gaming – Page 67 – Turtle Talk

Dean Kevin Washburn on the DOJ Internet Gaming Memo

February 7, 2012February 7, 2012Matthew L.M. Fletcher

Here is the link from SSRN, and the abstract:

The recent opinion by the Office of Legal Counsel has created a lot of activity after years of uncertainty about the legality of Internet gaming in the United States. Internet gaming poses a threat of unknown magnitude to brick and mortar casinos, including Indian casinos. Because internet activities are difficult to regulate across state boundaries and national uniformity is likely to be more effective and more efficient than multiple state regulatory structures, Congress should federalize the regulation of Internet gaming. Congress should, however, consider the important role that Indian gaming has had in lifting the socioeconomic status of Indian people and improving the self-governance and self-sufficiency of Indian nations. Congress must insure that Indian tribes have an equal opportunity to be part of the future of Interney gaming.

Federal DCT Orders Conclusion of Big Lagoon Rancheria Good Faith Compact Case — Let Appeals Begin

February 6, 2012Matthew L.M. Fletcher1 Comment

Here is that order:

DCT Final Order

Prior relevant orders are here (good faith order — 11/22/2010) and here (mediator’s order selecting compact).

Update in Columbe v. Rosebud Sioux Tribal Court (Suit re Tribal Court Jurisdiction over Nonmember)

February 6, 2012February 6, 2012Matthew L.M. Fletcher1 Comment

Here are the materials in the denial of Columbe’s motions for reconsideration and to hold a trial for a permanent injunction (prior post here, with opinion dismissing plaintiff’s claims):

Columbe Motion for Reconsideration

RST Opposition to Motion for Reconsideration

Columbe Motion for Permanent Injunction

RST Opposition to Motion for Permanent Injunction

DCT Order Denying Motion for Reconsideration

Earliest post here.

Pala Band Disenrolls 15 Percent of Its Membership

February 3, 2012February 3, 2012Matthew L.M. Fletcher1 Comment

Here.

Available Materials in the Mashantucket Pequot–Town of Ledyard Tax Dispute

January 31, 2012Matthew L.M. Fletcher1 Comment

Here:

Mashantucket Pequot Motion for Summary J

Mashantucket Pequot Opposition to Town’s Motion for Summary J

Mashantucket Pequot Reply

Mashantucket Pequot Slot Tax Decision Expected Soon

January 31, 2012Matthew L.M. Fletcher

Here are two news articles on the question. The first (here) details the Town of Ledyard’s crusade to collect taxes on the non-Indian owners of the slot machines used at Foxwoods. An excerpt:

Other grievances, not surprisingly, involve money – particularly the sovereign nation’s deal to pay the state a quarter of its slot machine revenues instead of local taxes on reservation property in the northeastern corner of Ledyard.

Though the town grudgingly concedes it can’t collect these revenues, it has for years been trying to levy taxes on personal property owned by non-Indians on reservation lands – specifically slot machines that a New Jersey company leases to the tribe.

Six years ago the tribe and Atlantic City Coin & Slot Service sued Ledyard to block these taxes, claiming such municipal action disregards well-established principles of federal Indian law and interferes with the tribe’s gaming operations, self-determination and sovereign immunity.

So far, the town has spent $900,000 fighting the litigation – a whopping sum that could have been used to hire teachers, repave miles of roads or buy thousands of new library books.

The second (here) includes a quote on the Indian law implications of the case:

Bethany Berger, a professor of Indian law at the University of Connecticut School of Law, said that taxation of non-Indians and their property on tribal lands is complicated. Berger, co-author and member of the editorial board of Felix S. Cohen’s Handbook of Federal Indian Law, the pre-eminent treatise in the field, does not think Ledyard’s case is a strong one.

“The machines are leased by the tribe as part of this federally regulated business that the tribe has a big interest in,” she said, adding that the interests of the state of Connecticut in the matter may not be as strong as Ledyard officials hope.

“With respect to state interest, it can’t just be revenue-raising interest,” Berger said. “Ledyard wants to make money by taxing the machines, and that’s not the kind of interest that’s really important. The federal interest is very strong because of the Indian Gaming Regulatory Act and the tribal interest is also strong because this is the business that provides most of the tribe’s revenue.”

Mayor Bernero Uses Offensive Language When Referring to Opponents of Lansing Casino Proposal

January 30, 2012Kate Fort

From the LSJ:

LANSING — Lansing Mayor Virg Bernero is under fire this morning from a pair of Michigan Indian tribes and a tribal lobbyist who said the mayor made a series of racially insensitive remarks about Native Americans at a fundraiser last week.

The Nottawaseppi Huron Band of Potawatomi and Saginaw Chippewa Indian Tribes, who have come out in strong opposition to a proposed Indian casino in Lansing, said Bernero “repeatedly used profanity and racial slurs in describing the (casino) controversy.”

City Pulse: Fletcher’s Four Barrier to the Lansing Casino Proposal (and Additional Commentary)

January 27, 2012Matthew L.M. Fletcher1 Comment

Andy more or less catches my drift (via Pechanga). A few quotes:

In his piece, Fletcher goes on to outline three potentially significant legal obstacles: the Bureau of Indian Affairs’ “trust acquisition hurdles”; language in the Land Claims Settlement Act provision that says the Interior Department “shall be held in trust” (the word “shall” may not mean “has to”); and a provision in the Indian Gaming Regulatory Act that would require the Sault Tribe to submit its application to the Interior Department after “a prior written agreement between the Tribe and the State’s other federally recognized Indian Tribes that provides for each of the other Tribes to share in the revenue of the off reservation gaming facility.”

That last quote is actually from the 1993 gaming compacts.

And fourth:

A fourth hurdle, Fletcher wrote, is that the Sault Tribe “has to exercise governmental authority over the land, according to the Indian Gaming Regulatory Act. Sault Tribe has no history in this area, let alone a governmental presence.”

I haven’t really expounded on a possible fifth hurdle, which is really related to the mandatory trust acquisition language. I can assure you Congress would never have intended that the Sault Tribe would be able to use this provision to buy land for off-reservation gaming purposes (especially, way off-reservation gaming purposes. See the legislative history here (Judgment Funds Hearing), which is virtually silent as to gaming. [Although to be fair, Rep. Kildee says his grandfather from the Traverse City area remembers when Indians had more “mobility” than they do now.] Ultimately, legislative history doesn’t trump the plain language. Usually.

Sault Tribe has to worry that a court construing the Secretary’s authority under the so-called mandatory trust acquisition language is unlimited, and perhaps unconstitutional as applied to this circumstance. The judgment funds settle treaty claims related to the 1836 treaty signatories. The 1836 treaty ceded territories do not include Lansing. And frankly, the Sault Tribe and Bay Mills have only a tenuous claim to lower peninsula territory, given that they are located in the Upper Peninsula, and importantly, there are already three federally recognized Lower Peninsula tribes who are 1836 treaty signatories. I mentioned in yesterday’s post that Lansing is small potatoes compared to other metropolitan areas, like Chicago and Cleveland, that don’t have Indian casinos now. Nothing stops Sault Tribe from going there with their casino proposals, and that fact alone will make a court wary of allowing Sault Tribe, Lansing, and Interior (if Interior goes along with it) to set aside trust lands in Lansing.

I recall this comment from the Eighth Circuit in a different context (involving the Secretary’s authority under Section 5 of the Indian Reorganization Act) but it makes the point here as well:

By its literal terms, the statute permits the Secretary to purchase a factory, an office building, a residential subdivision, or a golf course intrust for an Indian tribe, thereby removing these properties from state and local tax rolls. Indeed, it would permit the Secretary to purchase the Empire State Building in trust for a tribal chieftain as a wedding present. There are no perceptible “boundaries,” no “intelligible principles,” within the four corners of the statutory language that constrain this delegated authority-except that the acquisition must be “for Indians.” It delegates unrestricted power to acquire land from private citizens for the private use and benefit of Indian tribes or individual Indians.

It’s on page 882 here (SD v DOI). I can easily see a court rejecting the plain language reading the Tribe will want them to make on these grounds. It would be a terrible precedent for all of Indian country. But tribes take risky actions in desperate times, I suppose.

Updated Commentary on Lansing Casino Proposal

January 26, 2012January 26, 2012Matthew L.M. Fletcher

We have additional detail on the proposal from both sides. Here’s the scoop. Sault Tribe claims they have a mandatory trust acquisition statute, Section 108(f) of the Michigan Indian Land Claims Settlement Act. Here is the text:

Any lands acquired using amounts from interest or other income of the Self-Sufficiency Fund shall be held in trust by the Secretary for the benefit of the tribe.

The statute is more complex, but if the Tribe’s theories pan out, that provision is the kicker. So, the land goes into trust and the Tribe starts gaming right away? Well, probably not. Pokagon Band has a mandatory trust acquisition statute. It took them nearly a decade to wade through the regulatory and legal thicket. They did still win, though (TOMAC v. Norton). So did Little Traverse — they have virtually the same statute and they eventually defeated Sault Tribe’s efforts to shut them down (SSM v. US and LTBB). (That was back when we referred to Sault Tribe as the Darth Vader of Michigan Indian Tribes — those days are long gone. The old Sault Tribe would have considered Lansing smallpotatoes, and gone to Chicago or Cleveland instead. Maybe they will anyway. Why not? Under this theory, there’s no limiting principle.).

They still have to run through BIA’s trust acquisitions hurdles, and there’s no guarantee, even with a mandatory trust acquisition. They better hope there’s no endangered species in Lansing.

Also, as Bryan Garner will tell you, every jurisdiction in the English speaking world has held at least once that “shall” is a term, in some circumstances, that does not mean “mandatory,” but instead means “discretionary.” Sounds crazy? Ask the CSKTs (CSKT).

Sault Tribe has another hurdle, and I have no idea how this will turn out. But Sault Tribe is a party to the 1993 gaming compacts. Section 9 reads:

An application to take land in trust for gaming purposes pursuant to § 20 of IGRA (25 U.S.c. § 2719) shall not be submitted to the Secretary of the Interior in the absence of a prior written agreement between the Tribe and the State’s other federally recognized Indian Tribes that provides for each of the other Tribes to share in the revenue of the off reservation gaming facility that is the subject of the § 20 application.

So, assuming Sault Tribe is going to apply to take the land into trust for gaming purposes using their mandatory trust acquisition statute, which is a land claims settlement, they’re doing so under Section 20 of IGRA. I’m almost certain Saginaw Chippewa, another party to the compact, isn’t going to agree to anything (I don’t know, unless they get 75 percent or something). That will probably kill it.

Moreover, trust land alone is insufficient. The Tribe has to exercise governmental authority over the land, too, according to the Indian Gaming Regulatory Act. Sault Tribe has no history in this area, let alone a governmental presence.

Incidentally, I misspoke on the “precedent” for a Tribe using a mandatory trust acquisition statute to force the Secretary to take land into trust for gaming purposes. I was talking about the Wyandotte Nation of Oklahoma’s effort to game in Kansas City, Kansas. They sued the Secretary last year for lagging on trust acquisitions. Their original trust application was 1992, and the suits are still going on 20 years later.