indian gaming regulatory act – Page 20

Off-Reservation Gaming Review Close to Completion

November 7, 2009Matthew L.M. Fletcher

From ICT:

NEW YORK – Sen. Charles Schumer, D-N.Y., says the Obama administration will make a critical decision on off-reservation gaming policy in the coming weeks.

Schumer told the Times Herald Online that he recently spoke with Interior Secretary Ken Salazar, who is reviewing a “guidance memorandum” issued by former Interior Secretary Dirk Kempthorne in January 2008. The controversial guidance placed a new hurdle on land into trust applications for gaming – a “commutability” standard under which the applied-for land is to be considered in light of its distance from a nation’s reservation, regardless of whether it is within a nation’s historical territories.

The memo caused an uproar across Indian country, not only because distance isn’t mentioned in the Indian Gaming Regulatory Act, but also because the guidance effectively amounted to a new regulation that had been promulgated without consultation with the nations, raising memories of the days of federal paternalism and policies to keep Indians on reservations.
Continue reading →

Mohegan Tribe Per Caps under Scrutiny by Lenders

October 26, 2009Matthew L.M. Fletcher

From the Day:

Times were flush when the Mohegans sought the U.S. Bureau of Indian Affairs’ approval of the tribe’s plan for distributing gaming revenues.

After ensuring that the plan provided adequate funding for tribal government and economic development, among other things, the deputy commissioner of Indian Affairs signed off on the plan on July 16, 2001. It calls for 40 to 50 percent of the tribe’s net gaming revenues from Mohegan Sun to be distributed to the tribe’s adult members on a quarterly basis.

More recently, on Jan. 4, 2008, the office of the secretary of the Department of the Interior approved a Gaming Revenue Allocation Plan submitted by the Mashantucket Pequots. Under the plan, up to 30 percent of the net gaming revenues generated by Foxwoods Resort Casino (including MGM Grand at Foxwoods, which opened in May 2008) are to be distributed to tribal adults “to help advance their personal health, safety and welfare.”

The plans, which the BIA requires of tribes that choose to make so-called per capita payments to members, have come under scrutiny in recent weeks, particularly in the case of the Mashantucket Pequots, who are seeking to restructure a debt load of more than $2 billion. Gaming industry analysts and the Mashantuckets’ creditors are more interested than ever in how the tribe distributes its gaming revenue.

The creditors were alarmed in late August when Mashantucket Chairman Michael Thomas, addressing tribal members about the “dire financial times” facing the tribe, vowed to protect funding for tribal government and per capita “incentive” payments from further cuts. The pledge, which many within and without Indian Country considered irresponsible, cost Thomas his chairmanship. Placed on administrative leave and facing a tribal council vote to expel him from the council, Thomas announced he would not seek re-election Nov. 1.
“He’s not that relevant at the moment,” Jane Pedreira, a gaming analyst with Rye, N.Y.-based Clear Sights Research, said last week.

With Thomas out of the picture, the investment world is keen to learn about the tribe’s funding of its tribal operations and the payouts its members receive. If they’re having trouble finding such information, “it’s not for our lack of looking,” one investor said.

Plans’ percentage breakdowns

Copies of the revenue-allocation plans, which The Day obtained from the BIA through a federal Freedom of Information Act request, detail the percentage breakdown of the tribes’ allocation of their net gaming revenues. The Mohegans’ 10-page plan specifies that 30 to 40 percent of the tribe’s revenue is to be dedicated to tribal-government operations and programs, including investments and education; 5 to 15 percent to the general welfare of tribal members, including investments, health, housing, social services and youth services programs; and 10 to 20 percent to economic development, both gaming and non-gaming related. Continue reading →

Materials in North Carolina Gaming Case

October 20, 2009Matthew L.M. Fletcher6 Comments

Here are the State’s briefs at least in McCracken and Amick, Inc. v. Perdue, the appeal of a trial judge’s decision in North Carolina finding it unconstitutional under state law for the State to enter into gaming compacts with tribes but not with other citizens of the State. The lower court opinion is here.

North Carolina Brief

North Carolina Reply Brief

Challenge to N.C. Video Poker Ban Heard in State Appellate Court

October 15, 2009October 15, 2009Matthew L.M. Fletcher

This case involved, if I recall correctly, a sort-of equal protection challenge to a state video poker ban in North Carolina on grounds that the N.C. tribes have gaming compacts, etc. Lower court opinion here.

From TV via Pechanga:

Appeals court judges hearing arguments Wednesday on the legality of North Carolina’s video poker ban sounded wary of negating the will of the General Assembly when it granted an exception to machines on the Cherokee Indian reservation.

Two of the three judges on the panel of the state Court of Appeals, which considered a Wake County judge’s ruling earlier this year that overturned the 2006 law, peppered an attorney for an amusement machine vendor with questions about why it should step into a legislative policy question.

Video poker machines could be permitted again in all 100 counties should the lower court keep the ruling in place.

“I always thought that the Legislature set public policy,” Judge Robert Hunter of Marion asked Hugh Stevens, representing vendor McCracken and Amick Inc., which sued over the ban. “You seem to argue that this is somehow contrary to the public policy of the state.” Continue reading →

Federal Court Dismisses Pro Se Claim for Tribal Per Cap

September 26, 2009Matthew L.M. Fletcher

Here is the opinion ins Springer v. Griffin (D. Neb.), a claim against the Omaha Tribe — Springer v Griffin

An excerpt:

Liberally construed, Plaintiff brings his claims pursuant to the Indian Gaming Regulation Act (“IGRA”). 25 U.S.C. §§ 2701-2721. The IRGA provides Indian tribes with the authority to distribute gaming proceeds to tribal members, per capita, if such distribution is in compliance with an approved allocation plan. See 25 U.S.C. § 2710(b)(3). It is unclear from Plaintiff’s Complaint if the Omaha Tribe has such an approved plan. However, even if it does, whether Plaintiff is entitled to the tribe’s casino proceeds turns on a determination of whether Plaintiff is a tribal member.

If Plaintiff is not a tribal member, the court lacks jurisdiction to over his claims. As discussed above, a tribe has the exclusive authority to determine its membership. There is no greater intrusion upon tribal sovereignty than for a federal court to interfere with this determination. See Smith, 100 F.3d at 559. Continue reading →

Opening NIGC Appellate Brief in Carter Lake Casino Dispute

August 29, 2009Matthew L.M. Fletcher

Here is the NIGC brief in Nebraska ex rel. Bruner v. Dept. of Interior/NIGC — Federal – NIGC Appellant Brief

Lower court materials are here and here.

Federal Judge Contempt Order against Ysleta Del Sur Pueblo

August 5, 2009Matthew L.M. Fletcher1 Comment

Here are the materials in the ongoing dispute over gaming in El Paso (reported here, via Pechanga).

Texas Motion for Contempt

Tigua Response Brief

Texas Reply Brief

DCT Order Granting Motion for Contempt

And an additional order, just for fun:

DCT Order Clarifying Judgment

Ninth Circuit Rejects Challenge to Nooksack Casino

July 17, 2009July 17, 2009Matthew L.M. Fletcher1 Comment

Here is the opinion, with dissent, in North County Community Alliance v. Salazar.

Briefs:

North County Community Allliance Brief

Federal Appellee Brief

An excerpt from the majority:

We hold that the Alliance’s challenge to the NIGC’s 1993

approval of the Ordinance, insofar as it relates to the licensing

and construction of the Casino, is not time-barred. We hold on

the merits that the NIGC did not have a duty under IGRA to

make an Indian lands determination in 1993 before approving

the Nooksacks’ non-site-specific proposed gaming Ordinance.

We also hold that the NIGC did not have a duty under IGRA

to make an Indian lands determination in 2006 when the

Nooksacks licensed and began construction of the Casino pursuant

to the approved Ordinance. Finally, we hold that there

was no violation of NEPA.

We hold that the Alliance’s challenge to the NIGC’s 1993 approval of the Ordinance, insofar as it relates to the licensing and construction of the Casino, is not time-barred. We hold on the merits that the NIGC did not have a duty under IGRA to make an Indian lands determination in 1993 before approving the Nooksacks’ non-site-specific proposed gaming Ordinance. We also hold that the NIGC did not have a duty under IGRA to make an Indian lands determination in 2006 when the Nooksacks licensed and began construction of the Casino pursuant to the approved Ordinance. Finally, we hold that there was no violation of NEPA.

And from the dissent:

Continue reading →

Kevin Washburn on IGRA and Agency Culture

July 5, 2009July 5, 2009Matthew L.M. Fletcher

Agency Culture and Conflict: Federal Implementation of the Indian Gaming Regulatory Act by the National Indian Gaming Commission, the Bureau of Indian Affairs, and the Department of Justice
Arizona State Law Journal, Forthcoming
Kevin K. Washburn
University of New Mexico Law School — Dean and Professor of Law

Here’s the abstract:

Indian gaming provides a lens through which to consider the implications of divided federal executive power. The Indian Gaming Regulatory Act is implemented by at least three federal agencies, each of which has somewhat different interests. Moreover, none of these agencies is monolithic and each must reconcile competing interests within its own domain. In examining the culture of three federal agencies, the author seeks to shed light on divided executive branch governance. The article briefly addresses three different issues: the ‘independence’ of an independent agency, the NIGC, which lacks litigating authority; the problem with shared subject matter jurisdiction by DOJ and NIGC over game classification, and shared decision making by NIGC and DOI on Indian lands questions. The author concludes that divided federal power creates substantial coordination problems at the federal level. These problems often prevent the federal government from speaking with one clear voice that would generate deference to executive power, and sometimes prevent the exercise of executive action. If governmental power in Indian affairs is a zero sum game, one clear consequence of divided federal power is increased tribal sovereignty.