Here are the State’s briefs at least in McCracken and Amick, Inc. v. Perdue, the appeal of a trial judge’s decision in North Carolina finding it unconstitutional under state law for the State to enter into gaming compacts with tribes but not with other citizens of the State. The lower court opinion is here.
gaming
Majority of Creditors Approve of Greektown Casino Reorganization
From the Freep:
Greektown Casino said Tuesday its plan of reorganization was supported by a majority of creditors, paving the way for it to emerge from bankruptcy after confirmation hearings next month.
Charles Moore, a turnaround expert for the casino’s estate, told the Michigan Gaming Control Board on Tuesday that 80.6% of pre-petition lenders representing $220.7 million in claims voted to accept the casino’s plan.
Voting results on the alternative plan offered by Luna Greektown LLC and Plainfield Asset Management LLC were not available Tuesday.
Creditors representing much smaller amounts owed voted overwhelmingly to reject the Greektown reorganization plan, according to a filing Tuesday with the U.S. Bankruptcy Court in Detroit. Confirmation hearings on the plan are to begin Nov. 3 and are expected to last four days.
The pre-petition lenders will receive equity in the new casino and be the new owners, Moore told state regulators. Fine Point Group would continue to manage the casino, he said.
The board also was told of a settlement between the City of Detroit and Greektown Casino that would give the city a $15.3-million payment and free the casino to seek a 5% tax rollback from state regulators.
Moore said that Greektown would approach the board at its next meeting Nov. 10 for approval. That would give the casino time during confirmation hearings the prior week to receive court approval for the rollback first.
The casino, under Chapter 11 bankruptcy protection, would reduce its annual city and state taxes by $15 million with the rollback.
The city had argued that Greektown Casino was not eligible for the tax break already extended to MotorCity Casino and MGM Grand Detroit casino because it violated its development agreement.
The casino, which opened its hotel in February, had argued that it met the requirements for its permanent facility then.
Moore also told the state gaming board that Greektown’s goal is to emerge from bankruptcy by Dec. 31.
Challenge to N.C. Video Poker Ban Heard in State Appellate Court
This case involved, if I recall correctly, a sort-of equal protection challenge to a state video poker ban in North Carolina on grounds that the N.C. tribes have gaming compacts, etc. Lower court opinion here.
Appeals court judges hearing arguments Wednesday on the legality of North Carolina’s video poker ban sounded wary of negating the will of the General Assembly when it granted an exception to machines on the Cherokee Indian reservation.
Two of the three judges on the panel of the state Court of Appeals, which considered a Wake County judge’s ruling earlier this year that overturned the 2006 law, peppered an attorney for an amusement machine vendor with questions about why it should step into a legislative policy question.
Video poker machines could be permitted again in all 100 counties should the lower court keep the ruling in place.
“I always thought that the Legislature set public policy,” Judge Robert Hunter of Marion asked Hugh Stevens, representing vendor McCracken and Amick Inc., which sued over the ban. “You seem to argue that this is somehow contrary to the public policy of the state.” Continue reading
City of Detroit OKs Greektown Bankruptcy Plan
From the Detroit News via Pechanga:
Detroit — A plan to hand control of Greektown Casino-Hotel to its largest group of creditors has been tentatively approved by the city of Detroit and could get the casino of out of Chapter 11 bankruptcy by the end of the year.
The tentative agreement was unveiled this morning at a meeting of the Michigan Gaming Control Board. The casino would be in the hands to the largest group of secured creditors, represented in the case by banking and investment giant Merrill Lynch.
“This is a major milestone,” said attorney Daniel Weiner of Bloomfield Hills-based Schafer and Weiner, who represents the debtors. The tentative agreement was reached with the city Friday, but needs approval by City Council, Mayor Dave Bing, the gaming board and U.S. Bankruptcy Court Judge Walter Shapero. A confirmation hearing in bankruptcy court is set for Nov. 3, which would be followed by a vote of the gaming board.
The other suitor for the hotel and casino was an effort lead by Bloomfield Hills business man Tom Celani, in partnership with Connecticut-based hedge fund Plainfield Asset Management.
Greektown’s owners, the Sault Tribe of Chippewa, filed for Chapter 11 protection on May 29, 2008. The Detroit casino has more than $777 million in debt.
Chuck Moore, a financial advisor working on the Greektown case, said he anticipates that the tentative bankruptcy agreement will ultimately be approved.
“We anticipate a contested confirmation hearing, but it will be approved,” Moore told the Michigan Gaming Control Board.
FMLA Claim against Soaring Eagle Casino Dismissed
Here is the court order in Sober v. Soaring Eagle Casino (E.D. Mich.), dismissed on grounds that the plaintiff failed to exhaust tribal court remedies (she did not appeal tribal court’s dismissal of her claim to the tribal court of appeals) — Sober v Soaring Eagle DCT Order
Here are the materials:
Second Circuit Summarily Dismisses Joe Frazier Suit against Oneida’s Turning Stone Casino
Here is the opinion in Frazier v. Brophy — Frazier v Brophy CA2 Order
An excerpt:
An Indian Tribe is not a citizen of any state for the purposes of diversity jurisdiction. Romanella v. Hayward, 114 F.3d 15, 16 (2d Cir. 1997); Frazier, 254 F. Supp. 2d at 304. (“[T]he Court cannot assert diversity jurisdiction over this action as long as the Oneida Indian Nation (“Oneida Nation”) and the Casino are Defendants.”). Because an Indian Tribe is not a citizen of any state, the Oneida Nation’s presence as a party bars a federal court from hearing the matter under its diversity jurisdiction. Romanella, 114 F.3d at 16 (“[T]he diversity statute’s provisions for suits between citizens of different states, 28 U.S.C. § 1332(a), strictly construed, cannot be said to embrace suits involving Indian tribes.”); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989) (holding that one stateless party destroys diversity jurisdiction). This accords with the treatment of other domestic sovereigns, such as states, which cannot sue or be sued in diversity. Romanella, 114 F.3d at 16. Given the continued presence of the Oneida Nation in this suit, the district court lacked subject matter jurisdiction to hear this case. We therefore remand with instructions to dismiss the matter.
And, importantly:
The dismissal of this suit from federal court does not foreclose all relief against the tribe, its casino, and its agents. The Oneida Nation has a trial and appellate court system staffed by former New York Court of Appeals Judges Stewart Hancock and Richard Simons. FACT SHEET: The Oneida Nation Court, http://www.oneidaindiannation.com/pressroom/factsheets/26965674.html (last visited October 2, 2009). To the extent Frazier has live claims against the tribe, its casino, or the casino’s employees, he could attempt to bring them there.
Sexism in Connectcut TV Report re: Mohegan Tribe’s Female Chair
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!?!?!
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.
Turtle Talk 
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