Here is a link to the program. And the summary:
Some Native American tribes in Washington state are bailing out financially troubled local governments. Most native tribes are still among the poorest communities in the U.S. But in Washington, casino revenue has allowed tribes to make big donations to school districts and even to fund local government positions.
Here is the brief:
On December 10, 2010, the Supreme Court likely will decide whether to review the Ninth Circuit’s decision that the State of California failed to negotiate in good faith with the Rincon Band. This particular petition is very interesting on a number of levels, as it is really the first time a federal circuit has delved deep into the merits of a good faith claim under IGRA. Our guess is that the Court will not grant review, but it is a close question for reasons largely having to do with power politics (though we have been wrong before).
Here are the factors the Supreme Court uses to determine whether to grant cert.
(1) Circuit Splits. No split here, and perhaps there never will be. California may be the only state to have expressly waived its immunity to good faith suits under IGRA, and so the Ninth Circuit likely will be the only circuit to review this legal question for the foreseeable future. There aren’t even any splits in authority between state and/or federal courts for this reason. California in its cert petition resorted to asserting that the Department of Interior is generating splits in authority with itself by approving some compacts (Seminole Tribe) and disapproving others (Habemotolel Pomo) supposedly on revenue sharing grounds. Even assuming these two decisions cannot be reconciled (they plainly can be distinguished on the facts), we doubt there has been many (if any) cert grants based on a federal agency’s conflicting internal decisions. This factor weighs heavily in favor of letting the legal question percolate below. If there is a federal agency conflict, then let the parties appeal to the federal courts and see if any split in authority develops.
(2) Gross Error. Very unlikely that the Supreme Court would see a gross error here. This is a case of first impression, and so it would be very difficult for any court to make an obvious mistake like misapplying the correct precedents (since there aren’t any).
(3) Error Correction. This factor means that the Court will be disinclined to grant a case where the lower court merely got the facts wrong (from the point of view of the parties); in other words, cases labeled factbound. One could make a strong claim this case is factbound, given that the negotiations between governors and tribes are typically very heavily tribe-specific. A comparison between states is instructive. The 25 percent revenue sharing between Connecticut tribes and the state is entirely market-based, relating to the geography and gaming market available. The 10 percent sharing (generally) between Michigan tribes and the state also relates to the market of that region. The Rincon Band cert opposition brief does a good job of highlighting to the Court early that this particular negotiation involved only additional slot machines and the extension of the compact, not the compact from the ground up. The cert opp brief implies that this petition may even be virtually moot, in that the Colusa case expanded the pool of slot machines available to compacting tribes. In short, this is a very fact specific case.
(4) Importance. This is the key element in any cert petition — the most subjective factor in any decision made by the Court on a cert petition. And here is where Indian country is at its weakest.
Here: Rincon Band Cert Opp.
Petition is here, with link to the lower court materials.
Here: California Cert Petition.
Questions presented:
1. Whether a state demands direct taxation of an Indian tribe in compact negotiations under Section 11 of the Indian Gaming Regulatory Act, when it bargains for a share of tribal gaming revenue for the State’s general fund.
2. Whether the court below exceeded its jurisdiction to determine the State’s good faith in compact negotiations under Section 11 of the Indian Gaming Regulatory Act, when it weighed the relative value of concessions offered by the parties in those negotiations.
Lower court opinion here.
Here are the materials in City of Duluth v. Fond du Lac Band (D. Minn.):
Duluth Motion for Summary Judgment
DCT Order Granting Duluth’s Motion
The complaint and answer are here.
From the San Diego Union-Tribune:
California can’t force Indian tribes to share gambling profits to repair the state’s budget problems, the 9th U.S. Circuit Court of Appeals said Tuesday.
In a stunning blow to Gov. Arnold Schwarzenegger’s tactics when dealing with tribes wanting casinos, a divided, three-judge panel of the appeals court said the governor can’t ask for money for the state’s general fund without offering something of value in return because that amounts to an illegal tax.
The court upheld a 2008 ruling by a federal judge in San Diego that the governor was playing dirty in his negotiations with North County’s Rincon Indian band.
“This is a great, big message to the state,” Rincon Chairman Bo Mazzetti said. “Your days of trying to bully tribes around … those days are over.”
In the decision, Pasadena-based Judge Milan Smith Jr. compared the state’s efforts to those of the federal government when it took land from the Sioux after Lt. Col. George Custer reported finding gold in the Black Hills of South Dakota.
“Today, many tribes have struck figurative gold with casino gaming, and again, some state governments, just like their predecessors, are maneuvering to take, or at least share in, some of that figurative gold,” Smith wrote for a two-judge majority.
In his dissent, Judge Jay Bybee said tribes with casinos here and around the country have agreed for years to share revenue with state governments, just as Schwarzenegger was seeking.
“The holding … does not just upset the apple cart — it derails the whole train,” Bybee wrote. “If the majority is correct, then there is nothing for California to do but to authorize whatever (slot machines) the band wants. The band wins. Everything.”
The state will seek to have Tuesday’s decision reviewed by a larger panel of 9th Circuit judges, said Jeff Macedo, a spokesman for Schwarzenegger.
Legal experts disagreed on whether the case would be reviewed by a larger panel, or by the U.S. Supreme Court, should it be asked.
Macedo said the governor sees this as federal meddling.
“We still believe we were negotiating in good faith,” Macedo said. “This amounts to the federal courts again telling the state what it can and can’t do, and it’s not allowing the state the ability to negotiate these compacts.”
The ruling has big implications for Schwarzenegger, who campaigned on a promise to make tribes “pay their fair share” for casino expansions.
“It’s about millions and millions of dollars to the state of California,” said Matthew L.M. Fletcher, a law professor at Michigan State University who follows Indian legal issues nationally.
The ruling could affect other casino negotiations, he said.
The issue comes down to the kind of bargain that tribes and states can strike. The federal 1988 Indian Gaming Regulatory Act, known as IGRA, laid out how tribes can set up Las Vegas-style casinos. It said such gambling requires state approval, but that states can’t tax the profits.
From the San Diego Union-Tribune:
A federal appeals court Tuesday backed a North County tribe that says Gov. Arnold Schwarzenegger negotiated in bad faith by demanding payments for the state general fund.
The ruling in a lawsuit by the Rincon Indian band against the governor has big implications for the governor, who campaigned on a promise to make tribes “pay their fair share” for casino expansions, and for future negotiations for casino compacts.
“It’s a huge deal,” said law professor Matthew L.M. Fletcher, who follows Indian legal issues nationally. “It’s about millions and millions of dollars to the state of California.”
And it could affect negotiations between the state and other tribes, said Fletcher, who teaches at Michigan State University’s law school.
The issue comes down to what kind of bargain tribes and states can strike. The Indian Gaming Regulatory Act, which oversees how tribes can set up Las Vegas-style casinos, says that states must approve such gambling but can’t tax the profits. So states and tribes have entered into revenue-sharing contracts in which tribes have paid part of their profits in exchange for getting exclusive rights to gamble.
Turtle Talk 
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