indian gaming regulatory act

Supreme Court Declines to Lift Gun Lake Stay

Matthew L.M. Fletcher

From TV:

ALLEGAN COUNTY, Mich. (NEWSCHANNEL 3) – The Chief Justice of the Supreme Court has dealt a blow to the West Michigan tribe trying to build a casino near Wayland.

Justice John Roberts has denied the tribe’s request to vacate a stay issued by a Washington DC circuit court. That court said that the tribe would have to wait until after the Supreme Court hears the latest challenge from the anti-gambling group MichGO.

Many speculate that Roberts’ decision is an indication that the court will hear that challenge, but that may not happen until sometime in 2009. So, for now, the Gun Lake Tribe has to wait and cannot start construction on the casino in Allegan County.

“Many speculate?” Since there has not even been a cert petition filed yet, I don’t see any reason to speculate on anything yet.

Sault Tribe Wins Gaming Case Against DOI

Matthew L.M. Fletcher1 Comment

Here is the opinion: opinion

The interesting portion of this opinion is the court’s awareness that there is a circuit split over the question of whether Chevron deference will trump canons of statutory construction that favor Indian tribes. The Sixth Circuit has not yet decided this question. Here, the court chose to apply the Chevron test, but concluded that the government’s decision was arbitrary and capricious. So the question remained open.

Harvard Panel Discussion re: NIGC Authority Posted on SSRN

Matthew L.M. Fletcher

The post is here, and here is the abstract:

In a recent Senate hearing, Senator John McCain and Professor Washburn clashed about the federal role in tribal economic decisions involving Indian gaming. Professor Washburn, who was struck by decades of incompetent federal stewardship of tribal trust funds demonstrated so painfully in the Cobell litigation, questioned the wisdom of the existing gaming regulatory structure in which federal officials at the National Indian Gaming Commission (NIGC) exercise oversight of tribal economic decisions involving tens or hundreds of millions of dollars. Senator McCain sharply disagreed. Following his investigation of lobbyist Jack Abramoff, McCain was even more certain that tribes needed federal protection from outsiders like Abramoff. McCain argued that the need for such protection justified close federal oversight of tribal economic decisions. The dilemma inherent in this exchange between Senator McCain and Professor Washburn will haunt the relationship between the United States and Indian tribes in the post-Cobell (and post-Abramoff) era. The purpose of this panel discussion at Harvard Law School was to consider these issues in the context of the work of the NIGC. The NIGC reviews Indian gaming management contracts under strict statutory standards. It reviews other contracts for violation of the Indian Gaming Regulatory Act’s “sole proprietary interest” standard. In an era of tribal self-determination and self-governance, what is the justification for NIGC review of tribal economic decisions? Does the NIGC exercise a “trust responsibility” toward Indian tribes? What are the practical ramifications of having federal public servants reviewing tribal economic decisions worth tens or hundreds of millions of dollars? Are the costs of such review justified by the benefits? Is federal oversight useful for tribal transactions in which tribes have obtained the advice of Wall Street investment banks and legal counsel at sophisticated law firms? Are federal public servants competent to review the increasingly complex financial arrangements created in such transactions? Is the NIGC accountable for its decisions? What remedy ought to be available to tribes if the NIGC makes an error? If such review is necessary to protect tribes, on what basis should federal public servants disapprove such agreements?

D.C. Circuit Denies Petition for Rehearing in MichGo v. Kempthorne

Matthew L.M. Fletcher

Here is the order — michgo-rehearing-denial

Three judges (Sentelle, Griffith, and Rogers) voted to rehear the case en banc, three short of the necessary votes. Of course, that semi-near miss gives the attorneys for MichGO fodder for making noise about a cert petition (see news report here).

I really have to think that this case is getting so much attention — not because of the merits of the case — but because these same lawyers have been working on three cases so far (TOMAC, CETAC, and now MichGO) and this is finally the end. It bears repeating that these three cases were all carbon-copy cases, with little to differentiate them at all. They have almost no merit whatsoever, and even the D.C. Circuit all but labeled them frivolous in the CETAC opinion. The Gun Lake case is no different than the previous cases, except it is the last one.

Nebraska v. US DOI et al — Ponca Restored Lands Decision

Matthew L.M. Fletcher

Here are the materials in this case, filed in the Southern District of Iowa.

neb-v-doi-complaint [includes NIGC legal memorandum and NIGC Final Decision]

neb-v-doi-us-motion-to-dismiss

Erik Jensen on Gaming on Newly-Acquired Indian Lands

Matthew L.M. Fletcher

Erik Jensen has published “Indian Gaming on Newly Acquired Lands” in the Washburn Law Journal, and it is available on SSRN. Here is the abstract:

This symposium article examines the meaning of the term “Indian lands” – the lands that might become sites for Indian gaming-in the Indian Gaming Regulatory Act of 1988. At its core, the term is unambiguous: it includes reservations and other lands that, at the time of IGRA’s enactment, were held in trust by the United States for the benefit of American Indian nations. But “Indian lands” can include much more. Indeed, it is possible for real estate having only the most tenuous historical connections with a tribe (perhaps having no connections at all) to become “Indian lands.” The treatment of so-called “newly acquired lands” has potentially far-reaching economic consequences for American Indian nations, but also for non-Indian populations, which can share in the benefits of tribal economic development. Along the way, the article discusses the basics of IGRA, recent developments affecting newly acquired lands, and whether an expansive conception of “Indian lands” is a good thing.

Muskegon County in Support of LRB Casino Proposal

Matthew L.M. Fletcher

From Indianz:

The Little River Band of Ottawa Indians is seeing support for its off-reservation casino in Muskegon, Michigan.

The board of commissioners in Muskegon County passed a resolution in support of the project. The tribe said local approval is one step in the long process for the casino. The tribe purchased the former Great Lakes Downs and plans a $100 million casino.

Get the Story:
Muskegon County bets on casino at former track (Press News Service 7/18 )

Rand, Meister, and Light on the “Guidance”

Matthew L.M. Fletcher

Kathryn Rand, Alan Meister, and Steven Light have published “Questionable Federal ‘Guidance’ on Off-Reservation Indian Gaming: Legal and Economic Issues” in the Gaming Law Review. Here is a snippet:

In January 2008, Carl Artman, the assistant secretary for Indian affairs at the U.S. Department of the Interior, issued a memorandum titled, “Guidance on taking off-reservation land into trust for gaming purposes.” The guidance memo signaled a significant change in the department’s position on Indian gaming on newly acquired trust lands or “off-reservation” gaming, a change that had been brewing for more than four years.
The memo also garnered the immediate attention of Congress. In February 2008, the House Committee on Natural Resources held an oversight hearing on the memo for the purpose of examining “how the new Guidance was developed, whether it was lawfully enacted, the ramifications of the new requirements on all off-reservation fee to trust applications, and whether this signifies an attempt by the Administration to change Federal policy towards Indian tribes.”  As Committee Chair Nick Rahall (D-W.Va.) stated, “The potential change to the Federal policy towards Indian tribes is disturbing …. [W]e have to question if this Administration is advocating a policy to keep Indians on the reservation.”
Several legal and economic questions are raised by the guidance memo. This article is by no means intended to be the last word on the memo’s legality, nor on the wisdom of its requirements from legal, public policy, or economic perspectives. It is, however, meant to question the memo’s procedural genesis and substantive “guidance.”

Steven Light on Gaming and Intergovernmental Relations

Matthew L.M. Fletcher

Steve Light (UND) has published “Indian Gaming and Governmental Relations: State-Level Constraints on Tribal Political Influence over Policy Outcomes” in the American Review of Public Administration. The article uses recent gaming compact and revenue sharing issues in Minnesota as a case study.

light-igr-in-minnesota

Seneca Gaming Case Decided by DCT

Matthew L.M. Fletcher1 Comment

The district court in CECGAC v. Hogen held that the NIGC’s determination that Seneca gaming at its Buffalo parcel was valid under the land claims settlement exception was arbitrary and capricious, because no extant Seneca land claim existed at the time of the time of the settlement.

Here are the briefs. Here is the opinion.