Here is an unpublished decision in the California Court of Appeals, 4th District, affirming the quashing of a subpoena against the Barona Band.
gaming
US Drops Appeal of Soo Tribe Gaming Lands Case
From Indianz (the lower court opinion is here):
The federal government has dropped its appeal of a gaming case involving the Sault Ste. Marie Tribe of Chippewa Indians of Michigan.
The tribe spent $41 million on the Kewadin Shores Casino but the National Indian Gaming Commission said the site didn’t qualify under the Indian Gaming Regulatory Act. The land was taken into trust after 1988, the year IGRA became law. A federal judge disagreed, noting that the casino site is adjacent to land that was already in trust prior to 1988. The Department of Justice filed a notice of appeal but withdrew it this week, the Associated Press reported.
Get the Story:
Legal threat to Indian tribe’s Mich. casino over (AP 1/15)
Eighth Circuit Divides over Malpractice Claims against Dorsey & Whitney re: St. Regis Mohawk Gaming Concern
Here is the Eighth Circuit’s opinion in Leonard v. Dorsey & Whitney (h/t How Appealing). Dorsey wins, and the dissent is about jurisdiction, not the merits.
Commentary on Harrah’s v. NGV Gaming Cert Petition
Here is the reply brief from Harrah’s, and so the certiorari briefing is concluded (the petition is here, and the opposition is here).
I was a little surprised that SCOTUSblog lists this case as a petition to watch. I don’t see any of the indicators that this would be the kind of case to make the discuss list (including either party employing a member of the Supreme Court “bar” suggested by Prof. Lazarus), except for the very superficial circuit split alleged by the petitioners. Maybe they know something I don’t. [I suppose that SCOTUSblog might think this case is similar to Carcieri and MichGO, but I doubt it.]
I say the circuit split is superficial, but in reality it is illusory. The claimed split is between the Ninth and Second Circuits over the definition of “Indian lands.” The CA2 looked at “Indian lands” as used in the Indian Gaming Regulatory Act (25 U.S.C. 2711), and the CA9 looked at “Indian lands” as used in Section 81 of Title 25. The CA2 said that IGRA’s “Indian lands” definition includes both lands already held in trust and lands that will go into trust. The CA9 says that Section 81’s “Indian lands” definition includes only lands already held in trust. Both courts seem to have spent some time reading the dictionary on these cases — 1 U.S.C. 1 et seq. Looks like a split, right?
NO.
Hopefully, the SCT and their clerks will realize that no split exists at all. There are two reasons. First, the purposes of each statute distinguish them, even though they use the same words. Second, the operation and implementation of the different statutes prevent them from conflicting. I really don’t think the Dictionary Act would trump either of these two arguments, or else someone better go back and reargue D.C. v. Heller.
OK, the first point. Section 2711 is about management contracts that tribes might sign to manage a gaming facility. Tribes will and do sign these contracts long before any land is taken into trust, and even before a tribe owns a single acre. So it is the National Indian Gaming Commission’s responsibility to review these contracts could kick in before any land is taken into trust, making the CA2’s outcome reasonable. Section 81, on the other hand, is about tribes collateralizing lands held in trust for the tribes by the Secretary of Interior. There’s no reason to review a contract that potentially encumbers tribal trust land unless that land is already in trust, making the CA9’s decision reasonable.
Which leads to the second point, closely related — the Secretary cannot take land into trust without first determining that there are no encumbrances on the land (25 U.S.C. 465). So under Section 81, the Secretary doesn’t need to review a contract that might encumber trust land. In other words, the Secretary will never review a contract that might encumber “Indian lands” under Section 81 unless the land is already in trust. So, the CA9’s decision is the only decision possible. Conversely, IGRA expressly allows for the NIGC to review a contract regarding lands that will go into trust, often because the contract itself will provide the tribe funds to buy lands and ask the Secretary to take the land into trust.
And so, no circuit split.
I hope the Court isn’t confused by this one.
More Commentary on Carcieri and MichGO
It might be useful to recap the various factors that might affect the Supreme Court’s consideration of Carcieri v. Kempthorne and MichGO v. Kempthorne. I’ve been quoted here (ICT) and here (Indianz) — correctly, no problem there — but one thing I wonder might affect MichGO.
What I’ve been saying for a few days now is that the outcome in Carcieri might affect whether or not the Court decides to hear MichGO on the merits, a grant, or whether it decides to remand MichGO in light of Carcieri, a GVR. One thing I had not considered until now is that MichGO has not made some key arguments that were available to it by virtue of the Carcieri case. Carcieri is about whether Section 5 of the Indian Reorganization Act can apply to a tribe not federally recognized by the federal government in 1934. Until its cert petition (and I have not seen the complaint), MichGO never made that argument. The MichGO cert petition’s second question presented is one that was available to them (the Carcieri litigation goes back way before the MichGO litigation) but one that MichGO apparently never made.
So if the Court GVR’s MichGO after a Carcieri reversal on the Section 5 question, it will be allowing MichGO to bootstrap itself onto an argument that it had never made. Frankly, if my facts are right, MichGO has waived its 1934 argument, and should not be the beneficiary of a remand to the D.C. Circuit.
Even if the Court GVR’s the MichGO case, the Gun Lake Band probably will still be able to show that they are eligible under Section 5, depending on how the Court’s majority opinion in Carcieri reads. MichGO, an organization created to delay gaming, likely for the benefit of other gaming and business entities, will continue to be a big winner merely by delaying the opening of yet another casino. And Gun Lake will have been the victim of really, really bad timing.
MichGO v. Kempthorne Update UPDATED !!!!
No news today — so the Court did not deny cert yet (here are the orders). There are several possibilities. First, and perhaps most likely, the Court will hold on to this one until the Carcieri v. Kempthorne decision comes out, which could be any day. Second, following this hold, the Court could either grant cert or GVR the case. I suspect the most likely outcome is a GVR, given the possibility that the Court will reverse the First Circuit in Carcieri.
Newer, better update — the Court apparently did not get to consideration of the MichGO petition. In fact, the Court has re-slated the petition for consideration on January 16, this Friday. Here is the docket sheet. Of course, maybe the Court is about to issue an opinion in Carcieri this week….
Attorney’s Process and Investigation Services v. Sac and Fox Tribe — Case Reopened
This case arises out of alleged tortious nonmember conduct during the leadership dispute at Meskawki a few years back. In 2005, the Northern District of Iowa applied the tribal court exhaustion doctrine as justification for staying the case (nov-2005-dct-order). The tribal court’s processes have run (motion-to-reopen-case [includes tribal court decision]), and now the case has been reopened (dct-order-reopening-case).
This will be a very interesting application of the Montana test, if the court reaches the merits.
Harrah’s v. NGV a Petition to Watch
This is for the January 23 conference (today, the Court will consider the MichGO v. Kempthorne petition).
From SCOTUSblog:
Docket: 08-655
Title: Harrah’s Operating Company, Inc. v. NGV Gaming, Ltd.
Issue: Whether the term “Indian lands” in 25 U.S.C. 81(a) applies only to land currently held in trust by the United States or also to land that will be held in trust.
Amodor County v. Kempthorne — No Judicial Review of Approval of Gaming Compact by Inaction
Here are the materials in this case involving the Buena Vista Rancheria of Me-Wuk Indians:
United States v. Hunter Update — IGRA Criminal Case
We posted about this case involving tribal leaders at Coyote Valley Band of Pomo Indians earlier this year. The government has been able to convict one of the tribal leaders — Michelle Campbell — for failing to file a tax return (campbell-conviction). Priscilla Hunter’s trial is scheduled for April 2009.
Turtle Talk 
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