Here, from the Gaming Law Review: Obama_Administration_July_2010
gaming
Intergovernmental Relations Developing in Cal. as a Result of Gaming
Landmark intergovernmental agreements between California’s small and once impoverished American Indian communities and surrounding cities and counties are playing a crucial role in the growth of the nation’s largest tribal casino market.
But the agreements, intended to mitigate the impact of casinos and economic growth on sovereign Indian land held in trust by the federal government, are not without controversy.
Combined with a recent federal court ruling on the legality of tribes sharing casino revenue with the state, they muddle the future of California’s $7.3bn gambling industry.
“The whole nature of tribal, state and local government relations in California, as far as sharing revenues and mitigating the impacts of gaming, is being thrown up for grabs,” observes Nikki Symington, a consultant for the Rincon Band of Luiseno Indians, a small community near San Diego. “I don’t know that there is any happy solution down the road.”
The Indian Gaming Regulatory Act intended that non-Indian use of gambling revenue be largely restricted to regulatory oversight, problem gambling and other casino impacts.
Many of the fifty-seven California tribes that signed model 1999 tribal-state agreements, or compacts, allowing them to operate casinos voluntarily entered into local intergovernmental agreements and paid into a special distribution fund for traffic, public safety and other local impacts.
There are 107 federally recognize
d tribes in California, more than any state. Until casino gambling most were small, impoverished communities lacking roads, adequate utilities and with no history of government and political relations with the state, counties and municipalities.
“Our communities have been here a long, long time. But for 200 years we have been largely invisible, politically disenfranchised and isolated by poverty and neglect,” Anthony Pico, a citizen of the Viejas Band of Kumeyaay Indians, told a November 2007 meeting of the San Diego Association of Governments. “Gaming changed all that. We are trying to do what it has taken our neighboring counties and municipalities several generations to accomplish.”
Florida Appellate Court Dismisses Personal Injury Claim against Seminole Tribe
Here is the opinion in Seminole Tribe v. Ariz (Fla. App., Dist. 2). An excerpt:
Florida law is clear that the Indian tribes are independent sovereign governments not subject to the civil jurisdiction of the courts of this state. See Houghtaling v. Seminole Tribe of Fla., 611 So.2d 1235 (Fla.1993) (discussing in detail federal and state legislative history and case law of sovereign immunity of Indian tribes). It is also well-established law in Florida that the Tribe is immune from suit brought by any third party in state or federal court without the clear and unequivocal consent of the Tribe or the clear and unequivocal consent of Congress. See Seminole Tribe of Fla. v. McCor, 903 So.2d 353, 356 (Fla. 2d DCA 2005). Pursuant to the terms of the Tribal Ordinance, clear and unequivocal consent of the Tribe may only be established through a resolution duly enacted by the Tribal Council of the Seminole Tribe of Florida sitting in legal session. Any resolution purporting to waive sovereign immunity must include the purpose for the waiver and the extent to which the waiver applies. The consent of Congress must be express and may not arise from implication. Id. at 358 (citing Santa Clara Pueblo v. Martinez,436 U.S. 49, 58 (1978)).
Ninth Circuit Rejects City of Vancouver Challenge to Cowlitz Gaming Ordinance on Standing Grounds
Here is the unpublished opinion in City of Vancouver v. Skibine (h/t Indianz). And the briefs are here.
News Coverage on LRB Gaming Compact
From Indianz:
The Little River Band of Ottawa Indians of Michigan is weighing its options after a compact for an off-reservation casino failed to come up for a vote last week. The tribe plans to build a casino in Fruitport Township. The site is about 80 miles from the tribe’s headquarters but it’s within the tribe’s nine-county service area. The compact survived a series of hearings but it appeared to be headed for a negative vote last week. Lawmakers have until December 31 to vote on the agreement. “We’re going to weigh the options and strategies we have before us,” Robert Memberto, the tribe’s commerce director, told The Muskegon Chronicle. Separately, the tribe needs approval for its land-into-trust application.
Get the Story:
Fruitport Township’s casino future uncertain after failed vote (The Muskegon Chronicle 8/30)
ADA Suit against Mille Lacs Band Casino Dismissed
Here are the materials in Reuer v. Grand Casino Hinckley (D. Minn.):
Little River Band’s Fruitport Casino Compact Not Discharged From Committee
Yesterday the Michigan House had to clear the board to prevent a huge loss on the vote to discharge the compact (a concurrent resolution) from the Reg Reform committee. The Muskegon Chronicle has the news story:
Fruitport casino plan gets the cold shoulder from Michigan House of Representatives
Published: Thursday, August 26, 2010, 12:33 AM Updated: Thursday, August 26, 2010, 1:11 AM by Eric Gaertner
FRUITPORT TOWNSHIP — The chances of the Little River Band of Ottawa Indians building a casino at the former Great Lakes Downs racetrack site suffered a setback Wednesday.The state House, which is required to concur with a compact amendment allowing the tribe to open an off-reservation casino in Muskegon County, failed to even approve the discharge of the resolution from committee.
State Rep. Doug Bennett’s request to have his bill discharged was on the verge of defeat during a House floor vote Wednesday when he had the board cleared and his request withdrawn. Greg McCullough, Bennett’s legislative aide, said the roll-call vote was at 53-13 against the discharge when Bennett withdrew his request. Bennett, D-Muskegon Township, introduced the bill in April.
Even if the discharge vote had been approved, the resolution still would require a full House vote on whether to concur with the compact amendment signed by Gov. Jennifer Granholm and Little River Band Ogema Larry Romanelli earlier this year.
McCullough called Wednesday’s vote frustrating. Fruitport Township Supervisor Brian Werschem said it was beyond disappointing.
“The delay continues,” Werschem said. “I’m a little surprised that the Legislature would stall economic development in West Michigan. We were looking at bringing jobs, entertainment and dollars to this community.”
Robert Memberto, Little River Band’s commerce director, criticized House Speaker Andy Dillon for listening to lobbyists, other tribes worried about competition for their casinos and the Detroit corporate casinos. Dillon, D-Redford, ran unsuccessfully for the Democratic nomination for governor.
“Speaker Dillon is playing politics with jobs,” Memberto said.
Pointless Statistic of the Week: Michigan Indian Gaming Revenue by Slot Machine
Well, pointless is a bit harsh, but this listing doesn’t take into account overall revenue, which is a more accurate indicator.
From the Kalamazoo Gazette, via Pechanga:
After reporting yesterday on slot machine revenue at FireKeepers Casino and Four Winds Casino, I thought it would interesting to see how Michigan’s 11 Native American tribal casino owners stack up in terms of revenue from slot machines.
Below is a ranking of casino-owning tribes by average revenue per slot machine per month.
Note that it’s not quite an apples-to-apples comparison because operators report slot machine revenue for the different time periods.
All data come from the Michigan Gaming Control Board.
$8,638 per machine per month
- Pokagon Band of Potawatomi Indians (Four Winds Casino)
- 3,000 slots
- $311 million total slot machine revenue for the 12 months ending July 31, 2009
$7,201
- Nottawaseppi Huron Band of the Potawatomi (FireKeepers)
- 2,680 slots
- $96.5 million for the 5 months ending Dec. 31, 2009
$5,393
- Saginaw Chippewa Indian Community (Soaring Eagle casinos)
- 5,200 slots (total from three casinos)
- $336.5 million for 12 months ending Sept. 30, 2009
$5,154
- Little River Band of Ottawa Indians (Little River Casino)
- 1,350 slots
- $83.5 million for 12 months ending Sept. 30, 2009
$4,028
- Grand Traverse Band of Ottawa and Chippewa Indians (Leelanau Sands/Turtle Creek)
- 1,800 slots (total from two casinos)
- $87 million for 12 months ending Nov. 30, 2009
Civil Suit against Chickasaw Casino Dismissed by Federal Court
… on sovereign immunity grounds.
Here is the opinion: Brodzki v Winstar World Casino.
Guest Post re: Habemotalel Gaming Compact Denial
From Lance Boldrey (this was originally a comment, but the importance of this issue deserves a greater audience):
Here are my general personal observations, not on behalf of any clients or my firm:
(1) The language regarding a general proportionality test to measure whether tribal revenue sharing payments roughly correspond to benefits conferred by the state is broader than past formulations. Importantly, the Department’s recognition that exclusivity is not the sole benefit that can be conferred to support revenue sharing opens the door to tribal exploration of other benefits that can support revenue sharing. Outside of California, which is the only state to have affirmatively waived its 11th Amendment immunity for suit under IGRA, this is often necessary as a practical matter to entice states to the bargaining table. (Even in California, so long as there is a Governor who doesn’t give a rip what federal law requires, some means of inducement appears necessary – unless a tribe wants a decade of litigation.) Barring the Holy Grail of a Seminole fix, tribes need the ability to be creative. For Interior, though, there is a balancing act between allowing tribes some flexibility and giving states carte blanche to turn any of the ordinary elements of a compact into a club to demand revenue sharing…
(2) The analysis of the State’s supposed concession in deducting participation fees from net win implies a lack of understanding on Interior’s part regarding the issue here. Interior says this concession lacks meaning because the NIGC already provides for the deduction of participation fees in calculating net revenue. True. But like most (if not all) revenue sharing percentages, this one is calculated on net win, which is gross revenue, not net revenue. The real point here should be that the method of calculating the percentage paid to the State is what is meaningless – it should not matter how revenue sharing is calculated, only whether the revenue sharing that results is proportional to the economic benefits provided by a state’s concessions.
(3) Interior’s dismissive analysis of the State’s claim that it should get credit for continuing to allow the Tribe’s participation in the Revenue Sharing Trust Fund makes sense. As I understand this Tribe’s compact, the State was “allowing” the Tribe to continue to receive its $1.1 million annual RSTF draw until it operates more than 349 machines. But this isn’t a real concession – the current framework of the 1999 compacts already provides for all California tribes operating less than 350 machines to receive these payments, and this Tribe is a third party beneficiary of those compacts. It almost seems like the State was trying to claw back these payments, since this Tribe would pay 15% of net win even if it operated only one machine.
Turtle Talk 
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