SCOTUS Denies Cert in Miccosukee Member’s Challenge to Federal Income Taxes on Per Capita Payments

Here is today’s order list.

Here are the cert stage materials in Clay v. Commissioner of Internal Revenue.

Clay v. Commissioner of Internal Revenue [Federal Taxes on Gaming Per Capita Payments]


Cert Petition

Question presented:

The question presented is: Whether the clear language of Title 25 of the Code of Federal Regulations, and the exclusive authority over federally recognized Indian Tribes granted to the Secretary of Interior under 25 U.S.C. § 2, controls the determination of how the Miccosukee Tribe compensates its members for the use of their lands, to the exclusion of any other federal agency, including the Internal Revenue Service.

Lower court materials here.

Minnesota Bankruptcy Court Holds Pokagon Potawatomi Gaming Per Capita Payments are Not Part of Debtor’s Estate

Here are the materials in In re Musel (D. Minn. Bkrcy.):

10 Motion to Turnover

14 Response

22 Trustee Brief

23 Debtor Brief

25 Memorandum Decision and Order

An excerpt:

The Pokagon Band followed all of the requirements outlined in IGRA – a federal statute – to achieve federal approval for its Gaming Revenue Allocation Plan. Once that RAP was approved, the Band’s sovereignty ensured that it became the sole and exclusive authority for creating and defining property rights for payments it authorized. The RAP’s plain language prevented the creation of any vested property right or interest, and any intangible right to payment was unique to the individual tribal member. As a consequence, the debtor had no property interests that would be considered property of the estate under § 541(a). Additionally, even outside of the Pokagon Band’s sovereign authority to create and define property rights, the per capita payments are not property of the estate in policy, logic, or equity.

SCOTUS Denies Cert in Four Indian Law Matters (Miccosukee + Jim, ICWA, and Comanche)

Here is Tuesday’s order list.

The materials in the Miccosukee petitions are here.

The page on the ICWA case is here.

The Comanche materials are here.

Federal Court Dismisses Complaint Asking an Order to Force Oneida Business Committee to Hold Meeting on Per Caps

Here are the materials in Dallas v. Hill (E.D. Wis.):

11 Amended Complaint

16 Motion to Dismiss

20 Opposition

22 Reply

25 DCT Order

Gabe Galanda on NIGC Per Capita “Deregulation” and Disenrollment

Gabe Galanda has published, “The Reluctant Watchdog – How National Indian Gaming Commission Inaction Helps Tribes Disenroll Members for Profit and Jeopardizes Indian Gaming as We Know It,” in Gaming Law Review & Economics. An excerpt:

Disenrollment tied to gaming per capita payments is now epidemic. Indeed, the Ninth Circuit Court of Appeals took occasion to remark that the corresponding proliferation of disenrollment controversy results from ‘‘the advent of Indian gaming, the revenues from which are distributed among tribal members.’’ Yet in the face of very public gaming per capita abuses, the National Indian Gaming Commission (NIGC or ‘‘Commission’’) has for the last several years refused to enforce IGRA to deter or remedy those abuses.

The result of the NIGC’s de facto deregulation of the misuse of gaming per capita payments is the belief among some tribal leaders, aided by tribal lawyers, that they are free to convert tribal citizenships into profit and political gain. The NIGC’s failure to intervene despite both its statutory mandate to eradicate corrupting influences from the Indian gaming space, and its trust fiduciary responsibility to serve and protect all American Indians is woeful, and threatens the tribal gaming industry at large.

Galanda on Tribal Lawyer Ethics & Gaming Per Capita Disputes

Gabriel Galanda has sent me his paper for the 13th Annual Northwest Gaming Law Summit, “Tribal Lawyer Ethics: Gaming Per Capita Disputes”:

Gaming Law Summit Tribal Lawyer Ethics Gaming Per Capita Disputes

Siletz Tribe takes issue with article in The Economist based on flawed study

Tribe takes issue with article in The Economist based on flawed study
In 2014 alone – $808,225 in higher education and adult vocational grants, $400,000 in out-of-area health care payments, $1,324,711 to Tribal Elders individually and to Elders programs designed to “increase overall Tribal health and educational attainment and to ameliorate the negative effects of termination…”
These are just a few of the items toward which the Confederated Tribes of Siletz Indians put gaming funds in 2014, in addition to the per capita payment of $1,200 to Tribal members.
Receiving a payment of about $1,000 annually – that isn’t already dedicated to rent or mortgage, electric bills or the like – is a great benefit to Tribal members, but it certainly isn’t enough to quit your job and start loafing, no matter how attractive “sloth” may seem.
On Jan. 12-13, a reporter from The Economist magazine visited the Siletz Tribe and the community of Siletz ostensibly to gather information for a story on how casinos benefit Tribes.
On Jan. 15, an article appeared on The Economist’s website under the headline, “Of Slots and Sloth: How Cash from Casinos Makes Native Americans Poorer.”
The article relied on generalizations, anecdotes and one “study” of Northwest Tribes by a private attorney published in a student-run law review (Sovereignty, Economic Development and Human Security in Native American Nations by W. Gregory Guedel, published in the American Indian Law Journal).
That law review article drew a straight line from casino profits and per capita payments to poverty without identifying any other factors that could contribute to poverty.
Shawn Fremsted, a senior fellow with the Center for American Progress and a senior research associate with the Center for Economic and Policy Research, and Erik Stegman, an expert in American Indian and Alaska Native policy at the Center for American Progress, have criticized The Economist’s reliance on the law review article, stating, “In short, the study is absolutely useless in terms of providing meaningful evidence to support The Economist’s claim.”
Siletz Tribal Chairman Delores Pigsley pointed out that the law review article relied on faulty assumptions and mistakes of fact.
“One of the biggest problems is that the study includes ‘on-reservation population and poverty statistics,’ but the reporter presented these statistics as representative of the entire Tribe. No Tribe has all of its members living on the reservation,” said Pigsley.
The article states there are 2,452 Tribal members living on the reservation. Tribal data shows there are only 582. The Tribe has 4,984 enrolled Tribal members and only 1,188 live in the two counties where a casino employment commute would be practical.
The study included only 24 Tribes, .096 percent of the 250 Tribes with casinos. Not enough Tribes took part in this study to label all Native Americans as poorer because of casinos, as indicated in the headline of the article.
The Economist article also stated, “After the Supreme Court ruled in 1987 that Native American Tribes, being sovereign, could not be barred from allowing gambling, casinos began popping up on reservations everywhere.”
In reality, Tribes can have casinos only in states that already have some form of gambling. The report cited by the reporter says that 250 tribes (44 percent of the 566 federally recognized Tribes) have casinos in 28 states (56 percent of available states).
The reporter also wrote that, “… the biggest problem may be the way casino profits are sometimes disbursed … Per capita payments range from as little as a few hundred dollars a year to more than $100,000.”
Yet the reporter cites just one statistic on per capita payments, the one for the Siletz Tribe, and provides no information on other Tribes’ payments.
The reporter failed to mention any of the details provided by Tribal staff during a 30-minute interview, including how the Tribe uses the remaining 60 percent of gaming profits.
These include economic development funds, health care (medical, dental, optical), education scholarships, transportation, Elders social and recreational activities, Tribal language instruction and Tribal culture and history programs.
The reporter provided no information on the Tribe’s economic diversification efforts. The Siletz Tribe has RV parks, in Lincoln City and Salem; and several buildings that rent space to business tenants in Lincoln City, Depoe Bay, Portland, Salem and Eugene, plus an industrial property in Toledo. This information is contained in publications provided to the reporter.
Tribal members and the wider community also benefit from other resources gaming has made available, including more than $9 million distributed by the Siletz Tribal Charitable Contribution Fund. Overall, the Tribe has distributed more than $11.4 million through the charitable fund and other Tribal resources.
After reading The Economist article, the Tribe can only conclude that this reporter came to Siletz with a headline already in mind and was only looking for interviewees who would provide statements that support that story.
She apparently thought she found it in the two individuals she quoted – one of whom works and one who doesn’t – and in citing a “study” that appears to be as flawed in its “facts” as her article.