U.S. Supreme Court to Hear Narragansett Case on November 3

On Monday, the U.S. Supreme Court will hear arguments in Carcieri v. Kempthorne, the case that is expected to settle, once and for all, the litigation between Rhode Island and the Narragansett Indian Tribe that began in 1975, when the Narragansett filed suit to recover tribal lands in Rhode Island.

The Court is expected to decide two key issues:

Can the Interior Secretary place in federal trust land that was privately purchased by Indian tribes recognized after the passage of the 1934 Indian Reorganization Act (IRA), thereby removing the land from state control?

If the Congress passes an Act that terminates previous Indian claims to land, is the Secretary of the Interior precluded from creating additional territory?

At bottom, the case should resolve a split in interpretation concerning whether the IRA applies only to the tribes that were recognized at the time of the Act's passage in 1934, or whether it extends to tribes recognized after that date, or who are recognized in the future. Rhode Island has argued that since the Narragansett were federally recognized in 1983, the Interior Secretary does not have authority to take land into trust for the tribe, because the federal government's authority to take land into trust comes from Section 5 of the IRA, which was written to apply to tribes "now within Federal Jurisdiction" at the time of the Act's passage in 1934. It may seem like a legal technicality, but the outcome will greatly impact the ability of tribes recognized after 1934 to acquire land, and in turn, to exercise governmental authority.

The case is relevant to Indian gaming, because that's the boogeyman to states: if a tribe can get land, then it can get a casino, and that casino might be another Foxwoods (never mind, of course, the economic benefits tribal gaming has brought to the state of Connecticut).

Read more here.

Happy 20th Birthday, IGRA!

Last Friday, Oct. 17, marked the 20th anniversary of the federal Indian Gaming Regulatory Act, signed into law by President Reagan in 1988. (As we've said in recent presentations on IGRA's anniversary, "A long time ago, in a galaxy far, far away . . . . ") We were at a conference commemorating the anniversary (more on that later). In the meantime, here's some commentary:

20 Years of Indian Fortunes, Feuds (San Diego Union-Tribune)

Indian Gaming Dominates 20 Years Later (Las Vegas Review-Journal)

Status Quo in Florida?

Kathryn's quoted in this Tampa Tribune story on the aftermath of the Florida Supreme Court's decision invalidating a portion of the Seminoles' tribal-state compact. As we explained in a number of posts back in July (check our archives if you're interested in catching up!), the Florida Supreme Court ruled that Gov. Crist exceeded his state constitutional authority in authorizing banked card games through the tribal-state compact with the Seminoles.

Despite the state court ruling, though, the tribe continues to operate banked card games, such as blackjack.

The state is a bit stymied. The state attorney general has asked both the NIGC and the U.S. Attorney's office to stop the tribe's games, but to no avail -- not yet, anyway. The tribe has already paid the state $50 million and continues to make payments according to the compact's terms, and as Kathryn points out, stopping the banked card games may also stop the tribe's obligations to pay the state anything: The tribe's leverage, Rand said: the revenue sharing. "That's why, I think, you see the kind of paralysis you do on the part of the state. Do they actually want to push this? What if they just quietly allowed the status quo to occur?"

And -- sigh -- here's further evidence of the dubious distinction between revenue sharing and state taxation of tribal gaming.

According to the article, state senator Mike Haridopolos wants the state to negotiate a new compact that will require the Seminoles to pay even more: "We need to take a second and third look at this," said Haridopolos, R-Melbourne. "I've heard members consistently say that if you taxed all gaming that takes place in the state of Florida at Las Vegas or Louisiana rates, you'd bring in $1 billion a year. That could lower taxes. It's a viable issue to consider."

Read more: Decision Complicates Seminole Gaming Pact

We're Off to Arizona!

This week, the Sandra Day O'Connor College of Law at Arizona State University is hosting "Indian Country's Winning Hand," a conference marking the 20th anniversary of the federal Indian Gaming Regulatory Act. The law was enacted on October 17, 1988, and established the overarching governmental framework for tribal gaming.

As one can imagine, the industry has grown and changed in many ways, some of which Congress clearly foresaw in 1988, and some of which would be news to those lawmakers.

We'll be commenting on Indian Gaming and Economic Trends, offering our take on the overall picture of tribal gaming's growth and economic impacts both on and off the reservation, as well as what we've called the "spectrum of success." And we'll note some trends in tribal gaming, including economic diversification, financial and commercial ventures, tribal-state partnerships (as well as the flip-side of that coin, tribal-state contestation), tribal-corporate partnerships, and private entrepreneurship on the reservation. We'll report back next week!

More conference information:
http://ilp.law.asu.edu/

The NYT McCain Article Has a Life of its Own

The New York Times' investigative report on Senator McCain's ties to the gambling industry has been getting international attention since its publication last Sunday. The story was picked up by media outlets across the U.S., as well as by UPI and news outlets in the U.K., France, the Netherlands, Canada, Romania, Spain, Mexico, Turkey, and India, to name a few. It also has been the subject of blogs. And as we've noted many times, the Indian gaming connection seems to capture public attention, so that Steve's quote is making the rounds as well.

Here's a sampling:

http://www.chicagotribune.com/news/nationworld/chi-campaign30sep30,0,6036479.story

http://www.huffingtonpost.com/mark-evitt/mccain-and-the-times-are_b_131252.html

http://www.boston.com/news/politics/politicalintelligence/2008/09/democrats_quest.html

http://www.slate.com/id/2201128/

http://harpers.org/archive/2008/09/hbc-90003629

And, on the more questionable side, there are posts like this one (and no, we don't know how the "at UND" got tacked onto the reference to "more than 70 interviews and thousands of pages of documents at UND" from the NYT story):

http://www.americanchronicle.com/articles/76234