Class III gaming compacts

Pueblo of Pojoaque v. State of New Mexico Good Faith Negotiations Complaint

Matthew L.M. Fletcher1 Comment

Here:

1 Complaint

An excerpt:

The Pueblo and the State previously negotiated a Class III gaming compact that expired on June 30, 2015. The Pueblo formally requested that the State enter into a compact regarding the Pueblo’s Class III gaming activities on its Indian lands beyond the expiration of the current compact. More than 180 days have expired since the Pueblo made its initial  request. Accordingly, the Pueblo now seeks a determination by this Court that the State has failed to conclude negotiations in good faith. With that determination, the Court has jurisdiction to invoke IGRA’s remedies that will result in a negotiated compact, or submission of last best offers to a mediator (“baseball arbitration”), and/or procedures promulgated by the Secretary of the Interior to govern the Pueblo’s Class III gaming activities.

Tulalip Tribes En Banc Petition in Compact Dispute with State of Washington

Matthew L.M. Fletcher1 Comment

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

2015-05-01 Dkt# Tulalip Petition for Rehearing En Banc

Panel opinion here. Briefs here.

Washington and 27 Tribes Agree on Compact Amendments

Matthew L.M. Fletcher1 Comment

PRESS RELEASE: http://www.wsgc.wa.gov/publications/press-releases/compact-amendment-27-tribes-123014.pdf

COMPACTS: http://www.wsgc.wa.gov/publications/press-releases/summary-all-amendment-123014.pdf

Cal. Secretary of State Certifies Referendum re: North Fork Rancheria of Mono Indians and Wiyot Tribe Gaming Compacts

Matthew L.M. Fletcher

Here:

SOS Certification

News coverage here.

Oregon COA Affirms Governor’s Authority to Enter into Indian Gaming Compacts

Matthew L.M. Fletcher

Here are the materials in Dewberry v. Kitzhaber (Or. App.):

Oregon COA Opinion

Appellants Opening Brief

Respondents Joint Answer Brief

Tribal Amicus Brief

Appellants Reply Brief

An excerpt:

In summary, the Oregon legislature authorized the Governor to enter into agreements with tribes to ensure that the state does not infringe on tribal rights under federal laws, such as IGRA. The trial court correctly concluded that the Governor acted lawfully under ORS 190.110 in negotiating and entering into the tribal-state compact with the Tribes.

News Coverage of Michigan Gaming Compact Negotiations

Matthew L.M. Fletcher2 Comments

Here, courtesy of one of our senior Canadian correspondents.

Here’s the State of Michigan’s map of Michigan Indian casinos in case you feel like supporting tribal economic development:

Michigan_Gaming_Control_Indian_Casinos_332774_7

Indian Gaming and Buying Local

Matthew L.M. Fletcher

The Mashpee Wampanoag gaming compact discussion (whether 21 percent is too high; whether Massachusetts gaming law is constitutionally valid) should, I think, take an additional factor into consideration. Massachusetts is, for lack of a better term, buying local. Massachusetts had no legal obligation to enter into a gaming compact with an Indian tribe. Leaving moral obligations aside, what did Massachusetts do? It bought local.

Compare the tribe to KG Urban, an equity development boutique whose address is Park Avenue, New York. I assuming without knowing for sure that profits from the Massachusetts casino they would propose would largely leave the state. Profits from a tribal casino would largely stay in the state. It is possible that KG Urban would pay more in taxes than a tribal casino would (this is usually the case in other states) but the large gaming corporations that run non-Indian gaming operations take their profits elsewhere (maybe where Mitt Romney puts his profits). I’d like to know if the increase in taxes on a non-Indian gaming operation offset the locality of Indian gaming profits, but I bet it’s on the side of tribal gaming. Going with a corporate gaming entity will generate those “lost revenues” state tax officials are always taking about more than tribal gaming, in other words. The state and tribe will be more significant commercial partners — both have the same interests at stake. Under our Morton v. Mancari/political status analysis of Massachusetts gaming law, local tribal control is a rational, political reason for sticking with tribal gaming (as opposed to just doing it because they like Indians, which trends toward a race-based reason).

For the tribe, this is significant as well. Massachusetts going with a tribal compact instead of a corporate (non-Indian) deal seems to be a meaningful concession, maybe on taxes, maybe on other things. It’s a tax-for-commercial partnership swap. Maybe that’s not what Congress meant in 1988, but it’s something that takes into consideration real-world economic interests.

New Scholarship on Indian Gaming and Native Identity

Matthew L.M. Fletcher

Matthew King has posted his paper, “Indian Gaming and Tribal Identity,” on SSRN. It was published in the Chicano-Latino Law Review.

Here is the abstract:

The article presents the significant developments in the law governing Indian gaming with a view to assessing gaming’s politicization of Native identity. By addressing the stereotypes and caricatures of Native Americans and tribes that animate legal and political change in the field, the article seeks to demonstrate the essentialism of Indian gaming and the consequent effect of gaming politics on Native identity. Key among the views expressed are that Indian gaming produces real, non-theoretical gains for tribes, which in turn creates new subject positions for Native Americans, and that gaming introduces substantial non-Native influence into the process of tribal government, thereby enacting a social and political cost to tribes. The article covers in separate sections the Indian Gaming Regulatory Act of 1988, Tribal-State compacting in California, and critical responses to Native identity under an identity politics rubric.

Guest Post re: Habemotalel Gaming Compact Denial

Matthew L.M. Fletcher1 Comment

From Lance Boldrey (this was originally a comment, but the importance of this issue deserves a greater audience):

Here are my general personal observations, not on behalf of any clients or my firm:

(1) The language regarding a general proportionality test to measure whether tribal revenue sharing payments roughly correspond to benefits conferred by the state is broader than past formulations. Importantly, the Department’s recognition that exclusivity is not the sole benefit that can be conferred to support revenue sharing opens the door to tribal exploration of other benefits that can support revenue sharing. Outside of California, which is the only state to have affirmatively waived its 11th Amendment immunity for suit under IGRA, this is often necessary as a practical matter to entice states to the bargaining table. (Even in California, so long as there is a Governor who doesn’t give a rip what federal law requires, some means of inducement appears necessary – unless a tribe wants a decade of litigation.) Barring the Holy Grail of a Seminole fix, tribes need the ability to be creative. For Interior, though, there is a balancing act between allowing tribes some flexibility and giving states carte blanche to turn any of the ordinary elements of a compact into a club to demand revenue sharing…

(2) The analysis of the State’s supposed concession in deducting participation fees from net win implies a lack of understanding on Interior’s part regarding the issue here. Interior says this concession lacks meaning because the NIGC already provides for the deduction of participation fees in calculating net revenue. True. But like most (if not all) revenue sharing percentages, this one is calculated on net win, which is gross revenue, not net revenue. The real point here should be that the method of calculating the percentage paid to the State is what is meaningless – it should not matter how revenue sharing is calculated, only whether the revenue sharing that results is proportional to the economic benefits provided by a state’s concessions.

(3) Interior’s dismissive analysis of the State’s claim that it should get credit for continuing to allow the Tribe’s participation in the Revenue Sharing Trust Fund makes sense. As I understand this Tribe’s compact, the State was “allowing” the Tribe to continue to receive its $1.1 million annual RSTF draw until it operates more than 349 machines. But this isn’t a real concession – the current framework of the 1999 compacts already provides for all California tribes operating less than 350 machines to receive these payments, and this Tribe is a third party beneficiary of those compacts. It almost seems like the State was trying to claw back these payments, since this Tribe would pay 15% of net win even if it operated only one machine.

Continue reading →

Choctaw and Chickasaw Nations Win Injunction against Oklahoma Courts for Accepting Jurisdiction over Claims under their Gaming Compact

Matthew L.M. Fletcher

Here is the order in Choctaw Nation and Chickasaw Nation v. State of Oklahoma (W.D. Okla.): choctawchickasaworder.

If you’ll recall, the Oklahoma Supreme Court in a series of cases held that state courts were “courts of competent jurisdiction” to take jurisdiction over tort claims brought under a Class III gaming compact approved by Oklahoma voters and, later, several Oklahoma tribes.

Oklahoma tribes (with the State consenting) then invoked the arbitration provision of the compacts, arguing the Supreme Court had violated the terms of the compact. They were successful.

This federal suit followed. Very interesting case.