Gaming Per Caps Are Marital Property Under State Law, Part II

Thread: Indian Gaming in the News

As we discussed in a post on August 30, the Minnesota Court of Appeals ruled at the end of last month that per capita distribution of gaming profits to tribal members counts as income (rather than the equivalent of a gift or inheritance), and thus is subject to division as marital property in divorce cases. This is true even if one spouse is not a tribal member.

The Zander v. Zander case raises at least two issues. First, of course, is how Indian gaming interacts with other areas of law, such as family law. There remain many gray areas in the lacunae of the law governing the wide and varied implications of tribal gaming.

Second is the bigger issue of the role of tribal sovereignty and intergovernmental relations. The Minnesota court relied on its civil authority under Public Law 280, a termination-era federal law that delegated jurisdiction over civil actions involving Indians to some states, including Minnesota. But the brevity with which the Minnesota court dismissed the issue is disturbing, if not surprising. The court simply concluded, "Because Minnesota law governs this dissolution and because the Mdewakanton Sioux Tribal Domestic Relations Code is inconsistent with Minnesota law, the tribal code provision relied on by wife does not apply."

Minnesota Appeals Court judge David Minge dissented, noting that the per capita payments were not ordinary income, but distribution of government assets by the tribe. "The amount paid is akin to a lump-sum distribution of tribal government assets which would be parallel to the principle distribution of a gift under Minnesota law."