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.
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.
Here.
I’ve posted my short paper, “California v. Cabazon Band: A Quarter-Century of Complex, Litigious Self-Determination,” in this month’s Federal Lawyer on SSRN.
Here is the abstract:
The Supreme Court’s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), may be the most momentous decision in federal Indian law in the last 50 years. The decision provided a federal common law basis for Indian tribes to engage in high stakes bingo and other gaming activities without state regulation, even in so-called Public Law 280 states like California that have criminal jurisdiction inside of Indian country. Cabazon Band provoked Congress to finally codify a regulatory scheme for Indian gaming, including an enactment that authorized under specific conditions Vegas-style casino gaming, in the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et seq. Indian gaming, as a direct result of Cabazon Band, now has a market greater than $26 billion a year nationally.
Matthew King has posted his paper, “Indian Gaming and Tribal Identity,” on SSRN. It was published in the Chicano-Latino Law Review.
Here is the abstract:
The article presents the significant developments in the law governing Indian gaming with a view to assessing gaming’s politicization of Native identity. By addressing the stereotypes and caricatures of Native Americans and tribes that animate legal and political change in the field, the article seeks to demonstrate the essentialism of Indian gaming and the consequent effect of gaming politics on Native identity. Key among the views expressed are that Indian gaming produces real, non-theoretical gains for tribes, which in turn creates new subject positions for Native Americans, and that gaming introduces substantial non-Native influence into the process of tribal government, thereby enacting a social and political cost to tribes. The article covers in separate sections the Indian Gaming Regulatory Act of 1988, Tribal-State compacting in California, and critical responses to Native identity under an identity politics rubric.
Alexander Tallchief Skibine has posted his testimony before the Senate Committee on Indian Affairs, Opinion on Indian Gaming: What Is at Stake for Tribes?. It is available on SSRN.
I can’t not say anything, since this proposed casino is in our own backyard. But seriously? The mayor says in 12-24 months he expects construction to start, and then another year or so after that there will be a fully functioning Indian casino in Lansing.
Wow.
We’re going to predict that it won’t happen. No chance.
Off-reservation Indian gaming is the most hotly-contested, politicized issue in American Indian affairs right now and maybe forever. Think of the interests arrayed against a Lansing casino, let alone one owned by an Indian tribe. The Detroit casinos will be opposed because it will cut into their bottom lines, and the entire City of Detroit, the Michigan Congressional delegation, the unions, everyone will throw their weight against this casino proposal.
More, up north just a few miles is another big problem for the mayor — the Saginaw Chippewa Indian Tribe. They’ll throw their weight against a Lansing casino, too, since a Lansing casino might destroy that tribe’s gaming market. They’ll have nothing to lose by fighting this every step of the way because they will be so severely injured by a Lansing casino that no lobbyist, no lawsuit, nothing will be too expensive to throw at it.
Finally, the law makes this difficult. Been saying this for months now. I suppose Sault Tribe believes, as I imagine the Bay Mills Indian Community does, that Bay Mills will eventually win on its legal theories relating to the Vanderbilt casino. it seems doubtful at best, given that Interior and the NIGC disagree. If that happens, then there will be 10-15 more Indian casinos in and around Lansing, Detroit, Grand Rapids, Muskegon, and so on in the next five years, especially if Bay Mills doesn’t comply with its revenue sharing obligations to the other tribes contained in the 1993 compacts (that’s right, even if they win, they only get one-seventh of the profit — go read section 9 of the 1993 compacts). Really hard to believe that will happen. Let’s set that aside for a minute.
The Sault Tribe will have to purchase land in Lansing, maybe the Lansing convention center or something. Then they’ll have to ask the Secretary of Interior to take the land into trust. And every trust acquisition application for gaming purposes requires an Environmental Impact Statement, and those take a few years to conclude. Once that’s done, the tribe will have to persuade Interior to take this land into trust. And that’s not so easy. The Indian Gaming Regulatory Act requires the governor to concur on any off-reservation gaming proposals. The Secretary has to then agree to take the land into trust, and even then someone in the Michigan Congressional could push through a rider preventing that action. It’s happened before.
And then, assuming the Secretary does take the land into trust, the lawsuits start. Trust acquisitions are governed by the Administrative Procedures Act. Anyone can sue, pretty much. The experiences of the three Potawatomi tribes in Michigan are instructive. The suits take years and years to conclude.
Of course, I’m no political scientist. Politics is money (see Citizens United) and anything can happen, including a backlash against Indian gaming that persuades Congress to ban off-reservation gaming. But the mayor’s three years is a dream, and kind of sick thing to promise to people in Lansing who might believe the mayor and see this as a real possibility for improving their lives.
An excerpt from The Island Packet:
The gambling resort would be within Hilton Head Lakes, a residential development on U.S. 278 — 18 miles from Hilton Head Island and three miles from Exit 8 on I-95. The United Keetoowa Band of the Cherokee Indians in Tahlequah, Okla., would own it.
Jasper County and city of Hardeeville councils passed resolutions endorsing the project Thursday and asked the state and federal government for support. The local leaders hailed it as a boon to Lowcountry tourism that could help cure chronic unemployment.
and
Under the federal Indian Gaming Regulatory Act, before a tribe can request that “off-reservation” land be taken into trust by the U.S. government for gaming purposes, the bureau must determine that doing so is in the tribe’s best interest and not detrimental to the surrounding community. The state’s governor must also agree.
“The governor has no intention of signing any memorandum of understanding that would enable casino gambling,” said Rob Godfrey, a spokesman for the first-term Republican.
Turtle Talk 
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