Indian gaming

Devlin v. Cox Complaint

Matthew L.M. Fletcher

Here is the complaint in Devlin v. Cox, the case brought by the former Michigan Gaming Control Board employee now working for Detroit casino interests over whether tribal gaming operations should be required to apply for state liquor licenses. [Our previous post.]

The odd thing about this claim is that Devlin suggests in the news that he thinks it is unfair that tribal casinos don’t have to be licensed but the Detroit casinos do. There are some weird things about this claim.

First, why is it unfair? Is there some money value lost by the Detroit casinos over this regulatory “advantage”? No, of course not. Tribal casinos are a hundred miles away, mostly far from the market that Detroit dominates — that is, southeast Michigan. So Devlin’s “unfairness” claim won’t do his new clients any good even if he prevails.

Second, Devlin’s federal Indian law/liquor regulation argument ignores the modern history of tribal-state relations. Yes, there are ambiguities in this area of the law. And so the tribal and state negotiators did the smart thing in 1993 and later — avoid litigation by creating a “law of the deal” that finds a way around the muddied legal waters. It was part of the horse-trading that went on in that negotiation. It’s the epitome of fairness.

Finally, if fairness were any measure, Devlin must be forgetting that the Michigan governor who cut the deal in 1993 promised the seven compacting tribes that they would have market exclusivity in the entire State, only to renege on that promise as soon as it was made by gunning for state-licensed casinos in Detroit.

Devlin’s idea of fairness is a joke.

Suit on Tribal Casinos and State Liquor Licenses

Matthew L.M. Fletcher1 Comment

From the Chicago Tribune:

A Michigan Gaming Control Board employee says Indian casinos should be forced to get liquor licenses.

Patrick Devlin said he filed a lawsuit this week to try and force Attorney General Mike Cox to require tribal casinos to comply with liquor control laws. Devlin said that not requiring tribes to spend the time and money needed to get licenses gives them a competitive advantage over Detroit casinos required to have licenses.

He said he also is concerned about liability issues.

A Cox spokesman said the lawsuit will be reviewed once it’s received.

Devlin said he is suing as an individual, not on behalf of the gaming board.

Tribes are considered sovereign nations and aren’t covered by some state laws. Devlin said liquor sales should be an exception.

And from the Detroit News:

Rusty Hills, a spokesman for Cox, said: “Compacts (on Indian casinos) are negotiated between tribes and the governor’s office. If Mr. Devlin has a beef he needs to bring it to the attention of the governor. As a lawyer and former member of the attorney general’s office he ought to know better.”

Excellent point….

John Shagonaby in the Allegan News re: Gun Lake Casino

Matthew L.M. Fletcher

From the Allegan News:

To the editor: In response to Kathy Cassady’s letter—“Think tribal ancestors wanted casino?” No, our ancestors simply wanted to retain our land, culture and sovereignty.

Upon learning that the U.S. Court of Appeals decided in yet another court case that the Gun Lake tribe has the right to build a casino, Chairman D.K. Sprague thanked the Creator because our families have suffered economically and socially for centuries; ever since we lost all the land everyone else currently enjoys, including Kathy Cassady.

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DOI/BIA Sends Final Section 20 Regulations for Publication in the Federal Register

Zeke Fletcher1 Comment

From Indianz:

In one of his final actions as head of the Bureau of Indian Affairs assistant secretary Carl Artman has finalized the long-awaited Section 20 regulations for gaming on trust land acquired after 1988. The regulations were sent for publication in the Federal Register. They are due to appear tomorrow and will be considered final and effective in 30 days.

The Indian Gaming Regulatory Act bars gaming on lands acquired after 1988. But Section 20 of the law sets out four exceptions: for Oklahoma tribes with former reservations, newly recognized tribes, newly restored tribes and tribes with land claims.

If a tribe can’t meet any of the exceptions, it can still pursue gaming so long as the state governor concurs. This is known as the two-part determination process.

The rules set out criteria for all four of the exceptions, plus the two-part determination process.

bia-section-20-final-regulations

News Coverage of MichGo v. Kempthorne Case: Cert Petition Planned

Matthew L.M. Fletcher

I spoke to the author of this news article yesterday. He quotes me as making yet another prediction on whether the Court will grant cert as being “zero,” but what I thought I said was that MichGo’s chances of getting a stay is close to zero. I did say that I think a plausible Section 5 challenge will have to come from a different fact pattern, such as an off-reservation fee to trust decision, assuming there will ever be any again. Or a decision involving a wealthy gaming tribe like Oneida or Mashantucket Pequot.

Of note, the reporter told me that the MichGo attorney thought that the Carcieri case was a good sign for MichGo, in part because so many states signed on to an amicus brief supporting the cert petition. He thinks those states will support MichGo’s petition, too. But I wonder. States like Michigan and California are actually banking on the revenues from new Indian gaming operations in order to help balance their budgets. I don’t think these states would sign on, or else they’d be hurting themselves.

From Indianz:

An Indian law professor says there’s “zero” chance the U.S. Supreme Court will hear a land-into-trust case involving the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians of Michigan. Matthew L.M. Fletcher, an assistant professor of law and director of the Indigenous Law & Policy Center at Michigan State University, said the court, at some point, will hear a challenge to the Indian Reorganization Act. The 1934 law authorized the land-into-trust process and opponents say it is unconstitutional. The D.C. Circuit Court of Appeals disagreed and ruled that the Bureau of Indian Affairs can acquire 147 acres for the tribe. A casino and other development are planned at the site. One judge, however, agreed that Section 5 of the IRA is unconstitutional. A group called Michigan Gambling Opposition hopes to convince the Supreme Court that the law is too broad. But Fletcher says the case is bogged down by other details to make it appeal-worthy. “I don’t think there’s any chance,” he told The Grand Rapids Press. “I really think the odds are close to zero that the Supreme Court would hear it.”

Get the Story:
Foes of Gun Lake Casino cling to slim legal hope (The Grand Rapids Press 5/2)
Gun Lake casino opponents down to last try (The Muskegon Chronicle 5/2)

Analysis of Judge Rogers’ Dissent in MichGo v. Kempthorne

Matthew L.M. Fletcher1 Comment

Yesterday’s per curiam opinion in MichGo v. Kempthorne, while very, very important to the Gun Lake Band and other Michigan tribes, did not break any new ground. It was the third time in recent years that citizens groups challenged the Secretary of Interior’s decision to take land into trust for gaming purposes for the three southwest Michigan Potawatomi tribes (the other two were TOMAC v. Norton and CETAC v. Kempthorne). Each of the challenges raised NEPA and constitutional claims of very similar character. Each time it was relatively easy for the D.C. Circuit to dispose of these arguments, which some argued bordered on frivolous.

But there is a strong threat to the future of tribal property contained in these cases.

The constitutional challenge is that Section 5 of the IRA (25 U.S.C. 465) is an unconstitutional delegation of Congressional power to the Secretary of Interior. Section 5 allows the Secretary, at his discretion, to acquire land in trust for Indians and Indian tribes. If this discretion is absolute, then it is a violation of the separation of powers inherent in the Constitution. But until yesterday, the constitutional challenge did not garner a single vote in any of the three Potawatomi cases. In fact, though this constitutional challenge has been raised by states and localities repeatedly since the early 1980s, it has not garnered a single vote from a federal judge since 1996, when Justice Scalia dissented from a GVR in United States v. South Dakota, 519 U.S. 919 (1996). The Supreme Court recently granted cert. in Carcieri v. Kempthorne, another of these challenges, but declined to hear the constitutional challenge.

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Discord on Pokagon Revenue Sharing Board

Matthew L.M. Fletcher

Funny/sad thing about all this is that the 1993 compacting tribes, who still retain the right to decision where the two percent money goes, never have this problem — and yet the State tries so hard to take it away.

From Indianz:

The Pokagon Band of Potawatomi Indians agreed to share 2 percent of gaming revenues with local governments in Michigan but officials in one county still can’t agree how to distribute the money.

Berrien County’s Local Revenue Sharing Board has been trying for the past six months to decide how to spend $977,266 from the Four Winds Casino. One official became so unhappy with the process that he resigned from the board. The other board members, however, say they have reached an agreement on distributing the money. They hope to receive the first payment in time for the tribe’s second on May 31.

Get the Story:
Disagreements continue over distribution of casino revenue (WSBT 4/28 )
Casino proceeds remain elusive (WNDU 4/28 )

Huron Nottawaseppi Band Casino Construction News

Matthew L.M. Fletcher

From Indianz:

Despite a lack of construction activity, the Nottawaseppi Huron Band of Potawatomi Indians says its casino near Battle Creek, Michigan, will open in June 2009.

The tribe was supposed to start work on the FireKeepers Casino this spring. But spokesperson Donna Halinski promises that construction will begin before the summer. “We haven’t set a date yet,” Halinski told The Battle Creek Enquirer. “There are still some internal things going on. … The design work is all done. … Everything’s in place.” The tribe’s land-into-trust application for the casino was held up in court for eight years. Get the Story:
Casino project awaits start (The Battle Creek Enquirer 4/28 )

LTBB and LRB Compact Amendments Published in Federal Register

Matthew L.M. Fletcher

From Indianz. The Department of Interior neither approved nor disapproved the amendments, so they are in force after the expiration of 45 days.

Gun Lake Band Compact as Model for Future Michigan Compacts

Matthew L.M. Fletcher

From Mlive:

The Gun Lake Tribe’s compact may be a model for agreements to be renegotiated in the next four to five years, according to James Hill, professor at Central Michigan University.

The compact is different from earlier agreements in three major ways. The tribe agreed to share revenue on an increasing scale, beginning with eight percent and rising to 12 percent of slot machine revenues, calculated on gross revenues. As the tribe makes more, it pays the state a higher percentage.

That might be the wave of the future, Hill said.

Another difference is the size of the exclusivity zone. instead of the whole state, the Gun Lake Tribe agreed to nine counties surrounding its Wayland casino.

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