IGRA

Chukchansi v. NIGC Complaint

Matthew L.M. Fletcher2 Comments

Here is the complaint in Picayune Rancheria of Chukchansi Indians v. Stevens (D. D.C.):

Chukchansi Complaint

An excerpt:

This is a civil action against the United States National Indian Gaming Commission and its officials (collectively, the “Chairwoman,” the “Commission,” the “NIGC,” or “Defendants”) under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq. and 701, et seq., seeking mandamus and related relief compelling the Commission to comply with its statutory duty to approve and publish gaming ordinance amendments submitted by the Picayune Rancheria of the Chukchansi Indians (“Tribe”).

Federal Court in “Cunundrum” Orders Interior to Refile Cowlitz Record of Decision and Dismisses Grand Ronde et al. Suit

Matthew L.M. Fletcher2 Comments

Here is the order  and related materials in Confederated Tribes of the Grand Ronde Community of Oregon v. Salazar (D. D.C.):

DCT Order

Clark County et al Motion for Summary J

Interior Opposition to Summary J Motion

USET Amicus

City of La Center Amicus

Interior Revised Cowlitz Initial Reservation Opinion

Interior Motion to Remand

Clark County et al Opposition to Remand Motion

Clark County et al Motion to Strike

Interior Opposition to Motion to Strike

Clark County et al Reply in Support of Motion to Strike

Excerpt from Judge Rothstein’s opinion:

Nor can the Federal Defendants supplement the administrative record with the 2012 Revised Initial Reservation Decision. It is black letter law that the record to be considered by this Court “consists of the administrative record compiled by the agency in advance of litigation, not any record thereafter constructed in the reviewing court.” AT&T Info. Sys. Inc. v. Gen. Servs. Admin., 810 F.2d 1233, 1236 (D.C. Cir. 1987) (emphasis added) (rejecting agency’s attempt to submit a litigation affidavit as a post hoc rationalization of the agency’s action); see also, Center for Auto Safety v. Federal Highway Admin., 956 F.2d 309, 314 (D.C. Cir. 1992) (rejecting agency’s rationale as post hoc rationalization not included in administrative record); Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539-40 (1981) (“[P]ost hoc rationalization of the agency or the parties to this litigation cannot serve as a sufficient predicate for agency action”). Accordingly, the Federal Defendants cannot “incorporate” a 2012 explanation into a 2010 ROD by characterizing it as a “Supplemental Record of Decision.”

However, the Court is now in a conundrum. The Court notes that Plaintiffs opposed the Federal Defendants’ motion to remand, yet remand is the relief that they sought on the initial reservation determination because the agency had failed to provide a “reasoned explanation for his decision.” The Secretary has now provided such a reasoned explanation. Plaintiffs again oppose remand and ask the Court to strike the Supplemental ROD. If the Court were to grant Plaintiffs’ request, the parties would be litigating the 2010 Initial Reservation Determination, a determination that has been withdrawn and superceded. The Court will not waste its or the parties’ resources on such a fruitless endeavor. See Spencer v. Kemna, 523 U.S. 1, 18 (1998) (“[Federal courts] are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong”). The Court is also cognizant of the fact that the parties have been locked in this battle for nearly eleven years. (TR at 13.). However, the APA requires that the Federal Defendants conform to its dictates, disallowing amendments to a final decision once a case has been filed in district court. Accordingly, the Court will remand this action to the agency with instructions to rescind the 2010 ROD. Since this is a case where the agency has already reconsidered and revised its final decision and since the parties represent to the Court that the agency is not required to provide public notice under IGRA (which is the only portion of the 2010 ROD being supplemented), the Court will require the agency to issue a new decision of record within sixty (60) days of the date of this order, unless good cause is shown why it cannot do so. See Fulton v. FPC, 512 F.2d 947, 955 (D.C. Cir. 1975).

News coverage here.

Iipay Nation First Amended Complaint against Cal. Gambling Control Commission

Matthew L.M. Fletcher

Here:

Iipay First Amended Complaint

Prior complaint here.

Tribal Gaming Per Cap Payments May Decrease Labor Productivity and Increase Fertility (?!?!)

Matthew L.M. Fletcher6 Comments

Here is a study of the effects of gaming per capita payments on tribal members of three Michigan tribes (Keweenaw Bay Indian Community, Saginaw Chippewa Indian Tribe, and Pokagon Band of Potawatomi Indians). In line with the 1491s’ hilarious video in which a candidate for tribal office runs on the platform of “progression, procreation, per cap,” the study suggests that tribal members receiving per caps leads to “decreased work efforts,” while “weak” evidence exists that per cap payments increase fertility. Enjoy.

Here is the study:

The Effects of Per Capita Tribal Payments on the Fertility, Education, and Labor Force Participation of Tribal Members

The abstract:

The purpose of this research is to provide a preliminary examination of the effects of per capita tribal payments on the decision making of tribal members. Standard  microeconomic theory suggests that unearned income changes the labor-leisure tradeoff in utility maximization models. While the results of per capita payments on hours of work can be easily anticipated, the effects of these payments on human capital accumulation and family size are more ambiguous. Using Census data from 1990 and 2000 we shed some light on the impact of these per capita tribal payments on the lives of the recipients. We concentrate on three tribes in the state of Michigan: the Saginaw Chippewa Tribe, the Keweenaw Bay Indian Community, and the Pokagon Band of Potawatomi Indians of Michigan. The results lend support to the basic labor theory conclusion that an increase in nonlabor income causes individuals to decrease their work efforts. There is also weak evidence that the payment of per capita payments from casino profits is increasing the fertility rate of Saginaw Chippewa tribal families.

Sen. Feinstein Introduces Tribal Gaming Eligibility Act

Matthew L.M. Fletcher7 Comments

Congressional Record link here. Bill text not yet available.

By Mrs. FEINSTEIN:

S. 477. A bill to amend the Indian Gaming Regulatory Act to modify a provision relating to gaming on land acquired after October 17, 1988; to the Committee on Indian Affairs.

Mrs. FEINSTEIN. Mr. President, I rise today to reintroduce the Tribal Gaming Eligibility Act.

This bill sets forth what I believe is a very reasonable, moderate standard for where tribes are allowed to open gaming establishments.

The standard is simple: a tribe must demonstrate that it has a modern and an aboriginal connection to the land before it can open a gaming establishment on it. Continue reading →

Federal Court Enjoins Sault Tribe from Seeking Trust Acquisition for Lansing Casino Property

Matthew L.M. Fletcher2 Comments

News coverage here.

Link to opinion here.

DCT Order Granting Injunction

Briefs here.

City of Duluth Sues National Indian Gaming Commission over Fond du Lac Casino Revenues

Matthew L.M. Fletcher6 Comments

Here is the complaint in City of Duluth v. National Indian Gaming Commission (D. D.C.):

City of Duluth Complaint

News coverage here.

Release: Mashpee Tribe’s Land Qualifies as Initial Reservation

Matthew L.M. Fletcher1 Comment

Interior Letter:

Washburn to Cromwell 2.7.13

Release:

Interior Department Says Mashpee Wampanoag Tribe’s

Land will Qualify as an Initial Reservation

Land application demonstrates significant historic ties to Taunton area

 

MASHPEE, MA – The Mashpee Wampanoag Tribe has received a positive preliminary advisory opinion from the Department of the Interior indicating that the Tribe’s lands in Taunton and Mashpee qualify as an initial reservation once the Mashpee Wampanoag Tribe’s land into trust process is completed with a positive Record of Decision. This special status means that the Tribe will be able to conduct Class II and Class III gaming on the land under the Indian Gaming Regulatory Act.

Chairman Cedric Cromwell said this news “is another huge step forward toward the development of a first class destination resort casino in Taunton. We look forward to creating thousands of jobs and widespread economic opportunities for our Tribe, the people of Taunton and the entire Southeastern Massachusetts region.”

The news was presented to Chairman Cromwell in a letter from Assistant Secretary of the Department of the Interior for Indian Affairs Kevin Washburn. He informed the tribe that an analysis completed by the Office of Indian Gaming finds that the Tribe’s land in trust application qualifies to be processed under the initial reservation exception.

The initial reservation exception is found in Section 20 of the Indian Regulatory Gaming Act. It is one of the few exceptions to the prohibition of gaming on lands taken into trust after October 17, 1988. The provision is expressly intended for newly recognized Indian tribes, such as the Mashpee Wampanoag Tribe, that do not have an established reservation. The determination is based, in part, on an analysis of the tribe’s historic ties to the area identified in the land in trust application that is currently under review by the federal government.

Chairman Cromwell praised the speedy review process. “On behalf of our tribe, I want to express my deepest gratitude to President Obama, Secretary Washburn, the Interior Department, and the many dedicated officials at the Bureau of Indian Affairs. They truly understand how important it is for our people to have land, to maintain our history, our language and our culture. This will enable us to fully operate as a sovereign Tribal government, to secure the resources necessary to support ourselves, and to provide services such as housing, health care and education to our people.”

In addition, Chairman Cromwell thanked those who have worked on the documentation of the Tribe’s historic ties. “Tribal members and our advisers worked tirelessly to document our historic ties to Mashpee, Taunton, and all our ancestral homeland encompassing present-day Southeastern Massachusetts and Eastern Rhode Island. Their efforts were conducted with professionalism, seriousness, and respect for our rich history.”

The Tribe’s application for land in trust includes land in Mashpee and Taunton, Massachusetts. The Mashpee Wampanoag Tribe has proposed a destination resort casino in Taunton. The planning and design process for the proposed casino has moved at a very brisk pace. The Tribe has successfully acquired an option for land, negotiated an intergovernmental agreement with the City, won the support of the residents of Taunton in a referendum, and has progressed with state and federal environmental reviews.

The Mashpee Wampanoag Tribe, with approximately 2,600 enrolled members, has called present-day southeastern Massachusetts home for over 12,000 years. The Tribe was acknowledged in 2007 as a federally recognized tribe. As a sovereign nation, the Mashpee Wampanoag Tribe works to provide housing, health care, education, cultural, and economic development services to its members throughout the region.

Two New Papers by Alex Skibine on IGRA and Indian Country Hot Pursuit

Matthew L.M. Fletcher1 Comment

The Indian Gaming Regulatory Act at 25: Successes, Shortcomings, and Dilemmas
 Alexander Tallchief Skibine
University of Utah – S.J. Quinney College of Law
Date Posted: January 14, 2013
Working Paper Series

Hot Pursuit into Indian Country: What Are the Limits?
 Alexander Tallchief Skibine
University of Utah – S.J. Quinney College of Law
Date Posted: January 14, 2013
Working Paper Series

Rincon Band of Luiseño Indians Secretarial Procedures Materials

Matthew L.M. Fletcher

Here is Interior’s Decision letter:

Mazzetti 8 Feb 2013

Rincon’s press release:

Rincon Secretarial PR28

And the procedures:

Sec Proc Rincon 2 8 13

From the press release:

For the Rincon Band of Luiseño Indians, it took seven years of litigation, negotiations, and an unorthodox route of approval to get their 1999 tribal-state gaming compact renegotiated. Setting a legal and political precedent as the first California agreement negotiated through the federal courts, the Rincon secretarial procedures were approved by Kevin Washburn, Assistant Secretary-Indian Affairs, February 8, 2013.