Class III Gaming Compact – Page 8

Federal Court Declines to Dismiss California v. Iipay Nation

June 8, 2015June 9, 2015Matthew L.M. Fletcher1 Comment

Here are the materials in State of California v. Iipay Nation of Santa Ysabel (S.D. Cal.):

15-1 Iipay Nation Motion to Dismiss

18 California Response

19 Iipay Nation Reply

24 DCT Order Denying Motion to Dismiss

TRO stage materials are here.

Ninth Circuit Sitting En Banc Rules in Favor of Big Lagoon Rancheria in Gaming Dispute with California

June 4, 2015Matthew L.M. Fletcher1 Comment

Here is the opinion in Big Lagoon Rancheria v. State of California:

10-17803

From the court’s syllabus:

The en banc court affirmed the district court’s summary judgment in favor of a tribe that alleged that the State of California had failed to negotiate in good faith for a gaming compact under the Indian Gaming Regulatory Act for Class III gaming on a parcel of land taken into trust for the tribe by the Bureau of Indian Affairs.

Rejecting California’s argument that the tribe lacked standing to compel it to negotiate in good faith under the IGRA, the en banc court held that the State’s argument amounted to an improper collateral attack on the BIA’s decisions to take the parcel of land into trust and to designate the tribe as a federally recognized Indian tribe. The en banc court held that the district court did not abuse its discretion in failing to grant a continuance for additional discovery under Fed. R. Civ. P. 56(f).

The en banc court dismissed the tribe’s cross-appeal as moot.

Links to oral argument and briefs here.

Citizen Potawatomi Nation Asks for Injunctive Relief from Arbitrator in Gaming Compact Dispute

June 4, 2015Matthew L.M. Fletcher

Here is the pleading in Citizen Potawatomi Nation v. State of Oklahoma (Am. Arb. Assn.):

Application for Interim Injunctive Relief by Citizen Potawatomi Nation

Ninth Circuit Denies En Banc Review in Tulalip Tribes Gaming Compact Dispute

June 1, 2015Matthew L.M. Fletcher

Here is the order in Tulalip Tribes v. State of Washington:

2015-05-28 Dkt #57 Denial of Pet for Rehearing En Banc

En banc petition here.

Panel opinion here. Briefs here.

Citizen Potawatomi Nation Demand for Arbitration against Oklahoma and Governor Fallin

April 30, 2015Matthew L.M. Fletcher

Here:

2704764 – CPN-OTC Demand for Arbitration

An excerpt:

The Citizen Potawatomi Nation (“Nation” or “Claimant”), a federally-recognized Indian tribal government, hereby demands arbitration of a dispute between the Nation and the State of Oklahoma (“Oklahoma” or “Respondent”). The Nation seeks:

(1) determination by an arbitrator under AAA Rule R-7 of the arbitrator’s own jurisdiction and the scope of the parties’ arbitration agreement, which is part of the Dispute Resolution procedures within a Tribal-State Gaming Compact that the Nation claims to provide the exclusive means by which Oklahoma may enforce obligations set forth in the Compact;

(2) determination by an arbitrator of whether the Dispute Resolution (including arbitration) procedures of the Compact are the exclusive means by which Oklahoma may seek to enforce against the Nation’s Compact facilities the Nation’s duties imposed to comply with state laws governing sales and service of alcoholic beverages, as imposed by Compact Part 4(I);

Decision in Tulalip Tribes v. Washington

April 17, 2015Kate Fort2 Comments

Opinion here.

Previous coverage here.

Our conclusion is consonant with our instruction in Shoshone-Bannock Tribes that courts should hold compacting parties to the ordinary meaning of terms in their agreements. Id. at 1098–100. The plain language of the Spokane Compact shows that the Inter-Tribal Fund mechanism available to the Spokane Tribe carries with it interdependent conditions and consequences. Tulalip’s amendment would not match those terms. We take no view on whether the terms of Appendix Spokane are in fact more favorable than those included in the Tulalip Compact. We hold simply that Tulalip is not entitled as a matter of law to the more selective set of terms in its proposed amendment.2 The most-favored tribe clause does not allow a “pick and choose” arrangement. The district court correctly entered judgment for the State. Simply put, Tulalip’s proposal does not mirror the restrictions of Appendix Spokane, and those are the terms to which the State agreed.

Federal Court Confirms Labor Union Arbitration Award against Picayune Rancheria Casino

April 6, 2015Matthew L.M. Fletcher

Here are the materials in Unite Here Local 19 v. Picayune Rancheria of Chukchansi Indians (E.D. Cal.):

1 Petition

11-1 Unite Here Motion for Judgment on the Pleadings

15 Chukchansi Opposition

16 Unite Here Reply

18 DCT Order

An excerpt:

Respondents maintain that the Labor Management Relations Act (“LMRA”) does not apply to them because the statute does not expressly abrogate tribal sovereignty. This Court, however, need not determine whether the statute abrogates sovereignty, as Respondents have waived their sovereign immunity and consented to be sued in federal court. See Okla.Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991) (“Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.”) (emphasis added). The CBA-which, again, Respondents concede they agreed to—provides:

For the sole purpose of enabling a suit to compel arbitration or to confirm an arbitration award under this Agreement or the Employer’s Tribal Labor Relations Ordinance, the Employer agrees to a limited waiver of sovereign immunity and consents to be sued in federal court, without exhausting tribal remedies.

Pet., Exh. A at 17 (emphasis added). There is no indication that Respondents entered into this unequivocal waiver involuntarily. See White v. Univ. of Cal., 765 F.3d 1010, 1025–26 (9th Cir.2014) (“A voluntary waiver by a tribe must be unequivocally expressed.”) (internal quotation marks omitted).

Contrary to Respondents’ suggestion, the United States Supreme Court’s recent decision in Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024 (2014), does not compel a different result. In fact, that opinion reconfirmed that an Indian tribe may waive its sovereign immunity: “we have time and again treated the doctrine of tribal immunity as settled law and dismissed any suit against a tribe absent congressional authorization or a waiver.” 134 S.Ct. 2030–31 (internal quotation marks, brackets, and parentheses omitted); see also id. at 2035 (“[I]f a State really wants to sue a tribe for gaming outside Indian lands, the State need only bargain for a waiver of immunity.”).