Indian gaming

Cookson’s Empirical Analysis of the Location of Indian Casinos (and Commentary)

Matthew L.M. Fletcher

J. Anthony Cookson has published “Institutions and Casinos on American Indian Reservations: An Empirical Analysis of the Location of Indian Casinos” in the Journal of Law & Economics. Here is the abstract:

This paper empirically investigates the institutional determinants of whether a tribal government invests in a casino. I find that the presence of Indian casinos is strongly related to plausibly exogenous variation in reservations’ legal and political institutions. Tribal governments that can negotiate gaming compacts with multiple state governments, because tribal lands span state borders, had more than twice the estimated probability (.77 versus .32) of operating an Indian casino in 1999. Tribal governments of reservations where contracts are adjudicated in state courts, rather than tribal courts, have more than twice the estimated probability (.76 versus .34) of investing in an Indian casino, ceteris paribus. These findings suggest that states’ political pressures and predictable judiciaries affect incentives to invest in casinos. This study contributes, more generally, to the empirical literature on the effects of institutions by providing new evidence that low-cost contracting is important for taking advantage of substantial investment opportunities.

“Ceteris paribus” by the way means “all things being equal.”

Interestingly, this paper builds on Anderson et al. from a few years back suggesting that Indians living in PL280 states are richer because of state jurisdiction:

Building on Anderson and Parker (2008), this paper provides empirical evidence that Public Law 280 state court jurisdiction engenders Indian casino investment, which may itself lead to per capita income growth (see regression results in Anderson and Parker [2008], as well as Evans and Topoleski [2002]). Narrowing the scope of the response variable to a single important segment of the reservation economy enhances the validity of the estimates of my regressions. Instead of using broad measures of economic progress (for example, Anderson and Parker [2008] use per capita income) as the dependent variable, I use the presence of a casino investment by 1999.

But Carole Goldberg’s response to the Anderson paper (In Theory, In Practice: Judging State Jurisdiction in Indian Country, 81 University of Colorado Law Review 1027 (2010), sadly is not discussed in Cookson’s paper. Prof. Goldberg writes in one passage I find particularly important:

For purposes of empirical research, this statutory assignment of tribes to one category or another raises the possibility of selection bias. In other words, if Congress selected the mandatory states and their tribes because these tribes were the most assimilated or because they were otherwise the best positioned to achieve economic success, then that very selection would determine the outcome of higher per capita income and not whether the reservation was subject to state jurisdiction as opposed to tribal jurisdiction. There is, in fact, reason to believe that Congress chose tribes for inclusion and exclusion from Public Law 280 based on their inclination to participate in the market economy and to strive for economic success as measured by per capita income.

Ultimately, for me, it doesn’t seem to make any real sense to conclude that anything except location and economics markets force us to reach the conclusion PL280-state Indians are richer (or have greater casino investment opportunity) than non-PL280-state Indians. State jurisdiction is a red herring. If the states studied included South Dakota, North Dakota, and Montana (bad gaming markets) instead of California, Minnesota, and Wisconsin (better gaming markets), and the studies reached the same conclusion, then I’d be more persuaded.

If anyone wants the Cookson, Anderson & Parker, or Goldberg papers, let me know.

Sixth Circuit Briefing on Bay Mills Indian Community Motion to Stay Injunction Pending Appeal

Matthew L.M. Fletcher1 Comment

Here are those briefs (so far):

BMIC Motion to Stay Injunction

LTBB Response to BMIC Motion

State of Michigan Response to BMIC Motion

News article here (via Pechanga).

Oklahoma Sup. Ct. Decides Land Title Dispute involving Non-Recognized Tribe

Matthew L.M. Fletcher

Here is the short opinion in Perme v. Southern Cherokee Nation of Oklahoma.

An exceprt:

In August 2000, Dynamic Gaming Solutions, Inc. (Dynamic), entered into an agreement with Gary Ridge, who represented himself as the Chief of the Southern Cherokee Nation. Pursuant to said agreement, Dynamic agreed to purchase two pieces of property in Webber Falls, Oklahoma, for the purpose of constructing a casino. Such casino operation was represented to be legally possible, according to Mr. Ridge, because the Southern Cherokee were a legitimate Indian tribe and, therefore, were a sovereign nation able to construct and operate a gaming business. Mr. Perme, who was a principal in Dynamic, agreed, as part of such transaction, to purchase eighty (80) acres for the benefit of Mr. Ridge and his tribe. The subject eighty (80) acres was deeded on August 28, 2000, by Richard A. Hayes and his wife, Margaret A. Hayes, to “The United States of America to be held in trust for the Southern Cherokee Indian Tribe.”

New Book on California v. Cabazon Band of Mission Indians

Matthew L.M. Fletcher1 Comment

Ralph A. Rossum has published, “The Supreme Court and Tribal Gaming: California v. Cabazon Band of Mission Indians,” as part of Landmark Law Cases and American Society series from the University of Kansas Press. 

Here is the press’s blurb:

When the Cabazon Band of Mission Indians—a small tribe of only 25 members—first opened a high-stakes bingo parlor, the operation was shut down by the State of California as a violation of its gambling laws. It took a Supreme Court decision to overturn the state’s action, confirm the autonomy of tribes, and pave the way for other tribes to operate gaming centers throughout America.

Ralph Rossum explores the origins, arguments, and impact of California v. Cabazon Band of Mission Indians, the 1987 Supreme Court decision that reasserted the unique federally supported sovereignty of Indian nations, effectively barring individual states from interfering with that sovereignty and opening the door for the explosive growth of Indian casinos over the next two decades.

Rossum has crafted an evenhanded overview of the case itself—its origins, how it was argued at every level of the judicial system, and the decision’s impact—as he brings to life the essential debates pitting Indian rights against the regulatory powers of the states. He also provides historical grounding for the case through a cogent analysis of previous Supreme Court decisions and legislative efforts from the late colonial period to the present, tracking the troubled course of Indian law through a terrain of abrogated treaties, unenforced court decisions, confused statutes, and harsh administrative rulings.

In its decision, the Court held that states are barred from interfering with tribal gaming enterprises catering primarily to non-Indian participants and operating in Indian country. As a result of that ruling—and of Congress’s subsequent passage of the Indian Gaming Regulatory Act—tribal gaming has become a multibillion dollar business encompassing 425 casinos operated by 238 tribes in 29 states. Such enormous growth has funded a renaissance of reservation self-governance and culture, once written off as permanently impoverished.

As Rossum shows, Cabazon also brings together in one case a debate over the meaning of tribal sovereignty, the relationship of tribes to the federal government and the states, and the appropriateness of having distinctive canons of construction for federal Indian law. His concise and insightful study makes clear the significance of this landmark case as it attests to the sovereignty of both Native Americans and the law.

“Some view Cabazon as an emphatic ruling supporting tribal sovereignty, while others see it as a deeply compromised decision that elevated state government’s role in internal native affairs. Rossum deftly situates the case historically, legally, and culturally, and persuasively argues that this is one of the more important decisions ever handed down by the High Court.”—David E. Wilkins, author of American Indian Sovereignty and the U.S. Supreme Court

“Rossum’s well researched book hits all the crucial topics and deals comprehensively with a host of complex issues in a clear, concise, and interesting manner. I wholeheartedly endorse it.”—Alexander Tallchief Skibine, S.J. Quinney Professor of Law, University of Utah

RALPH A. ROSSUM is Salvatori Professor of American Constitutionalism at Claremont McKenna College and author of Antonin Scalia’s Jurisprudence, also from Kansas.

Briefing in Seminole Tribe v. Starkman — Effort to Recover for Bad Checks from Problem Gambler

Matthew L.M. Fletcher

Here are those briefs (Fla. App.):

Seminole Tribe Appellant Brief

Starkman Appellee Brief

Tonkawa Notice of Removal to Federal Court in Gaming Management Co. Dispute

Matthew L.M. Fletcher1 Comment

Here is the notice:

Tonkawa Notice of Removal to Federal Court

DCT Order Setting Hearing Date — March 28

The original state court materials are here.

Interior Letter on Stockbridge-Munsee Compact Denial

Matthew L.M. Fletcher1 Comment

Here: 20110218 interior rejects stockbridge-munsee compact.

Also available here.

Federal Court Denies Fond du Lac Motion for Stay in Ongoing Gaming Compact Dispute

Matthew L.M. Fletcher

Here are the materials in City of Duluth v. Fond du Lac Band of Lake Superior Chippewa Indians (D. Minn.):

R&R Denying Motion for Stay

DCT Order Denying Motion for Stay

Sault Tribe Membership Votes Down Romulus Casino; Chairman McCoy Promises Future Proposals

Matthew L.M. Fletcher1 Comment

Here is the tribe’s press release. An excerpt:

The other referendum sought to repeal Resolution 2010-249, “Pursuit of Settlement of a Land Claim with respect to property in the Romulus, Michigan Metropolitan Area.”

The resolution was approved November 9 by the Sault Tribe board of directors.

The voters decided, by a vote of 1,864 to 2,986, to not approve Resolution 2010-249, thereby overturning the board’s action.

And:

Continue reading →

Tribal Lawyer Libel Suit against Newspaper Survives Summary Judgment in Texas

Matthew L.M. Fletcher

Here is the opinion in ZYZY Corp. v. Hernandez (Tex. App.).

An excerpt from fairly amazing facts:

The lawsuit arises out of an article published in the News-Guide on April 27, 2006. The article reported on a hearing  held  April 26, 2006, before the Tribal District Court for the Kickapoo Traditional Tribe of Texas.  That proceeding concerned a long-standing dispute about who were the legitimate and duly elected leaders of the tribe.  During the hearing, the plaintiffs called Hernandez to testify about some of the facts surrounding the dispute. Hernandez, who is not a member of the tribe, testified she was hired  to be legal counsel for  the  tribe in October 2002, and was on retainer at the time of the hearing. In response to a question about how much of her legal practice is devoted to work for the tribe, Hernandez testified, “I make roughly about ten percent of my income from the tribe.”

The day after the hearing, the article on the front page of the News-Guide contained the subheadline, “Gloria Hernandez admits she’s skimming 10% of casino profits off the top.”  The article stated in part:

The most damning of testimony came when Hernandez admitted on the stand that she rakes off a 10% share of Lucky Eagle Casino profits for her services to the handful of remaining Kickapoo insurgents. This admission is a clear cut violation of National Indian Gaming Commission rules and regulations which require approval of any management contract by an outsider hired to oversee an Indian casino operation.  And Hernandez leaves little doubt she intended to defraud to [sic] the  federal governmental agency when she has never listed herself as anything but a legal representative to the Kickapoo Tribe of Texas.