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WSJ on Off-Reservation Gaming

Matthew L.M. Fletcher1 Comment

From the WSJ:

The Obama administration may make it easier for Indian tribes to build casinos on land far from their reservations, a move likely to spur a wave of new casino development.

The Interior Department, which runs the Bureau of Indian Affairs, is reconsidering a Bush administration directive requiring that off-reservation casino sites be within commuting distance of the reservation. Many tribes, struggling with high unemployment and poverty on their reservations, are looking to casinos for jobs and other economic benefits.

Casino Applications

See where tribes have filed applications for off-reservation gaming.

“It’s an important issue. It’s a controversial issue and they’re rethinking it,” George Skibine, a deputy assistant secretary at the bureau, said in an interview last week. He added he expected a decision on whether to change the policy “fairly soon.”

Some governors, including Democrat David Paterson of New York and Republican Arnold Schwarzenegger of California, have come out in favor of certain projects in recent months.

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Bloomberg Report on Foxwoods Debt Default — Now $1.45B

Matthew L.M. Fletcher1 Comment

From Bloomberg Report (miigwetch to K.C.):

Foxwoods Casino Owner Said to Seek Debt Restructuring

By Beth Jinks and Jonathan Keehner

Aug. 26 (Bloomberg) — Mashantucket Western Pequot Tribal Nation, owner of the Foxwoods Resort Casino, is seeking to restructure at least $1.45 billion in debt as winnings dwindle, according to a person with knowledge of the situation.

A restructuring plan has been submitted to creditors and the Connecticut casino’s owners have hired Miller Buckfire & Co., a New York investment bank, as an adviser, said the person, who declined to be identified because the talks aren’t public.

Foxwoods, one of the largest casinos in the U.S. by gambling space, may become the biggest tribal casino company to default. The operation has lost business to the recession and competition from new casinos and racetracks with slot machine-style video-lottery terminals in nearby states. Slot revenue fell 13 percent in July, the casino said on Aug. 14.

“They can’t do the types of things other debtors can in a restructure,” Megan Neuburger, an analyst at Fitch Ratings in New York, said today in an interview. “Tribal casinos can’t do a debt-for-equity swap. They can’t raise cash by selling off assets on tribal land” to repay creditors.

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Eighth Circuit Decides Yankton Reservation Dispute

Matthew L.M. Fletcher2 Comments

Here is the opinion in Yankton Sioux Tribe v. Podhrasky. Briefs are here. The holdings:

With respect to the judgment of the district court, we therefore:
(1) affirm insofar as it concluded that the agency trust lands, the outstanding
allotments, and the IRA trust lands are part of the Yankton Sioux Reservation
and are Indian country under § 1151(a),
(2) affirm its alternative holding that the miscellaneous trust lands constitute a
dependent Indian community and are Indian country under § 1151(b),
(3) vacate the district court’s holding that fee lands continuously held in Indian
ownership are reservation under § 1151(a), and
(4) affirm its denial of all other claims for relief.

With respect to the judgment of the district court, we therefore:

(1) affirm insofar as it concluded that the agency trust lands, the outstanding allotments, and the IRA trust lands are part of the Yankton Sioux Reservation and are Indian country under § 1151(a),

(2) affirm its alternative holding that the miscellaneous trust lands constitute a dependent Indian community and are Indian country under § 1151(b),

(3) vacate the district court’s holding that fee lands continuously held in Indian ownership are reservation under § 1151(a), and

(4) affirm its denial of all other claims for relief.

Expect a cert petition or request for en banc review from South Dakota.

Tenth Circuit Dismisses Criminal Appellant’s Appeal

Matthew L.M. Fletcher1 Comment

Here is the opinion in the long-running case Reber v. Steele. An excerpt:

Petitioner Colton Reber, a descendant of the Uintah Band Indians, was convicted in Utah state juvenile court of felony wanton destruction of wildlife, in violation of Utah Code § 23-20-4. Having exhausted his remedies through the state courts, Mr. Reber filed the present 28 U.S.C. § 2254 action in the United States District Court for the District of Utah. Mr. Reber’s § 2254 petition contends that because he is an Indian, and because the offense occurred on Indian land, the Indian tribe-not the State of Utah-is the victim of the offense. Thus, neither the Eighth District Juvenile Court, nor the State of Utah, possessed jurisdiction over the offense. The federal district court dismissed Mr. Reber’s habeas petition because “it plainly appear [ed] from the petition and any attached exhibits that the petitioner [wa]s not entitled to relief.” Aplt’s App. at 60.

We granted Mr. Reber a certificate of appealability on August 18, 2008, concluding that he had made the requisite “substantial showing of the denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). Upon further review, however, we find that the premature filing of Mr. Reber’s § 2254petition deprived the district court of jurisdiction, and thus precludes our review. Accordingly, we vacate the district court’s ruling on the merits of the petition, and remand to the district court with instructions to dismiss the petition without prejudice.

Sixth Circuit Holds KBIC Challenge to State Taxes is Nonjusticiable

Matthew L.M. Fletcher

Here is yesterday’s Sixth Circuit opinion in Keweenaw Bay Indian Community v. Rising. The briefs are here. A few excerpts, the first detailing the history of the dispute dating back to 1977, and including the State of Michigan’s use of federal funds supposed to go to KBIC to pay what it considers to be back taxes, very, very dirty pool in my opinion, though KBIC could always sign up with the tax agreement if it chose:

In 1977, Michigan and the Community entered into a comprehensive tax agreement governing payment and collection of sales and use taxes for transactions involving the Community or its members. In 1994, the parties began renegotiating this agreement, but failed to reach accord. In 1997, Michigan terminated its tax agreements with the twelve federally recognized tribes in the State, as part of an effort to achieve uniformity in its agreements with the tribes. Although the State has reached agreement with most of the Michigan tribes, it has failed to reach agreement with the Community. In the absence of any such agreement, Michigan has apparently adopted a policy of taxing transactions involving the Community or its members, while permitting them to apply to the Treasury for an exemption or refund on a case-by-case basis. The State claims that the Community has flouted this policy and refused to pay many of its taxes. Not surprisingly, the parties have repeatedly disputed the amount of taxes the Community owes to the State, and each has withheld funds that the other party claims it is owed. Most notably for our purposes, in 2005 the State withheld $ 34,166.31 in federal funds owed to the Community, which the State offset from the back taxes that it maintained the Community owed.

And here the court addresses the justiciability issue:

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Review of OT 2008: Indian Law Cases in the Supreme Court

Matthew L.M. Fletcher3 Comments

It’s time for a review of what the Supreme Court did in Indian law this Term, since the Term will end in a few weeks.

Consistent with the last 15 years or so (maybe 20), the Court was very hostile to tribal interests. The Roberts Court’s view of Indian law has changed slightly from the Rehnquist Court; frankly, for tribal interests, to the worse. All of the Indian law cases decided by the Court this Term could be construed as “error correction,” cases in which the Court (usually unanimously) believed the lower court made an egregious error. This appears to be a trend in the recent years, in which the Roberts Court will only grant certiorari in cases to correct these egregious errors. The Court does not see Indian law as a dynamic area of law — Indian law cases are very easy for most of the Justices — nor are Indian law cases vehicles for examining important issues of constitutional law beyond federal Indian law.

For the Roberts Court, Indian law cases are easy for a couple reasons. First, state government interests always trump tribal interests, and every case in which tribes defeat states strongly attracts the attention of the Court. The reverse simply is not true. It is my sense that the Roberts Court is happy to rest on the fact that state sovereignty is strongly protected by the text of the Constitution, and tribal sovereignty is not. Second, the long, complicated, and important history of federal Indian law and policy is utterly unimportant to the Roberts Court. Longstanding practice, legislative history, and simple Indian affairs history does nothing to persuade a majority of the Court, with only Justice Stevens paying much attention to it.

The Court heard oral argument and issued opinions in two Indian law cases, and a third case involving Native Hawaiians.

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Indictments in Grave Robbing Cases

Matthew L.M. Fletcher

Here are two of the indictments in the grave robbing cases reported on Indianz and the NYTs — US v Patterson Indictment 1 and US v Patterson Indictment 2.

Nahno-Lopez v. Houser — Land Claim against Fort Sill Tribal Council

Matthew L.M. Fletcher1 Comment

Here are the materials in this claim against the Fort Sill Apache Tribal Council in their individual capacities. The claims are by Kiowa and Comanche tribal members. The Western District of Oklahoma concluded that the claims may proceed against the tribal council in their individual capacities.

Nahno-Lopez DCT Order

Houser Motion to Dismiss

Houser Motion to Strike

Nahno-Lopez Response Brief

Houser Reply Brief

Houser Motion to Strike

Mistake for Federal Agencies to Make Post-Carcieri Lists

Matthew L.M. Fletcher2 Comments

It is inevitable that interested parties will want to know, or at least speculate, on which Indian tribes are truly affected by Carcieri v. Salazar. Interior and/or BIA may be drawing up lists. NCAI and NIGA are probably doing the same. And now so is NIGC. Update: Not so, according to Chairman Hogen. But I think it may be a mistake for the federal agencies to do so, and to trumpet the fact, as NIGC seems to be doing. The key thing to remember is that Carcieri is an absurdity, maybe not based on the statute or even the legislative history (the SCT has spoken), but in reality.

NIGC’s list is “a list of those tribes recognized after 1934,” according to Indianz. So what does that mean? It could mean, plausibly, every tribe. Interior has never kept a “list” of tribes under federal recognition and didn’t even keep a formal list of federally recognized tribes until 1994. And so maybe there was no tribe meeting these phantom definitions until Interior started informing tribes that they were about to have a Secretarial election under the IRA, post-IRA. And we’re pretty sure Interior’s decision on which tribes got to vote were arbitrary and often capricious. If NIGC’s going to start with the list of tribes that had IRA elections in the 1930s, then that list will be wrong to some extent.

And if a list is wrong, even as to one tribe, then the federal agency is wrong to generate such a list. Even if it doesn’t publish the list, it is probably subject to a FOIA request. Tribes incorrectly designated will be legally disadvantaged.

Finally, not to pick on the NIGC or Chairman Hogen (both have gotten some bad and unfair press lately), NIGC is not the primary interpreter of “under federal jurisdiction” or federal recognition. Interior is. And Interior has 75 years of history to review before it can come to any conclusions about any one tribe.

There is really no reason for any federal agency to make a list right now. It’ll be subject to litigation as soon as any one decision on the list becomes important, and I’d hate to see NIGC or Interior lose a fight on Chevron or Skidmore deference if they try to push their conclusions based on any such list.

Supreme Court Takes No Action on Border Fence Case

Matthew L.M. Fletcher

Here is today’s order list, and commentary on El Paso v. Napolitano from SCOTUSblog:

The Court took no action on a new attempt to challenge the constitutionality of the sweeping powers Congress gave to the federal government in 2005 to set aside federal, state and local laws that may get in the way of building a 700-mile-long “secure fence” along the U.S.-Mexico border.  The Court turned down the first test, last June. The new case is El Paso County, et al., v. Napolitano (08-751).  The dispute could present the Court with an opportunity to make use of the rare power to strike down a federal law on the theory that Congress had given away too much of its legislative power to the Executive Branch.  That power has not been used for 74 years.

The cert petition is here. Ysleta del Sur Pueblo is a petitioner.