Indian gaming – Page 45

Federal Court Allows Menominee to Intervene in Forest County Challenge to Gaming Compact Rejection

April 15, 2016Matthew L.M. Fletcher

Here is the order in Forest County Potawatomi Community v. United States (D.D.C.):

41 DCT Order Granting Menominee Motion to Intervene

Briefs are here.

Seventh Circuit Briefs in MCZ Development Corp. v. Dickinson Wright

April 13, 2016June 7, 2016Matthew L.M. Fletcher

Here:

MCZ Opening Brief

Dickinson Brief

Other briefs TK

Lower court materials here.

Statement from the appellant’s brief:

This is a legal malpractice action stemming from legal services and advice Appellees provided Appellants beginning in December 2009. The legal services and advice pertained to Appellants’ planned investment in and development of an Indian gaming casino in Broken Arrow, Oklahoma, in conjunction with the Kialegee Tribal Town (the “Tribe”), an Indian tribe.The advice which Appellants contend caused them to sustain damages hinged on whether potential legal or regulatory issues could prevent Appellants from moving forward with the project once development and construction of the site began.

N.Y. Appellate Division Affirms Legality of Gaming Compacts

April 11, 2016Matthew L.M. Fletcher1 Comment

Here is the opinion in Schulz v. State of New York Executive:

520670

An excerpt:

The Gaming Act, among other things, provided a statutory framework for regulating casino gambling within the state and effectuated three agreements entered into between the state and the Oneida Indian Nation, the Seneca Nation of Indians and the St. Regis Mohawk Tribe (hereinafter collectively referred to as the Indian Nations). Those agreements generally provided that the state would grant the Indian Nations exclusive gaming rights within their respective geographic areas in exchange for a percentage of the gaming revenues and/or support for the then proposed casino gambling referendum, which was passed by the voters at the November 2013 general election.

Ninth Circuit Briefs in County of Amador v. DOI & No Casino in Plymouth v. Jewell

April 11, 2016November 7, 2016Matthew L.M. Fletcher2 Comments

Here are the briefs in County of Amador v. Dept. of Interior:

Opening Brief

Federal Answer Brief

County Reply

Other briefs TK

Here are the briefs in No Casino in Plymouth v. Jewell:

Lower court materials for both cases here.

D.C. Circuit Oral Argument Audio in City of Duluth v. NIGC

April 11, 2016Matthew L.M. Fletcher

Here.

Briefs here.

Gabe Galanda on NIGC Per Capita “Deregulation” and Disenrollment

April 5, 2016April 5, 2016Matthew L.M. Fletcher

Gabe Galanda has published, “The Reluctant Watchdog – How National Indian Gaming Commission Inaction Helps Tribes Disenroll Members for Profit and Jeopardizes Indian Gaming as We Know It,” in Gaming Law Review & Economics. An excerpt:

Disenrollment tied to gaming per capita payments is now epidemic. Indeed, the Ninth Circuit Court of Appeals took occasion to remark that the corresponding proliferation of disenrollment controversy results from ‘‘the advent of Indian gaming, the revenues from which are distributed among tribal members.’’ Yet in the face of very public gaming per capita abuses, the National Indian Gaming Commission (NIGC or ‘‘Commission’’) has for the last several years refused to enforce IGRA to deter or remedy those abuses.

The result of the NIGC’s de facto deregulation of the misuse of gaming per capita payments is the belief among some tribal leaders, aided by tribal lawyers, that they are free to convert tribal citizenships into profit and political gain. The NIGC’s failure to intervene despite both its statutory mandate to eradicate corrupting influences from the Indian gaming space, and its trust fiduciary responsibility to serve and protect all American Indians is woeful, and threatens the tribal gaming industry at large.

Citizen Potawatomi Prevails in Dispute over Alcohol Sales and Taxes at Gaming Facility

April 5, 2016April 5, 2016Matthew L.M. Fletcher1 Comment

Here is the AAA award in Citizen Potawatomi Nation v. State of Oklahoma:

Award

an excerpt:

In 2014, the OTC sent an audit demand to the Nation questioning more than $27,000,000 of exemptions claimed on the Nation’s past sales tax reports. The Nation did not respond and declined to submit further sales tax reports. The OTC then filed and prosecuted an administrative complaint seeking to revoke all of the Nation’s alcoholic beverage permits relying on State law providing for revocation of any alcoholic beverage permit upon noncompliance with State tax laws. In its complaint, the OTC asserted for the first time that State sales taxes apply to all sales by an Indian Tribe to nontribal members.

Interesting negotiating strategy.

Commentary:

Justice Daniel J. Boudreau issued the attached arbitration award in Citizen Band Potawatomi Nation v. State of Oklahoma, No. 01-15-0003-3452 (AAA, April 4, 2016). The Award includes (i) a declaratory judgment that federal law protecting tribal sovereignty interests preempt and invalidate the State’s sales taxes on the Nation’s sales in question; and (ii) issues an injunction against the State from taking any further actions to divest the Nation’s Compact gaming facilities of the right to sell and serve alcoholic beverages or threaten enforcement actions against them on the ground that the Nation does not comply with the State’s sales tax laws. Justice Boudreau was the single arbitrator in this dispute.

The declaratory judgement applied the balancing test analysis in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) and other federal Indian law cases. Judge Boudreau held that the evidence established (i) significant federal and tribal interests in the Nation’s self-governance, economic self-sufficiency, and self-determination; (ii) the Nation alone invests value in the goods and services that it sells, does not derive value through an exemption from State sales taxes and imposed its own equivalent tribal tax on the sales; (iii) the State possesses no economic interest beyond a general quest for revenue in imposing a sales tax on the Nation’s transactions and suffers no uncompensated economic burden arising therefrom; and (iv) the federal and tribal interests at stake predominate significantly over any possible State interests in the transactions upon which the State seeks to impose its sales tax.