gaming

NYTs Article on Soboba Band Conflicts

Matthew L.M. Fletcher

From the NYTs:

SAN JACINTO, Calif. — With 9 reservations and 10 casinos, Riverside County is a major center of Indian gambling in California.

But a standoff between county sheriff’s deputies and leaders of the Soboba Band of Luiseño Indians has led to an unusual effort to close one of the casinos because of safety concerns.

Three Soboba members were killed in gunfights with deputies on the reservation in May, and the authorities say tribal members have shot at deputies in patrol cars and helicopters with high-powered assault rifles over the past nine months.

In July, citing what it called heavy-handed treatment by the Sheriff’s Department, the tribe began requiring deputies entering the reservation to check in at a security gate and travel with an escort. Sheriff Stanley Sniff says the restrictions are illegal and has asked the National Indian Gaming Commission to close the Soboba casino and suspend the tribe’s gambling license.

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Gun Lake Band Moves to Vacate Stay

Matthew L.M. Fletcher

The Gun Lake Band has filed an application to Chief Justice Roberts to vacate the stay issued by the D.C. Circuit preventing the Secretary from taking its Shelbyville, Michigan parcel into trust for gaming purposes. Here is the docket sheet so far.

News Coverage re: Pokagon Revenue Sharing Dispute

Matthew L.M. Fletcher

From the South Bend Tribune:

NEW BUFFALO — For the state of Michigan and local municipalities, the tribal Four Winds Casino Resort that opened a year ago in New Buffalo Township has a lot in common with the 1996 Tom Cruise movie “Jerry Maguire.”

Like the movie’s tag line, they’d like the casino to “show me the money.”

Certainly, the casino has been successful, earning an average of $24.4 million a month over its first eight months just on slot-machine revenue. But the state’s 8 percent share of those revenues and the local communities’ 2 percent share that were specified in the Pokagon Band of Potawatomi Indians’ 1998 gaming compact have yet to be paid.And the payments, placed in interest-bearing escrow accounts, are sizable, amounting to $15.6 million for the state and $3.9 million for Berrien County, New Buffalo Township and the city of New Buffalo.

Essentially, the Dowagiac-based tribe’s stance, like that of other Michigan tribes with casinos, is that the Michigan Lottery’s Club Keno game introduced in 2003 violated their compacts’ exclusivity agreements. Two of the tribes sued the state, and although the Pokagons weren’t involved, they chose to withhold payment until the issue was resolved.

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Sault Tribe Wins Gaming Case Against DOI

Matthew L.M. Fletcher1 Comment

Here is the opinion: opinion

The interesting portion of this opinion is the court’s awareness that there is a circuit split over the question of whether Chevron deference will trump canons of statutory construction that favor Indian tribes. The Sixth Circuit has not yet decided this question. Here, the court chose to apply the Chevron test, but concluded that the government’s decision was arbitrary and capricious. So the question remained open.

Carcieri v. Kempthorne: Amicus Briefs Supporting the Respondent

Matthew L.M. Fletcher

They’re here, courtesy of the Supreme Court Project:

In support of Respondents:

Amicus Brief of Narragansett Indian Tribe

Amicus Brief of Law Professors

Amicus Brief of NCAI

Amicus Brief of Historians

Amicus Brief of Standing Rock Sioux, et al.

Seminole Tribe Per Caps Sufficient to Cover Child Support

Matthew L.M. Fletcher1 Comment

The Florida Court of Appeals held that the Seminole tribe’s per capita payments are sufficient to relieve at least one father of child support obligations. Here is the opinion in Cypress v. Jumper.

H/T Falmouth

Velie & Velie v. Onnam Default Judgment

Matthew L.M. Fletcher

The Western District of Oklahoma granted Velie & Velie’s motion for a default judgment in its attorney fees dispute with Onnam Entertainment and True Native American Gaming (previous post with materials).

velie-motion-for-default-judgment

velie-dct-default-judgment

ACS Issue Brief on the NLRB — Holy Irony!!!!

Matthew L.M. Fletcher

The American Constitution Society just released an issue brief called “Understanding How Employees’ Rights to Organize Under the National Labor Relations Act Have Been Limited:  The Case of Brown University.” Anyone following Indian Law knows that not all employees have this problem!

Here it is: dannin-issue-brief

Just take the words “Brown University” and replace them with “San Manuel Indian Bingo and Casino” and you have a wildly different result. This issue brief, which is well-written, notes how the NLRB ignores precedent to reach pro-employer results and harms employee rights. Unfortunately, there is no mention of the San Manuel Indian Bingo and Casino decision (from the same year as the Brown University decision, 2004), which reversed 30 years of precedent, gave short shrift to tribal sovereignty, and utterly ignored the governmental purposes of tribal gaming.

I haven’t seen any issue briefs on Indian Law from the ACS, an organization I support. I suppose it’s not a major issue for the ACS, but I urge the ACS and its issue brief writers to consider Indian Law on occasion. Dean Getches wrote a decade ago that tribal interests fare worse than any class of litigant before the Supreme Court, worse than convicted criminals, and not much has changed to the benefit of tribal interests.

Here are a few things the ACS could write about:

  • The 75 percent loss rate of tribal interests before the SCT since 1986
  • The hostility of the Supreme Court toward tribal criminal and civil jurisdiction over non-Indians, which contributes directly to a serious crime and regulatory problem in Indian Country
  • The hostility of the Supreme Court toward tribal interests in disputes with states and state agencies (a federalism issue )
  • The incredible advances that tribes (and states and local governments) have made in using intergovernmental agreements to negotiate away troublesome jurisdictional quandries
  • The hostility of the federal government toward Indians and Indian tribes in the context of Indian gaming and individual Indian money accounts
  • The voting rights cases still being brought by the ACLU Voting Rights Project in Indian Country

There are many other issues. There’s a lot of good things going on in Indian Country, too.

Nottawaseppi Huron Band Casino Progress

Matthew L.M. Fletcher

From Indianz:


The Nottawaseppi Huron Band of Potawatomi Indians is banking on a casino to create new opportunities for the Michigan tribe.

Nearly half of the adult members of the tribe are unemployed. But some are now finding work on the Pine Creek Reservation with the construction of the FireKeepers Casino. “I thank the Creator for the jobs,” Bill Osborn, who was out of work until construction started in May, told The Battle Creek Enquirer. “I think the opportunities in the future are going to be immense.” The $300 million, 236,000 square-foot casino is set to open in the summer of 2009. With $100 million in annual revenue, the tribe plans to improve governmental programs and services for its 850 members. The tribe has already built housing to lure more people back to the reservation. Only about 35 people live there right now. In related news, the tribe is offering a $250 reward for information about the theft of copper wiring from from the casino construction site.

Get the Story:
Tribe: Profits will provide programs for members (The Battle Creek Enquirer 8/17)
Casino will bring change (The Battle Creek Enquirer 8/17)
Neighbors differ on FireKeepers (The Battle Creek Enquirer 8/17)
Tribe reports copper theft at casino (The Battle Creek Enquirer 8/16)

Harvard Panel Discussion re: NIGC Authority Posted on SSRN

Matthew L.M. Fletcher

The post is here, and here is the abstract:

In a recent Senate hearing, Senator John McCain and Professor Washburn clashed about the federal role in tribal economic decisions involving Indian gaming. Professor Washburn, who was struck by decades of incompetent federal stewardship of tribal trust funds demonstrated so painfully in the Cobell litigation, questioned the wisdom of the existing gaming regulatory structure in which federal officials at the National Indian Gaming Commission (NIGC) exercise oversight of tribal economic decisions involving tens or hundreds of millions of dollars. Senator McCain sharply disagreed. Following his investigation of lobbyist Jack Abramoff, McCain was even more certain that tribes needed federal protection from outsiders like Abramoff. McCain argued that the need for such protection justified close federal oversight of tribal economic decisions. The dilemma inherent in this exchange between Senator McCain and Professor Washburn will haunt the relationship between the United States and Indian tribes in the post-Cobell (and post-Abramoff) era. The purpose of this panel discussion at Harvard Law School was to consider these issues in the context of the work of the NIGC. The NIGC reviews Indian gaming management contracts under strict statutory standards. It reviews other contracts for violation of the Indian Gaming Regulatory Act’s “sole proprietary interest” standard. In an era of tribal self-determination and self-governance, what is the justification for NIGC review of tribal economic decisions? Does the NIGC exercise a “trust responsibility” toward Indian tribes? What are the practical ramifications of having federal public servants reviewing tribal economic decisions worth tens or hundreds of millions of dollars? Are the costs of such review justified by the benefits? Is federal oversight useful for tribal transactions in which tribes have obtained the advice of Wall Street investment banks and legal counsel at sophisticated law firms? Are federal public servants competent to review the increasingly complex financial arrangements created in such transactions? Is the NIGC accountable for its decisions? What remedy ought to be available to tribes if the NIGC makes an error? If such review is necessary to protect tribes, on what basis should federal public servants disapprove such agreements?