gaming

Huron Nottawaseppi Awaits Public Safety Cooperation Agreement with Emmett Township

Matthew L.M. Fletcher

From the Battle Creek Enquirer:

Officials at Pine Creek Reservation, the Emmett Township Department of Public Safety and FireKeepers Casino are scrambling to get public safety agreements in place before the casino’s early August opening.

That’s because the agreements “have hit a last-minute snag,” township Supervisor Gene Adkins said at the board’s meeting Thursday.

The township board on Thursday postponed approval for the second time on a cross-deputization agreement between their public safety department and the Huron Potawatomi Police Department. In June, trustees wanted the township attorneys to review the language before voting on it.

The contract would deputize tribal police to act with authority on township property. Without the agreement, tribal police couldn’t leave the casino grounds, which are sovereign Indian land, in pursuit of criminals.

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Update on Challenge to Michigan Gaming Control and Revenue Act

Matthew L.M. Fletcher

Northville Downs’ opening brief before the Sixth Circuit in its challenge to the constitutionality of the Michigan’s Proposal E, barring additional, non-Indian gaming facilities in Michigan absent a state-wide referendum is here — Northville Downs Appellant Brief

In late February, the Eastern District of Michigan (Cohn, J.) rejected a constitutional challenge to Michigan Const. art. IV, section 41, otherwise known as Proposal E, and the Michigan Gaming Control and Revenue Act. Here are the pleadings in Northville Downs v. Granholm.

northville-downs-complaint

state-motion-to-dismiss

mgm-motion-to-dismiss

northville-response-to-motion-to-dismiss [response begins around page 27, the rest is an amended complaint]

state-reply-brief

mgm-reply-brief

northville-downs-dct-opinion

Kevin Washburn on IGRA and Agency Culture

Matthew L.M. Fletcher

Agency Culture and Conflict: Federal Implementation of the Indian Gaming Regulatory Act by the National Indian Gaming Commission, the Bureau of Indian Affairs, and the Department of Justice
Arizona State Law Journal, Forthcoming
Kevin K. Washburn
University of New Mexico Law School — Dean and Professor of Law

Here’s the abstract:

Indian gaming provides a lens through which to consider the implications of divided federal executive power. The Indian Gaming Regulatory Act is implemented by at least three federal agencies, each of which has somewhat different interests. Moreover, none of these agencies is monolithic and each must reconcile competing interests within its own domain. In examining the culture of three federal agencies, the author seeks to shed light on divided executive branch governance. The article briefly addresses three different issues: the ‘independence’ of an independent agency, the NIGC, which lacks litigating authority; the problem with shared subject matter jurisdiction by DOJ and NIGC over game classification, and shared decision making by NIGC and DOI on Indian lands questions. The author concludes that divided federal power creates substantial coordination problems at the federal level. These problems often prevent the federal government from speaking with one clear voice that would generate deference to executive power, and sometimes prevent the exercise of executive action. If governmental power in Indian affairs is a zero sum game, one clear consequence of divided federal power is increased tribal sovereignty.

Harris Complaint against Sycuan Band Dismissed Again

Matthew L.M. Fletcher1 Comment

Once again, the Southern District of California has dismissed a claim against the Sycuan Band of Diegueno Indians under the Federal Arbitration Act — Second DCT Order Dismissing Harris Complaint — she was given leave to amend a third time, though.

First case is here.

Federal Court Holds that California Waived Eleventh Amendment Immunity from IGRA Good Faith Suits

Matthew L.M. Fletcher1 Comment

Here is the opinion in Big Lagoon Rancheria v. California — DCT Order Denying Cal Motion to Dismiss

The materials:

California Motion for Judgment on Pleadings

Big Lagoon Rancheria Opposition Brief

California Reply Brief

An excerpt:

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Oklahoma Supreme Court Allows Tort Claims in State Courts against Tribal Casinos

Matthew L.M. Fletcher4 Comments

Expanding its decision in Cossey v. Cherokee Nation, the Oklahoma Supreme Court held that state courts have jurisdiction over tort claims against tribal casinos in the companion cases Griffith v. Choctaw Casino of Pocola and Dye v. Choctaw Casino of Pocola. An excerpt from Griffith:

We recently handed down our opinion in Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, — P.3d —-, (mandate issued June 11, 2009), holding that the state district court is a court of competent jurisdiction as that phrase is used in the Cherokee Nation’s tribal gaming compact. Today, in separate opinions in this case and in the related case of Dye v. Choctaw Casino of Pocola, Oklahoma,2009 OK 52, we determine that Oklahoma district courts are courts of competent jurisdiction as that phrase is used in Oklahoma’s statutory model tribal gaming compact and therefore the state courts may exercise jurisdiction over the tort claims against the Choctaw Nation and its casino in Pocola, Oklahoma.

Burt Lake Legislative Backers View Casino as a Long Shot

Matthew L.M. Fletcher1 Comment

From the radio (?!?!), via Pechanga:

State Rep. Matt Lori reports that – after looking into the possibility of changing state gaming laws to allow the Burt Lake Band to establish an Indian casino in Sturgis – believes the chances are slim.

The Burt Lake Band has tried and failed to receive federal recognition as a tribe four times.  Without federal recognition, they are unable to establish a casino under state gaming laws.

At the request of local developers hoping to bring a casino and the jobs that come with it to the area, Lori agreed to investigate whether it is possible for the tribe to gain official recognition from the state, and modify current Michigan gaming laws to allow the project to move forward.  However, after consulting with legislative legal advisors and leaders in both the House and Senate, Lori said he did not believe it is a feasible option.

“I recognized the potential economic impact in terms of jobs and increased tourism a casino would bring to the area which is why I was willing to look into this issue, but it doesn’t seem possible at the current time,” said Lori, of Constantine.  “The legal hurdles combined with the dynamic in the Legislature are too much to overcome.”

Senator Cameron Brown previously said he believed it would not be possible to gain recognition from the state and modify gaming laws, and Lori’s investigation confirms that position.

“From my point of view it would be fruitless to continue pursuing legislation that has very little hope of succeeding at this time.  Rather than give people false hope, I think we need to move on to find another solution,” Lori said.

Lori said he is willing to meet with developers and city officials on how to best proceed.

N.M. Court of Appeals Dismisses Tort & Privacy Claims against Tribe

Matthew L.M. Fletcher

Here is the New Mexico Court of Appeals opinion in Holguin v. Tsay Corp. An excerpt:

We can see no basis on which the district court could have appropriately denied Tsay’s motion to dismiss as to the two counts of invasion of privacy. Holguin has presented no argument or authority that overcomes the controlling law requiring physical injury or damage. We are unpersuaded by Holguin’s argument that use of his name and likeness is no different than if he were robbed of his jewelry and money at gunpoint. We leave that hypothetical, which, unlike the present case, involves threat, risk, and potential of physical harm, for another day. Presently, we are dealing solely with an alleged emotional injury resulting from an alleged inchoate, incorporeal invasion of his privacy. We cannot characterize Holguin’s claim as one for damages for physical injury to himself or physical damage to property, and thus cannot characterize the claim as one for bodily injury or property damage.

API v. Sac and Fox — Court Finds Tribal Court Jurisdiction over Nonmembers

Matthew L.M. Fletcher

Here is the district court order granting the tribe’s motion to dismiss a challenge to the tribal court’s jurisdiction in this long-running intratribal dispute — DCT Order on Cross Motions

The pleadings are here.

An excerpt:

API’s conduct imperiled the Tribe’s political integrity. In essence, API invaded the Tribe’s land to quell an intra-tribal governmental dispute. API argues this intra-tribal dispute was merely incidental to the raid. API contends that, if the court finds the raid imperiled the Tribe’s political integrity, any action taken by a non-member on tribal land during an intra-tribal governmental dispute would justify a court’s invocation of the second Montana exception. The court disagrees. API’s actions were made and intended to be a direct challenge to the Bear Council. API raided the Casino on behalf of the Walker Council, which was not the Tribe’s true governing authority. API conducted the raid pursuant to the Agreement, and the Agreement’s terms indicate the services API was expected to provide related directly to the Tribe’s governmental affairs. See Agreement at P I.2.A (stating API “shall perform services directly relating to the investigation of a takeover by dissidents at the [Casino] located on the Tribe’s reservation lands” and “[i]nvestigat[e] [. . .] individuals involved in the unlawful acts against the Tribal Government”). In other words, API was  hired to assist in the resolution of an intra-tribal governmental dispute, which strikes at the heart of the secondMontana exception. The fact API believed it was operating with the consent of the Tribe’s governing authority, that is, the ousted Walker Council, has no effect on the application of this exception. In truth and in fact, API raided the Casino specifically to weaken one side of an intra-tribal governmental dispute, which happened to be the Bear Council, the Tribe’s true governing body. This is an act with potentially catastrophic consequences to the Tribe’s government. The court concludes this merits the application of the protective prong of the Montana exception and that the Tribal Court’s exercise of civil jurisdiction over API was proper.

Oregon Supreme Court Allows Suit re: State Governor’s Authority to Enter into Gaming Compact

Matthew L.M. Fletcher

Here is the opinion in State ex rel. Newberry v. Kulongoski. An excerpt:

Relators filed a petition for a writ of mandamus in Lane County Circuit Court in 2003, challenging the Governor’s authority to enter into a gaming compact with the Confederated Tribes of Coos, Lower Umpqua, and Suislaw Indians (the Tribes). Under the compact, the Tribes would be permitted to open a casino near Florence, Oregon. On the state’s motion, the trial court dismissed relators’ petition on two grounds: (1) relators had failed to show that they had no adequate remedy at law; and (2) relators had failed to join the Tribes in the action, in violation of ORCP 29 A. Relators appealed, and the Court of Appeals reversed and remanded. We allowed the state’s petition for review, and we now affirm the Court of Appeals decision.