Burt Lake Band Prevails in Federal Recognition Procedural Dispute with Interior, Case Remanded

Here is the order in Burt Lake Band of Ottawa and Chippewa Indians v. Bernhardt (D.D.C.):

Briefs here.

Standing Rock/NoDAPL Motion to File Amicus in Support of Dakota Access and ACOE Brief Regarding Remedy

Here are the briefs(PDF) in the matter of Standing Rock Sioux Tribe et al v. U.S. Army Corps of Engineers et al, (D.D.C. 16-cv-01534):

Link: Previously filed documents

Kialegee Tribal Town Sues DOI Over Jurisdiction After Muscogee (Creek) Nation Raid

Links: Tulsa World coverage

Download(PDF) complaint in the matter of Kialegee Tribal Town v. Zinke et al, 17-cv-01670 (D.C. Circuit August 17, 2017): Doc. 1 – Complaint for Declaratory and Injunctive Relief

Kialegee Tribal Town is arguing the precedence of last week’s Murphy v. Royal like Cherokee Nation is in McKesson v. Hembree.

Bismarck Tribune Article on Lack of Written Easement From Corps for Dakota Access Pipeline

Here.

While hundreds are settling in for the long haul at an encampment to protest the Dakota Access Pipeline, the U.S. Army Corps of Engineers confirmed Thursday that the pipeline developer, Energy Transfer Partners, does not yet have a written easement to build the pipeline on corps property.

Corps spokesman Larry Janis said the easement is still under review, though the agency did issue Section 408 permission in late July that allows the easement to be written.

“They can’t build the project by accessing corps property from west to east across Lake Oahe,” Janis said of any current construction.

***

The realization that the company still does not have an actual easement surfaced Wednesday in a federal district court in Washington, D.C., where the Sioux tribe’s request for an injunction to stop the pipeline pending its suit against the corps was heard. The court judge said he wants more time to study whether the corps failed to follow the National Historic Preservation Act and other federal laws in its environmental review of the project. The judge said he will rule on the injunction Sept. 9.

Documents in the hearing discussed in the article are here.

 

Federal Court Rejects Mackinac Tribe’s Bid for Federal Recognition

Here is the order in Mackinac Tribe v. Jewell (D. D.C.):

19 DCT Order

Briefs are here.

NIGC Prevails in Dispute with City of Duluth over the Fond du Luth Casino

The D.C. District Court granted the NIGC’s motion for summary judgment and dismissed the City’s APA challenge to the Fond-du-Luth NOV. Here is the order in City of Duluth v. National Indian Gaming Commission (D. D.C.):

APA case — District Court Op. (March 31 2015)

An excerpt:

Plaintiff City of Duluth, Minnesota, brings this action challenging a Notice of Violation (“NOV”) that the National Indian Gaming Commission (the “Commission”) issued to the Fond du Lac Band of Lake Superior Chippewa (the “Band”) with respect to Band’s gaming establishment in the City of Duluth. This action is the latest step in a long saga pertaining to the relationship of the Band and the City of Duluth with respect to gaming, including proceedings in federal court in Minnesota, before the National Indian Gaming Commission, and, now, before this Court as well. In a nutshell, in the NOV, issued July 12, 2011, the National Indian Gaming Commission informed the Band that the 1994 Agreement between the Band and the City of Duluth violated the requirement that the Band have the “sole proprietary interest” in the gaming activity pursuant to the Indian Gaming Regulatory Act of 1988. The City of Duluth filed this action pursuant to the Administrative Procedure Act, claiming that the NOV, first, was arbitrary, capricious or otherwise not in accordance with law, and, second, exceeded Defendants’ authority under the Indian Gaming Regulatory Act. The City of Duluth requests that the NOV be set aside and requests related declaratory and injunctive relief. The Federal Defendants—the Commission and Jonodev Chaudhuri, in his official capacity as Acting Chairman of the National Indian Gaming Commission—argue that the NOV neither was arbitrary or capricious nor exceeded the scope of the Commission’s authority. Before the Court are Plaintiff’s [24] Motion for Summary Judgment and the Federal Defendants’ [26] Cross-Motion for Summary Judgment. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court DENIES Plaintiff’s [24] Motion for Summary Judgment and GRANTS the Federal Defendants’ [26] Cross-Motion for Summary Judgment. The Court concludes that the NOV was not arbitrary or capricious; that it did not exceed the scope of the Commission’s authority; and that none of the other legal infirmities that Plaintiff identifies are grounds for setting aside the NOV. Accordingly, this case is dismissed in its entirety.

Briefs are here.

Forest County Potawatomi Complaint re: Denial of Class III Gaming Compact — And Commentary

The Forest County Potawatomi Community has filed a complaint against the Department of the Interior over the disapproval of its gaming compact – the latest development in the Menominee Tribe’s efforts to develop a class III gaming facility in Kenosha, Wisconsin.

Here are some initial thoughts about the case:

  1. These are very difficult cases to win. Under the Administrative Procedure Act, federal agencies have broad discretion in making decisions and interpreting statutory law.  The Department’s decision to disapprove the Forest County Potawatomi gaming compact strikes me as consistent with its approach in recent years to limit the scope of these types of agreements.
  2.  The Complaint alleges that the Department’s rejection of the compact “departed from long-established and consistent policies reflected in previous [compact] decisions…” However, the Department of the Interior has always expressed concerns over revenue sharing in gaming compacts.  In the past 15 years, the Department has also warned tribes that gaming compacts are not an appropriate means to restrict the ability of other Indian tribes to engage in gaming under IGRA – including the Forest County Potawatomi Community.  Finally, the Department of the Interior under the Obama Administration has rejected a number of gaming compacts for similar reasons.
  3. The Complaint alleges that “Potawatomi has not received what it bargained for:…the 50-mile non-competition zone.” Later, it asserts that “[Potawatomi] has paid the State over $243 million” for that benefit.  This sounds like Potawatomi intends the new compact to remedy the old compact’s supposed flaws, which is a tough sell considering the fact that the Forest County Potawatomi Community has enjoyed the exclusive right to operate a gaming facility in Milwaukee for more than two decades.  
  4. The Department’s decision to disapprove the Forest County Potawatomi gaming compact was based on its determination that the compact included terms that went far beyond what IGRA allows. The Complaint alleges that determination was wrong, and states, “IGRA expressly provides that a compact may include provisions that take into account the adverse economic impacts on existing gaming activities” and then cites 25 U.S.C. §§ 2710(d)(7)(A)(iii)(I) and 2710 (d)(3)(C)(vii).  Nothing in either of those sections of IGRA “expressly” allows a compact to include terms that mitigate a tribal gaming facility for lost profits.  The Department is going to get a lot of deference on its interpretation of those sections.
  5. The Complaint alleges that the Department had “a ministerial duty to approve the [Potawatomi] Compact amendment” because it was the product of an earlier compact amendment that survived the Department’s review. This is, perhaps, the biggest stretch in the complaint.  A court could see that argument as an effort to allow tribes and states to collude to avoid DOI review of gaming compact amendments.

Gaming compacts have become increasingly more complex, and the Department of the Interior has become much more active in reviewing those agreements.  This will be a difficult case for Forest County Potawatomi to win, as I suspect the Court will defer to the Department’s expertise in this area. All in all, there are lot of interesting questions for the court to consider in this matter.

Here are related documents:

1-1 Exhibit A — Compact Amendment

1-2 Exhibit B — Disapproval Letter