The Department of the Interior has posted a job opening for the Associate Solicitor – Indian Affairs.  The Associate Solicitor would provide legal counsel to the Assistant Secretary – Indian Affairs, the Director of the BIA, and other decision-makers to help shape the Department of the Interior’s Indian policy.  The Associate Solicitor also has the opportunity to meet with tribal leaders and attorneys from around the United States to help address tribal issues. This is a great opportunity for Indian law practitioners to help shape the course of the federal government’s Indian policy, and will build a strong foundation for a career after public service. 

https://www.usajobs.gov/GetJob/ViewDetails/374084100

 

Fletcher Update: I should resist interjecting in Bryan’s post but I wanted to note that Howard Bashman of How Appealing picked up on this post and suggested that this case is a good candidate for en banc review:

The majority opinion was written by a senior U.S. District Judge visiting from outside of the Ninth Circuit and joined in by a Senior Ninth Circuit Judge. The third judge on the panel, a Ninth Circuit Judge in active service, dissented. As a result, this case may have a better than ordinary chance of obtaining en banc review.

A panel of the 9^th Circuit Court of Appeals issued a decision yesterday in Big Lagoon Rancheria v. California.  Matthew posted the decision yesterday afternoon here.

Judge Block’s analysis contained in the decision was so stunningly and thoroughly poor, that there is not enough space or time to address every wrong point in this post (and this is a long post).  I encourage you to read it for yourself.  Notably, Judge Block is a Senior Status Judge from the Eastern District of New York, which serves as yet another example of how the 2nd Circuit has affected Indian law.

Suffice it to say, this case has the potential to wreak havoc on a number of tribes across Indian Country (and especially in California) related to Carcieri.

Background

Big Lagoon began as a bad-faith lawsuit filed against the State of California, which was seeking to prevent the rural, northern California tribe from developing a gaming facility on its own coastal reservation.  The Tribe had filed a lawsuit against the State under IGRA, seeking to compel the Governor to negotiate a compact in good faith; and, the Tribe was making slow, but steady progress in its effort.

In 2009, the State tossed in a junk-drawer defense to its failure to negotiate in good faith – claiming that the Tribe’s trust lands (some of which were acquired in 1918, and some acquired in 1994) were not eligible “Indian lands” due to the Carcieri decision issued earlier that year.

As evidence that this argument was, in fact, a throw-away argument by the State, the Court notes on pages 9-10 that the State was working with the Tribe to find alternate gaming sites that would eventually need to be placed into trust.

It should be noted that a number of states, local governments, and individuals have cited Carcieri in litigation against tribes in recent years.  These arguments are almost always thrown into the mix – regardless of apparent relevancy to the case – just to see if they might stick.

In 2010, the District Court tossed the State’s Carcieri arguments aside, and held that the State had failed to negotiate a Class III gaming compact with the Tribe in good faith, as required by IGRA.  The Court then ordered the parties to conclude a compact within 60 days.  Both the Tribe and the State appealed.

The 9^th Circuit panel revived the State’s Carcieri argument – stating that it must determine whether the lands are eligible for gaming to determine whether the State was obligated to negotiate a gaming compact with the Tribe in the first place: “a tribe may only request negotiations to conduct gaming on a particular piece of Indian land over which it has jurisdiction.” (p. 17)

The Court then proceeded with its analysis, stating without any sense of irony, “These questions are thorny indeed, and perhaps beyond our competence to answer.”

The Decision

The Court framed its analysis as follows:

We think [this case] requires us to answer three questions: Must a tribe have jurisdiction over “Indian lands” to compel [compact] negotiations? Has the State waived the “Indian lands” requirement? Is the eleven-acre parcel “Indian lands”?

1.     State’s Obligation to Negotiate

The Court answered the first question in the affirmative – holding that “a state need not negotiate with a tribe under IGRA unless the tribe has jurisdiction over Indian lands.”  (p. 16).  This is not that surprising, given that the law was already trending in that direction.

But, the Court took it one step further, holding, “a tribe’s right to request [compact] negotiations…depends on its having jurisdiction over Indian lands on which it proposes to conduct class III gaming.”  (emphasis added).

This rule is merely the beginning of the problems this case may pose.

Does the second part of this holding require that all Class III gaming compacts designate the specific parcels of land on which a tribe will conduct gaming?  Will some states use this rule to require tribes to submit a jurisdictional analysis prior to beginning compact negotiations?

Many tribes have entered into Class III gaming compacts without designating particular parcels of land as a Class III gaming site.  Many others have entered into compacts without having gaming-eligible trust lands whatsoever.  These agreements have been useful in helping tribes secure investors for increasingly expensive projects.

This particular ruling has the potential to require tribes to negotiate gaming compacts as a last step in developing a gaming project, after a project site has been selected and acquired in trust.

2.     California’s waiver of the “Indian lands” pre-requisite to compact negotiation

I’m going to skip a breakdown of this part of the decision, except to say that on pages 19-20 of the decision it is clear that the Court is contorting itself to get to the Carcieri “analysis” in the third part of its holding.

3.     Big Lagoon’s trust lands are not “Indian lands” due to Carcieri

When reading this part of the decision, it is important to remember that the State’s Carcieri arguments were thrown onto the heap in what was, originally, a lawsuit about gaming compacts under IGRA.

On page 12 of the decision, the Court even acknowledges that the State of California sought discovery on the issue of whether the Tribe was “under federal jurisdiction” in 1934.  The lower court did not grant discovery, and the parties did not substantially develop a factual record on that point.

On page 25, the Court again acknowledged this fact:

Neither party squarely addresses how we should go about deciding whether Big Lagoon was a tribe under federal jurisdiction in 1934.  The State says that further discovery will shed light on the issue, but does not explain how.  Big Lagoon argues that it has been a federally recognized tribe since at least the time of the compact negotiations, but we are concerned with its status in 1934, not 1999.

Notwithstanding the fact that both parties were not prepared to litigate the issue before the 9^th Circuit, the Court felt compelled to go ahead and render a decision anyhow.  Without a single citation to any legal authority that analyzes the IRA’s fee-to-trust authority in light of the Carcieri decision, the Court stated on pages 26-27:

Since no one resided on what is now the Rancheria [in 1934], there was no group to organize.  The absence of Big Lagoon from the 258-tribe list was not an intentional or inadvertent omission; it was a reflection of reality.

As we have held, a predicate to the right to request negotiations under the IGRA is jurisdiction over the Indian lands upon which a tribe proposes to conduct class III gaming.  IGRA defines “Indian lands” as including lands held in trust for a tribe.  Carcieri holds that the BIA’s authority to take lands in trust for a tribe extends only to tribes under federal jurisdiction in 1934.  Thus, the effect of our conclusion that Big Lagoon is not such a tribe is that Big Lagoon cannot demand [compact] negotiations….

Outcome

The Ninth Circuit has effectively created a new test under the Carcieri decision.  To meet this test, a tribe would have to show two things:

1. That its members must have been residing on the parcel of land in 1934; and,
2. That it was one of the 258 tribes listed in the 1947 Haas Report.

There are a lot more than 258 federally recognized tribes in the United States.  A lot of them would be left out if the reasoning in this case was adopted elsewhere as a basis for lands to be placed into trust.

The 9^th Circuit’s Carcieri analysis looks nothing like the analysis that the Department of the Interior has adopted to determine whether a tribe was “under federal jurisdiction” in 1934 for purposes of having land acquired in trust.  The Court didn’t even look to the Department to guide its consideration of this issue (in footnote 8, on page 28, the Court denied the State’s request to implead the BIA).

Moreover, this decision invites collateral attacks on the status of tribal trust lands long after the federal Administrative Procedures Act’s six-year statute of limitations has passed.  The trust lands at issue in Big Lagoon were acquired in 1918 and 1994, respectively.  More than two decades has passed since the Tribe’s lands were acquired in trust (Laches?  Settled expectations?).  The State was able to challenge the status of those lands through a lawsuit about gaming compacts under IGRA.  Who knows what other avenues may be used for a collateral attack on tribal jurisdiction over trust lands?

I will conclude by dousing the fire in my hair – The Court did not determine that Big Lagoon’s lands must be taken out of trust, or no longer be treated as Indian country (again, see footnote 8 on page 28).  That is merely a logical outgrowth of this ruling.

There is also a fair chance that the federal government could be persuaded to intervene in this case to seek an en banc review, as the Court has dramatically affected its interests and administration of Indian affairs.  There is also a chance that this case is limited to its facts, or limited to the 9^th Circuit.

Notwithstanding those things, Judge Block’s opinion for the 9^th Circuit is a poorly reasoned and terrible decision for Big Lagoon; and, potentially, for many other tribes.

Here is some reading material to occupy you on Day 1 of the Shutdown.

Part I of our look at the negotiation of Michigan gaming compacts is here.

In any negotiation, it is critically important to understand the capabilities and the constraints of every party at the negotiating table.  The negotiation of new gaming compacts between the “1993 Tribes” and the State of Michigan will be constrained by a number of factors, including: decisions made in the past 20 years, economics, and modern politics.

In this post, we are going to look at some of the factors constraining the State’s bargaining power in compact negotiations.  Note that this review is based on the assumption that the State of Michigan’s objective is to execute a new compact that imposes significant revenue sharing obligations on the 1993 Tribes, and subjects them to greater regulation by the Michigan Gaming Control Board; it is also based on the assumption that the 1993 Tribes’ collective objective is to maintain something approximating the status quo.

Here are some of the big limitations on the State’s bargaining power:

Uncertainty Over the Term of the 1993 Compacts  

As I mentioned in my post in Part I, Section 12(a) of the original 1993 Compacts stated that the compacts would be binding for a term of 20 years.  Under one interpretation of Section 12, that would mean that the 1993 Compacts expire this year.

But, Section 12(b) of the 1993 Compacts creates some ambiguity as to whether they automatically expire this year:

At least one year prior to the expiration of twenty (20) years after the Compact becomes effective, and thereafter at least one year prior to the expiration of each subsequent five (5) year period, either party may serve written notice on the other of its right to renegotiate this Compact.

To put it more clearly: The use of the phrase “each subsequent five (5) year period” in Section 12(b) suggests that the 1993 Compacts automatically “rolls over” for one or more five year periods if no new compact is reached.

The State of Michigan may assert that the language in Section 12(a) is clear – that the Compact expires in 2013, after 20 years.  But, this argument is weakened by the Consent Judgment that the State of Michigan reached with the Keweenaw Bay Indian Community in 2001.

If you recall from Part I, in 2001, the Keweenaw Bay Indian Community agreed to settle its lawsuit with the State of Michigan over gaming on an off-reservation parcel of land near Marquette, Michigan.  That agreement was neither a new gaming compact, nor a gaming compact amendment (if it were, the Tribe would have been required to submit it to the Department of the Interior for approval).

As part of that agreement, the Tribe agreed to renew its obligation to pay 8% of its net gaming revenues to the State of Michigan, in exchange for a modified version of statewide exclusivity.  The State of Michigan also agreed to the following provision:

Prior to November 30, 2022, the State will forbear from exercising its unilateral right to renegotiate or terminate the Compact pursuant to Section 12(C) of the Compact.

This concession by the State of Michigan strongly suggests that the 1993 Compacts do not automatically expire in 2013.  If they did, the Keweenaw Bay Indian Community’s Class III gaming operations could not continue until 2022 without a new gaming compact.  The 2001 Consent Judgment in the Keweenaw Bay Indian Community’s lawsuit was also entered in the U.S. District Court for the Western District of Michigan, which has retained jurisdiction over the 1993 Compacts.

The State of Michigan may argue that it has asserted its “right to renegotiate” with the 1993 Tribes, which somehow overrides Section 12(B) of the 1993 Compacts (with the 5-year rollover provisions).  But doing so will give rise to another constraint…

Sovereign Immunity Waiver?

Section 12(C) of the 1993 Compacts states:

In the event that either party gives written notice to the other of its right to renegotiate this Compact pursuant to subsection (B), the Tribe may, pursuant to the procedures of IGRA, request the State to enter into negotiations for a successor compact governing the conduct of Class III gaming activities.  If the parties are unable to conclude a successor compact, this Compact shall remain in full force and effect pending exhaustion of the administrative and judicial remedies set forth in IGRA and/or any other applicable federal law.

As many of you know, Congress included remedial language in IGRA that attempted to allow tribes to file lawsuits against states for failure to negotiate in good faith.  IGRA also included language that allowed for a court-appointed mediator to impose a gaming compact upon a state and a tribe in such a dispute.

The Supreme Court effectively negated these provisions in the Seminole case.  As a result of Seminole, these remedial provisions of IGRA are only applicable where a state voluntarily waives its own sovereign immunity against a tribe for gaming compacts.

The language in Section 12(C) of the 1993 Compacts references IGRA’s remedial provisions, and strongly suggests that the State of Michigan has waived its sovereign immunity vis-à-vis the 1993 Tribes to resolve any impasse over negotiating a new gaming compact.

As a general rule, courts do not infer waivers of sovereign immunity – a state’s waiver of sovereign immunity must be clearly stated (usually through legislation or a provision in a state’s constitution).

However, there is an argument to be made that the Legislature’s ratification of the 1993 Compacts through a resolution waived the State’s sovereign immunity in this case.

While Section 12(C) was negotiated before the Supreme Court’s decision in Seminole, it did come after federal court litigation that ruled that the State of Michigan’s sovereign immunity barred a lawsuit by the 1993 Tribes under IGRA’s remedial provisions.  The State subsequently agreed to abide by IGRA’s remedial provisions knowing that it was not required to do so – in other words, a voluntary waiver of sovereign immunity.

The 1993 Consent Judgment

By all accounts, the State of Michigan is seeking new compacts with the 1993 Tribes that reinstates their obligation to share gaming revenues with the State.

As we covered in Part I, the 1993 Compacts did not include any revenue sharing provisions – the Tribes’ revenue sharing obligations were imposed through a 1993 Consent Judgment entered in federal court.  Under the 1993 Consent Judgment, the 1993 Tribes’ revenue sharing obligations were extinguished when the State of Michigan negotiated other tribal gaming compacts and allowed commercial gaming in the City of Detroit.  The 1993 Consent Judgment also requires all of the tribes (and the State) to agree to any changes to that agreement.

As of today, 6 of the 7 1993 Tribes are not sharing gaming revenues with the State.

It is quite possible that the U.S. District Court determines that the 1993 Consent Judgment is still in effect.  If that is the case, the State can only succeed in getting new revenue sharing provisions if it gets all seven of the 1993 Tribes to agree on changing the 1993 Consent Judgment.  The odds are that, if you are reading this, you have some familiarity with Indian law and Indian tribes.  You probably know how difficult it would be to get seven tribes to agree to that.

Rincon, and the Department of the Interior

Assuming for the moment that the State is able to get the unanimous support of the 1993 Tribes to agree to revenue sharing provisions, it still faces big obstacles in getting those revenue sharing provisions to take effect.

All Class III gaming compacts must be approved by the Department of the Interior, which reviews them to ensure that they comply with IGRA and other federal law.

The Indian Gaming Regulatory Act prohibits states from imposing a “tax, fee, charge, or other assessment” on Indian gaming.  This language shows that Congress was very emphatic that states have no authority to get tribal gaming revenues.

The only way that the State can get tribal gaming revenues is if they give something valuable to the 1993 Tribes in return.  As a general matter, the only thing that states really have to offer tribes is the right to exclusive gaming.

The 1993 Tribes once enjoyed the exclusive right to conduct gaming throughout the entire State of Michigan.  Today, there are 21 tribal gaming facilities across the State, and three commercial gaming facilities in the City of Detroit.  The State of Michigan can’t offer statewide exclusivity anymore.

In more recent compacts, the State of Michigan has gained tribal revenue sharing payments in exchange for “an economic incentive…to discourage the State from authorizing adverse competition or other economic policies or activities that are harmful” to tribal gaming.  These more recent compact provisions have winnowed-down tribal gaming exclusivity from a statewide right to a regional privilege.

In recent years, the Department of the Interior has scrutinized and disapproved gaming compacts with similar provisions because it saw them for what they really were – an illusory “concession” by the State in exchange for a tax on tribal gaming facilities.  Examples are here, here, and here.  Federal courts have endorsed DOI’s standard in the Rincon decision.

The State of Michigan has very little to offer the 1993 Tribes in exchange for revenue sharing.  It would be nearly impossible to claim that some sort of regional exclusivity would justify tribal payments matching (or exceeding) the payments required in the 1993 Consent Judgment – which were made in exchange for statewide exclusivity.  More on that in Part IV.

Given its recent decisions, the Department of the Interior would very likely disapprove any such agreements for the 1993 Tribes.

Jobs! Jobs! Jobs!

There are 21 tribally-owned gaming facilities currently operating within the State of Michigan.  15 of those gaming facilities are operating under the 1993 Compacts – almost all of which are located in rural areas.  Those facilities employ thousands of Michigan citizens (most of whom are non-Indians), and are likely responsible for a comparable number of indirect jobs.  I don’t have precise data on this point, but you can be sure that the 1993 Tribes have this information.

If the State were to play hardball, and attempt to close these 15 gaming facilities for operating without a compact, they would be jeopardizing thousands of jobs in rural communities at a time when the statewide unemployment rate is 9% – nearly two full percentage points above the national average.  This is a much different dynamic than negotiating a compact for a new gaming facility, as there is a big difference between “potential” jobs and “actual” jobs.  The State of Michigan is going to have to maintain a delicate balance between tough negotiating, and preserving jobs in this economy.  Taking too tough of a stance will impact…

Politics  

Governor Rick Snyder has styled himself as “One Tough Nerd,” whose singular focus is on creating jobs in a depressed state.  He is also running for reelection in 2014; and, the prospect of putting thousands of people out of work will put a dent in his image right before his reelection campaign.

Another overlooked dynamic is the tenuous relationship between Governor Snyder and the Republican Legislature.  The 15 tribal gaming facilities operating under the 1993 Compacts are located across 8 districts represented in the Michigan House of Representatives, of which 6 are currently represented by Republicans.  Those gaming facilities are also located in 5 State Senate districts, all of which are represented by Republicans. 11 of these 13 members of the Michigan Legislature are likely to be seeking reelection next year, and will surely want to protect existing jobs in their districts as they gear-up for their own campaigns.  It will be interesting to see whether, and how, the 1993 Tribes take advantage of this dynamic.

Keweenaw Bay Indian Community

As I’ve mentioned numerous times, the 1993 Consent Judgment will play heavily into any negotiations because of the revenue sharing provisions contained in that agreement.  That agreement was reached between the State of Michigan and seven tribes, and requires the unanimous consent of all parties to be modified.

As I’ve explained, the Keweenaw Bay Indian Community and the State of Michigan entered into a separate agreement in 2001 to resolve litigation over the Tribe’s off-reservation gaming facility near Marquette.  That agreement requires the Keweenaw Bay Indian Community to make 8% revenue sharing payments to the State through 2022.

If the 1993 Consent Judgment remains in effect, it can only be modified through the consent of all of the parties.  Put another way: the State can only obtain new revenue sharing payments from the 1993 Tribes only if all of those tribes agree to it – including the Keweenaw Bay Indian Community.

Since the Keweenaw Bay Indian Community is already obligated to make revenue sharing payments to the State through 2022, it has almost no incentive to agree to changes to the 1993 Consent Judgment – unless the State agrees to give it such an incentive.

*          *          *

In our next post, I will discuss some of the constraints facing the 1993 Tribes as they examine their bargaining position.

Earlier, Matthew posted Prof. Pommersheim’s new article on the BIA’s fee-to-trust process, which took a broad look at the history of the process and a closer look at its application in South Dakota.

I echo Matthew’s strong recommendation for people to read this article – especially if you encounter the fee-to-trust process in your work.

I was particularly struck by Prof. Pommersheim’s discussion of the amount of land that continues to be taken out of trust.

In my time at the Department of the Interior, we were constantly under pressure to justify the acquisition of land into trust to members of Congress, state and local governments, and the public.  In testimony to congressional committees on this issue, DOI officials consistently noted the extraordinary loss of Indian land during the Allotment period as a justification for putting land into trust under the IRA.  We also recited the economic and jurisdictional benefits of trust acquisitions.  Prof. Pommersheim notes these in his article as well.

But, he also goes further in quantifying the amount of land that continues to move from trust status to fee in this chart:

Prof. Pommersheim adds:

The results are very surprising because in each state considered, especially South Dakota, there is a net gain of land being placed on the tax rolls as opposed to being taken off the tax rolls.  South Dakota’s numbers are particularly revealing in that it appears that at least ten times more [Indian] land has gone onto the tax rolls between 2000 and 2012 than leaving the tax rolls during the same period.

The shadow of Allotment-era policies continues to harm Indian Country, as these data show.  Prof. Pomersheim’s table addresses only five states.  I’d be very curious to see this information for all trust lands across the country.

Tribal leaders and officials at the Department of the Interior continue to support the restoration of tribal lands through the fee-to-trust process.  From 2009 to the end of 2012, the BIA had acquired approximately 200,000 acres in trust – a dramatic increase from the previous 8 years.  This work has been criticized by some members of Congress, state and local officials, and others as harmful to state and local governments.   This article addresses and/or refutes much of that criticism, especially as it relates to taxes and jurisdictional concerns. (I’ve long thought many of the criticism related jurisdiction and zoning tend to get overblown, as a vast majority of tribal fee-to-trust applications are for lands within, or contiguous to, existing reservations).

The continued loss of trust lands across Indian Country isn’t news.  But, Prof. Pommersheim’s work quantifies how efforts to put lands into trust are hindered by the continued erosion of trust lands due to Allotment-era policies.  Two steps forward, and one step back.

People who advocate for the protection of Indian lands, and for a strong fee-to-trust program, must emphasize these data.  The Indian Reorganization Act’s fee-to-trust process was intended to combat the loss of Indian lands through the policies of the Allotment era.  The loss of Indian lands did not end with the Indian Reorganization Act’s passage in 1934, but continues to this day.

This is big news following this week’s disappointing news out of the Supreme Court.  To some, this Executive Order may look like words on paper.  In a large bureaucracy, however, a directive from the Commander in Chief to coordinate on the development and implementation of Indian policy is a big deal.  It requires affected agencies to become more engaged on these issues.

The details:

• The White House Council on Native American Affairs is comprised of cabinet-level officials (or designees)
• The Council will meet three times per year
• The Council’s mission is to generate policy priorities for the President and coordinate federal engagement with tribes
• Institutionalizes the annual White House Tribal Nations Conference

The text of the Executive Order is here