Ninth Circuit Briefs in Yocha Dehe Wintun Nation v. Newsom


Opening Brief

Tribal Amicus Brief

Answer Brief


Lower court materials here.

Federal Court Dismisses California Tribes’ Card Rooms Exclusivity Complaint

Here are the materials in Yocha Dehe Wintun Nation v. Newsom (E.D. Cal.):

11-1 California Gaming Assn Motion to Intervene

11-5 Proposed Motion to Dismiss

17-1 State Motion to Dismiss

21 Tribes Opposition to Motion to Intervene

22 State Opposition to Motion to Intervene

23 Proposed Intervenors Reply

26 Tribe Opposition to State Motion to Dismiss

29 DCT Order

Prior post here.

Kevin Washburn on Federal “Deemed Approved” Gaming Compacts

Dean Kevin K. Washburn has posted “Agency Pragmatism in Addressing Law’s Failure: The Curious Case of Federal ‘Deemed Approvals’ of Tribal-State Gaming Compacts,” forthcoming in the Michigan Journal of Law Reform.

Here is the abstract:

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States Supreme Court held part of IGRA unconstitutional in 1996, the Secretary declined to issue an affirmative approval or disapproval on more than seventy-five occasions—thus, allowing a compact to become approved by operation of law—but has simultaneously issued a letter setting forth legal objections to aspects of the compact. The Secretary’s creative response to a broken regulatory scheme appears to be unique, and it raises interesting questions about how the executive branch should behave in the face of legal uncertainty. It raises questions of administrative law, such as whether the Secretary’s non-action is reviewable as agency action under the Administrative Procedure Act (APA), whether the Secretary’s letter is entitled to deference, and if so, what level of deference. It also raises important questions about whether such action constitutes good policy. This Article examines some of those questions.

Forest County Potawatomi Challenge to Denial of Gaming Compact Fails

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

79-1 Forest County Motion for Summary J

81-1 US Cross Motion

82-1 Menominee Cross Motion

86 Forest County Reply

91 US Reply

92 Menominee Reply

95 DCT Order

Prior posts here.

Federal Court Dismisses Slip and Fall Suit against Barona Band

Here are the materials in Butler v. Barona Band of Mission Indians of California (C.D. Cal.):

7 Motion to Dismiss

10 Opposition

11 Reply

13 DCT Order

Pauma Band Cross-Petition in Gaming Compact Dispute with California

Here is the cert petition in Pauma Band of Luiseño Mission Indians of the Pauma & Yuima Reservation v. State of California:

Pauma Cert Petn

Question presented:

One of the statutory elements for establishing a prima facie case of bad faith negotiation against a state under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., is that “a Tribal-State compact has not been entered into.” 25 U.S.C. § 2710(d)(7)(B)(ii)(I). In this case, the United States Court of Appeals for the Ninth Circuit interpreted this language according to the status quo ante, holding that an Indian tribe who sought and obtained a declaration rescinding a compact could not pursue a claim for latent bad faith negotiation against a state that induced the compact through material misrepresentations in order to increase its tax receipts (i.e., “revenue sharing”) by 2,460%. With this holding seeming to violate deep-rooted principles of retroactivity and interpretive norms for the Indian Gaming Regulatory Act set forth within this Court’s precedent, the question presented is:
Whether an Indian tribe can pursue a bad faith negotiation claim against a state under Section 2710(d)(7)(A)(i) of the Indian Gaming Regulatory Act after rescinding a compact induced by misrepresentation or other latent bad faith conduct, and thus bringing its circumstances into compliance with the statutory requirement that “a Tribal-State compact has not been entered into.”
California’s petition is here.
Lower court materials here (panel, en banc).