National Indian Gaming Commission

Obama Nominates Tracie Stevens to be NIGC Chair

Matthew L.M. Fletcher

Here:

WASHINGTON – Today, President Barack Obama announced his intent to nominate the following individuals to key administration posts:

  • Tracie Stevens, Chair, National Indian Gaming Commission, Department of the Interior
  • Malcolm D. Jackson, Assistant Administrator for Environmental Information, Environmental Protection Agency

President Obama said, “The American people will be well-served by the skill and experience these two exceptional individuals will bring to their roles. I am confident that they will be tremendous assets to my administration, and I look forward to working with them in the coming months and years.”

President Obama announced his intent to nominate the following individuals to key administration posts:

Tracie Stevens, Nominee for Chair, National Indian Gaming Commission, Department of the Interior

Tracie Stevens has been the Senior Advisor to the Assistant Secretary for Indian Affairs at the U.S. Department of Interior since July 2009. In this role, Ms. Stevens provides policy guidance to the Assistant Secretary regarding tribal issues such as gaming, law enforcement, energy, tribal consultation, economic development, land-into-trust, tribal government disputes, budget priorities, and treaty and natural resource rights. She has also been active in rebuilding the nation-to-nation relationship between Tribes and the Department of Interior. Ms. Stevens is a member of the Tulalip Tribes in Washington State. From 2006 to 2009, Ms. Stevens was a Senior Policy Analyst with the Tulalip Tribe’s government affairs office. Prior to that, she served as a Legislative Policy Analyst (2003-2006) and as Executive Director of Strategic Planning for the Tulalip Casino (2001-2002). In her capacity as Senior Policy Analyst with the Tulalip Tribes, Ms. Stevens also served as the Chair of the Gaming Subcommittee for the Affiliated Tribes of Northwest Indians (2003-2009), the Secretary of the Board of the Directors for the Washington Indian Gaming Association (2002-2009) and as the Northwest Delegate for the National Indian Gaming Association (2003-2009). Ms. Stevens holds a Bachelor of Arts in Social Sciences from the University of Washington-Seattle.

Federal Court Dismisses Some of Opposition Groups Claims re: Buffalo Casino

Matthew L.M. Fletcher

Here are the materials in Citizens against Casino Gambling in Erie v. Hogen (W.D. N.Y.) (via Indianz):

NIGC Motion to Dismiss

CACGEC Opposition to NIGC Motion

NIGC Reply

SNI Motion to Intervene

CACGEC Opposition to SNI Motion

SNI Reply

DCT Order on Miscellaneous Relief

NIGC Indian Lands Opinion: Iowa Tribe, Oklahoma Allotments, and Section 20

Matthew L.M. Fletcher

Here.

Cert Petition Filed over Nooksack Casino

Matthew L.M. Fletcher1 Comment

Here is the petition in North Country Community Alliance v. Salazar: North County Community Alliance Cert Petition

Lower court materials are here.

The questions presented:

Must the National Indian Gaming Commission establish its jurisdiction over a tribe’s potential gaming sites, by determining that such sites qualify as “Indian lands”, before approving the tribe’s gaming ordinance?

Does the National Indian Gaming Commission act ultra vires when it approves a tribal gaming ordinance which allows construction and operation of a gaming facility on land which is never determined by the Commission to be “Indian lands”?

There doesn’t appear to be any reason to grant cert in this case. By the petitioner’s own admission, there is no circuit split. This is a case of first impression before the Court, and that usually means a death knell for the petition.

NIGC Press Release re: Phil Hogen

Matthew L.M. Fletcher

From the NIGC:

Phil Hogen, an Oglala Sioux from South Dakota, Completes Service as Longest Serving Chairman of the National Indian Gaming Commission

Washington DC, October 2, 2009 – National Indian Gaming Commission Chairman Phil Hogen, 64, who was born in Kadoka, South Dakota and lives outside Black Hawk, was appointed as the Chairman of the National Indian Gaming Commission by President George W. Bush in November 2002, and finishes his service in that position at the end of this week.

During his tenure, which is the longest for any Chair of the agency that provides Federal oversight of the $27 billion Indian Gaming industry, the industry has experienced dramatic growth. Indian gaming operates at over 400 tribal locations in 28 states.

“Indian gaming is the most effective and dramatic economic development that ever came to Indian Country,” Hogen stated, “although it is, of course, market based, and those tribes located in urban areas have gained more than those in rural, sparsely populated places like the Dakotas. Nevertheless, it’s worked where so many other things have failed, and I firmly believe that the strong regulation which the National Indian Gaming Commission supports, gives gaming customers justifiable confidence that tribal gaming will be fair, and insures that the proceeds of the games are appropriately utilized by tribes and their members.” Continue reading →

Yakama Gaming Per Capita Notice of Violation from NIGC

Matthew L.M. Fletcher

Here is the NOV, signed September 1, 2009.

The news article detailing the alleged violation, a $20M payment to tribal members called by the Nation an economic stimulus payment.

Ninth Circuit Rejects Challenge to Nooksack Casino

Matthew 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 →

Mistake for Federal Agencies to Make Post-Carcieri Lists

Matthew L.M. Fletcher2 Comments

It is inevitable that interested parties will want to know, or at least speculate, on which Indian tribes are truly affected by Carcieri v. Salazar. Interior and/or BIA may be drawing up lists. NCAI and NIGA are probably doing the same. And now so is NIGC. Update: Not so, according to Chairman Hogen. But I think it may be a mistake for the federal agencies to do so, and to trumpet the fact, as NIGC seems to be doing. The key thing to remember is that Carcieri is an absurdity, maybe not based on the statute or even the legislative history (the SCT has spoken), but in reality.

NIGC’s list is “a list of those tribes recognized after 1934,” according to Indianz. So what does that mean? It could mean, plausibly, every tribe. Interior has never kept a “list” of tribes under federal recognition and didn’t even keep a formal list of federally recognized tribes until 1994. And so maybe there was no tribe meeting these phantom definitions until Interior started informing tribes that they were about to have a Secretarial election under the IRA, post-IRA. And we’re pretty sure Interior’s decision on which tribes got to vote were arbitrary and often capricious. If NIGC’s going to start with the list of tribes that had IRA elections in the 1930s, then that list will be wrong to some extent.

And if a list is wrong, even as to one tribe, then the federal agency is wrong to generate such a list. Even if it doesn’t publish the list, it is probably subject to a FOIA request. Tribes incorrectly designated will be legally disadvantaged.

Finally, not to pick on the NIGC or Chairman Hogen (both have gotten some bad and unfair press lately), NIGC is not the primary interpreter of “under federal jurisdiction” or federal recognition. Interior is. And Interior has 75 years of history to review before it can come to any conclusions about any one tribe.

There is really no reason for any federal agency to make a list right now. It’ll be subject to litigation as soon as any one decision on the list becomes important, and I’d hate to see NIGC or Interior lose a fight on Chevron or Skidmore deference if they try to push their conclusions based on any such list.

Off-Reservation Trust Acquisition for Gaming Purposes — Butte County v. Hogen

Matthew L.M. Fletcher1 Comment

The case is in the D.C. District Court and involves the Mechoopda Indian Tribe of Chico Rancheria. The district court holds that GTB v. U.S. Att’y is the “leading case” in the area! An excerpt:

The court agrees with Defendants that the County relies on too restrictive an interpretation of the IGRA in support of its contention that the Chico Parcel cannot qualify as a “restoration of lands.” The County contends that the term “restoration of lands” should be interpreted as including only a restored tribe’s former rancheria. But the IGRA does not define “restoration of lands”; therefore, courts have held it to be ambiguous and interpreted it broadly. See, e.g., City of Roseville v. Norton, 348 F.3d at 1020, 1026-27 (D.C.Cir.2003). If a broad interpretation is permissible, it certainly is in order here considering that the Tribe’s former rancheria, the Chico Rancheria, is no longer available for restoration because the City of Chico and the University have subsumed it. Accordingly, the Tribe sought to acquire lands as near as possible to its former Rancheria and, according to the OGC and agencies, within its original ancestral homeland, the Chico Parcel. Applying the Grand Traverse II factors and City of Roseville in light of the administrative record, the agency decisions must stand because they considered the relevant factors and articulated a rational connection between the administrative record and their conclusions. See Transcontinental Gas Pipe Line Corp., 518 F.3d at 919.

The materials:

butte-county-dct-opinion

Continue reading →

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)