gaming – Page 55 – Turtle Talk

5. This action “seeks to specifically enforce certain covenants of the Tribe under the Trust Indenture[.]” Exh. “A” (Complaint) ¶ 1. This dispute potentially involves claims under Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721, and, accordingly, invokes federal jurisdiction. For example, the U.S. District Court for the Eastern District of Wisconsin held last year that federal subject matter jurisdiction was established on the face of the complaint because a claim against a Tribe for breach of a Trust Indenture is not a routine contract dispute, and involved potential application of IGRA:

Wells Fargo’s claim for breach of the Indenture does not present a routine contract dispute, but rather a specific issue under a highly regulated area of federal law. See Gaming World, 317 F.3d at 848. (“since this case raises issues under the extensive regulatory framework of IGRA, it is not a routine contract dispute.”). Wells Fargo’s action on the Indenture and Bonds necessarily raise federal questions concerning whether the Indenture is a management contract within the meaning of the IGRA and, if so, whether the Tribe’s waiver of sovereign immunity is valid. Wells Fargo’s complaint therefore invokes federal jurisdiction[.]

Wells Fargo Bank, N.A. v. Sokagon Chippewa Community, 787 F. Supp. 2d 867, 875 (E.D. Wis. 2011).

Does Michigan v. Bay Mills Create a Circuit Split with Mescalero v. New Mexico over Whether IGRA Waives Tribal Immunity?

August 16, 2012Matthew L.M. Fletcher2 Comments

Well, maybe, but it probably doesn’t matter because of State of Michigan’s amended complaint below.

Yesterday the Sixth Circuit held the Indian tribal immunity survives the enactment of the Indian Gaming Regulatory Act for cases in which a non-federal party with standing sues the tribe for alleged violations of the Act. The court criticized the Tenth Circuit’s holding Mescalero Apache Tribe v. New Mexico (PDF) that IGRA does waive tribal immunity:

Mescalero offers virtually no analysis in support of its contrary reading of § 2710(d)(7)(A)(ii)—a point which the State, to its credit, concedes here; and to the extent the opinion does offer any analysis, it mistakenly cites waiver cases rather than abrogation ones. We agree with the Eleventh Circuit, therefore, that Mescalero’s reasoning is “muddled” rather than persuasive.

The CA6 cited the CA11, also critical of the Tenth Circuit’s holding. In Florida v. Seminole Tribe (PDF), the court also criticized the Mescalero holding:

As an initial matter, we find that Mescalero provides no support for the State’s argument. The Mescalero panel, in discussing section 2710(d)(7)(A)(ii), claimed that a majority of courts agree that “IGRA [abrogated] tribal sovereign immunity in the narrow category of cases where compliance with IGRA’s provisions is at issue and where only declaratory or injunctive relief is sought.” 131 F.3d at 1385. In actuality, however, the cases that the panel cited in support of its claim addressed an entirely different matter, to wit: whether a tribe voluntarily waives its own sovereign immunity by engaging in gaming under IGRA. See infra part II.A.2 (discussing tribal waiver of immunity). In light of this absence of supporting authority, we find the Mescalero panel’s claim difficult to credit.

So one circuit has held that IGRA waives tribal immunity, and two circuits expressly disagree with the first circuit. Circuit split, right? Get ready for Michigan v. Bay Mills Indian Community in the Supreme Court?

Well, probably not. If the Tenth Circuit’s decision is so patently wrong (and mind you, it didn’t have the benefit of any other cases upon which to rely), it probably doesn’t matter. If confronted with the same question again, one could predict the Tenth Circuit going the other way. This is why the Supreme Court doesn’t take questions of first impression very often. They like to let things percolate in the lower courts. Whether IGRA waives tribal immunity is still percolating. The Tenth Circuit is looking like an obvious outlier decision that won’t be repeated. I’d guess, if anyone made the effort, that a Supreme Court cert petition would be denied.

IPR on Vanderbilt Casino Ruling

August 16, 2012Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

A written statement from Bay Mills Chair Kurt Perron says the tribe ultimately plans legal victory, and to move forward with its “planned developments.” The tribe did not immediate elaborate on the statement’s meaning.

If Bay Mills is ultimately victorious, the tribe would likely be allowed to build casinos anywhere it wants, without state approval, as long as it buys the land with a specific pool of funds.

“Probably the biggest implication (of today’s ruling) in the long run is just to highlight exactly how difficult it is to shut down a casino opened by an Indian tribe under these circumstances,” says Matthew Fletcher, of MSU’s Indigenous Law Center.

The Vanderbilt Casino is widely regarded as a test site for its Upper Peninsula owner. The tribe has expressed interest in building in Port Huron, and perhaps elsewhere.

It’s not clear what implications this case might have for another Upper Peninsula tribe’s plans to build a casino in downtown Lansing.

Sixth Circuit Vacates Injunction against Bay Mills’ Vanderbilt Casino

August 15, 2012August 15, 2012Matthew L.M. Fletcher4 Comments

Here is today’s opinion (PDF).

Here are the briefs:

BMIC Opening Brief in CA6 Appeal

LTBB Appellee Brief

State of Michigan Appellee Brief

BMIC Reply

BMIC Motion to Strike Appellee Briefs

Lower court materials here.

Here is the casino:

Guess they can take this sign down now:

Casino Expansion Ballot Proposal Blocked by Michigan Court of Appeals

August 14, 2012Kate Fort

Coverage here.

Opinion here.

Jurist Article on Off-Reservation Gaming by Current ILPC Student

August 14, 2012Kate Fort

Congrats, Gerald!

Here.

Before the Sault Tribe receives federal approval, the following questions need answers: Does MILCSA mandate that the secretary take into trust lands purchased with interest or other income from the Fund? If the land is purchased with principal from the Fund, will it be held in restricted fee by operation of law? Is the purchase of the Lansing property a consolidation or enhancement of landholdings, or other permissible use of the Fund? Finally, the Sault Tribe will have to demonstrate that they will exercise governmental authority over the Lansing casino site. Given these complex issues, the Sault Tribe’s proposal is poised to set significant precedent in the evolving field of off-reservation gaming.

Gerald Carr is a third-year student in the Indigenous Law Program at Michigan State University College of Law. He holds a Ph.D. in Cultural Anthropology, specializing in the languages and cultures of Native North America.

Update in Patrick Devlin Suit against Michigan Gaming Control Board

August 10, 2012Matthew L.M. Fletcher

Here is today’s Sixth Circuit opinion in Devlin v. Kalm.

An excerpt:

Plaintiff Patrick J. Devlin appeals the district court’s order granting Defendants’ motions to dismiss based on the abstention doctrine and the court’s denial of Plaintiff’s motion for default judgment. Plaintiff argues that his termination from the Michigan Gaming Control Board was retaliatory in violation of his First Amendment rights under 42 U.S.C. §§ 1983, 1985, 1986, and 1988 and his due process rights, after he made disparaging remarks to the press about the Michigan Attorney General and the application of the state’s gaming laws to Native American tribes.