanoag a few years back), but the Oneida case doesn’t seem to be the vehicle.
In short, this case is all but moot. And the Second Circuit nearly passed on the underlying question because the land in question may soon go into trust (perhaps after a few years litigation). Consider part of the early portion of the majority opinion in OIN v. Madison County:
Since this Court heard oral argument in this matter, there have been several developments that affect the practical implications of this Court’s decision on Madison and Oneida Counties. While these developments do not render moot any of the issues before this Court on appeal, we think it useful to describe them briefly.
Turtle Talk 
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