Years ago, Wisconsin sued the Stockbridge-Munsee Community over the site of its Class III gaming operation, alleging that the land upon which the casino was located was outside the reservation boundaries, or that the reservation had been disestablished. The case is in the Seventh Circuit now and briefing is underway:
1999-dct-opinion-wisconsin-v-stockbridge-munsee
2004-dct-opinion-wisconsin-v-stockbridge-munsee
In the Kickapoo Tribe’s petition for cert to the Supreme Court re: the Class III Procedures (i.e, the Seminole Tribe “fix”) that were invalidated by the Fifth Circuit, the United States (ostensibly on the same side as the Tribe) filed a brief opposing certiorari (here). The State of Texas had already declined to respond to the cert petition.
The government’s brief is an interesting read. First, the US says the Fifth Circuit was wrong on any number of points — namely, that the court incorrectly held that the case was ripe for decision (the procedures were not yet complete) and that the court incorrectly held that the Secretary was not authorized to issue the regulation in the first place. Second, the government says there is no reason to hear this case now, given that it would be a case of first impression for the Supreme Court (usually a death knell for cert petitions) and that the Fifth Circuit’s panel decision was split three ways.
If there was any doubt that the Kickapoo petition would be denied, this brief effectively dispels that doubt.
Yesterday’s per curiam opinion in MichGo v. Kempthorne, while very, very important to the Gun Lake Band and other Michigan tribes, did not break any new ground. It was the third time in recent years that citizens groups challenged the Secretary of Interior’s decision to take land into trust for gaming purposes for the three southwest Michigan Potawatomi tribes (the other two were TOMAC v. Norton and CETAC v. Kempthorne). Each of the challenges raised NEPA and constitutional claims of very similar character. Each time it was relatively easy for the D.C. Circuit to dispose of these arguments, which some argued bordered on frivolous.
But there is a strong threat to the future of tribal property contained in these cases.
The constitutional challenge is that Section 5 of the IRA (25 U.S.C. 465) is an unconstitutional delegation of Congressional power to the Secretary of Interior. Section 5 allows the Secretary, at his discretion, to acquire land in trust for Indians and Indian tribes. If this discretion is absolute, then it is a violation of the separation of powers inherent in the Constitution. But until yesterday, the constitutional challenge did not garner a single vote in any of the three Potawatomi cases. In fact, though this constitutional challenge has been raised by states and localities repeatedly since the early 1980s, it has not garnered a single vote from a federal judge since 1996, when Justice Scalia dissented from a GVR in United States v. South Dakota, 519 U.S. 919 (1996). The Supreme Court recently granted cert. in Carcieri v. Kempthorne, another of these challenges, but declined to hear the constitutional challenge.
The D.C. Circuit Court of Appeals held the Department of the Interior’s decision to place land into trust for the benefit of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians near Bradley, Michigan did not violate the National Environmental Protection Act nor did Section 5 of the Indian Reorganization Act constitute an unconstitutional delegation of legislative authority.
Other briefs are here.
Funny/sad thing about all this is that the 1993 compacting tribes, who still retain the right to decision where the two percent money goes, never have this problem — and yet the State tries so hard to take it away.
From Indianz:
The Pokagon Band of Potawatomi Indians agreed to share 2 percent of gaming revenues with local governments in Michigan but officials in one county still can’t agree how to distribute the money.
Berrien County’s Local Revenue Sharing Board has been trying for the past six months to decide how to spend $977,266 from the Four Winds Casino. One official became so unhappy with the process that he resigned from the board. The other board members, however, say they have reached an agreement on distributing the money. They hope to receive the first payment in time for the tribe’s second on May 31.
Get the Story:
Disagreements continue over distribution of casino revenue (WSBT 4/28 )
Casino proceeds remain elusive (WNDU 4/28 )
From Indianz:
Despite a lack of construction activity, the Nottawaseppi Huron Band of Potawatomi Indians says its casino near Battle Creek, Michigan, will open in June 2009.
The tribe was supposed to start work on the FireKeepers Casino this spring. But spokesperson Donna Halinski promises that construction will begin before the summer. “We haven’t set a date yet,” Halinski told The Battle Creek Enquirer. “There are still some internal things going on. … The design work is all done. … Everything’s in place.” The tribe’s land-into-trust application for the casino was held up in court for eight years. Get the Story:
Casino project awaits start (The Battle Creek Enquirer 4/28 )
From Indianz. The Department of Interior neither approved nor disapproved the amendments, so they are in force after the expiration of 45 days.
From the Senate Indian Affairs Committee website:
THE HONORABLE PHILIP HOGEN
Chairman, National Indian Gaming Commission
Washington, DC 20005
THE HONORABLE DELIA CARLYLE
Chairwoman, Arizona Indian Gaming Association Ak Chin Tribe
THE HONORABLE J.R. MATHEWS
Board Member and Vice-Chairman Quapaw Tribe of Oklahoma
Quapaw, OK
Accompanied by: MARK VAN NORMAN, Executive Director, National Indian Gaming Association, Washington, DC
MR. BRIAN PATTERSON
President, United South and Eastern Tribes
Nashville, TN
MR. KURT LUGER
Executive Director, Great Plains Indian Gaming Association,
Bismarck, ND
MS. KATHRYN RAND
J.D., University of North Dakota School of Law
Grand Forks, ND
Accompanied by: STEVEN LIGHT, PhD., Co-Directors, Institute for the Study of Tribal Gaming Law and Policy, University of North Dakota, Grand Forks, ND
The March/April 2008 issue of the Federal Lawyer featured several articles on Indian law.
Zeke Fletcher on the legacy of Martinez, Wheeler, and Oliphant: trappedinthespringof1978
Casey Douma on the Indian Civil Rights Act: 40thanniversaryoficra
Mike McBride and Susan Huntsman on tribal labor relations: organizedlaborstrategiesforindiangaming
Goodman and Maxfield on the NIGC’s gaming management contracting: isthatyourfinalanswergoodmanmaxfield
Matthew Fletcher on the Supreme Court and the rule of law: supremecourtandtheruleoflaw
From Mlive:
The Gun Lake Tribe’s compact may be a model for agreements to be renegotiated in the next four to five years, according to James Hill, professor at Central Michigan University.
The compact is different from earlier agreements in three major ways. The tribe agreed to share revenue on an increasing scale, beginning with eight percent and rising to 12 percent of slot machine revenues, calculated on gross revenues. As the tribe makes more, it pays the state a higher percentage.
That might be the wave of the future, Hill said.
Another difference is the size of the exclusivity zone. instead of the whole state, the Gun Lake Tribe agreed to nine counties surrounding its Wayland casino.
Turtle Talk 
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