Update in California v. Picayune Rancheria

Here are the materials:

58 Reid Council Motion for Order to Show Cause

61 Opposition

63 Reid Council Reply

65 DCT Order Denying Motion

Here are previous materials in this suit.

Nottawaseppi Huron Band of the Potawatomi Seek Gaming Commission Executive Director

Here:

Executive Director-Gaming Commission

State of Michigan Sues Sault Tribe Officials–Amended Complaint with Exhibits

Amended Complaint

2Exhibit A (Letter from DOI)

Exhibit B (letter from Gov. Snyder to Chairman Eitrem)

Exhibit C (Sault Tribe Submission for Mandatory Fee-to-Trust Acquisition)

Exhibit D (Same, for the Sibley Parcel)

Exhibit E (Sault Tribe approval of development agreement with Lansing, MI)

Exhibit F (Comprehensive Development Agreement between Sault Tribe and Lansing)

Previous coverage of the Lansing casino case here.

Siletz Tribe takes issue with article in The Economist based on flawed study

Tribe takes issue with article in The Economist based on flawed study
In 2014 alone – $808,225 in higher education and adult vocational grants, $400,000 in out-of-area health care payments, $1,324,711 to Tribal Elders individually and to Elders programs designed to “increase overall Tribal health and educational attainment and to ameliorate the negative effects of termination…”
These are just a few of the items toward which the Confederated Tribes of Siletz Indians put gaming funds in 2014, in addition to the per capita payment of $1,200 to Tribal members.
Receiving a payment of about $1,000 annually – that isn’t already dedicated to rent or mortgage, electric bills or the like – is a great benefit to Tribal members, but it certainly isn’t enough to quit your job and start loafing, no matter how attractive “sloth” may seem.
On Jan. 12-13, a reporter from The Economist magazine visited the Siletz Tribe and the community of Siletz ostensibly to gather information for a story on how casinos benefit Tribes.
On Jan. 15, an article appeared on The Economist’s website under the headline, “Of Slots and Sloth: How Cash from Casinos Makes Native Americans Poorer.”
The article relied on generalizations, anecdotes and one “study” of Northwest Tribes by a private attorney published in a student-run law review (Sovereignty, Economic Development and Human Security in Native American Nations by W. Gregory Guedel, published in the American Indian Law Journal).
That law review article drew a straight line from casino profits and per capita payments to poverty without identifying any other factors that could contribute to poverty.
Shawn Fremsted, a senior fellow with the Center for American Progress and a senior research associate with the Center for Economic and Policy Research, and Erik Stegman, an expert in American Indian and Alaska Native policy at the Center for American Progress, have criticized The Economist’s reliance on the law review article, stating, “In short, the study is absolutely useless in terms of providing meaningful evidence to support The Economist’s claim.”
Siletz Tribal Chairman Delores Pigsley pointed out that the law review article relied on faulty assumptions and mistakes of fact.
“One of the biggest problems is that the study includes ‘on-reservation population and poverty statistics,’ but the reporter presented these statistics as representative of the entire Tribe. No Tribe has all of its members living on the reservation,” said Pigsley.
The article states there are 2,452 Tribal members living on the reservation. Tribal data shows there are only 582. The Tribe has 4,984 enrolled Tribal members and only 1,188 live in the two counties where a casino employment commute would be practical.
The study included only 24 Tribes, .096 percent of the 250 Tribes with casinos. Not enough Tribes took part in this study to label all Native Americans as poorer because of casinos, as indicated in the headline of the article.
The Economist article also stated, “After the Supreme Court ruled in 1987 that Native American Tribes, being sovereign, could not be barred from allowing gambling, casinos began popping up on reservations everywhere.”
In reality, Tribes can have casinos only in states that already have some form of gambling. The report cited by the reporter says that 250 tribes (44 percent of the 566 federally recognized Tribes) have casinos in 28 states (56 percent of available states).
The reporter also wrote that, “… the biggest problem may be the way casino profits are sometimes disbursed … Per capita payments range from as little as a few hundred dollars a year to more than $100,000.”
Yet the reporter cites just one statistic on per capita payments, the one for the Siletz Tribe, and provides no information on other Tribes’ payments.
The reporter failed to mention any of the details provided by Tribal staff during a 30-minute interview, including how the Tribe uses the remaining 60 percent of gaming profits.
These include economic development funds, health care (medical, dental, optical), education scholarships, transportation, Elders social and recreational activities, Tribal language instruction and Tribal culture and history programs.
The reporter provided no information on the Tribe’s economic diversification efforts. The Siletz Tribe has RV parks, in Lincoln City and Salem; and several buildings that rent space to business tenants in Lincoln City, Depoe Bay, Portland, Salem and Eugene, plus an industrial property in Toledo. This information is contained in publications provided to the reporter.
Tribal members and the wider community also benefit from other resources gaming has made available, including more than $9 million distributed by the Siletz Tribal Charitable Contribution Fund. Overall, the Tribe has distributed more than $11.4 million through the charitable fund and other Tribal resources.
After reading The Economist article, the Tribe can only conclude that this reporter came to Siletz with a headline already in mind and was only looking for interviewees who would provide statements that support that story.
She apparently thought she found it in the two individuals she quoted – one of whom works and one who doesn’t – and in citing a “study” that appears to be as flawed in its “facts” as her article.

Wisconsin Gov. Walker Refuses to Concur in Menominee Milwaukee Casino Proposal

Here.

Of note, the Wisconsin Department of Administration’s report on the proposal is here.

Forest County Potawatomi Complaint re: Denial of Class III Gaming Compact — And Commentary

The Forest County Potawatomi Community has filed a complaint against the Department of the Interior over the disapproval of its gaming compact – the latest development in the Menominee Tribe’s efforts to develop a class III gaming facility in Kenosha, Wisconsin.

Here are some initial thoughts about the case:

  1. These are very difficult cases to win. Under the Administrative Procedure Act, federal agencies have broad discretion in making decisions and interpreting statutory law.  The Department’s decision to disapprove the Forest County Potawatomi gaming compact strikes me as consistent with its approach in recent years to limit the scope of these types of agreements.
  2.  The Complaint alleges that the Department’s rejection of the compact “departed from long-established and consistent policies reflected in previous [compact] decisions…” However, the Department of the Interior has always expressed concerns over revenue sharing in gaming compacts.  In the past 15 years, the Department has also warned tribes that gaming compacts are not an appropriate means to restrict the ability of other Indian tribes to engage in gaming under IGRA – including the Forest County Potawatomi Community.  Finally, the Department of the Interior under the Obama Administration has rejected a number of gaming compacts for similar reasons.
  3. The Complaint alleges that “Potawatomi has not received what it bargained for:…the 50-mile non-competition zone.” Later, it asserts that “[Potawatomi] has paid the State over $243 million” for that benefit.  This sounds like Potawatomi intends the new compact to remedy the old compact’s supposed flaws, which is a tough sell considering the fact that the Forest County Potawatomi Community has enjoyed the exclusive right to operate a gaming facility in Milwaukee for more than two decades.  
  4. The Department’s decision to disapprove the Forest County Potawatomi gaming compact was based on its determination that the compact included terms that went far beyond what IGRA allows. The Complaint alleges that determination was wrong, and states, “IGRA expressly provides that a compact may include provisions that take into account the adverse economic impacts on existing gaming activities” and then cites 25 U.S.C. §§ 2710(d)(7)(A)(iii)(I) and 2710 (d)(3)(C)(vii).  Nothing in either of those sections of IGRA “expressly” allows a compact to include terms that mitigate a tribal gaming facility for lost profits.  The Department is going to get a lot of deference on its interpretation of those sections.
  5. The Complaint alleges that the Department had “a ministerial duty to approve the [Potawatomi] Compact amendment” because it was the product of an earlier compact amendment that survived the Department’s review. This is, perhaps, the biggest stretch in the complaint.  A court could see that argument as an effort to allow tribes and states to collude to avoid DOI review of gaming compact amendments.

Gaming compacts have become increasingly more complex, and the Department of the Interior has become much more active in reviewing those agreements.  This will be a difficult case for Forest County Potawatomi to win, as I suspect the Court will defer to the Department’s expertise in this area. All in all, there are lot of interesting questions for the court to consider in this matter.

Here are related documents:

1-1 Exhibit A — Compact Amendment

1-2 Exhibit B — Disapproval Letter

TalkPoverty: “Of Stereotypes and Slack Reporting Standards: The Economist’s Claim that Native American Gaming Leads to ‘Sloth'”

Here.

An excerpt:

But an article in this week’s The Economist is a reminder that we haven’t put the bad old days of racially distorted coverage of poverty beyond us. The article claims “cash from casinos makes Native Americans poorer.” According to the author, a particular problem is that tribes distribute part of the revenues directly to members—typically known as “per capita payments”—which encourages “sloth.” The article is accompanied by a photograph of an American Indian man in front of a slot machine, a grin on his face and his arm pumped in the air.

Given research like Gilens’ and the long history of stereotyping American Indians as lazy, The Economist should have been particularly careful to ensure that it had solid evidence to back up its claim. In lieu of such evidence, The Economist relied on a few anecdotes and a single article by a private attorney published in a student-run law review.

We took a closer look at the law review article that The Economist relied on and were not impressed. It purportedly shows that poverty was more likely to increase in certain Pacific Northwest tribes that distributed part of their gambling revenues to members than in those that did not. But there were only seven tribes (out of a total of 17 that the article focused on) that did not distribute gaming revenues directly to members. The total reported decline in poverty among these seven tribes amounted to only 364 people. The study contained no controls for any of the many factors that affect poverty rates, nor did it take into account size differences in the tribes, differences in the size and structure of the per capita payments, or other relevant factors. In short, the study is absolutely useless in terms of providing meaningful evidence to supportThe Economist’s claim.

Ninth Circuit Decides Redding Rancheria v. Jewell (Affirming Section 20 Regulations)

Here is the opinion. The court’s summary:

The panel affirmed the district court’s judgment in favor of the federal government insofar as it upheld the Secretary of the Interior’s denial of the application of Redding Rancheria (the Tribe) to operate multiple casinos on restored lands, and reversed in part and remanded to the agency for consideration of the Tribe’s proposal to close its existing Tribal gaming operation upon construction of a new facility.

The Secretary denied the Tribe’s request to take into trust a substantial parcel the Tribe recently acquired for the construction and operation of a new gambling casino. The Indian Gaming Regulatory Act generally banned gaming on lands that tribes acquired after its enactment in 1988, but created an exception for tribes with restored lands. The agency denied the Tribe’s application because, at the time it was submitted, the Tribe was operating a modest casino on land it acquired earlier. The district court granted summary judgment to the government because the Tribe was seeking to operate multiple casinos, which the applicable regulations sought to prevent. While the application was pending, the Tribe advised the agency that it was willing to close down its original casino once the new one was in operation. 

The panel held that the regulation at issue was reasonable, and the Secretary reasonably implemented the restored lands exception. The panel further held that the Indian canon (which provides that where a statute is unclear, it must be liberally interpreted in favor of Indians) did not apply in the circumstances of this case. The panel also held that the Secretary’s denial of the Tribe’s application was not inconsistent with prior agency practice, and was not arbitrary and capricious. 

The panel held that the agency should have considered the Tribe’s alternative offer to move all gaming to the new casino, and vacated in part the district court’s summary
judgment with instructions to remand to the agency to address the issue.

Judge Callahan concurred in parts I, II, and III of the majority’s opinion; and agreed that the regulation at issue was reasonable, the Indian canon did not apply, and there was no unexplained change in agency policy. Judge Callahan dissented from part IV of the opinion because the Tribe did not fairly prompt the Secretary to consider its alleged offer to move its casino and did not ask the district court to consider the alleged offer to remove the casino. Judge Callahan would not reverse in part and remand for further consideration.

Briefs and other panel materials here.

Lower court materials here and here.

Forest County Potawatomi FOIA Suit against Interior over Menominee Fee to Trust Materials

Here is the complaint in Forest County Potawatomi Community v. Jewell (D. D.C.):

1 Complaint

An excerpt:

For over two years, Plaintiff Forest County Potawatomi Community (the “Community”) has attempted to obtain records from Defendants, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §552 et seq., related to the Secretary of the Interior’s reconsideration of the Menominee Tribe of Wisconsin’s (“Menominee’s”) request to acquire land in Kenosha, Wisconsin, into trust for gaming purposes under Section 5 of the Indian Reorganization Act (“IRA”), 25 U.S.C. §465, and a request for a Secretarial Determination under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §2719(b)(1)(A) (the  “Kenosha Casino Application”). The Community sought the information as part of its effort to meaningfully consult with and provide comments to the Assistant Secretary – Indian Affairs (the “Assistant Secretary”) before he made critical decisions on the Kenosha Casino Application. Defendants have improperly withheld the requested records and have repeatedly violated their clear statutory obligations under FOIA. The Community seeks, inter alia, a declaratory judgment that Defendants are in violation of FOIA for improperly withholding records and engaging in a pattern and practice of violating FOIA, a finding that the Department of the Interior (“DOI”) personnel acted arbitrarily and capriciously and in violation of law in withholding records, and an order requiring Defendants to immediately and fully comply with the FOIA requests set forth herein.

California Law Review Comment on Indian Gaming and Worker’s Rights

Jonathan Guss has published “Gaming Sovereignty? A Plea for Protecting Worker’s Rights While Preserving Tribal Sovereignty” (PDF) in the California Law Review.

Here is the abstract:

Tribally owned gaming facilities have become an increasingly popular vehicle for economic development throughout Indian Country. As an incidental consequence of this industry’s growth, many non-tribal members now come into contact with tribal-gaming enterprises as either customers or employees. Consequently, tribal gaming establishments have become a vital nexus in battles over what tribal sovereignty should entail in a modern social and economic context. Indeed, the legal framework surrounding these entities highlights a central tension within our modern-day federal Indian law regime-one that often forces tribal governments to choose between maintaining absolute sovereign self-governance on the one hand, and providing modes of economic development, such as gaming, on the other. Both state and federal authorities play a role in the often complex regulatory structure around labor relations at tribal-gaming facilities. This means that non-tribal members may take labor and employment disputes outside of tribal laws and courts-a situation that tribes regard as an incursion upon tribal sovereignty. Nonetheless, labor advocates argue that the opposite situation would give tribal employers little incentive to give fair, adequate protections to their workers.

This Comment seeks to address the tension between tribal sovereignty and workers’ rights by proposing a positive approach. In concrete terms, this approach seeks to funnel labor and employment disputes through tribal courts by strengthening tribal labor and employment laws and alternative dispute resolution systems. The positive approach represents a third way to tribal sovereignty- where tribes, much like other nation-states facing the perils of globalization, can navigate global and local power networks from a position of strength rather than remain outside of them. The positive approach can also benefit workers by creating a strong internal tribal authority to protect labor and employment rights and by fostering opportunities for tribes to settle disputes through traditional or culturally based dispute resolution practices. This approach is in stark contrast to the decidedly anti-worker positions that some tribes have recently adopted by passing right-to-work laws and waging court battles against unfavorable shifts in the law. While the positive approach has the significant drawback of curbing some traditional elements of tribal sovereignty, its chief strength is its pragmatism, in that it works within, rather than against, recent shifts in federal Indian law jurisprudence. The approach can also provide a blueprint for economic development and tribal self-governance that can successfully coexist.