The case is ATTORNEY’S PROCESS AND INVESTIGATION SERVICES, INC. v. SAC & FOX TRIBE OF THE MISSISSIPPI IN IOWA.
After having been reopened (see our post here), post-tribal remedies exhaustion, the tribe filed a motion to dismiss, and the plaintiffs filed a motion for summary judgment. Both are pending after the court’s order to allow amendment of some of the pleadings.
API Resistance to Motion to Dismiss
H.R. 2267 has some very interesting tidbits in it. Section 5486(C) states:
No decision by a State under this subsection shall be considered in making any determination with regard to the ability of an Indian tribe to offer any class of gambling activity pursuant to section 11 of the Indian Gaming Regulatory Act. [page 40 of the bill]
Does this mean that Indian tribes can conduct internet gaming without a Class III gaming compact? If so, it might obviate the need for Indian tribes to seek off-reservation gaming opportunities. Why spend time, money, and effort to acquire lands near a metropolitan area, cut a deal with the local units of government and the state’s governor (and legislature), and persuade the Secretary of Interior to take the land into trust for gaming purposes … when the tribe can conduct internet gaming on-reservation? There are, after all, far more potential customers on the internet than in Detroit, or Milwaukee, or the Catskills, or San Francisco.
Here is the bill — HR 2267
We haven’t read it yet, but it will definitely affect Indian Country.
Here’s an interesting excerpt:
(b) Indian Tribe Opt-Out Exercise-
So far, this case hasn’t proceeded very far, but the question of whether the court will use by analogy the good faith negotiation requirement under the National Labor Relations Act in this Indian Gaming Regulatory Act case has been decided:
In interpreting this good faith standard, courts have taken some guidance from cases interpreting negotiation obligations imposed by the National Labor Relations Act (“NLRA”). Indian Gaming Related Cases v. California, (Coyote Valley I) 147 F.Supp.2d 1011, 1020-21 (N.D.Cal.2001), affirmed by Coyote Valley II, 331 F.3d 1094. However, the NLRA and IGRA differ in some important aspects. For example, claims of bad faith negotiation under the NLRA are first reviewed by an administrative agency (the National Labor Review Board), see Nat’l Labor Relations Bd. v. Tomco Communications, Inc., 567 F.2d 871, 876 (9th Cir.1978). Under the IGRA, the initial determination is made by the court. Thus, while the NLRA caselaw provides some useful guidance, courts have not applied it to the IGRA “wholesale.” Coyote Valley I, 147 F.Supp.2d at 1021.
Here is the order — DCT Order on Motion to Compel (and the magistrate’s order before that — Magistrate Order on Motion to Compel).
Fort Independence has a motion for summary judgment pending (Fort Independence Motion for Summary Judgment). California’s response is due next week. Still waiting on an 11th Amendment motion. Maybe I missed something….
Alan Meister, Kathryn Rand, and Steve Light have published their paper “Indian Gaming and Beyond: Tribal Economic Development and Diversification” in the South Dakota Law Review as part of a symposium on tribal economic development.
Here is the paper — Meister et al. Article on Tribal Econ Development
From ICT:
Seventeen attorneys general, seeking property taxes and more state power over sovereign Indian lands, have written to the ranking members of the Senate Committee on Indian Affairs and the House Resources Committee urging them to move slowly – if at all – on any Carcieri “fix” and to include them in discussions on the Interior secretary’s authority to take land into trust for the nations.
“A March 13 story in Indian Country Today said Indian country officials are calling for a quick legislative fix so that state and local interests will not have time to make arguments to Congress that the Carcieri decision should stand. The undersigned believe it would not be in the best interests of all stakeholders, both Indian and non-Indian, to rush a legislative fix and to ignore legitimate state and local interests,” the attorneys general wrote.
The Carcieri fix would have Congress amending the 1934 Indian Reorganization Act by deleting the phrase “any tribe now under federal jurisdiction” or adding the words “or hereafter” after the word “now.”
The fix would correct a February ruling by the U.S. Supreme Court, which interpreted “now” to mean then – 1934. The case centered on a 31 acre parcel of land purchased by the Narragansett Indian Tribe for elderly housing. The Interior Department agreed to place the land in trust, but the state and town fought that action all the way to the high court, where the justices ruled 6-3 that the Interior secretary could not take the land into trust because the tribe was not “federally recognized” in 1934.
Continue reading
Here is the 60-page district court opinion in Cachil Dehe Band v. California — Calusa DCT Order — 4-22-09
Here’s the scoresheet:
For the reasons stated above, the court makes the following orders:
(1) Defendants’ motion to dismiss Picayune’s complaint in intervention is DENIED.
(2) With respect to Colusa’s First Claim for Relief in Colusa I, regarding Colusa’s priority in the draw process, defendants’ motion for judgment on the pleadings is DENIED, and Colusa’s motion for summary judgment is GRANTED.
(3) With respect to Colusa’s Second Claim for Relief in Colusa I and Picayune’s sole Claim for Relief, regarding the number of gaming devices authorized by the Compact, defendants’ motion for summary judgment is DENIED, and Colusa’s and Picayune’s motions for summary judgment are GRANTED.
Continue reading
The Supreme Court denied cert in two petitions captioned Cook v. Avi Casino Enterprises (Nos. 08-929, 08-930). It’s on page 4 of this order list.
This is good news for Indian Country (and for my student writing a paper on this subject — you reading this, J.?). There is a split of authority on the question of whether tribal business enterprises are immune from suit in a state law dram shop action, as we have discussed before. But I’m guessing the Court thinks it’s either unimportant or too much a state law question, since each state has its own version of dram shop laws and applies its own understanding of tribal sovereign immunity. But who knows….
From the Detroit News:
Lawyers for Greektown Casino-Hotel and the city of Detroit will have to wait two more weeks to hear if a bankruptcy judge thinks the casino can assume a development agreement that would grant a tax rollback saving roughly $17 million annually.
At an unusually short Friday hearing, federal Judge Walter Shapero said he’ll issue his opinion on the matter at 3 p.m. on May 14.
The tax rollback issue is particularly contentious for Greektown, which entered Chapter 11 proceedings 11 months ago. By filing, Greektown was able to secure the financing it needed to complete construction on its 400-room hotel and resort complex.
From Freep (H/T Pechanga):
Penn National Gaming, Inc., a well-capitalized casino owner, has submitted a bid to purchase Greektown Casino in downtown Detroit.
Timothy J. Wilmott, president and chief operating officer of the Pennslyvania-based company, said Penn National likes the Detroit market. The company also has looked at buying assets from MGM Mirage, including the company’s MGM Grand Detroit property.
Penn National is the second bidder to confirm its interest in buying the casino that filed Chapter 11 bankruptcy about a year ago. Bloomfield Hills businessman Tom Celani also has bid on Greektown.
Greektown is actively marketing the property through the bankruptcy process. By June 1, the casino’s estate must choose one of two paths — reorganization under its current owner, the Sault Tribe of Chippewa Indians, or a sale to a new owner.
Turtle Talk 
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