IGRA

Second Circuit Vacates Federal Court Injunction against Shinnecock Casino Construction in Southampton (Updated with Briefs)

Matthew L.M. Fletcher2 Comments

Here is the opinion:

08-1194_complete_opn

It’s the Second Circuit, so there are no briefs (unless someone sends them along). Here are the briefs:

Shinnecock Brief

State and Town Brief

An excerpt:

The Shinnecock Indian Nation and its tribal officials (collectively, the “Shinnecock” or the “Tribe”) appeal from a judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). After a bench trial, the district court granted a permanent injunction prohibiting the Tribe from developing a casino on a plot of land known as Westwoods without complying with the laws of New York State and the Town of Southampton. The Shinnecock object to a number of the district court’s factual and legal conclusions, including its findings: (1) that tribal sovereign immunity from suit does not bar this action; (2) that the Shinnecock’s aboriginal title to the land at Westwoods was extinguished in the seventeenth century; (3) that even if aboriginal title had not been extinguished, equitable principles would prevent the Shinnecock’s development of a casino in violation of state and local law; and (4) that the federal Indian Gaming Regulatory Act (“IGRA”) supplanted any federal common law right the Tribe may have had to operate the casino. They also argue that the Bureau of Indian Affairs’s recent recognition of the Shinnecock Indian Nation moots the injunction.

We conclude that the district court lacked subject matter jurisdiction over this action, and thus do not reach the merits of this appeal.

Lower court materials are here and here.

SCOTUSblog Coverage of Patchak Decision

Matthew L.M. Fletcher

Here.

And their plain language description:

In this case, the federal government took certain land into trust for an Indian tribe, which means that it took ownership of the land to allow the tribe to use it. The tribe planned to build a casino on the land. The Supreme Court held that a neighbor could sue the government to stop the casino project on the ground that the law did not permit the government to take the land into trust for this particular tribe

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MLive In-Depth Coverage of Patchak Decision

Matthew L.M. Fletcher

Here.

An excerpt:

The ruling, Fletcher said, was not really a surprise.

“This is a court that is pretty reluctant to rule in favor of Indian tribes and I think they are very skeptical of things like Indian gaming.”

Fletcher said the Sotomayor dissent highlights the destabilizing consequences of Monday’s decision. Wrote Sotomayor:

“… the majority’s rule will impose a substantial burden on the Government and leave an array of uncertainties. Moreover, it will open to suit lands that Congress and the Executive Branch thought the “national public interest” demanded should remain immune from challenge. Congress did not intend either result.”

Fletcher said that whereas parties seeking to challenge land-in-title decisions previously only had 30 days to file action, after Monday, tribes will likely have to wait six years to develop any property the government takes into trust while they wait out potential lawsuits against the use of the property.

“It’s very difficult to borrow money or do anything with land under those circumstances.’

The vast majority of Indian land-in-trust decisions by the government are for reasons like housing, treat rights, environmental protection and public safety. Very little are done for gaming reasons, Fletcher said.

Complete Briefing in Big Lagoon Rancheria Class III Compact Dispute with California

Matthew L.M. Fletcher1 Comment

Here are the briefs:

California Brief

Big Lagoon Brief

California Reply

Big Lagoon Reply

Lower court materials here.

Friday News Dump — NIGC Opines on Kialegee Broken Arrow Casino

Matthew L.M. Fletcher2 Comments

Docs here:

Kialegee_Letter_5-25-12

kialegee_tribal_town_opinion_5-24-12

Broken Arrow Casino Project Enjoined

Matthew L.M. Fletcher

Here and here.

Michigan AG Letter to Interior Expressing Opposition to Sault Tribe Casino Proposal

Matthew L.M. Fletcher

Here:

Michigan Attny General Lansing Casino Ltr

ICT Analysis of Patchak Oral Argument

Matthew L.M. Fletcher

Here.

Sault Tribe Membership Approves Lansing Casino Proposal

Matthew L.M. Fletcher

Here.

An excerpt:

The Sault Ste. Marie Tribe of Chippewa Indians voted 3,947 to 2,311, or 63 percent to 37 percent, throughout the past month on plans for the Kewadin Lansing casino, which the tribe would own and operate adjacent to the Lansing Center. Voting was conducted by mailed ballots and closed Thursday, when results were tallied.

Initial Commentary on Salazar/Gun Lake v. Patchak

Matthew L.M. Fletcher8 Comments

We posted the transcript here.

* The first remarkable point about today’s argument is that Justice Scalia appeared to come to the rescue of counsel for Patchak four times , and by the end of Respondent’s time was virtually arguing the case against the government and tribe through counsel. Page 50, line 23 to page 51, line 8, Justice Scalia answers questions from Justices Kagan and Sotomayor on behalf of counsel. On page 52, line 11 to page 53, line 6, Scalia literally concludes counsel’s argument on his behalf, offering two questions that counsel needs only say “yes” to.

The first instances Justice Scalia offers help to Patchak’s counsel are page 34, lines 9 through 20, which ends with Scalia telling counsel he’s supposed to say “yes, sir” to his question and which also ends with laughter from the gallery (presumably the clerks); and on page 39, line 13 though page 40, line 4 (also ending in laughter as Patchak’s counsel agrees with Justice Scalia).

* Justice Scalia comments early on in the government’s time: “whether this land could be used for what you call gaming and I call gambling.” There’s a longstanding rhetorical distinction between those who support tribal gaming/gambling — opponents call it “gambling” and supporters call it “gaming.” Justice Scalia tips his hand, no doubt intentionally.

* In light of our post from earlier today, there were 60 questions for the government and the tribe, and 49 for Patchak.

* A recurring theme in the argument, starting with the opening question from Justice Sotomayor, was that Patchak could have sued under NEPA, other statutes, or federal regs (within 30 days) to challenge the trust acquisition before the land goes into trust, as MIchGO did. The possible weakness is that the government’s position seems to be it can take land into trust at any time to foreclose any challenges to the trust acquisition by slipping behind the immunity barrier in the QTA. If the government did this, then the due process/non delegation problems identified in the 1995 South Dakota v. US decision comes to light. It seems to me that the relatively easy answer is that the due process/non delegation claim is available to challengers if the government did act in this manner, and since it didn’t here, there’s no issue. Of course, the Court would have to trust the Secretary of Interior, which historically, it doesn’t really do.

Update: Even local television (Wood TV, notoriously anti-Gun Lake) conceded that the Justices generally seemed hostile to Patchak’s claims.