A Case to Watch . . . .

The U.S. Court of Appeals for the First Circuit issued a decision, following an en banc hearing, in Carcieri v. Kempthorne last week. This case stems from the 1998 decision of the Interior Secretary to take into trust a 32-acre parcel of land in Charlestown, Rhode Island, for the benefit of the Narragansett Tribe. The tribe had purchased the parcel in 1991, and pursued trust status so that it could use the land for housing. The Secretary took the land into trust under 25 U.S.C. section 465, part of the 1934 Indian Reorganization Act, which authorizes the Secretary, "in his discretion," to acquire and take into trust "any interest in lands . . . within or without existing reservations . . .for the purpose of providing land for Indians."

Rhode Island challenged the Secretary's decision on a number of grounds. Although the First Circuit rejected the state's arguments and upheld the Secretary's decision, at least two of the challenges are worth watching, as the state plans to seek review in the U.S. Supreme Court.

One argument is that section 465 only allows the Secretary to take lands into trust for tribes that were federally recognized in 1934. For tribes like the Narragansett, which was federally recognized in 1983, argued the state, the Secretary does not have power under 465 to take land into trust for their benefit. The court rejected this, reasoning that the statute's reach is not clearly limited to tribes who were federally recognized in 1934.

Another argument is that the Secretary's decision violates state sovereignty. Rhode Island argued that the Indian Commerce Clause is limited by the 10th Amendment, along the lines of the 10th Amendment limits on federal power under the Interstate Commerce Clause, as reflected in New York v. U.S. and Printz v. U.S. The court rejected this argument as well, but noted that Rhode Island's challenge "underscore[s] the seriousness of the State's concern about the abrogation of state sovereignty at stake here."

And, of course, although the tribe sought trust status for the land in order to build tribal housing, Rhode Island argued that the "true purpose" behind the trust application was to open a casino. This assertion gave rise to the state's argument that the land does not fall into one of IGRA's exceptions to the general prohibition against gaming on lands acquired after 1988. The court rejected this argument as well, noting that "[n]o evidence that the Tribe intends to use the Parcel for anything other than tribal housing, as determined by the BIA, was presented."

The case is Carcieri v. Kempthorne, No. 03-2647, First Circuit, July 20, 2007.

For more, see this article in the Boston Globe.

Will the Seminole Finally Get a Compact?

Interior Secretary Dirk Kempthorne has ordered Florida Governor Charlie Crist to negotiate a tribal-state compact with the Seminole Tribe for Class III games.

In 2004, Florida voters authorized slot machines, and three non-tribal casinos have been operating slots since last year. IGRA allows tribes to operate gaming if state law "permits such gaming for any purpose by any person."

Though the interpretation of the "permits such gaming" provision is controversial, in this context its effect is clear: if Florida permits any person for any purpose to operate slots, then the Seminole are authorized to operate slots -- under the terms of a tribal-state compact, of course. Those terms, we predict, will contain a revenue-sharing provision, as the Seminoles' gaming operations have proven to be extraordinarily lucrative, even without slot machines. The real question is what the tribe will get in exchange for giving the state a share of its casino revenue. To avoid being an illegal "tax" on tribal gaming, the state needs to give the tribe something of value -- usually some measure of exclusivity under state law.

Florida has resisted Indian gaming since the Seminole opened the first tribal bingo hall in 1979. The politics of Indian gaming in Florida resulted in two key federal court decisions: Seminole Tribe v. Butterworth, a precursor to Cabazon, the Supreme Court's landmark case that led to IGRA's enactment, and Seminole Tribe v. Florida, the Supreme Court case that unraveled IGRA's key compromise. As a direct result of Seminole Tribe v. Florida, the tribe has been thwarted in its attempts to seek enforcement of Florida's duty to negotiate in good faith, a duty placed on the states by IGRA. Let's see if the state honors that duty this time.

Read more here.

More Indian Gaming in International News -- Kathryn's quoted in Sydney, Australia

G’day, mates! This extensive article on the U.S. Indian gaming industry in the Sydney (Australia) Morning Herald is further indication of the international interest in Indian gaming. Kathryn is quoted on tribes' use of gaming revenue, per capita payments, the uneven profitability of tribal casinos, and the Abramoff scandal. Click here for a link to the July 14th story, entitled "How Blackjack Saved the Tribe."

Just goes to show how high the interest is running throughout the world, perhaps especially in places that have First Nations people.

International Attention Paid to Indian Gaming

The National Indian Gaming Commission's release of 2006 tribal gaming revenue has spurred coverage of Indian gaming in the U.S. around the world. Here's a sampling of some recent articles:

Financial Times (London)

Malaysia Star

Toronto Star


Historically, when's the last time any policy issue concerning American Indian received coverage like this in publications abroad? How about never?

Tribes in Montana Expand Class II Gaming

A number of tribes have decided that the negotiation of Class III or casino-style gaming compacts with the state presents difficulties that compel them to turn to Class II gaming, primarily bingo, instead. (Under the federal Indian Gaming Regulatory Act, tribes do not have to enter into a tribal-state compact to operate Class II games, as long as they are permitted under state law and public policy.)

For instance, faced with state obstacles to compact renewal that would expand their Class III gaming operations, tribes such as the Confederated Salish and Kootenai in Montana have considerably expanded their Class II operations. Montana ranked last in the U.S. at $15.4 million in gaming revenue in 2006. See more here in the Billings Gazette.

Senecas Open Temporary Casino After NIGC Ruling

In Buffalo, the Seneca Nation has opened a temporary casino following a National Indian Gaming Commission (NIGC) ruling that the tribe’s new land falls under one of the Indian Gaming Regulatory Act’s small number of exceptions for opening a gaming facility on newly acquired land. The Seneca Buffalo Creek Casino has just 124 slot machines, but the Senecas plan to build a $125 million casino and entertainment complex that is expected to create 1,000 new jobs.

NIGC Chair Phil Hogan determined that the Senecas bought the nine acres on which the casino is sited as part of the federal Seneca Nation Land Claims Settlement Act.

IGRA generally prohibits gaming on newly acquired lands after October 17, 1988, the date of its passage, but provides several exceptions. One exception allows gaming on newly acquired lands when the land is placed in trust as a settlement of a land claim.

The temporary—and future—casino’s opponents disagree with Chairman Hogan’s interpretation, and have filed suit against the U.S. Secretary of the Interior and the NIGC.

Although this looks to be divisive, you can bet that there will be plenty of folks anteing up at the casino.

See the recent articles in the Buffalo News, here and here.

Indian Gaming in Massachusetts

We've just returned from two weeks in Boston, where Kathryn attended a program on higher education administration at Harvard and Steve conducted research on Indian gaming. The talk there, of course, is about the newly federally recognized Mashpee Wampanoag Indian Tribe's plan to open a casino. Read more here.