Devlin v. Cox Complaint

Here is the complaint in Devlin v. Cox, the case brought by the former Michigan Gaming Control Board employee now working for Detroit casino interests over whether tribal gaming operations should be required to apply for state liquor licenses. [Our previous post.]

The odd thing about this claim is that Devlin suggests in the news that he thinks it is unfair that tribal casinos don’t have to be licensed but the Detroit casinos do. There are some weird things about this claim.

First, why is it unfair? Is there some money value lost by the Detroit casinos over this regulatory “advantage”? No, of course not. Tribal casinos are a hundred miles away, mostly far from the market that Detroit dominates — that is, southeast Michigan. So Devlin’s “unfairness” claim won’t do his new clients any good even if he prevails.

Second, Devlin’s federal Indian law/liquor regulation argument ignores the modern history of tribal-state relations. Yes, there are ambiguities in this area of the law. And so the tribal and state negotiators did the smart thing in 1993 and later — avoid litigation by creating a “law of the deal” that finds a way around the muddied legal waters. It was part of the horse-trading that went on in that negotiation. It’s the epitome of fairness.

Finally, if fairness were any measure, Devlin must be forgetting that the Michigan governor who cut the deal in 1993 promised the seven compacting tribes that they would have market exclusivity in the entire State, only to renege on that promise as soon as it was made by gunning for state-licensed casinos in Detroit.

Devlin’s idea of fairness is a joke.

Suit on Tribal Casinos and State Liquor Licenses

From the Chicago Tribune:

A Michigan Gaming Control Board employee says Indian casinos should be forced to get liquor licenses.

Patrick Devlin said he filed a lawsuit this week to try and force Attorney General Mike Cox to require tribal casinos to comply with liquor control laws. Devlin said that not requiring tribes to spend the time and money needed to get licenses gives them a competitive advantage over Detroit casinos required to have licenses.

He said he also is concerned about liability issues.

A Cox spokesman said the lawsuit will be reviewed once it’s received.

Devlin said he is suing as an individual, not on behalf of the gaming board.

Tribes are considered sovereign nations and aren’t covered by some state laws. Devlin said liquor sales should be an exception.

And from the Detroit News:

Rusty Hills, a spokesman for Cox, said: “Compacts (on Indian casinos) are negotiated between tribes and the governor’s office. If Mr. Devlin has a beef he needs to bring it to the attention of the governor. As a lawyer and former member of the attorney general’s office he ought to know better.”

Excellent point….

Greektown Holdings Bankruptcy Materials

Here is the Sault Tribe’s news release on these materials.

greektown-bankruptcy-petition

greektown-motions

mgcb-limited-objection

mgcb-preliminary-objections

mgcb-exhibit-1-greektown-violation

mgcb-exhibit-2-order-approving-debt-transaction

mgcb-exhibit-3-mgcb-resolution-2006-01

bankruptcy-court-interim-order

Shepherd v. Slade — Mystic Lake Casino Employee Dispute

Here, the Minnesota Court of Appeals in an unpublished decision declined to dismiss a claim for tortious interference with contract and other claims, denying a Rule 19 (state law) motion. From the opinion:

Appellant challenges the district court’s denial of her motion to dismiss respondent’s complaint on the ground that it is barred by the doctrine of sovereign immunity. Appellant asserts that the Shakopee Mdewakanton Sioux Community (the tribe) is an indispensable party to the suit and that, because the tribe cannot be joined, the suit must be dismissed. We conclude that the tribe is neither a necessary nor an indispensable party and therefore affirm the district court’s decision.

Slip op. at 2.

The underlying dispute arose when the nonmember tribal casino employee was barred from the casino by the tribal court (and therefore terminated). The state trial court made disturbing statements about the tribal court, but the COA, while troubled, did not find those statements sufficient to reverse:

We agree that the district court’s comments are troubling. “‘Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians.'” St. Pierre v. Norton, 498 F. Supp. 2d 214, 221 (D.D.C. 2007) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65-66, 98 S. Ct. 1670, 1680-81 (1978)); see also Lewis v. Norton, 424 F.3d 959, 962 (9th Cir. 2005) (“The issue is not whether the plaintiffs’ claims would be successful in these tribal forums, but only whether tribal forums exist that could potentially resolve the plaintiffs’ claims.”). The district court’s suggestion that the tribal courts could not provide an adequate alternative forum for Shepherd’s claims lacks foundation. The fact that Shepherd is the subject of a no-trespass order by the tribe does not necessarily mean that she cannot receive a fair trial of her claims against Stade in tribal court.

Slip op. at 10.

LSJ on Nelson Westrin

From the Lansing State Journal:

GRAND LEDGE – The man who wrote the regulations governing legalized gambling at three Detroit casinos and signed the licenses authorizing their operation has died.

Nelson Westrin, 61, of Grand Ledge, died Wednesday of an infection he suffered during a battle with prostate cancer. He was survived by his wife, Carole; three children; sister Mary Jo; and several nephews, nieces and grandchildren.

Westrin was a lifelong public servant, rising from a criminal trial attorney in the Ingham County Prosecutor’s Office to a long career in the state Attorney General’s Office, where he eventually advised the governor’s office on tribal gaming issues. In 1993, then-Gov. John Engler named him the state racing commissioner, then, in 1996, appointed him to head the newly created Michigan Gaming Control Board.

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Kickapoo v Texas — Texas Asked to Respond to Cert Petition

Mildly interesting development in the Kickapoo case regarding the CA5’s decision to strike down the so-called Class III procedures (aka the “Seminole” fix). Kickapoo filed the cert petition, a tribal amicus brief supported the petition, but then Texas declined to respond (which is a respondent’s prerogative, especially in a case where there does not appear to be a clean circuit split). The US, the defendant in the original case, filed a brief urging the SCT to decline the case, although the brief went into detail into just how wrong the government thought the CA5 decision was.

Now the Court has asked for Texas to respond. In my limited experience with the Court’s internal dynamics, the Court might do this as a means of delaying a decision on a cert petition, but for what, in this case, I don’t know.

Greektown Casino Declares Bankruptcy

From Indianz:

The Sault Ste. Marie Tribe of Chippewa Indians announced that it has filed for Chapter 11 bankruptcy protection for its commercial casino in Detroit, Michigan.

The tribe has a majority stake in Greektown Casino, one of three gaming facilities in the city. The tribe was facing state deadlines to improve its financial standing. The tribe says the casino is not broke but that it needs $140 million in financing to complete work on a permanent casino.

Get the Story:
Greektown Casino falls into Chapter 11 (The Detroit Free Press 5/30)
Unpaid bills delay casino’s expansion (The Detroit Free Press 5/30)

Pokagon Band Casino a Success

From Indianz:

Since opening last August, the casino owned by the Pokagon Band of Potawatomi Indians has become a tourist destination in southwestern Michigan.

The Four Winds Casino Resort has had a positive impact on the economy, a business leader said. Local hotels are booking more rooms, more restaurants and retail stores are being opened near the casino and more tour groups are inquiring about the area. “Four Winds is part of their visit and that’s what drew them to the area, but they’ve wanted to stay in a bed and breakfast and do other things,” Pam Sudlow told the Associated Press. “Our lodging properties have been benefiting because the casino is very short of rooms.” The success of the casino has the tribe thinking about an expansion, Chairman John Miller said.

Get the Story:
Four Winds casino creates new vacation destination (AP 5/27)

Written Testimony in Senate Hearing on DOI Backlogs

From the Senate Indian Affairs Committee website:

THE HONORABLE CARL J. ARTMAN
Assistant Secretary – Indian Affairs, U.S. Department of the Interior
Washington, DC

THE HONORABLE ROBERT CHICKS
Mid-West Area Vice President, National Congress of American Indians; President, Stockbridge Munsee Band of Mohican Indians
Bowler, WI

THE HONORABLE GARY SVANDA
Council Member, City of Madera
Madera, CA

MR. DOUG NASH
Director, of Indian Estate Planning and Probating, Institute of Indian Estate Planning and Probate
Seattle, WA

Commentary on the MichGO En Banc and Cert Petitions

MichGo’s attorney asserts a plan to file a cert petition (see below the fold for the news article), and even boasts that he has three votes for cert already — Scalia and Thomas because they dissented in the South Dakota case in 1996, and Roberts because he represented a party making a nondelegation claim to 25 U.S.C. sec. 465 in 1999/2000.

This is spurious, given very recent events.

The Department of Interior just issued nearly-final IGRA Section 20 [25 U.S.C. 2719] regulations. These were the regulations I was talking about in my ICT editorial (not knowing they were about to be finalized). The very existence of these regulations severely blunts Judge Brown’s dissent in the D.C. Circuit case. Here, the Secretary is finally agreeing to formalize restrictions on his discretion contained in section 5 of the IRA [25 U.S.C. 465] in the context of Section 20 trust acquisitions.

One could make a plausible claim that, to the extent the SCT would be persuaded by a solitary dissent in a very minor case (nationally), it is now all but a dead letter.

What the D.C. Circuit should do is amend its decision to reflect the existence of the new regs, adding another nail to the coffin of the Section 5 nondelegation argument.

Finally, as MichGO’s attorney should know, one solitary dissent does not a circuit split make.

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