IGRA

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

Matthew 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

Matthew 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.

Washington and 27 Tribes Agree on Compact Amendments

Matthew L.M. Fletcher1 Comment

PRESS RELEASE: http://www.wsgc.wa.gov/publications/press-releases/compact-amendment-27-tribes-123014.pdf

COMPACTS: http://www.wsgc.wa.gov/publications/press-releases/summary-all-amendment-123014.pdf

Tenth Circuit Issues Amended Opinion in Oklahoma v. Hobia

Matthew L.M. Fletcher3 Comments

Here. Like its earlier decision, today’s amended opinion concludes that the district court erroneously granted the State’s request for a preliminary injunction and held that the State’s complaint, which alleged class III gaming activities on non-Indian lands, failed to state a claim under IGRA.

The Tenth Circuit also reiterated that arbitration provisions in the state’s gaming compact effectively barred Oklahoma from suing tribal officials in federal court for purported violations of the compact. The court remanded the matter to the Northern District of Oklahoma with instructions to vacate the preliminary injunction and to dismiss Oklahoma’s complaint with prejudice.

Also, the court denied the petition for en banc review.

Panel materials are here.

Student Scholarship on Mashantucket Pequot Tribe v. Town of Ledyard

Matthew L.M. Fletcher

The Connecticut Law Review has published “Mashantucket Pequot Tribe v. Town of Ledyard: The Preemption of State Taxes Under Bracker, the Indian Trader Statutes, and the Indian Gaming Regulatory Act.” It is here on SSRN.

Here is the abstract:

The Indian Tribes of the United States occupy an often ambiguous place in our legal system, and nowhere is that ambiguity more pronounced than in the realm of state taxation. States are, for the most part, preempted from taxing the Indian Tribes, but something unique happens when the state attempts to levy a tax on non-Indian vendors employed by a Tribe for work on a reservation. The state certainly has a significant justification for imposing its tax on non-Indians, but at what point does the non-Indian vendor’s relationship with the Tribe impede the state’s right to tax? What happens when the taxed activity is a sale to the Tribe? And what does it mean when the taxed activity has connections to Indian Gaming?

This Comment explores three preemption standards as they were interpreted by the Second Circuit Court of Appeals in a case between the State of Connecticut and the Mashantucket Pequot Tribe. In deciding whether preemption was the legally required outcome, the Court looked to and applied the landmark preemption analysis case White Mountain Apache Tribe v. Bracker, the Indian Trader Statutes, and the Indian Gaming Regulatory Act. While more than one legally correct outcome exists in this case, this Comment endorses and argues in favor of preemption based on the application of the Indian Gaming Regulatory Act and the preemption analysis required by Bracker.

Ninth Circuit Materials in Tulalip Tribes v. State of Washington — Gaming Compact Dispute

Matthew L.M. Fletcher3 Comments

Here are the briefs:

Tulalip Opening Brief

Samish Amicus Brief

Washington Brief

Tulalip Reply

Oral argument audio here.

Lower court materials here:

13 Tulalip Motion for Summary J

20 Washington Response

28 Tulalip Response

29 Tulalip Reply

30 Washington Reply

39 DCT Order

Iipay Nation Responsive Pleadings in Internet Gaming Matter

Matthew L.M. Fletcher2 Comments

Here are the new materials in materials in State of California v. Iipay Nation Of Santa Ysabel (S.D. Cal.):

SY Interactive Memo Opposing TRO motion

Appendix A — Memo opposing TRO motion + attachment

Declaration — David Chelette + exhibits Part 1 corrected

Declaration — David Chelette + exhibits Part 2

Vialpando Declaration + exhibits part 1

Vialpando Declaration + exhibits part 2

The complaint and TRO motion is here.

Flandreau Santee Sioux Tribe Sues South Dakota over Taxes and Casino Regulation

Matthew L.M. Fletcher1 Comment

Here is the complaint in Flandreau Santee Sioux Tribe v. Gerlach (D. S.D.):

1 Complaint

An excerpt:

1. This action seeks a judgment declaring that, under federal law, the State of South Dakota does not have authority to impose its use tax on the use, storage or consumption, by nonmembers of the Tribe, on the Tribe’s reservation, of goods and services purchased by nonmembers from the Tribe at the Tribe’s gaming facility, which is operated pursuant to and in accordance with the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721, (the “Tribe’s gaming facility” or the “Tribe’s Casino Complex”) and that the State lacks authority to require the Tribe to collect such use taxes from such non-member patrons and remit such taxes to the State.
2. This action also seeks a declaratory judgment that federal law prohibits the State of South Dakota from refusing to reissue alcoholic beverage licenses to the Tribe for the Tribe’s gaming facility on the basis that the Tribe has failed to remit to the Department of Revenue “all use tax incurred by nonmembers as a result of the operation of the licensed premises, and any other state tax.” SDCL § 35-2-24.
3. This action also seeks a declaratory judgment that pursuant to IGRA, the State of South Dakota does not have authority to regulate the Tribe’s sale of alcoholic beverages at the Tribe’s gaming facility.

Other materials:

Argus_Article_-_11202014

Letter_to_Tribal_Leadership_from_President_Reider

Friends of Amador County v. Jewell a Petition to Watch for This Week’s SCT Conference

Matthew L.M. Fletcher

Here:

Friends of Amador County v. Jewell
14-340
Issue: Whether, in an action by a third party against the Secretary of the Interior under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., a putative Indian tribe may invoke its sovereign immunity to prevent a court from reviewing the lawfulness of the Secretary’s decision to recognize it as a tribe.

We posted on this matter here.

Also, the petition was yesterday’s petition of the day.

California Sues Iipay Nation Of Santa Ysabel over Internet Gaming

Matthew L.M. Fletcher3 Comments

Here are the materials in State of California v.Iipay Nation Of Santa Ysabel (S.D. Cal.):

1 Complaint

3-1 TRO Motion