Here are the materials in this iteration of City of Duluth v. Fond du Lac Band of Lake Superior Chippewa (D. Minn.):
258 City of Duluth Motion for Stay
262 Fond du Lac Rule 60 Motion
266 Fond du Lac Response to Motion for Stay
269 City Response to Rule 60 Motion
270 Reply in Support of Rule 60 Motion
News coverage here.
This case is on remand from the Eighth Circuit; materials here.
The City has a pending matter against the NIGC here.
Here are the materials in Pueblo of Santa Ana v. Nash (D. N.M.):
52 — Pueblo Motion for Summary J
63 — Pueblo Reply to Judge Nash
An excerpt:
Specifically, the Court hereby enters a declaration that the Indian Gaming Regulatory Act, 25 U.S.C. § 2701, et seq. (“IGRA”) does not authorize an allocation of jurisdiction from tribal court to state court over a personal injury claim arising from the allegedly negligent serving of alcohol on Indian land, and further that the New Mexico State District Court does not have jurisdiction in the case of Gina Mendoza, Michael Hart and Dominic Montoya v. Tamaya Enterprises, Inc., d/b/a Santa Ana Star Casino, CIV 2007-005711 (“underlying state court litigation”).
Prior federal court order and materials here.
The Bay Mills Indian Community’s pending Supreme Court case has sucked a lot of the oxygen out of the room here in Michigan. And it has definitely overshadowed an impending showdown between the State of Michigan and seven six* tribes over the negotiation of new Class III gaming compacts.
The negotiation of new tribal-state gaming compacts here in Michigan will offer a unique case study in how the Indian Gaming Regulatory Act’s compact provisions affect the negotiation of “second generation” gaming compacts – compacts that follow, rather than extend, a tribe’s previous compact.
We’re going to take a closer look at these negotiations in upcoming posts. But, first, it is important to understand how the current agreements – approved in 1993 – came into effect. WARNING: Marathon Blog Post.
THE HISTORY
As in other parts of the country, a number of Michigan tribes were already operating Class III gaming when IGRA was enacted in 1988. In enacting IGRA, Congress required tribes to negotiate a gaming compact with states to engage in Class III gaming – even for those tribes that were already operating such games. Congress also required states to negotiate these agreements in “good faith.”
Six Michigan tribes sought to negotiate Class III gaming compacts with the State of Michigan almost immediately after IGRA’s enactment. Then-Governor Jim Blanchard refused to negotiate over Class III slot machines, and ultimately refused to enter into a compact.
In 1990, those six tribes filed a lawsuit against the State of Michigan in the U.S. District Court for the Western District of Michigan, alleging that the State violated IGRA’s requirement to negotiate in good faith, and seeking a declaratory judgment that Class III slot machines would be permissible to include in the Compact.
In 1992 – 4 years before the Supreme Court’s decision in Seminole – the Western District of Michigan ruled in that lawsuit (Sault Ste. Marie Tribe v. Engler) that the Tribes’ lawsuit was barred by sovereign immunity.
After an unsuccessful appeal, the Tribes amended their lawsuit to name then-Governor John Engler as the defendant in an Ex parte Young action. That case – Sault Ste. Marie Tribe of Chippewa Indians, et al. v. Engler – ended through a negotiated settlement agreement. That agreement was entered by the U.S. District Court for the Western District of Michigan as a Consent Judgment in 1993. That Consent Judgment included several key provisions that will impact ongoing compact negotiations:
Concurrent with the Western District of Michigan’s entry of the Consent Judgment, the seven Tribes and the State of Michigan entered into separate Class III gaming compacts that were identical to one another. Those gaming compacts were approved by the Department of the Interior in 1993.
Each of those compacts stated that they would remain in effect “for a term of twenty (20) years from the date it becomes effective[.]” In other words, they would remain in effect until November 2013.
But those compacts also included language that has created some…(ahem) room for interpretation:
[12(B)] At least one year prior to the expiration of twenty (20) years after the Compact becomes effective, and thereafter at least one year prior to the expiration of each subsequent five (5) year period, either party may serve written notice on the other of its right to renegotiate this Compact.
Here:
The Honorable Don Young
Subcommittee Chairman
PANEL I
Kevin Washburn
Assistant Secretary for Indian Affairs
U.S. Department of the Interior
PANEL II
The Honorable Todd Mielke
County Commissioner
County of Spokane
Hazel Longmire
Vice-Chairperson
Colusa Indian Community Council
Alexander Skibine
Professor
University of Utah
Here:
Here.
An excerpt:
Skibine said the Bush administration was in the thick of a lawsuit in which tribes sued the federal government for mismanaging reservation land and were reluctant to take more into trust — a precursor to any reservation gaming project that isn’t located on the tribe’s traditional grounds.
The Bush White House was also operating in the midst of the Jack Abramoff lobbying scandal, in which Capitol Hill aides and Republican advocates secretly pitted tribes and Christian groups against one another while raking in millions.
The administration’s policy was presented in a Jan. 3, 2008, Indian Affairs memo that limited how far from a tribe’s existing reservation a casino project could be located.
“No application to take land into trust beyond a commutable distance from the reservation should be granted unless it carefully and comprehensively analyzes the potential negative impacts on reservation life and clearly demonstrates why these are outweighed by the financial benefits of tribal ownership in a distant gaming facility,” Carl Artman, Bush’s assistant secretary of Interior for Indian Affairs, wrote.
Keeping a Close Eye on Michigan v. Bay Mills Indian Community (Jefferson Keel and John Echohawk):
Since it was established in 2001, the National Congress of American Indians and the Native American Rights Fund have jointly coordinated the work of the Tribal Supreme Court Project. The Project was established by tribal leaders in response to a series of devastating losses for Indian tribes before the Supreme Court of the United States. As you may recall, tribes were losing 3 out of every 4 Indian law cases argued before the Court and resulted in decisions significantly eroding the doctrine of inherent tribal sovereignty. Our work has focused on coordinating tribal resources throughout Indian country and bringing the best legal minds to the table to develop litigation strategies to put forward the strongest legal arguments when litigation could not be avoided. But our message to tribes became and remains: “Stay away from the Supreme Court!”
During its early years, the Project experienced relative success with tribes increasing their winning percentage to greater than 50%—winning 4, losing 3, and 2 draws in the 9 Indian law cases heard by the Rehnquist Court. But since 2005, with the installment of John Roberts as Chief Justice, the retirement of Justices O’Connor, Souter and Stevens, the tribes winning percentage has plummeted to 10%—with 1 win and 9 losses in the 10 Indian law cases heard by the Roberts Court. And neither Chief Justice Roberts nor Justice Alito has voted in favor of tribal interests in a single case!
With this background, we recently read the State of Michigan’s opening brief in Michigan v. Bay Mills Indian Community–a case granted review by the Court even though the United States had filed a brief recommending that cert be denied. Although this litigation should be about the merits of Bay Mills’ claims under the Michigan Indian Land Claims Settlement Act to conduct gaming on lands acquired with settlement funds—it is not. In its current posture before the Court, the State of Michigan is using this case to mount a full frontal attack on tribal sovereign immunity and the authority of states to regulate “gaming activity” under the Indian Gaming Regulatory Act (IGRA).
First, Michigan asks the Court to examine “IGRA as a whole” to find Congressional intent to waive of tribal sovereign immunity or, in the alternative, to overrule Santa Clara Pueblo and apply a “less strict standard” when considering whether legislation such as IGRA abrogates tribal sovereign immunity. Second, if the statutory arguments are not successful, Michigan asks the Court to recognize that tribal sovereign immunity “is a federal common law doctrine” created by this Court and subject to adjustment by this Court. Thus, according to Michigan, the Court should narrowly read Kiowa as a “contract-based ruling” and (at the extreme) hold that a tribe’s immunity is limited to its on-reservation governmental functions.
With the doctrine of tribal sovereign immunity and the authority of states under IGRA on the table, this case has become high-stakes litigation for Indian tribes across the country. Although Bay Mills and other tribes have solid legal arguments to make to the Court, the optics and politics of this case do not bode well for a good outcome. The last time the doctrine of tribal sovereign immunity was before the Court was in Madison County v. Oneida Indian Nation of New York back in 2010. Madison County, the State of New York and other local governments had filed briefs taking aggressive approaches similar to the State of Michigan. Their positions were supported by a number of other states, local governments and non-Indian property rights organizations as amicus parties. In response to similar concerns expressed here, the Oneida Indian Nation passed a resolution which irrevocably waived its sovereign immunity and resulted in the Court vacating and remanding the case to the lower courts for further proceedings on the merits. Although that result may be difficult to replicate, our hope is that the on-going efforts by the Bay Mills Indian Community to find an alternative resolution to this case, or at least change the posture of this case before the Court, will bear fruit.
To repeat our message to all tribes: “Stay away from the Supreme Court!”
Curious about the State of Michigan’s argument that Congress did not believe Indian tribes possessed immunity outside of Indian country when it enacted the Indian Gaming Regulatory Act, I checked out the legislative history for support either way. Below are just the hearings to which I have access.
There is a fair amount of discussion about tribal immunities from state regulation and taxation, and most interestingly about whether tribal immunity cloaks nonmember gaming management companies and consultants.
I don’t see any discussion of off-reservation gaming at all, which the State suggests, I suppose, would be normal if Congress was assuming something about immunity one way or the other.
In any event, enjoy the legislative history.
June 25, 1987 hearing (PDF)
Nothing here, except in a newspaper article reference to an inter-tribal dispute between the Otoes and the Seminoles that couldn’t be settled in the courts “because sovereign immunity would prevent the tribes from successfully suing one another.” Page 184.
June 17, 1986 hearing (PDF)
Omaha Tribe opposes any provision that would waive tribal immunity; not specific as to language in a draft bill or elsewhere. Page 110. See also page 357.
DOJ testifies against Indian gaming referencing immunity from state regulation in Indian country. Page 143
Interior testimony quoting 1983 Mescalero Apache decision on “historic” tribal immunity from state regulation. Page 164.
Excerpt from federal district court decision on tribal immunity from state taxation, suggesting Congress assumes states have no “residual power” to tax tribes. Page 419.
State of Minnesota testimony requesting waiver of tribal immunity to enforce gaming “licenses” against tribes. Page 501.
State of Minnesota testimony requesting waiver of immunity to allow national commission to enforce fines on tribes. This appears to assume that an Indian tribe might be immune from federal regulation, too. Page 504. See also page 505.
Arizona AG arguing that nonmembers gaming in tribal casinos should not be cloaked in tribal immunity for purposes of state regulation. Page 598.
Jun. 25, Sep. 13, 1985 Hearings (PDF)
Arizona AG arguing against Indian gaming in Indian country “immune from State regulation”. Page 40.
Tulalip member testifying about case in which State of Washington unsuccessfully sued to stop tribal bingo. Page 163.
Kickingbird testimony on gaming contracts, advising against “general waiver of sovereign immunity.” Page 188.
Indian Country, USA waiver of immunity in general form contract. Page 202.
Fort McDowell bingo code, preserving immunity. Page 900.
Rincon Band management contract, with limited waiver of immunity. Page 1183.
Barona Band management contract, with limited waiver. Page 1235.
June 26, 1985 Hearing (PDF)
Sen. Domenici testimony, concern about nonmember employees claiming immunity. Page 22.
Arizona AG arguing against Indian gaming in Indian country “immune from State regulation”. Page 115 (same as June 25 testimony)
Morongo Band management contract, no waiver. Page 266.
Tulalip member testifying about case in which State of Washington unsuccessfully sued to stop tribal bingo. Page 284. (same as June 25 testimony)
Kickingbird testimony on gaming contracts, advising against “general waiver of sovereign immunity.” Page 295. (same as June 25 testimony)
Indian Country, USA waiver of immunity in general form contract. Page 309. (same as June 25)
June 18, 1987 Hearing (PDF)
Coos, Lower Umpqua & Suislaw Indians testimony against waiver of tribal immunity, referencing “discriminatory taxation legislation.” Page 496.
Nov. 14, 1985 Hearing (PDF)
Interior testimony quoting 1983 Mescalero Apache decision on “historic” tribal immunity from state regulation. Page 38.
June 19, 1984 Hearing (PDF)
Rep. Vento expressing concern about nonmember management contractors asserting immunity from state regulation. Page 44-45.
National Indian Gaming Task Force testimony on tribal immunity from suit by gaming management consultants. Page 80.
CRS Report, April 26, 1985 (PDF)
Nothing
Here are the materials in Board of Commissioners of Cherokee County Kansas v. Jewell (D. D.C.):
DCT Order Dismissing Cherokee County Suit
Cherokee County Motion for Summary J
News coverage here.
Turtle Talk 
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