Bay Mills Indian Community

Who Won Indian Law and Policy in 2014? First Round Bracket — 2 of 8

Matthew L.M. Fletcher1 Comment

Here we go again (first bracket here):

# 2 Sault Ste. Marie Tribe of Chippewa Indians

Perhaps the most immediate beneficiary of the Bay Mills win in the Supreme Court, which persuaded the State of Michigan to seek another route to fighting Sault Tribe’s Lansing casino proposal. But not before Sault Tribe proposed two huge off-reservation casinos. Oh yeah, they won a $74 million contract case, too. Pretty good year.

v.

# 15 Fond du Lac Band of Lake Superior Ojibwe

Still embroiled in disputes (here and here) with the City of Duluth over the Fond du Luth Casino and related properties. Won one right before Christmas though.

# 7 Gun Lake Tribe

Seeding might be a little high; a little hometown bias. Anyway, who else got Congress to overturn a Supreme Court decision in 2014, hosted the Potawatomi Gathering, and is an overall, good citizen?

v.

# 10 Wind River Tribes

Lots of action this last year, what with Wyoming going berzerk over the EPA’s decision to let tribal agencies measure air quality, and with much internal strife. 2015 should be a real interesting year.

# 3 Bay Mills Indian Community

Well, they won a Supreme Court case. Not a whole lot else going on. Sault Tribe, as we noted, passed them in the seeding.

v.

# 14 Cowlitz Tribe

Along with Interior, won a big one over neighboring tribes who claimed Cowlitz is a tribe barred from eligibility for trust land acquisitions by Carcieri.

#6 Navajo Nation

How can Navajo be seeded so low? They’re arguably the most important tribe every year, right? Well, yes, but they took some hits this year, too. Lost a tribal civil jurisdiction case in the Ninth Circuit, lost (or did they concede) on whether New Mexico can transport tribal members off rez to take drug tests, is going through one of the ugliest tribal election disputes in recent memory, fighting off Hopi and enviro challenges to their energy generators, lost a big water rights case, suffered through an ugly internal fight over a tribal resources company, lost one in the D.C. Circuit, got some bad news on uranium pollution, and lost legendary code talker Chester Nez. On the other hand, Navajo settled a huge trust case with the feds, won one against HUD, won a big one in the Ninth Circuit on Navajo’s tribal preference in employment statute, and hosted Michigan and Michigan State law students over spring break.

All in all, no one beats Navajo on volume, but this one’s a mixed bag.

v.

# 11 Lac Courte Oreilles Band of Lake Superior Ojibwe (and other Wisconsin treaty tribes)

Won a huge treaty rights case in the Seventh Circuit (miigwetch Judge Posner) on the night deer hunting controversy.

Who Won Indian Law and Policy in 2014? First Round Bracket — 1 of 8

Matthew L.M. Fletcher3 Comments

Alright, let’s try this.

In category 1, Indian nations, we’ll divide the bracket up into two, so you’ll be voting in four contests here. Four more later in the day. Let’s say you have until midnight eastern to vote.

***

#1 Alaska Native tribes

My overall number one seed, what with Congress repealing the Alaska exceptions from VAWA, Interior adopting a fee to trust rule, a big voting rights win, an important victory for tribal court jurisdiction, and another win on tribal governance matters. And perhaps the biggest is the Supreme Court’s denial of cert in Alaska v. Jewell, the subsistence hunting case. Alaska has Judge Voluck, too. The Alaska Supreme Court has been making things harder on the ICWA front however, here, here, and here, though perhaps the DOJ’s intervention in one case will make a difference, and the government’s effort to set the Alaska AG right is encouraging.

v.

# 16 Buena Vista Rancheria

The Buena Vista Rancheria of Me-Wuk Indians made a splash in federal court this year, winning one in the Supreme Court (well, a denial of cert) and losing one in the D.C. Circuit.

# 8 Omaha Tribe

The Omaha Tribe won a huge victory in the Eighth Circuit, which affirmed Judge Richard “Hercules” Kopf’s decision rejecting Nebraska’s effort to have the tribe’s reservation declared disestablished.

v.

# 9 Kialegee Tribal Town

The tribe won a big decision in the Tenth Circuit over its dispute with Oklahoma on the Broken Arrow Casino. A beneficiary of the massive Bay Mills win in the Supreme Court.

# 4 Cayuga Indian Nation

Cayuga won a big sovereign immunity decision in the Second Circuit, another beneficiary of the Bay Mills win in the Supreme Court. It wasn’t all pretty though, as tribal leadership disputes spill out in federal and state forums.

v.

# 13 Big Lagoon Rancheria

One of the few tribes to make the list by not really winning anything in 2014; in fact, losing a biggie in the Ninth Circuit. But the court granted en banc review, and oral argument looked pretty good for tribal interests. We’ll see.

# 5 Resource tribes

Well, Interior announced that resource extraction royalties they collected reached over $1 Billion in a single year for the first time. But fracking is bad for the environment, the MHA Nation is overrun with corruption and human trafficking, and oil prices are down 33 percent. Hope they’re saving their money. Oh wait, they’re not. I guess this one is really about the MHA Nation, so let’s make that change now.

The real # 5, MHA Nation

v.

# 12 Sault Ste. Marie Tribe of Chippewa Indians

Perhaps the most immediate beneficiary of the Bay Mills win in the Supreme Court, which persuaded the State of Michigan to seek another route to fighting Sault Tribe’s Lansing casino proposal. But not before Sault Tribe proposed two huge off-reservation casinos. Oh yeah, they won a $74 million contract case, too. Pretty good year. Ok, that persuades me, Sault Tribe’s seeding just jumped from 12 to 2 and knocks down BMIC, who actually won a SCT case this year.

The real # 12, Oneida Indian Tribe of Wisconsin

They earned a huge cert denial in their long-running fight with the Village of Hobart. And they filed an important amicus brief in the Stockbridge-Munsee cert petition.

Congrats to 2014 Udall Interns

Matthew L.M. Fletcher

Here:

NAME TRIBE SCHOOL
Anthony C. Locklear II Lumbee Tribe of North Carolina University of North Carolina-Chapel Hill
Cade M. Cross Three Affiliated Tribes of the Fort Berthold Reservation Dartmouth College
Chelee A. John Navajo Nation Arizona State University
Chelsea Barnes Lumbee Tribe of North Carolina University of North Carolina-Chapel Hill
Dinee Dorame Navajo Nation Yale University
Glennas’ba B. Augborne Navajo Nation Arizona State University
Heidi J. Todacheene Navajo Nation University of New Mexico
Jacqueline A. Bisille Navajo Nation Arizona State University
Kristie L. Johnson Navajo Nation Saint Louis University
Sarah M. Ballew Pokagon Band of Potawatomi Indians University of Michigan-Ann Arbor
Twila R. Begay Navajo Nation University of Washington
Whitney B. Gravelle Bay Mills Indian Community Michigan State University

A CLOSER LOOK AT GAMING COMPACT NEGOTIATIONS IN MICHIGAN PART I: The history of Michigan’s first gaming compacts

bryannewland4 Comments

The Bay Mills Indian Community’s pending Supreme Court case has sucked a lot of the oxygen out of the room here in Michigan.  And it has definitely overshadowed an impending showdown between the State of Michigan and seven six* tribes over the negotiation of new Class III gaming compacts.

The negotiation of new tribal-state gaming compacts here in Michigan will offer a unique case study in how the Indian Gaming Regulatory Act’s compact provisions affect the negotiation of “second generation” gaming compacts – compacts that follow, rather than extend, a tribe’s previous compact.

We’re going to take a closer look at these negotiations in upcoming posts.  But, first, it is important to understand how the current agreements – approved in 1993 – came into effect. WARNING: Marathon Blog Post.

THE HISTORY

As in other parts of the country, a number of Michigan tribes were already operating Class III gaming when IGRA was enacted in 1988.  In enacting IGRA, Congress required tribes to negotiate a gaming compact with states to engage in Class III gaming – even for those tribes that were already operating such games.  Congress also required states to negotiate these agreements in “good faith.”

Six Michigan tribes sought to negotiate Class III gaming compacts with the State of Michigan almost immediately after IGRA’s enactment.  Then-Governor Jim Blanchard refused to negotiate over Class III slot machines, and ultimately refused to enter into a compact.

In 1990, those six tribes filed a lawsuit against the State of Michigan in the U.S. District Court for the Western District of Michigan, alleging that the State violated IGRA’s requirement to negotiate in good faith, and seeking a declaratory judgment that Class III slot machines would be permissible to include in the Compact.

In 1992 – 4 years before the Supreme Court’s decision in Seminole –  the Western District of Michigan ruled in that lawsuit (Sault Ste. Marie Tribe v. Engler) that the Tribes’ lawsuit was barred by sovereign immunity. 

After an unsuccessful appeal, the Tribes amended their lawsuit to name then-Governor John Engler as the defendant in an Ex parte Young action.  That case – Sault Ste. Marie Tribe of Chippewa Indians, et al. v. Engler – ended through a negotiated settlement agreement.  That agreement was entered by the U.S. District Court for the Western District of Michigan as a Consent Judgment in 1993.  That Consent Judgment included several key provisions that will impact ongoing compact negotiations:

  • The seven tribes that were party to the litigation agreed to pay 8% of the net win from electronic games of chance to the State of Michigan’s “Strategic Fund” – provided that the Tribes “collectively enjoy the exclusive right to operate electronic games of chance in the State of Michigan.” (Sections 6 and 7 of the 1993 Stipulation)
  • The Tribes also agreed to pay 2% of the net win from electronic games to “any local units of state government in the immediate vicinity of each tribal casino.”  Importantly, the Tribes were permitted to determine which local units of government would receive the payments (Section 8 of the 1993 Stipulation).
  • Section 5 of the Consent Judgment expressly states that the Tribes are only obligated to make revenue sharing payments to the state “only so long as there is a binding Class III compact in effect between each tribe and the State of Michigan…and then only so long as the tribes collectively enjoy the exclusive right to operate” electronic games of chance in Michigan.
  • Section 8 of the Consent Judgment states that both the Stipulation and the Consent Judgment may be modified or rescinded “only in the above captioned case, and only by the mutual written consent of all parties and with the Court’s concurrence.”

Concurrent with the Western District of Michigan’s entry of the Consent Judgment, the seven Tribes and the State of Michigan entered into separate Class III gaming compacts that were identical to one another.  Those gaming compacts were approved by the Department of the Interior in 1993.

Each of those compacts stated that they would remain in effect “for a term of twenty (20) years from the date it becomes effective[.]”  In other words, they would remain in effect until November 2013.

But those compacts also included language that has created some…(ahem) room for interpretation:

[12(B)]  At least one year prior to the expiration of twenty (20) years after the Compact becomes effective, and thereafter at least one year prior to the expiration of each subsequent five (5) year period, either party may serve written notice on the other of its right to renegotiate this Compact.

Continue reading →

News Commentary on Port Huron Casino Likelihood

Matthew L.M. Fletcher

Here.

IPR: Michigan Tribes Get Behind Effort to Repeal Wolf Hunt Law

Matthew L.M. Fletcher2 Comments

Here.

MSU Law Alum Bryan Newland Joins Fletcher Law, PLLC

Matthew L.M. Fletcher3 Comments

FLETCHER LAW, PLLC ANNOUNCES ADDITION OF BRYAN NEWLAND

FletcherLaw, PLLC is proud to announce that Bryan Newland has joined the Firm as a Member. Bryan comes to Fletcher Law, PLLC following three years of service in President Obama’s Administration at the Department of the Interior. At the Department, Bryan served as a Policy Advisor to Assistant Secretary – Indian Affairs Larry Echo Hawk, Acting Assistant Secretary – Indian Affairs Del Laverdure, and Assistant Secretary – Indian Affairs Kevin Washburn.

In his service, Bryan led the Department’s efforts to reform its Indian leasing regulations, and was instrumental in the passage of the HEARTH Act. Bryan also advised the Assistant Secretary on land-into-trust matters, energy policy, and gaming policy – where he helped bring about a transformation in the Federal Government’s policy relating to tribal-state gaming compacts.Newland

Bryan is a citizen of the Bay Mills Indian Community (Ojibwe), and is a 2007 graduate of the Michigan State University College of Law with a certificate from the Indigenous Law and Policy Center. He has extensive legal and policy experience relating to Indian and commercial gaming, Indian land issues, reserved treaty rights, tribal colleges, and energy development. Bryan has also represented clients relating to campaign finance compliance, election law, and other political matters.

FletcherLaw, PLLC is a national Indian-law firm based in Lansing, Michigan, and provides its clients with legal counsel and strategic consulting services. The Firm was founded in 2012 by Zeke Fletcher, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and a graduate of the University of Wisconsin Law School.

 

To contact Zeke Fletcher at Fletcher Law, PLLC, email zfletcher@fletcherlawpllc.com or call (517) 755-0776. To contact Bryan Newland, email bnewland@fletcherlawpllc.com or call (517) 862-5570.

The Environment Report: Wolf Classification as Game Animal and Tribal Opposition

Kate Fort1 Comment

Here. The audio version is longer than the print version.

We’ve been doing a lot of thinking in the office about how courts interpret the “public interest” when weighing tribal concerns. This story certainly shows how one state representative chooses to do so.

Allen: Many of the Indian tribes in Michigan are opposed to this legislation right now, and that’s primarily because they feel the wolf has a special status for them. It figures importantly in many of their creation stories. They consider the wolf to be a brother or part of their kin. Here’s what Kurt Perron, the president of the Bay Mills Indian Community, told me about that:

“As we see the wolf returning, or gaining strength, just like we, as Ojibwe Anishinaabe people have, we see that relationship. So that’s what concerns us with the hunt, it’s almost like you’re hunting our brothers.”

Perron also said that by hunting wolves, you really don’t know what’s going to happen in terms of how that affects the pack structure of wolves, since they are pack animals.

Senator Tom Casperson of the western Upper Peninsula, is the primary sponsor of the wolf hunt bill, and he says that he has met a couple of times with the Indian tribes, and heard their concerns, and he recognizes and respects their relationship to the wolf. But he also says that that’s not a value that all of his constituents hold.

“I don’t know how you negotiate that, because that’s a personal belief they have. But at the end of the day, I do think many people don’t hold that same belief, so what do we do. Do we hold fast to it because the tribes say it’s sensitive to them, when many of my citizens don’t hold that same value?”

IPR on Tribal Treaty Rights and Wolf Hunts

Matthew L.M. Fletcher

Here.

An excerpt:

An animal that’s a symbol of the wild, and once nearly exterminated, has repopulated the upper Great Lakes region. In fact, the gray wolf exceeded recovery goals, times ten, over the last decade.

And now wolves are doing so well, states that manage them are opening hunting seasons on them. Some say there are just too many to coexist with people.

But a few Indian tribes argue that their treaty rights call for wolves to fill every niche in the landscape.

Wolf Brother
In the upper Great Lakes, Indian tribes still have rights to hunt, fish and gather plants in wide swaths of territory that go back to treaties signed in the mid-1800’s. Usually it’s pretty straightforward for the tribes and the states to agree on how many fish or deer to take.

But with wolves, tribal officials say, it’s different. Their creation stories tell how the wolf was sent as a companion for the people. Tribes of the Great Lakes consider the wolf as kin. And the Creator told them the fate of wolves and the people are intertwined, as one goes, so goes the other.

“As we see the wolf returning or gaining strength, just as we Ojibway, Anishinaabe people have, we see that relationship,” says Kurt Perron, chair of the Bay Mills Community in Michigan’s Upper Peninsula. “So that’s what concerns us with the hunt.  It’s almost like you’re hunting our brothers.”

Now maybe that’s mostly symbolic, but not entirely. Because Perrin thinks if top predators are removed from the ecosystem, the effects will cascade through other species. And eventually humans may be affected.

Split D.C. Circuit Grants Attorney Fees to Tribal Intervenors in EPA Mercury Rule Case (New Jersey v. EPA)

Matthew L.M. Fletcher

Here is the opinion. And the briefs:

Tribal Motion for Atty Fees

EPA Opposition

Tribal Reply

The underlying merits decision from the D.C. Circuit vacating a Bush-era EPA mercury rule is here. BLT coverage is here.

Here are the intervening tribes and organizations:

Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Jamestown S’Klallam Tribe, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Lower Elwha Klallam Tribe, Lummi Nation, Minnesota Chippewa Tribe, National Congress of American Indians, Nisqually Tribe, and Swinomish Indian Tribe Community