indian gaming regulatory act

Student Paper on Gaming and Environmental Law

Matthew L.M. Fletcher

The Boston College Environmental Affairs Law Review has published “Betting the Rancheria: Environmental Protections as Bargaining Chips Under the Indian Gaming Regulatory Act,” by Matthew Murphy. You can access the article here, but it begins on page 171 of the pdf, which takes some time to download. Here is the abstract:

In 2005, the State of California and the Big Lagoon Rancheria American Indian Tribe reached an agreement whereby the tribe agreed to forego development plans for a casino on environmentally sensitive lands in exchange for the right to build a casino in Barstow, California. In January 2008, the Department of the Interior denied the Rancheria’s land-into-trust application for land in Barstow based on the Department’s newly issued “commutable distance” memorandum. This denial represents a missed opportunity to allow California and the tribe to cooperate in fashioning a workable tribal-state compact. The Department should abandon the guidance memorandum and allow tribes to pursue off-reservation gaming in appropriate instances where the proposed development enjoys political support at the local level. In exchange, states should be afforded greater deference under the Indian Gaming Regulatory Act to achieve some level of regulatory control to address the off-reservation impacts of casino development.

Supreme Court Denies Cert in Seminole Tribe v. Florida House of Representatives

Matthew L.M. Fletcher

Here is the Court’s order list for today. Seminole’s bad news is on page 3.

This was to be expected, though at some point the Court will grant cert on an Indian Gaming Regulatory Act case, if enough state supreme courts come through with strange opinions. It might be awhile….

Commentary: Now Is the Time for Michigan Tribes to Renew Their Gaming Compacts

Matthew L.M. Fletcher2 Comments

The success — shocking and aweing (surely to the MichGO plaintiffs — :)) — of the Gun Lake Band in getting their Class III gaming compact through the Michigan Senate (controlled by Republicans) and House (controlled by Dems, and a few years back had previously approved the compact) should be a serious sign to the rest of the Michigan tribes — NOW is the time to renew or renegotiate gaming compacts.

Here are the facts:

  1. Michigan, and the rest of the US, is in a serious, serious economic downturn.
  2. The State of Michigan, losing tax revenue each and every day, and suffering through year after year of declining governmental revenues.
  3. Michigan tribes, also, are suffering through declining revenue. It turns out that gaming may be recession-proof, but it surely isn’t depression-proof. Now is the time to prove to the State’s negotiators that tribes will be hurt — perhaps even killed — by increased revenue sharing.
  4. Gov. Granholm isn’t going to be the State’s governor forever. The next governor may be someone far less likely to (a) negotiate an Indian gaming compact with reasonable terms, or (b) negotiate a gaming compact at all.
  5. Tribes like Burt Lake will be knocking at the State’s door offering something more than 10 percent, all the way up to the Detroit casino’s 36 percent (did I get that percentage right?).

Continue reading →

McCracken v. Easley — N.C. Court Says IGRA Doesn’t Allow State to Ban Video Poker

Matthew L.M. Fletcher1 Comment

Here is the opinion in McCracken v. Easley — mccracken-v-easley (via Pechanga and TV):

Strange case. Without any discussion except one sentence, the court struck down a state law ban on video poker, a ban that excluded tribal gaming in accordance with a Class III compact. The sentence is: “IGRA does not permit a state to ban the possession and operation of video gaming machines elsewhere in the state while allowing their possession and operation on tribal lands.”

I’d like to see the briefs, but all I can say is … baffling. Of course IGRA allows exactly this kind of law. IGRA allows tribes to negotiate and execute Class III compacts with states that have not banned gaming outright. And even if the state bans all gaming post-Class III compact, the compact will continue until it expires.

Commentary on Possible Burt Lake Band Casino Development

Matthew L.M. Fletcher2 Comments

Yesterday’s interesting statement by a lawyer for the Burt Lake Band suggesting that all the Band would need to commence gaming is simple legislation from the State Legislature deserves a spot of commentary. I guess their lawyer is reading this provision of the Michigan Constitution, added by state referendum in 2004, for support:

The legislature may authorize lotteries and permit the sale of lottery tickets in the manner provided by law. No law enacted after January 1, 2004, that authorizes any form of gambling shall be effective, nor after January 1, 2004, shall any new state lottery games utilizing table games or player operated mechanical or electronic devices be established, without the approval of a majority of electors voting in a statewide general election and a majority of electors voting in the township or city where gambling will take place. This section shall not apply to gambling in up to three casinos in the City of Detroit or to Indian tribal gaming. [Mich. Const. sec. 41, emphasis added]

Since Burt Lake Band is not a federally recognized tribe, they would not be subject the requirements of the Indian Gaming Regulatory Act, nor would the Department of Interior take land into trust for the Band under 25 U.S.C. 465. So the lawyer’s statement (“A bill will have to be introduced, passed by a simple majority in the House and Senate, has to be signed by Gov. Granholm, and we can rock and roll from there”) that the Band isn’t subject to all these difficult regulatory hurdles is correct, perhaps, but only if the Band would be considered eligible for “Indian tribal gaming” under Section 41.

Leaving aside for the moment the very real political problem the Band would face getting the Michigan Legislature to pass a special statute for them, I think there might be a significant legal problem facing the Band. Literally read, Section 41 applies to all Indian tribes. Burt Lake Band is an Indian tribe, as are the 12 federally recognized tribes. And so are the other non-federally recognized tribes as the Mackinaw Band, the Black River and Swan Creek Band, and Grand River Band. However, I strongly suspect the intent of the provision was to protect the federally recognized tribes of Michigan.

In short, I doubt the “Indian tribal gaming” language was intended to include tribes like the Burt Lake Band. It is my understanding (I was living in Grand Forks, N.D. when the voters adopted this referendum) that the key sponsors of the language were the federally recognized tribes. If there is any legislative history on this Section, I’d like to see it. Moreover, the State of Michigan has cut deals with all 12 federally recognized tribes to conduct gaming under the Indian Gaming Regulatory Act, so it makes additional sense to limit the “Indian tribal gaming” language.

I think there are also some sound public policy reasons for limiting the application of that language. The key one for me is that, if Burt Lake Band gets special legislation, Michigan will be innundated by Johnny-come-lately “Indian tribes” from all over looking for the same backdoor to a casino.

I’m a very strong supporter of Burt Lake’s petition for federal recognition, and any efforts to convince Congress to recognize the Band. But I surely hope their lawyer is doing more than just blowing smoke. There isn’t going to be much “rock and roll” from here.

Georgetown Law Journal Article on IGRA and Sovereign Immunity

Matthew L.M. Fletcher

Courtney J.A. DaCosta has published “When ‘Turnabout’ is Not ‘Fair Play’: Tribal Immunity under the Indian Gaming Regulatory Act” in the Georgetown Law Journal. An excerpt:

This Note argues that federal courts have interpreted tribal immunity broadly under IGRA; that this approach, while doctrinally sound, produces several normatively undesirable consequences; and that Congress should stem these consequences by amending IGRA to restore the statute’s tribal-state power balance through abrogation of tribal immunity in certain cases.

Florida House of Representatives Opposition to Cert Petition

Matthew L.M. Fletcher

Here is the respondent’s response to the cert petition filed in Seminole Tribe v. Florida House of Reps.

MichGO Cert Petition Denied — UPDATE

Matthew L.M. Fletcher3 Comments

The SCT list of orders is here (the line is near the bottom of page 10).

The Gun Lake Band’s press release is here: pr-cert-denied-12109

And a timeline of the case is here: glt-casino-timeline-12109

Thanks to Gale and Zeke for these materials.

US Drops Appeal of Soo Tribe Gaming Lands Case

Matthew L.M. Fletcher

From Indianz (the lower court opinion is here):

The federal government has dropped its appeal of a gaming case involving the Sault Ste. Marie Tribe of Chippewa Indians of Michigan.

The tribe spent $41 million on the Kewadin Shores Casino but the National Indian Gaming Commission said the site didn’t qualify under the Indian Gaming Regulatory Act. The land was taken into trust after 1988, the year IGRA became law. A federal judge disagreed, noting that the casino site is adjacent to land that was already in trust prior to 1988. The Department of Justice filed a notice of appeal but withdrew it this week, the Associated Press reported.

Get the Story:
Legal threat to Indian tribe’s Mich. casino over (AP 1/15)

Commentary on Harrah’s v. NGV Gaming Cert Petition

Matthew L.M. Fletcher1 Comment

Here is the reply brief from Harrah’s, and so the certiorari briefing is concluded (the petition is here, and the opposition is here).

I was a little surprised that SCOTUSblog lists this case as a petition to watch. I don’t see any of the indicators that this would be the kind of case to make the discuss list (including either party employing a member of the Supreme Court “bar” suggested by Prof. Lazarus), except for the very superficial circuit split alleged by the petitioners. Maybe they know something I don’t. [I suppose that SCOTUSblog might think this case is similar to Carcieri and MichGO, but I doubt it.]

I say the circuit split is superficial, but in reality it is illusory. The claimed split is between the Ninth and Second Circuits over the definition of “Indian lands.” The CA2 looked at “Indian lands” as used in the Indian Gaming Regulatory Act (25 U.S.C. 2711), and the CA9 looked at “Indian lands” as used in Section 81 of Title 25. The CA2 said that IGRA’s “Indian lands” definition includes both lands already held in trust and lands that will go into trust. The CA9 says that Section 81’s “Indian lands” definition includes only lands already held in trust. Both courts seem to have spent some time reading the dictionary on these cases — 1 U.S.C. 1 et seq. Looks like a split, right?

NO.

Hopefully, the SCT and their clerks will realize that no split exists at all. There are two reasons. First, the purposes of each statute distinguish them, even though they use the same words. Second, the operation and implementation of the different statutes prevent them from conflicting. I really don’t think the Dictionary Act would trump either of these two arguments, or else someone better go back and reargue D.C. v. Heller.

OK, the first point. Section 2711 is about management contracts that tribes might sign to manage a gaming facility. Tribes will and do sign these contracts long before any land is taken into trust, and even before a tribe owns a single acre. So it is the National Indian Gaming Commission’s responsibility to review these contracts could kick in before any land is taken into trust, making the CA2’s outcome reasonable. Section 81, on the other hand, is about tribes collateralizing lands held in trust for the tribes by the Secretary of Interior. There’s no reason to review a contract that potentially encumbers tribal trust land unless that land is already in trust, making the CA9’s decision reasonable.

Which leads to the second point, closely related — the Secretary cannot take land into trust without first determining that there are no encumbrances on the land (25 U.S.C. 465). So under Section 81, the Secretary doesn’t need to review a contract that might encumber trust land. In other words, the Secretary will never review a contract that might encumber “Indian lands” under Section 81 unless the land is already in trust. So, the CA9’s decision is the only decision possible. Conversely, IGRA expressly allows for the NIGC to review a contract regarding lands that will go into trust, often because the contract itself will provide the tribe funds to buy lands and ask the Secretary to take the land into trust.

And so, no circuit split.

I hope the Court isn’t confused by this one.