IGRA – Page 37 – Turtle Talk

North Fork Rancheria Sues California Alleging Violation of IGRA Good Faith Negotiation Obligation

March 26, 2015Matthew L.M. Fletcher2 Comments

Here is the complaint in North Fork Rancheria of Mono Indians of California v. State of California (E.D. Cal.):

An excerpt:

The Indian Gaming Regulatory Act (“IGRA”) requires states, upon request by an Indian tribe, to “negotiate with the Indian tribe in good faith to enter into” “a Tribal-State compact governing the conduct of gaming activities” on the tribe’s “Indian lands.” 25 U.S.C. § 2710(d)(3)(A). IGRA also confers jurisdiction on this Court over “any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact under paragraph (3) or to conduct such negotiations in good faith.” Id. § 2710(d)(7)(A)(i). This action is brought pursuant to § 2710(d)(7)(A)(i) and seeks a declaration that Defendant the State of California (“the State” or “California”) has failed to comply with § 2710(d)(3)(A)’s requirement that the State negotiate in good faith with Plaintiff North Fork Rancheria of Mono Indians of California (“the Tribe”) to enter into an enforceable tribal-state gaming compact, and an order directing the State to conclude an enforceable compact with the Tribe within 60 days or submit to mediation, see id. § 2710(d)(7)(B)(iii)-(iv).

Sault Tribe Motion to Dismiss Michigan Gaming Suit

March 23, 2015May 6, 2015Matthew L.M. Fletcher1 Comment

Here are the new materials in the case captioned State of Michigan v. Payment (W.D. Mich.):

2015-03-20 Brief in Support of Defendant’s Motion to Dismiss Amended Complaint

2015-03-20 Defendant’s Motion to Dismiss Amended Complaint

71 Michigan Response to Motion to Dismiss

72 Sault Tribe Reply

The state’s amended complaint is here.

Kansas Sues NIGC over Quapaw Indian Lands Opinion

March 10, 2015Matthew L.M. Fletcher1 Comment

Here is the complaint in State of Kansas v. National Indian Gaming Commission (D. Kan.):

1 Complaint

An excerpt:

In this action, the Plaintiffs challenge and seek relief from the November 21, 2014 determination of National Indian Gaming Commission (NIGC) officials that a 124 acre strip of land in Kansas acquired by the Quapaw Tribe of Indians of Oklahoma (Quapaw or the Tribe) and put into trust by the Bureau of Indian Affairs for non-gaming purposes qualifies for gaming under the “last recognized reservation exception” to the Indian Gaming Regulatory Act’s (IGRA) general prohibition on gaming on land acquired after October 17, 1988. See 25 U.S.C. § 2719(a)(2)(B); 25 C.F.R. § 292.4(b)(2).

Plaintiffs are aggrieved by the November 21, 2014 determination because the strip of land was taken into trust by the Department of Interior for non-gaming purposes and because the NIGC incorrectly applied 25 U.S.C. § 2719(b)(2)(B), thereby depriving the State of Kansas of the governor’s statutory right to concur in and to veto gaming on lands acquired after October 17, 1988, pursuant to 25 U.S.C. § 2719(b)(1)(A)

Ysleta del Sur Pueblo Held in Contempt over Gaming

March 9, 2015Kate Fort

Order here.

Materials here.

Massachusetts Gaming Claims against Wampanoag Tribe of Gay Head Survive Motions to Dismiss; Counterclaims Do, Too

March 2, 2015Matthew L.M. Fletcher

Here are the updated materials in Commonwealth of Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah) (D. Mass.):

65 Massachusetts Opposition to Rule 19 Motion

67 Aquinnah-Gay Head Community Opposition to 11th Amendment Motion to Dismiss

71 Wampanoag Tribe of Gay Head Reply in Support of Rule 19 Motion

72 Wampanoag Tribe of Gay Head Reply in Support of Motion to Dismiss on Immunity Grounds

77 Massachusetts Motion to Dismiss

86 Massachusetts Officials Motion to Dismiss

87 Wampanoag Tribe Opposition to Massachusetts Immunity Motion

88 Massachusetts Reply

95 DCT Order Denying Motions to Dismiss

An excerpt:

This lawsuit involves a dispute between the Commonwealth of Massachusetts and a federally recognized Indian tribe concerning regulatory jurisdiction over civil gaming on Indian lands on Martha’s Vineyard. The Wampanoag Tribe of Gay Head (Aquinnah) and related entities have taken steps to commence commercial gaming operations on tribal lands without a license from the Commonwealth. The Commonwealth contends that operating gaming facilities without such a license would violate a 1983 settlement agreement that subjects the lands in question to state civil and criminal jurisdiction (and thus subjects them to state laws regulating gaming). Count 1 of the complaint alleges breach of contract, and Count 2 seeks a declaratory judgment.

The Commonwealth filed suit in state court on December 2, 2013. On December 30, 2013, the Tribe removed the action to this Court on the basis of federal-question and supplemental jurisdiction. See 28 U.S.C. §§ 1331, 1367. On August 6, 2014, the Court granted motions to intervene by the Town of Aquinnah and the Aquinnah/Gay Head Community Association (“AGHCA”). The Tribe has moved to dismiss the AGHCA complaint on the basis of sovereign immunity and for failure to state a claim upon which relief can be granted; it has further moved to dismiss all three complaints (with leave to amend) for failure to join the United States as a required party.

On October 24, 2014, the Tribe filed an amended answer that included a counterclaim against the Commonwealth and counterclaims against three third-party defendants (all of whom are officials of the Commonwealth). Plaintiff and third-party defendants have moved to dismiss the counterclaims on the grounds of sovereign immunity (as to the counterclaims against the Commonwealth) and failure to state a claim upon which relief can be granted.

For the reasons stated below, the motions of the Tribe will be denied and the motion of counterclaim-defendants will be granted in part and denied in part.

We posted motions to dismiss here. Materials on the state court removal and remand motions here. Complaint here.

Guest Post: Bill Rastetter on Judge Enslen

February 25, 2015Matthew L.M. Fletcher1 Comment

From long-time Grand Traverse Band counsel Bill Rastetter on the passing of Judge Enslen:

Writing this helps me to reflect upon not just Richard Enslen but also the two other Western District judges appointed by Jimmy Carter — all of whom made major rulings for Grand Traverse Band. (There’s a story there, if I ever could find the time; I’d start the story by talking with Dean Robb who was in the group of lawyers picked by the two Democratic Senators who came up with a list of possible nominees, including “progressives” who never would be considered in the present climate.) Those three were Richard Enslen, Douglas Hillman, and Benjamin Gibson. In retrospect, each individual evidenced concern for the plight of the less advantaged, the powerless within our society; and GTB’s victories might not have occurred if they had not been on the bench.

Gibson left Michigan long before retirement age, but not before he granted GTB its first victory in the modern (restored) era: Leelanau Indians, Inc. and Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Department of Housing and Urban Development (W.D. Mich. File No. G 80-526): 502 F.Supp. 741 (W.D. Mich. 1980).

Hillman? Well, there’s the major case [Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Attorney for the Western District of Michigan, et al. (W.D. Mich. File No. 1:96-CV-466): 198 F.Supp.2d 920 (W.D. Mich. 2002), and 46 F.Supp.2d 689 (W.D. Mich. 1999), aff’d. 369 F.3d 960 (6th Cir. 2004)] which easily could have been resolved differently if another judge had been assigned that case.*

And Enslen. Even before the “treaty-fishing” cases, he granted the judgment declaring that GTB controlled the Peshawbestown lands. [Grand Traverse Band of Ottawa and Chippewa Indians v. Leelanau County and Leelanau Indians, Inc. (W.D. Mich. File No. G 83-834)] Attached is his unpublished opinion; it’s the only time my proposed findings and conclusions have been adopted verbatim (without even being retyped). And he was assigned the GTB v. BIA case [Grand Traverse Band of Ottawa and Chippewa Indians v. Bureau of Indian Affairs, et al. (W.D. Mich. File No. G 85-382)], by which we (with his help/not so subtle messages to DOJ that he’d grant preliminary injunction for us if …) held them (the Reagan administration DOI political operatives) at bay until Buddy Raphael negotiated the “compromise” membership provisions. Both the 1985 and 2000 consent decrees were the result of his commitment to ADR (and at various times he forcefully let lawyers for state/”sports” groups know that they really didn’t want to give him a chance to rule for the Tribes); likewise, he allowed the Tribes plenty of maneuvering room leading up to the 2007 “inland” consent decree. Also his July 15, 1986 opinion/order in which he fashioned a remedy in GTB’s favor when the other COTFMA Tribes (BMIC & SSM) decided they could distribute 1985 CD funds by majority vote (subsequently there have been equal 1/3 and then 1/5 distributions of appropriated funds above each Tribe’s base). Finally, of course, is GTB’s “access” case now in the textbooks: Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Department of Natural Resources, et al. (W.D. Mich. File No. 1:94-CV-707): 971 F.Supp. 282 (1995), aff’d. 141 F.3d 635 (6th Cir. 1998), cert. denied 454 U.S. 1124, 102 S.Ct. 971 (1998).

____________________

* Here is an article that appeared later in the New Yorker, written by his niece about his mother. I was struck by the passage on the last page. Here was a man who rose to the top of a prestigious G.R. law firm, probably relatively conservative albeit a Democrat in conservative G.R. and (I think) a labor lawyer, but I’m not aware of any indication that he was champion of the downtrodden. Perhaps his mother instilled a sense of (in)justice, and when the opportunity presented itself he saved the day for the Indian Tribes. [United States v. Bay Mills Indian Community, et al. (W.D. Mich. File No. M 85-335): 692 F. Supp. 777 (W.D. Mich. 1988), vacated 727 F. Supp. 1110 (W.D. Mich. 1989)] GTB gets no credit for Judge Hillman’s decision not to enjoin the Tribes’ casino gaming, yet it was our separate brief (and affidavits of Buddy Raphael and Barry Burtt) that argued Rule 65 equitable considerations weighed against the injunction requested by DOJ.

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

January 22, 2015Matthew L.M. Fletcher1 Comment

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:

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.
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.
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.
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.
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

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

January 20, 2015Matthew L.M. Fletcher

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

January 8, 2015Matthew L.M. Fletcher

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.