Here’s the headline — “New Gamble for the Mohegans”
It’s bad enough that news organizations jump all over bad puns and innuendo when it comes to gaming in Indian Country, but how is electing a woman as tribal chair a GAMBLE!?!?!
gaming
NIGC Press Release re: Phil Hogen
From the NIGC:
Phil Hogen, an Oglala Sioux from South Dakota, Completes Service as Longest Serving Chairman of the National Indian Gaming Commission
Washington DC, October 2, 2009 – National Indian Gaming Commission Chairman Phil Hogen, 64, who was born in Kadoka, South Dakota and lives outside Black Hawk, was appointed as the Chairman of the National Indian Gaming Commission by President George W. Bush in November 2002, and finishes his service in that position at the end of this week.
During his tenure, which is the longest for any Chair of the agency that provides Federal oversight of the $27 billion Indian Gaming industry, the industry has experienced dramatic growth. Indian gaming operates at over 400 tribal locations in 28 states.
“Indian gaming is the most effective and dramatic economic development that ever came to Indian Country,” Hogen stated, “although it is, of course, market based, and those tribes located in urban areas have gained more than those in rural, sparsely populated places like the Dakotas. Nevertheless, it’s worked where so many other things have failed, and I firmly believe that the strong regulation which the National Indian Gaming Commission supports, gives gaming customers justifiable confidence that tribal gaming will be fair, and insures that the proceeds of the games are appropriately utilized by tribes and their members.” Continue reading
Briefing in St. Croix Chippewa v. Salazar Off-Reservation Gaming Case Complete
Here are the briefs before the D.C. Circuit:
Lower court materials are here.
Federal Court Dismisses Additional Challenges to Oneida Trust Acquisition
Here is Judge Kahn’s order in New York v. Salazar (New York v Salazar DCT Order), the companion case to Oneida County v. Salazar. Once again, Judge Kahn rejects the nondelegation doctrine challenge, as well as Tenth Amendment and IGRA-related challenges. Also, and perhaps a more interesting development, the court rejected the State’s arguments relating to whether OIN is eligble for a trust acquisition.
The first argument was that OIN rejected the Indian Reorganization Act in 1935:
The ROD indicates that the OIN voted to reject the IRA but does not address whether the vote satisfied the statutory requirement. See Siegfried Aff., Ex. A. at 33 (Dkt. No. 57, Attach. 3); OIN’s Statement of Facts ¶ 1 (Dkt. No. 84, Attach 9). It is, therefore, an issue of fact whether the OIN validly voted to reject the IRA. However, it is unnecessary to decide whether the OIN rejected the IRA, as Congress enacted the Indian Land Consolidation Act (“ILCA”), 25 U.S.C. § 220214 (“Section 2202”) to amend or repeal any possible Section 478 trust land disability. See 25 U.S.C. § 2202.
The second relates to the Secretary of Interior’s position (first raised in the Carcieri litigation) that the Indian Land Consolidation Act amendments allow for a tribe potentially affected by Carcieri to be eligible for trust acquisitions:
A principle purpose of both the IRA and ILCA was to restore Indian economic life through expanding tribal land bases. The IRA was promulgated in 1934 as “[a]n Act to conserve and develop Indian lands and resources.” 48 Stat. 984 (1934). “The intent and purpose of the [IRA] was ‘to rehabilitate the Indian’s economic life and give him a chance to develop the initiative destroyed by a century of oppression and paternalism.’” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152-54 (quoting H.R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934)); see also Morton v. Mancari, 417 U.S. 535, 542 (1974) (“The overriding purpose of the [IRA] was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically”). ILCA was subsequently enacted in 1983 to further effectuate this purpose by, inter alia, removing the Section 478 disability and expanding the reach of the IRA and Section 465, specifically. See H.R. Rep. No. 97-908, 7 (1982) (“Section 203 [25 U.S.C. § 2202] extends the provisions of section 5 of the Act of June 18, 1834 [i.e., the IRA] to all tribes.”).
Restricting the definition of “tribe” under Section 2201(1) to only include tribes for which the
United States already holds land in trust would vitiate the very purpose and intent of ILCA.
This is the first court to address this question, and they accepted the Secretary’s position. Very interesting.
Federal Court Dismisses Effort to Enforce Billion-Dollar Judgment Against Harrah’s
But not on Indian law grounds — because the case was settled orally in 2003.
An excerpt:
A balancing of the Winston factors tips decidedly in favor of the conclusion that a binding oral settlement agreement was reached on March 31, 2003 ending the litigation in this Court over the Tribal Court Judgment. “[T]o protect the parties appearing before it, to preserve the integrity of an action, to maintain its ability to render a final judgment and to ensure the administration of justice,” Haitian Ctrs., 817 F. Supp. at 337, the Court finds that the prior actions were finally dismissed by virtue of the oral settlement agreement entered on March 31, 2003. See Mone, 2001 U.S. Dist. LEXIS 19445, 2001 WL 1518263, at *1 (finding that the action had been settled even though the formal stipulation was never submitted where defense counsel wrote the court confirming a conversation with the judge’s law clerk that the matter had been settled and stating that a formal stipulation would be drafted and forwarded to the court within three weeks); Van Ness, 129 A.D.2d at 932, 514 N.Y.S.2d at 571 (finding that an out-of-court oral agreement to settle as case was binding even though defendant never executed the general release and stipulation discontinuing the action forwarded by defendant counsel). Accordingly, because the subject matter of this action has been asserted in a prior action and settled by an oral agreement to end that matter with prejudice, Defendants’ motion must be granted and this action dismissed. The Court need not, and does not, reach the alternative arguments for dismissal.
Cal. Appeals Court Holds Contract Dispute between Tribe and Management Companies Not Yet Appealable
Here s the unpublished opinion in Pauma Band of Luiseno Mission Indians v. Harrah’s Operating Co. (Cal. App., 4th Dist.).
An excerpt:
This case arises from unsuccessful negotiations between the Pauma Band of Luiseno Mission Indians (Pauma) and Caesars Entertainment, Inc. (Caesars), for Caesars’s development and operation of an expanded casino on Pauma’s reservation, and the merger during the negotiations of Caesars and Harrah’s Operating Company, Inc. (Harrah’s), which operates a nearby casino for the Rincon Band of Luiseno Indians (Rincon). 1 In Harrah’s appeal, the issue is whether a $ 30 million judgment against it on the cause of action in Pauma’s complaint for intentional interference with prospective economic relations must be reversed because the jury’s special verdict is fatally inconsistent. We answer the question in the affirmative. The complaint’s causes of action for a violation of the Cartwright Act (Bus. & Prof. Code, § 16700 et seq.), and for tortious interference were both predicated solely on the same alleged wrong, an agreement between Harrah’s and Caesars to restrain trade by allocating or dividing customers or territories. The jury found in Harrah’s favor on the Cartwright Act claim, but in Pauma’s favor on the tortious interference claim. Because the inconsistency cannot be reconciled, we reverse the judgment insofar as it concerns these two causes of action against Harrah’s, and direct the court to enter an order granting Harrah’s motion for a new trial.
Federal Court Rejects Non-Indian Group’s Attempt to Take Advantage of IGRA
Here is the opinion in Department of Texas Veterans v. Dorning (N.D. Ala.) — Dept of Texas Veterans v Dorning
The plaintiffs argued that they were “Class II” bingo under IGRA:
Plaintiff’s final argument is that it is entitled to summary judgment on the legality of its bingo games because the gaming system at issue is a “Class II” game under the Indian Gaming and Regulatory Act.138 See 25 U.S.C. § 2701 et seq. However, that Act applies only to the conduct of gambling operations on Indian reservations, see 25 U.S.C. § 2710, and it is undisputed that the Triana operation at issue is not located on Indian lands.139 Consequently, plaintiff’s argument does not merit further discussion.
Law.Com on Dram Shop Action against Mohegan Sun
Despite what this article states, this case is far from “novel” — there are numerous opinions all holding that tribes retain immunity, except a lone outlier — Oklahoma — which can be (perhaps) distinguished on the basis that that state’s gaming compacts purportedly waive immunity.
Another thing not emphasized by this opinion — the plaintiff has remedies in tribal court (!).
From Law.com:
In what could become a first-in-the-nation test, a young Waterford, Conn., woman injured by a drunk driver is challenging the sovereignty of Connecticut’s Mohegan American Indian tribe. She is arguing the tribe should be liable in state courts if it lets patrons get so dangerously drunk that they then injure or kill other people.
Currently, the Mohegan and Mashantucket Pequot tribes are immune from being sued in state court for ordinary negligence matters, including so-called “dram shop act” violations. Those violations can cost a bar up to $250,000 if patrons are permitted to get too intoxicated and harm others.
Special tribal courts handle basic civil matters arising on lands controlled by the Mohegan and the Mashantucket Pequot tribes, both of which operate large casinos in southeastern Connecticut. The tribes claim immunity from negligence suits in state courts as a feature of their status as federally recognized sovereign Indian nations. Continue reading
Federal Court Dismisses Pro Se Claim for Tribal Per Cap
Here is the opinion ins Springer v. Griffin (D. Neb.), a claim against the Omaha Tribe — Springer v Griffin
An excerpt:
Liberally construed, Plaintiff brings his claims pursuant to the Indian Gaming Regulation Act (“IGRA”). 25 U.S.C. §§ 2701-2721. The IRGA provides Indian tribes with the authority to distribute gaming proceeds to tribal members, per capita, if such distribution is in compliance with an approved allocation plan. See 25 U.S.C. § 2710(b)(3). It is unclear from Plaintiff’s Complaint if the Omaha Tribe has such an approved plan. However, even if it does, whether Plaintiff is entitled to the tribe’s casino proceeds turns on a determination of whether Plaintiff is a tribal member.
If Plaintiff is not a tribal member, the court lacks jurisdiction to over his claims. As discussed above, a tribe has the exclusive authority to determine its membership. There is no greater intrusion upon tribal sovereignty than for a federal court to interfere with this determination. See Smith, 100 F.3d at 559. Continue reading
NY Gov. Paterson Endorses Shinnecock Recognition Petition
From the NYTs:
ALBANY — Gov. David A. Paterson has endorsed an Indian tribe’s bid for federal recognition, an important step for a tribe that wants to build the first casino in New York City or its suburbs.
Mr. Paterson is the first governor to make such a public embrace of the marathon effort by the Shinnecock Indian Nation to gain recognition. In a Sept. 22 letter to Ken Salazar, the secretary of the interior, the governor wrote, “to say federal recognition of the Shinnecock is long overdue would be an understatement” and called for the Obama administration to recognize the tribe, which is based in Southampton, N.Y.
Tribal leaders hailed his move as a key victory, because the federal government is in the final stages of considering the tribe’s application and might have been deterred without support from the governor.
“There have been a lot of things said about Governor Paterson in the media,” said Randy King, the chairman of the tribe. “Politics is a rough business. To us, he’s a man of principle.”
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