Interior Proposes New Fee-to-Trust Regs and New Class III Compact Process Regs, Parts 151 and 293

Here.

From the notice:

The Department of the Interior (Department) invites Tribal Leaders to consult on the Notice of Proposed Rulemaking (NPRM) for the Department’s Land Acquisition regulations, 25 CFR Part 151, and the NPRM for the Department’s Class III Tribal State Gaming Compact Process, 25 CFR Part 293.

25 CFR Part 151, Land Acquisition

Since the Department first promulgated these regulations in 1980, it has developed extensive experience in the fee-to-trust acquisition process.  Relying on that experience and input from Tribes, this proposed rule seeks to make the fee-to-trust process more efficient, simpler, and less expensive to support restoration of Tribal homelands.

25 CFR Part 293, Class III Tribal State Gaming Compact Process

The Department is developing proposed updates to Part 293 to provide clear guidance regarding the Secretary’s review and evaluation process for Tribal-State class III gaming compacts.  The current regulations do not identify the factors the Department considers; rather, those factors are contained in a series of decision letters issued by the Department since the enactment of the Indian Gaming Regulatory Act in 1988.  Recent and ongoing litigation highlights the need for the Department to clarify how it will review or analyze gaming compacts to determine whether they comply with federal law. 

Tribal Consultation

The Department will conduct two virtual consultation sessions and one in-person consultation to obtain further Tribal input on the Part 151 NPRM and the Part 293 NPRM.  The consultation sessions will be open to Tribal leadership and representatives of federally recognized Indian Tribes and Alaska Native Corporations.  Please join us at one or more of the following consultations sessions.

If you would like to provide written comments, please email them to consultation@bia.gov by 11:59 p.m. EST on Wednesday, March 1, 2023.

D.C. Federal Court Dismisses Suits Attacking United Keetoowah and Kialegee Compacts, Allows Suits Against Comanche and Otoe-Missouria to Proceed

Here are the materials in Cherokee Nation v. Dept, of the Interior (D.D.C.):

Prior post here.

Kablooey

Oklahoma SCT Declares Gov. Stitt’s Gaming Compacts with UKB and Kialegee are Invalid

Here is the opinion in Treat v. Stitt.

Briefs:

Petitioner’s Brief

Response Brief

Petitioner’s Reply Brief

An excerpt:

Petitioners, the Honorable Greg Treat, Senate President Pro Tempore, and the Honorable Charles McCall, Speaker of the House, request the Court to assume original jurisdiction to declare that the new tribal gaming compacts between the State and the United Keetoowah Band of Cherokee Indians and between the State and the Kialegee Tribal Town are invalid under Oklahoma law. The Court assumes original jurisdiction. Okla. Const. art. VII, § 4. The Court invokes its publici juris doctrine to assume original jurisdiction here as Petitioners have presented this Court with an issue of public interest in urgent need of judicial determination. Fent v. Contingency Review Bd.2007 OK 27, ¶ 11, 163 P.3d 512, 521. The Court grants the declaratory relief sought by Petitioners, as the Executive branch did not validly enter into the new tribal gaming compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. Ethics Comm’n of State of Okla. v. Cullison1993 OK 37, ¶ 4, 850 P.2d 1069, 1072.

New Mexico COA Certifies Tribal Gaming/Immunity Cases to New Mexico SCT

Here is the order in Sipp v. Buffalo Thunder Inc.:

36924 and 38636 Certification Order (FINAL)

The question certified:

[W]hether the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721 (2018), permits tribes and states to contract in Tribal-State Class III Gaming Compacts to shift jurisdiction over certain matters to state courts.

Oklahoma Tribes Sue Interior over Gaming Compact Approvals

Here is the complaint in Cherokee Nation v. Dept. of the Interior (D.D.C.):

1 Complaint

1-1 Comanche Gaming Compact

1-2 Otoe-Missouria Gaming Compact

Update:

26 Amended Complaint

Ninth Circuit Briefs in Yocha Dehe Wintun Nation v. Newsom

Here:

Opening Brief

Tribal Amicus Brief

Answer Brief

Reply

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.