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Here, the Minnesota Court of Appeals in an unpublished decision declined to dismiss a claim for tortious interference with contract and other claims, denying a Rule 19 (state law) motion.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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John Shagonaby in the Allegan News re: Gun Lake Casino

From the Allegan News:

To the editor: In response to Kathy Cassady’s letter—“Think tribal ancestors wanted casino?” No, our ancestors simply wanted to retain our land, culture and sovereignty.

Upon learning that the U.S. Court of Appeals decided in yet another court case that the Gun Lake tribe has the right to build a casino, Chairman D.K. Sprague thanked the Creator because our families have suffered economically and socially for centuries; ever since we lost all the land everyone else currently enjoys, including Kathy Cassady.

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Mullally v. Havasu Landing Casino — FLMA Claim Against Tribal Casino

The district court for the Central District of California dismissed the FMLA claim on grounds of sovereign immunity. Other claims, including defamation, were dismissed without prejudice on the tribal court exhaustion doctrine. And, under tribal law, the casino immunity was waived.

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mullally-opposition-to-motion

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State of Alabama v. United States — Challenge to Class III Procedures

Following Texas’s successful challenge to the Class III procedures in the Fifth Circuit, Alabama is doing the same in the S.D. Ala. (part of the old 5th Circuit, now the 11th Circuit). This case involves the Poarch Band of Creek Indians.

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