gaming

Second Circuit Vacates Federal Court Injunction against Shinnecock Casino Construction in Southampton (Updated with Briefs)

Matthew L.M. Fletcher2 Comments

Here is the opinion:

08-1194_complete_opn

It’s the Second Circuit, so there are no briefs (unless someone sends them along). Here are the briefs:

Shinnecock Brief

State and Town Brief

An excerpt:

The Shinnecock Indian Nation and its tribal officials (collectively, the “Shinnecock” or the “Tribe”) appeal from a judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). After a bench trial, the district court granted a permanent injunction prohibiting the Tribe from developing a casino on a plot of land known as Westwoods without complying with the laws of New York State and the Town of Southampton. The Shinnecock object to a number of the district court’s factual and legal conclusions, including its findings: (1) that tribal sovereign immunity from suit does not bar this action; (2) that the Shinnecock’s aboriginal title to the land at Westwoods was extinguished in the seventeenth century; (3) that even if aboriginal title had not been extinguished, equitable principles would prevent the Shinnecock’s development of a casino in violation of state and local law; and (4) that the federal Indian Gaming Regulatory Act (“IGRA”) supplanted any federal common law right the Tribe may have had to operate the casino. They also argue that the Bureau of Indian Affairs’s recent recognition of the Shinnecock Indian Nation moots the injunction.

We conclude that the district court lacked subject matter jurisdiction over this action, and thus do not reach the merits of this appeal.

Lower court materials are here and here.

Clark County, Wash. Motion Arguing Carcieri in Challenge to Cowitz Trust Acquisition Case

Matthew L.M. Fletcher2 Comments

Here is the motion:

Clark County Motion for Summary J

The complaint and other materials are here.

IPR on the Patchak Decision

Matthew L.M. Fletcher

Here. Audio here.

An excerpt:

By Bob Allen

A decision this week by the U.S. Supreme Court is seen as a setback for Indian tribes. The case involves the Gun Lake Tribe and its casino near Grand Rapids.

A neighbor is suing saying the casino is lowering property values and ruining the neighborhood.

As tribal attorneys see it, the Court opened a way for just about anyone to challenge the legitimacy of tribal lands. Land taken into trust by the federal over the last several years is especially vulnerable.

Matthew Fletcher is a member of the Grand Traverse Band of Ottawa and Chippewa Indians. He’s attorney and professor of law at Michigan State University.

And he tells IPR the decision is seen as a big set-back in Indian Country.

Fitch Press Release on Patchak Decision

Kate Fort1 Comment

Here.

NEW YORK, Jun 19, 2012 (BUSINESS WIRE) — On June 18, 2012, the Supreme Court ruled 8-1 that David Patchak, an individual, has standing and can file suit against the government’s decision to take land into trust on behalf of a Native American tribe. The court offered no conclusions regarding the merits of Patchak’s case; it simply allows the case to proceed in the lower courts. Fitch believes this ruling has several key credit implications for the gaming sector:

–It is likely to result in increased challenges from anti-gaming interests regarding land-into-trust decisions for tribes, as it lengthens the statute of limitations on judicial review to six years from 30 days;

–Raising capital for Native American casino projects could become more difficult/expensive, as investors are likely to have heightened concern about potential challenges regarding land-into-trust decisions;

–Casino operators that face the possibility of increased competition from potential casino projects tied to land-into-trust decisions could benefit from a longer regulatory process.

Interior Office of Inspector General Follow-Up to 2003 Report on Tribal Per Capita Payments

Matthew L.M. Fletcher3 Comments

In 2003, the OIG issued a report evaluating the Bureau of Indian Affairs’ process for approving tribal revenue allocation ordinances. A few days ago, the OIG issued a quick follow up to that report, determining whether and how the BIA responded to the OIG’s three recommendations. Here is that follow-up:

ER-VS-BIA-0001-2012Public

An excerpt:

Based on our review, we agree that BIA’s Office oflndian Gaming attempted to implement the first two recommendations but did not succeed due to resistance from tribal authorities and lack of enforcement capability. BIA concluded that it did not have the authority to force tribes to submit the additional financial information that would have been required to implement OIG’s first two recommendations. OIG agrees that there is no express authority in either applicable regulation or statute to require submittal of financial information from tribes to obtain approval for gaming Revenue Allocation Plans (RAPs). DOl and BIA could have, however, used their authority to deny RAPs to effectively compel requested financial information from tribes.

ICT In-Depth Report on Patchak Decision

Matthew L.M. Fletcher

Here.

An excerpt:

Asked if there is any lemonade to the lemon of a decision from the high court, Fletcher said, “Lemonade? Sotomayor is Indian country’s best friend. Read the three consequences part of her dissent and you can see she actually gets it. She understands the consequences of these decisions. She gets it more than any other Justice in Supreme Court history. And that’s a fact.”

Sotomayor’s first point of dissent is that the Quiet Title Act clearly states that the right to sue the federal government in property disputes “does not apply to trust or restricted lands.” The exception, Sotomayor says, reflects the view that a waiver of immunity is inconsistent with treaty commitments and other agreements with the tribes. By exempting Indian lands, Congress ensured that the government’s “‘solemn obligations” to tribes would not be “abridged’ without their consent. Her second argument is that the QTA provides for the preservation of the government’s right to retain possession or control of property even if a court rules that the government’s property claim is invalid. This provision ensures that a negative court ruling would not interfere with government operations. Sotomayor’s third point is the QTA limits the class of individuals who are allowed to sue the government to those with a “right, title or interest” in the property.

Continue reading →

Slip and Fall Suit against Muscogee Casino Dismissed in Federal Court after Removal from State Court

Matthew L.M. Fletcher

Here are the materials in Harris v. Muscogee (Creek) Nation (N.D. Okla.):

DCT Order Granting MCN Motion

MCN Motion to Dismiss with exhibits

Harris Response

MCN Reply

SCOTUSblog Coverage of Patchak Decision

Matthew L.M. Fletcher

Here.

And their plain language description:

In this case, the federal government took certain land into trust for an Indian tribe, which means that it took ownership of the land to allow the tribe to use it. The tribe planned to build a casino on the land. The Supreme Court held that a neighbor could sue the government to stop the casino project on the ground that the law did not permit the government to take the land into trust for this particular tribe

.

MLive In-Depth Coverage of Patchak Decision

Matthew L.M. Fletcher

Here.

An excerpt:

The ruling, Fletcher said, was not really a surprise.

“This is a court that is pretty reluctant to rule in favor of Indian tribes and I think they are very skeptical of things like Indian gaming.”

Fletcher said the Sotomayor dissent highlights the destabilizing consequences of Monday’s decision. Wrote Sotomayor:

“… the majority’s rule will impose a substantial burden on the Government and leave an array of uncertainties. Moreover, it will open to suit lands that Congress and the Executive Branch thought the “national public interest” demanded should remain immune from challenge. Congress did not intend either result.”

Fletcher said that whereas parties seeking to challenge land-in-title decisions previously only had 30 days to file action, after Monday, tribes will likely have to wait six years to develop any property the government takes into trust while they wait out potential lawsuits against the use of the property.

“It’s very difficult to borrow money or do anything with land under those circumstances.’

The vast majority of Indian land-in-trust decisions by the government are for reasons like housing, treat rights, environmental protection and public safety. Very little are done for gaming reasons, Fletcher said.

Gun Lake Band’s Press Release on Patchak

Matthew L.M. Fletcher

Here:

PR Patchak Decision 6.18.12

The text:

Bradley, Michigan – Today the U.S. Supreme Court rejected motions by the Gun Lake Tribe and U.S. government seeking to have David Patchak’s lawsuit dismissed on procedural grounds. The Court’s decision expressly declined to say anything about the merits of Patchak’s lawsuit. It simply allows Patchak to go forward with his lawsuit back at the lower court. The Tribe is ready to continue fighting the lawsuit and is confident that it will ultimately prove that Patchak’s claims are completely without merit.
“The Supreme Court clearly stated that this decision was not based on the merits. This is simply a procedural decision that has no impact on operations at Gun Lake Casino. The Casino will continue to operate, employ over 800 area residents, and provide millions of dollars to state and local governments,” said D.K. Sprague, Tribal Chairman.
The likely course of action is a remand by the U.S. Court of Appeals District of Columbia Circuit to U.S. District Court for the District of Columbia before Judge Richard Leon. Judge Leon’s decision in January of 2009 to grant a procedural motion by the Tribe and U.S. would have ended Patchak’s lawsuit.
“This simply means that Patchak’s lawsuit can go forward before the federal courts, which may take many more years to finally resolve it. We are ready to continue that fight in federal court and we are confident the facts will clearly prove once and for all that Patchak’s claims have absolutely no merit. The Tribe would prefer to devote its resources to the economic development of the area; however, since Patchak’s lawsuit dictates otherwise, the Tribe will do what is necessary to prevail.”