Here.
Q&A with Fletcher on Patchak
Here.
fee to trust
Commentary on Sault Tribe’s Proposed Lansing Casino
I can’t not say anything, since this proposed casino is in our own backyard. But seriously? The mayor says in 12-24 months he expects construction to start, and then another year or so after that there will be a fully functioning Indian casino in Lansing.
Wow.
We’re going to predict that it won’t happen. No chance.
Off-reservation Indian gaming is the most hotly-contested, politicized issue in American Indian affairs right now and maybe forever. Think of the interests arrayed against a Lansing casino, let alone one owned by an Indian tribe. The Detroit casinos will be opposed because it will cut into their bottom lines, and the entire City of Detroit, the Michigan Congressional delegation, the unions, everyone will throw their weight against this casino proposal.
More, up north just a few miles is another big problem for the mayor — the Saginaw Chippewa Indian Tribe. They’ll throw their weight against a Lansing casino, too, since a Lansing casino might destroy that tribe’s gaming market. They’ll have nothing to lose by fighting this every step of the way because they will be so severely injured by a Lansing casino that no lobbyist, no lawsuit, nothing will be too expensive to throw at it.
Finally, the law makes this difficult. Been saying this for months now. I suppose Sault Tribe believes, as I imagine the Bay Mills Indian Community does, that Bay Mills will eventually win on its legal theories relating to the Vanderbilt casino. it seems doubtful at best, given that Interior and the NIGC disagree. If that happens, then there will be 10-15 more Indian casinos in and around Lansing, Detroit, Grand Rapids, Muskegon, and so on in the next five years, especially if Bay Mills doesn’t comply with its revenue sharing obligations to the other tribes contained in the 1993 compacts (that’s right, even if they win, they only get one-seventh of the profit — go read section 9 of the 1993 compacts). Really hard to believe that will happen. Let’s set that aside for a minute.
The Sault Tribe will have to purchase land in Lansing, maybe the Lansing convention center or something. Then they’ll have to ask the Secretary of Interior to take the land into trust. And every trust acquisition application for gaming purposes requires an Environmental Impact Statement, and those take a few years to conclude. Once that’s done, the tribe will have to persuade Interior to take this land into trust. And that’s not so easy. The Indian Gaming Regulatory Act requires the governor to concur on any off-reservation gaming proposals. The Secretary has to then agree to take the land into trust, and even then someone in the Michigan Congressional could push through a rider preventing that action. It’s happened before.
And then, assuming the Secretary does take the land into trust, the lawsuits start. Trust acquisitions are governed by the Administrative Procedures Act. Anyone can sue, pretty much. The experiences of the three Potawatomi tribes in Michigan are instructive. The suits take years and years to conclude.
Of course, I’m no political scientist. Politics is money (see Citizens United) and anything can happen, including a backlash against Indian gaming that persuades Congress to ban off-reservation gaming. But the mayor’s three years is a dream, and kind of sick thing to promise to people in Lansing who might believe the mayor and see this as a real possibility for improving their lives.
Proposed Casino Would Be South Carolina’s First
An excerpt from The Island Packet:
The gambling resort would be within Hilton Head Lakes, a residential development on U.S. 278 — 18 miles from Hilton Head Island and three miles from Exit 8 on I-95. The United Keetoowa Band of the Cherokee Indians in Tahlequah, Okla., would own it.
Jasper County and city of Hardeeville councils passed resolutions endorsing the project Thursday and asked the state and federal government for support. The local leaders hailed it as a boon to Lowcountry tourism that could help cure chronic unemployment.
and
Under the federal Indian Gaming Regulatory Act, before a tribe can request that “off-reservation” land be taken into trust by the U.S. government for gaming purposes, the bureau must determine that doing so is in the tribe’s best interest and not detrimental to the surrounding community. The state’s governor must also agree.
“The governor has no intention of signing any memorandum of understanding that would enable casino gambling,” said Rob Godfrey, a spokesman for the first-term Republican.
Eighth Circuit Rejects South Dakota’s Challenge to Sisseton Trust Acquisition on Standing Grounds
From the CA8 website:
111745P.pdf 01/11/2012 State of South Dakota v. U.S. Department of Interior U.S. Court of Appeals Case No: 11-1745 U.S. District Court for the District of South Dakota – Pierre [PUBLISHED] [Riley, Author, with Wollman and Beam, Circuit Judges]
Civil case – Indian law. In an action by the State of South Dakota seeking to prevent the Secretary of the Interior from completing land-into- trust acquisitions, the State lacked standing to bring a constitutional due process claim, and the appeal is dismissed.
Here are the briefs.
Updated Briefing in Charles Mix County’s Constitutional Challenge to IRA Section 5
We posted the opening brief here. Here are the remaining briefs:
Charles Mix County Reply Brief
Lower court materials are here.
Grand Rapids Press Coverage of Gun Lake Supreme Court Case
Here. An excerpt:
WAYLAND TOWNSHIP — The Supreme Court will decide next year whether the federal government properly took land into trust for the Gun Lake Tribe to build a casino, in a case that experts say reaches far beyond the borders of Allegan County.
On Monday, the court agreed to hearformer Wayland Township trustee David Patchak’s reinstated lawsuit against the Gun Lake Band of Pottawatomi and the federal Interior Department, a case which could force the Gun Lake Casino to shut its doors.
The casino, which employs about 900 people, opened in February and has since paid out $10.4 million in state and local revenue sharing while raking in about $104 million in net profits on electronic games after payouts in less than a year of operation.
“This is an incredibly high-stakes case,” said Matthew Fletcher, a law professor at Michigan State University who specializes in Indian gaming law. “This casino is generating a lot of revenue — a lot more than they thought they would.”
But the Supreme Court, which accepts only about 3 to 4 percent of cases for which they’re petitioned each year, would not be scheduling arguments if the lawsuit were simply about jobs, profits and revenue sharing for municipalities, although that helps, said Fletcher.
Rather, the Roberts Court justices are likely hoping to clear-up a gray-area in the law that governs decisions by the Department of Interior about taking land in trust on behalf of Indian tribes; a wrinkle that bodes well for the tribe and the government, he said.
The Supreme Court typically reverses about 70 to 75 percent of cases they hear, Fletcher said. “They usually agree to hear a case when they think a lower court is wrong.”
Quick Commentary on SCOTUS, Patchak, and Corboy
The Supreme Court granted cert in an Indian law case where the petition was filed in favor of tribal interests. This is, of course, the Patchak case involving the Department of Interior’s decision to take land into trust for gaming purposes on behalf of the Gun Lake Band. The last time the Court granted a petition filed on behalf of tribal interests was Cherokee Nation v. Leavitt, a case decided in 2005. The Court might also grant cert this Term in Ramah Navajo v. Salazar. Key to these successful cert petitions is the participation of the United States as supportive of the granting of the petition (if not the merits). In fact, every cert petition granted on behalf of tribal interests in recent memory has the support of the federal government, the last one (I believe) being Mississippi Band Choctaw v. Holyfield. Only Justice Scalia remains from that Court.
Key point: A cert petition on behalf of tribal interests has almost no chance of being granted by the Roberts Court unless the United States favors of the petition. Even then, as the Oneida and Cayuga land claims petitions demonstrates, it is a bit of a crap shoot.
Corboy v. Louie is more representative of where the Supreme Court is in relation to Indian law (though I suppose this isn’t an Indian law case, precisely). There’s nothing certworthy in this case whatsover (no split, nothing of national importance, a case brought by a private tax protester), but the Court is thinking carefully about this case perhaps because Indian law-type legal doctrines are outside of what Dean Getches called the “mainstream” of constitutional law, and should be reeled in. I have no doubt the OSG will recommend a denial because there simply is nothing worthy of Supreme Court review, but the fact this isn’t already a denied petition is telling.
Key point: A cert petition opposing tribal interests (regardless of its merit) receives more attention from the Supreme Court than a petition favoring tribal interests. End of story.
Interior Cert Stage Reply Brief in Patchak
Here.
Sen. Akaka and Rep. Cole on Carcieri Fix: “Create Jobs, Cost Taxpayers Nothing”
Here. An excerpt:
In the Carcieri v. Salazar decision, the Supreme Court reversed 75 years of policy and practice. The Indian Reorganization Act (IRA) of 1934 authorized the secretary of the Interior to take lands into trust for federally recognized tribes. The court threw all tribes into a tailspin of uncertainty by ruling that the secretary did not have the authority to take land into trust for tribes that were not considered “under federal jurisdiction” when the IRA was enacted. The court did not define “under federal jurisdiction,” and in 1934 there wasn’t an official list of federally recognized tribes. The decision creates two classes of tribes: those that can have land in trust and those that cannot. Such a system promises to be both chaotic and unfair.
So much land has been taken from tribes and tribal members — it is unconscionable to make it harder for tribes to gain back their traditional lands. Congress enacted the IRA to protect tribal homelands and to restore land that was previously seized from the native peoples. It is the responsibility of Congress to act when its intentions are misconstrued by the courts, and so we must act now.
And here (hope it is readable):
Turtle Talk 
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