A “Bolt from the Blue” from the Supreme Court

The U.S. Supreme Court has laid down the law once again for Indian Country, holding that the Indian Reorganization Act of 1934 (IRA) does not authorize the Secretary of the Interior to take land into trust for tribes that were not under federal jurisdiction as of the date the IRA was enacted. The decision has major implications, as is discussed in the Boston Globe, in which Steve is quoted.

The 6-3 decision in Carcieri v. Salazar, No. 07-526 (Feb. 24, 2009) throws into doubt previous decisions by the Secretary to take land into trust for recently recognized tribes, including the Narragansetts in Rhode Island (who were the subject of the Court decision) and the Mashpee Wampanoag in Massachusetts (who have been hoping to build a $1 billion casino in Middleborough).

Carcieri concerned the Narragansetts’ argument that 31 acres of land it owns in Charleston, Rhode Island, should be placed in trust. Following an administrative decision that came down on the side of the Secretary, the state sued. Both a federal district court and the First Circuit found in favor of the tribe, but the Supreme Court reversed.

The Court’s analysis for the most part turned on its reading of the IRA’s statutory language, and the related application of basic principles of administrative law. The IRA authorizes the Secretary to take land into trust for the benefit of a “recognized Indian Tribe now under Federal jurisdiction.” The question of whether “now” means in 1934, or at the time the Secretary acts, had been held to be ambiguous enough by a lower court to merit deference to the Secretary under the Chevron doctrine (which requires a court to defer to an agency interpretation under such circumstances)—as had been the case for the last 75 years.

However, writing for the majority, Justice Clarence Thomas found the meaning of “now” to be unambiguously understood to be at “the present time; at this moment; at the time of speaking.” Hence the Secretary did not have authority to take land into trust after the date of the IRA’s enactment in 1934.

While the decision is momentous in its potential impact on a number of tribes, Congress could take up the question of what to do about the important question of how the federal government can fulfill its trust responsibility to tribes.

Here’s the Supreme Court’s opinion.

First Lady Visits Interior Department

Last week, First Lady Michelle Obama packed the house at the Interior Department during her barnstorming tour of federal agencies. Of special note was Mrs. Obama’s comments on Interior’s—and the federal government’s—relationship to Indian Country.

"For those of you focused on meeting the federal government's obligations to the Native Americans, understand that you have a wonderful partner in the White House right now," she said.

Mrs. Obama went on to reference her husband’s commitment to honor the “unique government-to-government” relationship shared by tribes and the federal government.

The Indian Gaming Regulatory Act contemplated intergovernmental relations on a level playing field. It codified a government-to-government relationship and, before the U.S. Supreme Court gutted it in 1996, even provided a mechanism through which tribes and states could enforce that relationship in federal court.

Whether or not Mrs. Obama is familiar with Indian gaming, her words and her presence carried a special message about the significance of tribal sovereignty as well as the trust relationship between the federal government and tribes.

See more here, and here's the video of Mrs. Obama.

More on the Recession's Effects on Local Tribal Casinos

We said in an earlier blog post that "local" tribal casinos may take a smaller hit than large casino resorts in the current economic climate. And while it appears that spending is down less for local casinos than for tourist-destination casinos, tribes are still worried.

As we've explained in detail in our book, "Indian Gaming and Tribal Sovereignty: The Casino Compromise," tribal gaming operations, just like tribes, vary in size and economic vitality. Typically, a "local" tribal casino in the midwest is operated by a tribe with thousands, rather than dozens, of tribal members, many of whom face socioeconomic adversity -- high unemployment rates and high levels of poverty. Even modest casino revenues allow the tribal government to create jobs, provide much-needed services, and improve the quality of life for reservation residents.

A downturn in casino spending can have serious effects on communities already struggling with unemployment and poverty. While many of us are dismayed with national unemployment rates that may approach double digits, tribes in the midwest have been working to reduce reservation unemployment to below 50%.

And that's why we've suggested that non-tribal local governments and states should care about what happens to Indian gaming in this economic climate. For many tribes, gaming isn't about profits or per capita payments -- it's about jobs, for Indians and non-Indians alike, and reducing the effects of severe poverty.

Read more about local casinos in Minnesota in the Duluth News Tribune at "Local casinos feeling recession's squeeze."

A Split in a Landmark Tribal-Corporate Partnership?

We've given a number of presentations in the last several months on economic trends in Indian gaming. One trend that we discuss is the increase in tribal-corporate partnerships -- tribes partnering with Marriott, Harrahs, Radisson, and other hotel, resort, casino, entertainment, and restaurant companies. One of the biggest examples is the new MGM Grand at Foxwoods. But a Connecticut media outlet is reporting on a possible split between the Mashantucket Pequot Tribe and MGM Grand.

Why the rumor of a split? According to the article, a new Foxwoods brochure depicts the MGM Grand tower without "MGM Grand" on it:

In a graphic on the brochure's cover, Foxwoods Resort Casino and the adjacent MGM Grand tower, both owned by the Mashantuckets, rise up out of the woods. Missing from the top of the tower's face is the distinctive “MGM GRAND” lettering and the MGM lion's head logo installed there in December 2007.

The article also reports that both the tribe and MGM Grand deny the rumored split.

Read more here: At Foxwoods MGM Grand, a sign of changes ahead?