Indian Gaming Today

Texas-Size Those Casinos!

2009-04-09T08:17:00.000-07:00

The prospects for widespread casino-style gaming in Texas, with massive Vegas-style resort casinos, drew huge crowds to a state House hearing yesterday. Proposals are now on the table to transform the landscape by allowing racinos (casinos at horse and dog race tracks), destination resorts, and on American Indian lands.

How big might this be? When Sheldon Adelson, chair and CEO of Las Vegas Sands (the legend whose company who brought the Venetian and Palazzo to Vegas and Macao), shows up to testify, you’re talking big: Texas-size, that is.

Members of the Tigua Tribe of El Paso and the Alabama-Coushatta Tribe of Livingston also testified before the Texas House about the rationale for reopening the tribes’ casinos, which were closed by federal authorities in 2002 after the state sued. The tribes have been in casino limbo ever since.

Stay tuned on this one – a potentially game-changing move in Texas that could tap into one of the few remaining untapped markets – and one which undoubtedly will raise the ire of anti-gambling activists in the Bible Belt.

With All Deliberate Speed: Hearing Held on Deputy Interior Secretary Nominee

2009-03-16T14:26:00.000-07:00

Despite high expectations, things have slowed down a little at the Interior Department. Interior Secretary Ken Salazar has been the only confirmed nominee, and not much is happening on Indian affairs. However, former Clinton Administration Deputy Interior Secretary David J. Hayes is set to assume the same position under President Obama.

Hayes, an attorney, has been a partner at the Washington office of Latham & Watkins, well known as one of the leading environmental, energy, and natural resource law firms in the world. At Latham & Watkins, Hayes’ practice focused on counseling, litigation, and transactions, and he was, in effect, a lobbyist.

With a promised focus on tribal economic development, Hayes told the Senate Entergy and Natural Resources Committee that he is looking forward to “working with Native American communities,” which “was one of the most rewarding aspects of the job” when he worked at Interior in the Clinton era.

Although after leaving office last time around, Hayes was accused of violating anti-“revolving door” policies designed to prevent too much cozying up between lobbyists and government, a bipartisan investigation did not evidence that to be the case. Still, the relationship did not sit too well with Senator John McCain. Hayes did not represent any tribal clients during his time at Latham and Watkins.

The Committee will vote on Wednesday.

For more, see here, and see the Committee hearing here.

A “Bolt from the Blue” from the Supreme Court

2009-02-26T18:13:00.000-08:00

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

2009-02-17T14:32:00.000-08:00

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

2009-02-10T13:37:00.000-08:00

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?

2009-02-03T15:01:00.000-08:00

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?

The New Gambling Behavior Lab at UND

2009-01-26T14:30:00.000-08:00

We mentioned in an earlier post that we had a photo opportunity at the University of North Dakota's new Gambling Behavior Lab, housed in the Northern Plains Center for Behavioral Research. Our friend and collaborator, psychology professor Jeff Weatherly, is the lab's driving force.

Read more about the Gambling Behavior Lab.

Will All Tribal Gaming Be Hit Hard by the Recession?

2009-01-22T08:00:00.000-08:00

As we've discussed in prior posts, the economic downturn has caught up with the legalized gambling industry as consumers are spending less on things like entertainment.

And the Indian gaming industry has not been immune, as some tribal casinos have laid off workers or cut back on hours.

But will more modest tribal gaming operations feel the same consumer "pull back" as the large, Las Vegas-style casino resorts?

We predict that more "local" tribal casinos -- those that draw their relatively modest customer bases from nearby mid-size communities -- may see less of a drop in patronage than the bigger casinos that rely more on out-of-state tourists.

Why? Well, it's one thing to commit to a weekend trip to Foxwoods, where a customer might budget for $1000 or more in gambling money, plus hotel and meals. It's something else to decide not to give up your weekly evening of gambling at a more modest tribal casino, followed by an inexpensive dinner at the buffet.

Do you agree? Let us know!

Hometown News Highlight

2009-01-20T13:55:00.000-08:00

Our hometown newspaper, the Grand Forks Herald, featured us on the front page this past Sunday. In a fairly wide-ranging piece, we opine about the future of Indian gaming in tough economic times.

And we're pictured in the new Gambling Behavior Lab at the University of North Dakota's Northern Plains Center for Behavioral Research. What a photo!

Read more here: HIGH-ROLLING ACADEMICS: UND professors study Indian gaming

More on Indian gaming and the Economy

2009-01-08T13:54:00.000-08:00

Kathryn's quoted in this article about the recession's impacts on tribal gaming in Mississippi, where the Mississippi Band of Choctaw announced that its Pearl River Resort would lay off 570 workers and its Golden Moon Hotel and Casino would operate only on weekends.

While gross revenues for Indian gaming operations across the U.S. in the aggregate have stayed relatively flat in the last year, the economic downturn is now hitting specific areas with greater force. Here, it is likely that the local economy couldn’t sustain the Golden Moon and the Silver Star, with the former cannibalizing the latter’s profits.

Some unsolicited advice: tribes would do well to consider as many creative ways as possible to keep casino employees on the payroll, for instance through flextime, reduced benefits, or even temporary layoffs. Not just the reality, but the image of layoffs is going to provide some serious negative PR in the regions in which these layoffs occur (just take a look at some of the reader reactions to the Clarion-Ledger story). And we all know that preserving or enhancing the positive image of tribal casinos constitutes vital political capital for tribes.

Read more in the Jackson Clarion-Ledger at 570 Jobs Gone at Choctaw Resort

Indian Gaming and the Recession

2009-01-06T14:40:00.000-08:00

On December 1, the National Bureau for Economic Research announced what many of us already knew: the U.S. economy has been in a recession for the last year.

Nearly every industry, including Indian gaming, is feeling the effects of the recession. Even the "big players," like the highly profitable Foxwoods Resort Casino in Connecticut, owned by the Mashantucket Pequots, announced in September that it was laying off 700 workers. This year, the tribe has cut 900 casino jobs and 200 tribal government jobs. The tribe reportedly has offered buyouts to all of its tribal employees, with the exception of the seven-member tribal council.

Just recently, the Seneca Indian Nation announced 210 layoffs at its three casinos in western New York state. The Senecas also will freeze some employee salaries and cut others'.

It seems like similar stories are coming fast and furious. Read more on the recession and the gaming industry:

Mohegan Sun Profits Lower, Job Cuts at Foxwoods, Hartford Courant

Gambler's Blues, Salt Lake Tribune

Chancy Times for Casino Companies, Business Week

Indian Gaming and the Economy

2008-12-30T13:55:00.000-08:00

Economist Alan Meister, author of the Indian Gaming Industry Report, says that Indian gaming growth has slowed in recent years.

Because of the current recession, there is short-term uncertainty at least through 2009, he predicts. Long-term uncertainty, says Meister, is caused less by the economic climate and more by the legal and political climates. Non-market factors, such as legal challenges, or proposed or new regulations and statutes, can have the effect of slowing the industry's growth. Additionally, points out Meister, increased competition from the expansion of tribal gaming or other legalized gaming could slow market growth or even saturate the market. (We've been working with Alan on a forthcoming article titled, "Indian Gaming and Beyond: Tribal Economic Development and Diversification.")

Find information on the Indian Gaming Industry Report here. We'll again be posting on the impacts of the recession on tribal gaming shortly.

Ken Salazar Tapped to Head Interior Department

2008-12-18T14:58:00.000-08:00

President-elect Obama has tapped Senator Ken Salazar (D-CO) to head the Department of the Interior. Salazar is former director of the Colorado Department of Natural Resources and state attorney general. A first-term senator, he is a member of the Senate Energy and Natural Resources Committee.

Most of the attention given to the nomination will focus on Salazar’s moderate record on environmental, lands, and resources issues, which seems destined to please some and displease others. Virtually all commentators agree that Salazar is a reasonable and reasoned lawmaker, one who will be able to redeem Interior’s wild and wooly reputation as a lobbyists’ playground.

President-elect Obama sent an important signal, however, in introducing Salazar. In contrast to President Bush and his two nominees to head Interior (Gale Norton in 2000 and Dirk Kempthorne in 2006), both Obama and Salazar explicitly raised the subject of Indian Country.

This is significant because of the key role Interior plays in the federal government’s interactions with reservations and American Indian people. After all, the Interior Department oversees the Bureau of Indian Affairs and the Office of the Special Trustee for American Indians. Too, the Office of Indian Gaming Management is responsible for implementing gaming-related policy assigned to the BIA through IGRA and other federal laws.

Salazar has little experience working with tribes or on issues related to Indian Country. In accepting the nomination, however, he did state that he looks forward to addressing “challenges” facing American Indian communities.

Obama sent an additional, critically important signal in discussing how the federal government should approach tribes. “We need more than just a government-to-government relationship; we need a nation-to-nation relationship,” he said.

This tracks with Obama’s campaign-trail pronouncements affirming tribal sovereignty. If taken literally, it goes further than prior presidential statements recognizing a government-to-government relationship. Nations are cultural and social communities; Obama’s statement seems to recognize the specificity of tribal cultural and social identity.

Still to come are Obama’s choices for a new White House liaison on Indian Affairs (so new that it’s never been done before), a new Assistant Secretary for Indian Affairs, a new Special Trustee for American Indians, and so on. These choices may extend to new members of the National Indian Gaming Commission, as well.

For right now, Ken Salazar is the cabinet appointee to watch.

The Obama Transition Team’s special designee on Indian affairs, Keith Harper, along with Native American Rights Fund Executive Director John Echohawk, will continue to advise Obama and now, Salazar, on positions of importance to Indian Country. We’ll keep you posted.

For more on Salazar's nomination, see the New York Times' coverage or click here.

A Corrupt North Dakota?!? From the "What Planet Are We On, Anyway?" Files

2008-12-15T14:49:00.000-08:00

In the immediate aftermath of the stunning revelations about Illinois governor Rod Blagojevich, USA Today published the results of an analysis that puts little old North Dakota at the top of its list of the "most corrupt" states in the U.S. North Dakota had the highest number of federal convictions for public corruption when measured on a per capita basis. With only 635,000 people, 53 convictions in the past decade resulted in a rate of 8.3 convictions per 100,000 people. So, states with much greater numbers of convictions but also with larger populations came out with lower rates than North Dakota -- like Illinois, with 503 convictions, Pennsylvania, with 555 convictions, or Florida, with 824 convictions.

North Dakota Attorney General Wayne Stenehjem blasted the USA Today analysis, calling it "patently ridiculous." Stenehjem complained that the analysis included federal prosecutions of local and tribal officials. The last public corruption conviction of a state official was in 1954. And here is where gaming comes in.

In 1950, Elmo Christianson, a young attorney from Cavalier, was elected Attorney General. One of North Dakota's "golden boys," Christianson had served in WWII. Christianson had trouble funding his campaign, and sought some creative financing from "out of state" sources. Shortly before the election, he fell in with Herman Paster, who distributed slot machines in Minnesota, and Paster's attorney, Allan Nilva. The three of them agreed to let Paster bring slot machines to North Dakota, where Christianson, as Attorney General, would protect the illegal machines from being shut down by the state. Unfortunately for the three, their conspiracy continued into the following year, after the federal Johnson Act took effect on January 2, 1951, thus triggering a federal investigation and prosecution for interstate transportation of illegal gambling devices. Nilva was acquitted, and after a mistrial, Christianson and Paster were both convicted in March 1954 of conspiracy to violate the Johnson Act.

Read the USA Today article.

Read the Eighth Circuit case affirming Christianson's and Paster's convictions, and detailing the sordid and fascinating conspiracy.

Who’s the Key to the Transition for Indian Country?

2008-12-11T14:28:00.000-08:00

Keith Harper, a member of the Cherokee Nation of Oklahoma, is a Lead on Barack Obama’s Interior Department Review Team. This means he is in the process of shaping what the incoming administration’s Interior Department will look like in terms of personnel as well as ideological and political posture.

Harper is a partner and chairs the Native American Practice Group at a major D.C. law firm. He has been lead attorney on the never-ending Cobell trust land litigation, and was head of the D.C. office of the Native American Rights Fund (NARF). Before becoming a Review Team Lead, Harper advised Obama on Indian affairs throughout the campaign.

Those watching the transition expect an Interior Department whose posture toward federal Indian programs and federal Indian policy will change dramatically from that seen throughout Bush years. One might assume that American Indians will be more visible within the Department and in the Office of Indian Gaming Management, while the Department’s stance on key issues related to tribal gaming will change, as well. For instance, it is likely that the 2005 letter that changed the BIA’s policy on approving compacts for prospective gaming sites on land not yet held in trust will be up for review.

Expect more efforts to engage in government-to-government consultation with tribes, as well.

For now, there is little doubt that the man to watch is Harper.

More here and here.

A (Rare) Informed Editorial on Indian Gaming

2008-12-01T13:22:00.000-08:00

An editorial in Saturday’s St. Petersburg Times offers a well-informed perspective on the current stand-off in Florida between the Seminole Tribe and state officials.

After the Florida Supreme Court ruled that the governor exceeded his authority in negotiating (at long last) a compact with the Seminoles, the state has been stymied by how to enforce the court's decision. The governor negotiated table games with the tribe, and the court ruled that the games were beyond the governor's power to authorize.

The key to the stand-off is the revenue-sharing provision in the compact: if all the tribe may operate is slot machines (which are legal in a few Florida counties), then there likely is not sufficient "give" by the state to justify the revenue sharing -- a fact that the editorial recognizes, and brings to readers' attention.

For more background on the situation in Florida, see our earlier posts, or read more on today's topic here.

More on the New Navajo Fire Rock Casino

2008-11-24T13:36:00.000-08:00

Hundreds of people had to wait to get in to the Navajo Nation's newly opened Fire Rock Casino, near Gallup, NM. More than 4000 people showed up on Wednesday to try their luck.

The Nation’s business model appears to focus on internalizing dollars spent and dollars received, as well as on building tribal economic and institutional capacity. The Nation reports that it financed the casinos, 92 percent of casino employees are Navajo, and it is not using an outside management company.

For more, see “Navajos Bet First Casino Is a Winner,” “Navajo Trail to Gaming,” and “Navajo Nation Opens its First Casino in New Mexico.”

Amidst Concerns, Navajo Casino Set to Open

2008-11-15T11:30:00.000-08:00

The Navajo Nation has long exercised its tribal sovereignty *not* to conduct gaming. As we wrote in our first book, Indian Gaming and Tribal Sovereignty: The Casino Compromise (2005):

For some tribes, gaming simply is not an option because their reservations are located in states that disallow any form of gambling. For others, isolated locales or lack of financial resources may restrict their ability to open or sustain a casino.

Even in the absence of these practical limitations, a few tribes have chosen not to pursue gaming enterprises based on tribal values and beliefs. Perhaps the most-cited example is the Navajo Nation's past rejection of gaming -- but that may change.

The Navajo Nation is both the largest tribe, with over 250,000 enrolled members, and the largest reservation in the U.S., covering 17.5 million acres in northwest New Mexico, northeast Arizona, and southeast Utah. In the mid-1990s, the tribe twice voted down referenda to build a casino. Opposition to a tribal casino was strongly influenced by Navajo beliefs that gambling can corrupt and destroy.
In 2002, Arizona voters approved Proposition 202, which allotted casino and slot machine rights to both the Navajo and the Hopi, who also have rejected gaming in the past. The referendum allowed either tribe to open its own casinos or to lease their rights to other tribes in the state. Recently, the Navajo announced plans to build a casino near Albuquerque in the Tohajilee Reservation, a small satellite of the main Navajo reservation. Despite tribal teachings against gambling, many Navajo are encouraged that gaming may help raise the living standard of a people whose unemployment rate is 44 percent and per-capita income is just over $6,000. "We thought we would be better off economically if we could do the same thing that other tribes have done in the area," said Tohajillee Chapter President Tony Sacatero. "Even if you don't have a casino here, people are still going to go someplace else. But if you build it here, the money is going to stay here."

Now, three years after we wrote that, the Navajo Nation is set to open Fire Rock Casino near Gallup, NM. The casino is expected to generate about $32 million in revenue for the tribe, and to diminish the tribe's current 50% unemployment rate. Still, many tribal members continue to raise concerns about alcohol, smoking, and problem gambling.

Read more.

Obama and Indian Country

2008-11-07T13:58:00.000-08:00

Wow! We have a new tag for blog posts: Obama!

An historic election has come and gone, and now President-elect Obama has begun the process of building a transition team and his incoming administration. What will be the outlook for Indian Country? Let's try to suss out some informed predictions.

First, Obama is an empty vessel, with little record to examine concerning Indian Country. As outsiders, we can pour much into that empty vessel, at least in terms of expectations.

Second, as we all know, Obama faces enormous expectations across the board. This certainly is the case in Indian Country. He has been set up (and has set himself up) to succeed or fail –- and not much in between. Such high expectations are impossible to fulfill.

Now, let’s look at the basics. In terms of a general philosophy, Obama lines up pretty well with a Clintonian view in at least two ways: government generally can play an important role in generating opportunities for greater legal, political, social, and economic equality, and the federal government should support initiatives that promote American Indian tribal self-determination and economic development.

Given that, what specifics can we point to in terms of what we can expect? We’ll address those in the next post.

More on Supreme Court Arguments in Narragansett Case

2008-11-05T14:44:00.000-08:00

For more on the historic Narragansett case, see these links:

AP coverage of the case.

Providence Journal article on which attorney actually argued the case.

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

2008-10-31T15:03:00.000-07:00

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!

2008-10-28T06:54:00.000-07:00

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?

2008-10-20T09:07:00.000-07:00

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!

2008-10-14T12:37:00.000-07:00

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

2008-10-07T14:53:00.000-07:00

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

Steve Quoted on John McCain in Sunday's NYT

2008-09-29T14:21:00.000-07:00

On Sunday, Sept. 28, the New York Times ran a front-page story with the headline, "For McCain and Team, a Host of Ties to Gambling."

Steve is the lead quote for the story:

"One of the founding fathers of Indian gaming" is what Steven Light, a University of North Dakota professor and a leading Indian gambling expert, called Mr. McCain.”

Steve was referring, of course, to McCain's role as one of the original architects of the federal Indian Gaming Regulatory Act. How one interprets the story of McCain’s subsequent links to the gambling industry as a whole depends in part on how it’s depicted the Times story and in much larger part on the frame through which one views Indian gaming, commercial casino interests, Jack Abramoff, and so forth.

More recently, McCain has questioned the rapid growth of the Indian gaming industry and called for legal reform to place greater state and federal controls on tribal gaming. We examined McCain's and others' calls for legal and political reform, and offered alternative reforms, in our 2006 article in the Virginia Journal of Social Policy and the Law ("How Congress Can and Should 'Fix' the Indian Gaming Regulatory Act: Recommendations for Law and Policy Reform," 13 Va. J.Soc. Pol'y & the L. pp. 396-473). The article was an outgrowth of the concrete recommendations we made in the final chapter of our first book, "Indian Gaming and Tribal Sovereignty: The Casino Compromise" (2005), and was inspired by our testimony before the Senate Indian Affairs Committee in 2005, when McCain was chair of the Committee.

Read more:
Jo Becker and Don Van Natta, Jr., For McCain and Team, a Host of Ties to Gambling New York Times, September 28, 2008, at 1.

Steven Andrew Light and Kathryn R.L. Rand, Indian Gaming and Tribal Sovereignty: The Casino Compromise

Senate Indian Affairs Committee Oversight Hearing on the Regulation of Indian Gaming (Apr. 27, 2005)

Gambling Law Symposium at Drake

2008-09-23T14:27:00.000-07:00

On September 12, we participated in the Gambling Law Symposium at Drake University Law School, co-sponsored by the International Masters of Gaming Law . As is typical for IMGL events, the symposium was packed with highly interesting and useful information, both from the "view from 36,000 feet" of academics and the "on the ground" perspective of gaming law practitioners and regulators. We gave a presentation on 20 years of Indian gaming under IGRA, including where we've been and where we seem to be going in the next 20 years. The lineup of speakers also included:

Attorney Heidi Staudenmaier on "Enforceability of Tribal Court Judgments and Related Issues in Light of the Pending Billion Dollar Judgment Against Harrah's in the Mohawk Tribal Court"

Law professor I. Nelson Rose on "Implementation of the Unlawful Internet Gambling Enforcement Act"

Attorney Sean McGuinness on "The Ethical Challenges of Representing Gaming Clients"

Panel discussion on the Iowa Smokefree Air Act and its impact on casinos (and a pending lawsuit challenging the same), with Jack Ketterer, the Administrator for the Iowa Racing & Gaming Commission, Matt Gannon, an Assistant Attorney General for Iowa, Joe Massa, the General Manager for Riverside Casino and Golf Resorts, and George Eichorn, the attorney behind the challenge to the Act

Attorney and gambling law expert Tony Cabot on "What Is Gambling Under the Law?"

Public administration professor Bill Thompson on "Gambling Law and Regulation in Ireland"

Attorney Dennis Whittlesey on "Indian Gaming at the Crossroads"

Mathematics professor Bob Hannum on "Poker and the Law"

Attorney Ben Hayes on "The Business of Betting: A Unified Interpretation of Federal Gambling Laws"

Look for a special symposium issue of the Drake Law Review for forthcoming articles by the symposium presenters.

Starts and Stops in Massachusetts

2008-09-18T14:48:00.000-07:00

In early September, the Mashpee Wampanoag Tribe sent a formal request to Massachusetts Governor Deval Patrick to initiate Class III compact negotiations. The request relates to the Tribe's proposal for a $1 billion resort casino in Middleborough, where the tribe currently is working to have land placed in trust by the U.S. Secretary of the Interior.

Ordinarily, such a request would trigger IGRA's requirement that the state negotiate in good faith -- and if no compact is reached after 180 days, then the tribe could sue the state in federal court. But IGRA also says that a tribe "having jurisdiction over the Indian lands upon which a class III gaming activity . . . is to be conducted" can request compact negotiations with the state. And at least one court, the U.S. Court of Appeals for the Sixth Circuit, has held that before the state's good faith duty will be triggered, the tribe requesting compact negotiations must actually possess qualifying "Indian lands."

So, were the Mashpee trying to trigger IGRA's good faith duty?

Without "Indian lands" in hand, so to speak, it seems pretty clear that the state doesn't have to negotiate with the Tribe. The Tribe pointed out that it would rather have even a preliminary agreement with the state for Class III gaming, but in any event, would exercise its right to conduct Class II gaming if Class III were still up in the air when (and if) the Interior Department approved its land-into-trust application.

But if the state did agree to negotiate when it wasn't required to, would it have a duty to negotiate in good faith? And would starting negotiations trigger IGRA's 180-day time line? As Kathryn said in the Mashpee Enterprise story, these are questions that the state's attorneys likely were -- or should have been -- weighing. The only answer we have so far is the state's "thanks, but no thanks" response to the Tribe's request. Patrick's camp responded that any negotiations "would be purely hypothetical," making formal negotiations unproductive from the state's perspective.

Read the articles in which Kathryn is quoted in the Cape Cod Times, and in the Mashpee Enterprise.

We're Off to Drake Law School

2008-09-10T14:21:00.000-07:00

We're off to the Drake Law Review/IMGL Gambling Law Symposium in Des Moines, Iowa. This should be an interesting gathering, with high-powered gaming attorneys, policymakers, and even a few professor-types like ourselves.

We'll follow up next week with our sense of how it all went down. Also, we'll have to post something on starts and stops in Massachusetts!

Violence and Gaming in Riverside County

2008-09-10T14:19:00.000-07:00

The New York Times reported on violence on the Soboba Band's reservation in southern California, fueled, according to the tribe, by the Riverside County Sheriff's Department. Since December 2007, five tribal members have been killed in shoot-outs with the Sheriff's Department. The Sheriff's Department claims that crime has risen dramatically on the reservation since 2006, when the tribe cancelled its contract with the Sheriff's Department to provide law enforcement.

The tribe has implemented a policy requiring Sheriff's deputies to check in and travel with an escort on the reservation. The Sheriff's Department has asked the NIGC to close the tribe's casino, arguing that there is imminent danger to casino patrons, employees, and nearby residents.

In the meantime, responding to complaints from groups like Stand Up for California, the governor's office is investigating whether the security restrictions or the increase in violent crime violate the tribal-state compact.

Riverside County Sheriff Stanley Sniff accused the tribe of having a "culture of violence" while tribal chair Robert Salgado charged that the Sheriff's Department was acting more like a 19th-century frontier cavalry.

Read more in the Times at Clash with Tribe Spurs Effort to Shut a Casino

Abramoff Sentenced to 4 Years in Prison

2008-09-08T14:39:00.000-07:00

On Thursday, former lobbyist Jack Abramoff was sentenced to four years in prison for tax violations and corruption offenses.

Abramoff, you'll recall, bilked tribes of millions of dollars. He played one tribe off another, promising access to and influence over federal policymakers while charging exorbitant fees and chortling over how easy it was to dupe tribal officials. Of course, Abramoff's unethical and illegal acts extended well beyond his interactions with tribes. His relatively short sentence -- under the Federal Sentencing Guidelines, he could have received 11 years in prison -- was recommended by the prosecutor based on Abramoff's extensive cooperation in the investigation. In fact, the government recommended only 39 months, while tribal leaders from the Saginaw Chippewa in Michigan and the Coushatta Tribe of Louisiana urged the judge to issue a much harsher sentence.

Ironically, or perhaps fittingly, the man who called his tribal clients "monkeys," "troglodytes," "morons," and "the stupidest idiots in the land," begged the court for mercy, saying, "My name is the butt of a joke."

Read here in the New York Times.

We wrote an article on the implications of the Abramoff scandal on federal campaign finance law and tribal political participation in the Gaming Law Review. Find information on it here,
http://www.liebertonline.com/toc/glr/10/3, and as with anything else we’ve written, please feel free to contact us about the article.

Another Challenge to NIGC's Indian Lands Determination

2008-09-02T14:47:00.000-07:00

In Iowa, the state Attorney General has filed suit in federal court to stop the Ponca Tribe of Nebraska from operating gaming in Carter Lake, IA.

Late last year, the NIGC had determined that the Carter Lake parcel, located near Council Bluffs, qualified as "restored lands" under IGRA's exceptions to the general prohibition against gaming on newly acquired lands. Iowa officials are relying in part on the fact that the NIGC reversed itself: in October 2007, it determined that the lands were not restored, but in December 2007, it reversed that decision. The state also is concerned about the impact on commercial gaming in Council Bluffs: according to Council Bluffs Mayor Tom Hanafan, tribal gaming is less desirable than state-sanctioned gaming that "all pay taxes."

That's a revenue-sharing alert, folks.

Complicating matters: The Secretary's new "Section 20" regulations that limit the reach of the restored lands exception.

Both NIGC decisions are available from the NIGC's web site, here. Read more at "Miller Files Lawsuit Over Gaming Legality."

Buffalo Creek Casino Case: Judge Skretny's Decision

2008-08-19T14:55:00.000-07:00

On July 8, 2008, the federal district court issued a decision in the case challenging the NIGC's approval of the Seneca Nation's amended ordinance. The case, brought by Citizens Against Casino Gambling in Erie County, is an effort to prevent the tribe from operating a casino in Buffalo.

The plaintiffs claimed that the Buffalo parcel is not "Indian lands," so that Chairman Hogen's conclusion that the parcel meets IGRA's Indian lands requirement is arbitrary and capricious. After a lengthy analysis, Judge Skretny rejected this claim.

The plaintiffs also claimed that the Buffalo parcel did not qualify for the "settlement of a land claim" exception to IGRA's general prohibition against gaming on newly acquired lands, so that Chairman Hogen's conclusion on this point is arbitrary and capricious. On this one, the court sided with the plaintiffs. Recall that the Seneca Nation purchased the Buffalo parcel with funds from the federal Seneca Nation Settlement Act. The Interior Secretary had opined that land purchased with SNSA funds would fall within the "settlement of a land claim" exception.

The court, though, stated, "When the SNSA was enacted, the [Seneca Nation] did not possess an enforceable claim against the United States . . . . Because no claim existed, no claim was settled."

The court went on to hold that "gaming cannot lawfully occur on the Buffalo parcel under the settlement of a land claim exception," and vacated the NIGC's approval of the tribe's amended ordinance.

End of story, right? Wrong. In late July, federal lawyers asked the court to remand the issue to the NIGC. The argument is that while this case was pending, the Interior Department issued new regulations interpreting IGRA's exceptions to the prohibition against gaming on newly acquired lands (the section 2719 exceptions). These new regs take effect this month. And the next scheduled court date is August 21, when the Citizens Against Casino Gambling in Erie County are expected to ask the court to send federal marshals to shut down the Buffalo Creek Casino. Stay tuned.

Buffalo Creek Casino Case: The Challenges to the NIGC's Actions

2008-08-15T13:00:00.000-07:00

As we explained last time, the NIGC twice approved the Seneca Nation's gaming ordinance in relation to the Buffalo Creek Casino.

First, in 2002, the NIGC approved an ordinance for gaming on unspecified lands. Then, in 2007, the NIGC approved an amended ordinance specifying the Buffalo parcel as the location for the casino. The 2007 approval expressly found that the parcel was "Indian lands," and qualified for the "settlement of a land claim" exception.

In the meantime, though, Citizens Against Casino Gambling in Erie County had filed federal suit. One of their challenges was to the NIGC's approval of the tribe's gaming ordinance. They claimed that the NIGC’s approval of the 2002 ordinance without making a determination that the lands in question (which, recall, were unspecified) were indeed Indian lands was arbitrary, capricious, an abuse of agency discretion, and contrary to law.

In 2007, right around the time the NIGC was reviewing the amended ordinance, the federal district court decided that in approving gaming ordinances, the NIGC was obligated to make an "Indian lands" determination: "[T]he NIGC is the gatekeeper for gaming on Indian lands and, when acting on a tribal gaming ordinance, it has a duty to make a threshold jurisdictional determination." The court further held that the NIGC's approval of the 2002 ordinance was therefore arbitrary and capricious, and vacated and remanded the agency’s approval.

Back to 2007 and the amended ordinance. In approving the amended ordinance, NIGC Chairman Hogen noted the court's decision regarding the 2002 ordinance, and stated, "Although we disagree with the Court's holding this site-specific ordinance moots the issues in that case."

Citizens Against Casino Gambling in Erie County disagreed, and filed another suit, which resulted in Judge Skretny's July 8, 2008 decision.

Whew! Up next: Judge Skretny's decision.

The Buffalo Creek Casino Case: The NIGC's Actions

2008-08-11T13:42:00.000-07:00

When we left off on the Buffalo Creek controversy, we had reached the point where the Seneca Nation had purchased 9 acres of land in Buffalo in 2005. That was followed by a federal suit, filed by Citizens Against Casino Gambling in Erie County, to stop the tribe from opening a casino on the land. At issue was whether the land in question qualified as "Indian lands" under IGRA.

Back in 2002, when the Interior Secretary "pocket approved" the compact between the Seneca Nation and New York, Secretary Norton issued a letter explaining why she was neither disapproving nor affirmatively approving the compact. (Under IGRA, if the Secretary takes no action within 45 days, a compact is deemed approved.) In the letter, Norton stated that the land the tribe intended to purchase with the Seneca Nation Settlement Act (SNSA) funds would be "Indian lands" under IGRA. She also stated that the land would fall within the "settlement of a land claim" exception to IGRA's prohibition against gaming on lands acquired after 1988.

In 2002, the Seneca Nation passed a gaming ordinance that indicated the tribe's intent to conduct gaming on its lands. It did not specify a location, as the compact authorized the tribe to operate a casino in Buffalo "at a location to be determined." The ordinance was submitted to the NIGC Chair for approval, as required by IGRA. Chairman Hogen approved the ordinance, noting that approval was "for gaming only on Indian lands."

Once the land was purchased, the Seneca Nation passed an amended gaming ordinance that specifically identified the Buffalo parcel as the location for its casino. Chairman Phil Hogen approved the ordinance in 2007. Hogen's approval letter concluded, "Based on our review of the submitted ordinance, and taking into consideration the Department of the Interior's earlier decisions regarding the status of the Buffalo parcels, the parcels are Indian lands within the meaning of IGRA and they were acquired through the settlement of a land claim and thus are exempt from the general prohibition on gaming on land acquired after October 17, 1988."

In the meantime, though, the federal suit was pending . . . .

Up next: the challenges to the NIGC's actions.

Arizona Indian Gaming Revenue Down—What, Me Worry?

2008-08-06T14:26:00.000-07:00

The Arizona Department of Gaming reports that revenue generated by tribal casinos is down, and that has state and local policymakers worried—about their own coffers.

Since 2003, Arizona tribes have distributed about $430 million to the state, which then channels the funds to various programs, like schools, hospitals, wildlife conservation, police protection, and other social services, including the mitigation of gambling addiction.

Indian gaming revenue fell 7.5 percent in the last quarter, the steepest drop in five years of revenue sharing. The economic downturn is being felt throughout the gaming industry—tribal, commercial, and charitable alike—and high gas and food prices and less disposable income for middle-class families hit “local” casinos particularly hard.

The state, therefore, may feel the pinch.

That’s a downside of tethering state public policy to revenue sharing—and why many states secretly (or not) hope that the Indian gaming industry stays on top of its game.

Read more in the Tucson Citizen.

Buffalo Creek Casino Case: The Story of the Buffalo Parcel

2008-08-01T13:58:00.000-07:00

As everyone knows (right?), IGRA only authorizes Class II and III gaming on "Indian lands." For non-reservation land, the determination of whether a parcel of land is "Indian lands" can be very complicated, requiring careful analysis of a complex history of the tribe's interactions and agreements with the state and the federal government. In his July 8 decision, federal judge William Skretny conducted just that kind of analysis, reaching all the way back to the 17th century.

It's a long story that's difficult to make short, but here's the gist: In the 18th and 19th centuries, the Seneca Nation's land was sold and leased under a number of treaties, agreements, and statutes.

In the 1950s, the tribe filed claims against the U.S. for failing to ensure that the Seneca Nation received fair remuneration for its land. In 1969, the claims were still pending. One of the 19th century leases, however, was due to expire, and the New York state legislature set about renegotiating the lease with the tribe. An agreement was reached, and Congress codified it in the Seneca Nation Settlement Act of 1990. The Act included a provision requiring the U.S. to pay the tribe $35 million for past inequities. $5 million was earmarked for the tribe's economic and community development.

Then, in 2002, the Seneca Nation entered into a Class III compact with New York. The compact authorized gaming at three different sites, including on a to-be-purchased parcel of land in Buffalo. The tribe intended to use some of the funds from the 1990 Settlement Act to purchase the land. The compact was "pocket-approved" by the Interior Secretary.

In 2005, the tribe purchased 9 acres of land in Buffalo. A few months later, a citizens group, Citizens Against Casino Gambling in Erie County, filed suit in federal court to prevent the tribe from conducting gaming on the parcel.

Next up: The NIGC's actions

Things Are Brewing in Buffalo!

2008-07-29T14:27:00.000-07:00

July is the month for high-profile Indian gaming litigation, and from the looks of it, expect further developments in August.

Besides the controversial case handed down by the Florida Supreme Court earlier this month, litigation has been brewing in New York over the Buffalo Creek Casino.

Just a few days after the Florida decision, a federal judge ruled that despite an NIGC decision to the contrary, the Seneca Nation could not operate gaming on a parcel of land in Buffalo, New York. The tribe currently operates a temporary casino there, and is in the midst of constructing a $333 million casino complex, billed as the largest privately funded construction project in Buffalo's history.

Now, the U.S. has filed a motion asking the federal court to "remand" the case to the NIGC. The tribe supports the motion, with the assistance of their chief legal consultant, the renowned constitutional scholar Laurence Tribe.

How did all that come about? We'll explain it for you!

Next up: The story of the Buffalo parcel . . . .

Attempts to Enforce State Law in Florida

2008-07-25T13:52:00.000-07:00

As we explained in our last post, Florida's options for enforcing the Florida Supreme Court decision are limited. Though the court held that the governor could not authorize banked card games as a matter of state constitutional law, this may not necessarily mean that the Seminoles have to stop offering table games at their Hard Rock Hotel & Casino. Legally, the state must turn to the federal government, and politically, the state must decide whether it wants to risk hundreds of millions of dollars in revenue sharing.

The Isle Casino at Pompano Park, a private racino in Florida, brought suit in federal court to shut down the Seminoles' table games. But under IGRA, only a handful of suits are authorized. The statute says that a state or a tribe may sue to stop Class III gaming conducted in violation of a compact. And the federal courts have uniformly held that IGRA does not authorize a general private cause of action. So, being neither a state nor a tribe, the Isle Casino simply cannot sue to enforce IGRA -- which is exactly what the federal district court judge ruled.

The state's next move remains to be seen . . . . But in the meantime, both the Seminole Tribe and Gov. Crist have filed petitions for rehearing in the Florida Supreme Court.

Read more in this Florida Sun-Sentinel story.

The Fallout from the Florida Decision

2008-07-21T14:41:00.000-07:00

In our last post, we explained the Florida Supreme Court's recent ruling that Gov. Crist exceeded his state constitutional authority in authorizing banked card games through the tribal-state compact with the Seminoles. That must mean that the Seminoles can't offer banked card games, such as blackjack, right? Not necessarily. There are at least three considerations that make this more complicated, both legally and politically.

First, the compact was negotiated, signed, and approved by the Interior Secretary. Under IGRA, this was a valid compact. The Seminoles have taken the position that a state court decision cannot invalidate a duly approved compact. So, they continue to offer all the games authorized under the compact, including banked card games.

Second, Florida's options for attempting to enforce the court's decision are limited. Florida has no independent state authority over the tribe's casino. At the same time, IGRA states that Class III gaming, such as banked card games, is legal only if it is operated in accordance with a valid compact. But only the federal government can enforce IGRA. The state of Florida can bring suit in federal court to stop unauthorized Class III gaming, or it can try to convince the NIGC or the local U.S. Attorney to shut down any unauthorized Class III gaming.

And third, though the compact contains a severability clause (meaning that even if the court invalidated the portion of the compact that authorized banked card games, the rest of the compact should remain valid), the compact also contains a revenue-sharing provision. The validity of a revenue-sharing provision should turn on whether the state gave the tribe anything above and beyond what the tribe is entitled to under IGRA -- typically, this is some measure of exclusivity, such as the ability to operate banked card games when no one else can. In other words, if the state tries to shut down the tribe's blackjack games, it runs the risk of forfeiting a great deal of revenue -- some $375 million over the first three years of the compact.

Next up: Why was a private casino was unsuccessful in trying to enforce the court's decision?

Read more in this article in the South Florida Sun-Sentinel in which Kathryn is quoted: Does Court Ruling Put Hard Rock in a Hard Place? Also, see Court Strikes Down Florida-Seminole Gaming Deal in the Miami Herald.

No Surprise from Florida

2008-07-16T14:29:00.000-07:00

Earlier this month, the Florida Supreme Court held that the Class III compact negotiated between Gov. Crist and the Seminoles violated state law. As Kathryn has detailed in her 2007 Marquette Law Review article, state constitutional challenges to gaming compacts are not unusual, often arising when the state legislature (or some state legislators) are unhappy with the compact negotiated by the governor. The Florida case is similar to cases in Wisconsin, New York, and Michigan. In Florida, the state legislature sued Gov. Crist, arguing that the compact was invalid without legislative approval. As is typical in these cases, the Seminoles were not party to the suit (Kathryn's article discusses how and why this is problematic). And as is also typical in these cases, the court's decision turns entirely on state law. (Ditto.)

The court concluded that because the compact authorized banked card games, which are illegal in Florida, the governor exceeded his constitutional authority: "The Governor has no authority to change or amend state law. Such power falls exclusively to the Legislature. Therefore, we hold that the Governor lacked authority to bind the State to a compact that violates Florida law as this compact does."

The court's decision is available through the Florida Supreme Court web site. (By the way, Kathryn's Marquette Law Review article is cited by the Florida Supreme Court in its decision.)
http://www.floridasupremecourt.org/decisions/index.shtml

Next up: The Fallout from the Florida Decision

And Now Some Gaming News from North Dakota . . . .

2008-07-14T14:45:00.000-07:00

This isn't Indian gaming news, but we thought some readers would be interested in what was the biggest illegal gambling case in North Dakota . . . . or at least it was, until a federal court reversed the convictions of the defendants, as well as the forfeiture order of $99 million, based on insufficient evidence.

Read more here.

The Eighth Circuit case is U.S. v. Bala, 489 F.3d 334 (8th Cir. 2007).

Per Capita Payments and Tribal Membership

2008-07-03T14:55:00.000-07:00

The San Pasqual Band of Mission Indians withheld per capita gaming payments from about 50 members and also fired several members from casino and other leadership positions. The issue centers on the validity of their status as tribal members. The Band requires "blood quantum" for tribal membership. Each member must, at the least, have a great-grandparent who was a "full-blooded" member of the tribe. The dispute over the 50 members arose from questions about whether the relative from whom they were descended was adopted, rather than being a "blood" member of the tribe.

The San Pasqual Band is a relatively small tribe of about 300 members, and it issues monthly checks of about $4,000 to each of its members under its per capita payment plan. IGRA permits a tribe to make per capita distributions of net gaming revenue to its members if the uses mandated in section 2710(b)(2)(B) (these include funding tribal government operations, providing for the welfare of tribal members, promoting tribal economic development, making charitable donations, and assisting in funding local government operations) are adequately met and the tribe's distribution plan is approved by the Interior Secretary. Because per capita payments are limited to tribal members, the membership determinations of some tribes come under scrutiny. Generally speaking, of course, tribal sovereignty encompasses a tribe's exclusive right to make membership determinations. Accordingly, federal courts have been reluctant to review a tribe's distribution of such payments. At least one court, however, has made a distinction between reviewing a tribe's membership determinations and reviewing a tribe's compliance with its per capita payment plan. (See Smith v. Babbitt, 875 F. Supp. 1353 (D. Minn. 1995), aff'd, 100 F. 3d 556 (8th Cir. 1996).)

Interestingly, though, the local BIA superintendent said that the San Pasqual Band's membership determinations must be approved by the BIA. The BIA superintendent reported the withheld checks to the NIGC as a potential violation of the Band's per capita payment plan, explaining that the disputed members are "members until such time as the BIA changes its mind."

Read more here in Onell Soto’s article in the San Diego Union Tribune.

Intra-Agency Contestation in Interior Department (or, Interior Scolds NIGC)

2008-07-01T14:58:00.000-07:00

A few weeks ago, we told you about the NIGC's May 19 Indian land opinion for the Poarch Band of Cree Indians in Alabama. State officials had challenged the legality of the tribe's Class II operation on a parcel of land near Montgomery. Five years passed. And then the NIGC concluded that the land in question met the "restored lands" exception.

As we noted then, it was interesting that the NIGC opinion was issued while the Interior Secretary continues to contemplate formal regulations governing newly acquired lands. As the acting general counsel noted at the start of her opinion letter, "I recognize that this decision, coming from me and at this time, is a bit unusual." Referencing the assistance provided by the Band and the delay in the issuance of the opinion, the letter states that it would be "significantly unfair" to require the Band to wait for new regulations.

Those new regulations were issued the very next day, May 20.

A few weeks later, David Bernhardt, the Interior Department Solicitor or chief legal officer (and the third ranking official in the Interior Department), wrote a lengthy letter to NIGC Chairman Phil Hogen, challenging the NIGC's Indian land opinion for the Poarch Band. The letter details the Solicitor's disagreement with the NIGC opinion. Bernhardt wrote,

"Given that the legal conclusions reached by [the NIGC's general counsel] are inconsistent with the legal views of the Office of the Solicitor, and that . . . NIGC has no statutory mandate to issue Indian lands opinions independently, the Secretary has directed me to inform you that he is invoking his authority . . . to review your decision . . . ."

The letter ends with the Solicitor's analysis of the NIGC's authority. Noting that decisions regarding whether land qualifies as "Indian lands" under IGRA may involve "whether a tribe is exercising jurisdiction and governmental authority over those lands; whether gaming is authorized under [IGRA's section] 2719; and a legal analysis of 25 C.F.R. Part 292," the letter concludes, "Resolution of these questions has not been delegated to the NIGC. Moreover, resolution of these issues relies on the particular expertise of the Solicitor's Office regarding overall Indian issues and not just Indian gaming concerns."

Oh, and by the way, Interior just announced that it was delaying the effective date for the new "Section 20" regulations until August 25, 2008.

Kathryn Quoted on NIGC's Withdrawal of Proposed Class II Regulations and New "Section 20" Regulations

2008-06-26T14:28:00.000-07:00

In this Cape Cod Times article, Kathryn is quoted on the impact of the NIGC's decision to withdraw the most controversial proposed Class II regulations, as well as the impact of the new "Section 20" regulations issued by the Interior Department, on the Mashpee Wampanoag's efforts to open a casino in Massachusetts.

The links between the withdrawn and proposed regs are intriguing from the perspective of the Mashpee. Both outcomes do little to harm the tribe’s efforts to open a casino in Massachusetts, and may in fact assist the tribe in maintaining some political leverage.

Read the article here.

New "Section 20" Regulations: The Best Interests Exception

2008-06-24T14:11:00.000-07:00

So here we go with the “best interests” exception, otherwise known as the “two-part determination.” Follow this:

Under IGRA's section 2719, an exception is made to the general prohibition against gaming on newly acquired lands when gaming on the lands is "in the best interest of the tribe and its members, and would not be detrimental to the surrounding community." We call this the "best interests" exception; it also is referred to as the "Secretary's two-part determination." Specifically, IGRA requires that the Secretary of the Interior must first consult with the tribe, the state, local officials, and officials of nearby tribes, and then determine that gaming on the newly acquired lands would be in the best interest of the tribe and its members and would not be detrimental to the surrounding community. Importantly, the state's governor must concur in the Secretary's determination; as we've pointed out on numerous occasions, this is essentially veto power over tribal gaming under this exception. The consultation and governor's concurrence requirements create potential political obstacles to the likelihood that a tribe may conduct gaming on newly acquired lands under the "best interests" exception, as demonstrated by the fact that only three tribes currently operate gaming on newly acquired lands under this exception (the Keweenaw Bay Indian Community of the Lake Superior Bands of Chippewa Indians operate a casino in Choclay Township, outside of Marquette, Michigan; the Forest County Potawatomi operate a casino in Milwaukee, Wisconsin; and the Kalispell Tribe conducts gaming in Airway Heights, Washington).

The new regulations detail the process for approval of a "best interests" exception application. (Much of the process tracks what the BIA had followed under the "Checklist for Gaming Acquisitions and Two-Part Determinations Under Section 20 of IGRA" and the January 2008 "Guidance on Taking Off-Reservation Land Into Trust for Gaming Purposes.") A few things worth noting:

"Surrounding community" is defined in section 292.2 as including "local governments and nearby Indian tribes located within a 25-mile radius of the proposed gaming establishment." A local government or tribe further away may be included in the consultation process if the tribe shows that "its governmental functions, infrastructure or services will be directly, immediately and significantly impacted" by the gaming.

The tribe's application must describe the benefits and impacts of the gaming on the tribe and its members. Specifically, the regulations require information about projected gaming income, projected tribal employment, tourism, proposed uses of income, possible adverse impacts and plans to address the same, distance between the land and the tribe's core governmental functions, historical connections to the land, and "any other information" relevant to the Secretary's determination on this point.

Similarly, the tribe's application must include information about the detrimental impacts of the gaming on the surrounding community, such as environmental impacts; impacts on the social structure, infrastructure, services, housing, community character, and land use patterns; impacts on economic development, income, and employment; treatment of compulsive gambling; impacts on other tribes' traditional cultural connections to the land; the costs of the anticipated impacts; and "any other information" relevant to the Secretary's determination on this point.

Assuming the Secretary determines that gaming on the land would be in the best interest of the tribe and its members, and would not be detrimental to the surrounding community, then the Secretary will notify the state's governor and request her concurrence. If the governor concurs, then the tribe's application will be approved. The governor's written "non-concurrence" will prevent the tribe from using the land for gaming purposes, though the tribe may pursue a land-into-trust application for non-gaming purposes. Under the new regulations, the governor may also do nothing. If the governor issues neither a concurrence or a "non-concurrence" within a year (which may be extended by an additional 180 days) of the Secretary's notification and request for concurrence, then the Secretary's determination essentially will expire, requiring the tribe to start over.

Next time, some commentary on this exception from an article or two in which Kathryn is quoted.

New "Section 20" Regulations: Restored Lands Exception

2008-06-19T14:32:00.000-07:00

Still more in our series on the National Indian Gaming Commission’s new “Section 20” regulations concerning gaming on newly acquired lands:

In section 2719(b), IGRA creates an exception for "lands are taken into trust as part of . . . (iii) the restoration of lands for an Indian tribe that is restored to Federal recognition." The new regulations, in 25 C.F.R. sections 292.7 to 292.12, set out the requirements for the restored lands exception.

The tribe must show that it was federally recognized, that its recognition was terminated or otherwise lost, and that it then subsequently was "restored" to federal recognition. Importantly, the tribe must also show that the land in question was part of a "restoration of lands" connected to the tribe's restored federal recognition. Each of these requirements is detailed in the new regulations.

The tribe's original federal recognition may be evidenced by U.S.-tribal treaty negotiations, organization under the Indian Reorganization Act (or the Oklahoma Indian Welfare Act), federal legislation, land acquired by the U.S. for the tribe's benefit, or other demonstration of the existence of a government-to-government relationship between the tribe and the U.S.

Termination of the tribe's recognition may be through federal termination legislation, federal restoration legislation that acknowledges prior recognition, or consistent federal records indicating termination of the government-to-government relationship with the tribe.

Restoration of the tribe's federal recognition may be by federal statute, the federal administrative acknowledgment process, or a federal court decision (in which the U.S. is a party) or a court-approved settlement agreement (entered into by the U.S.).

The status of lands as part of the "restoration of lands" varies with the mechanism of restoration of federal recognition. If restored via statute, then the statute must direct or authorize the Interior Secretary to take land into trust, and the land in question must be within the geographic area referenced by the statute. If no geographic area is specified in the restoration legislation, or if the tribe's federal recognition is restored via administrative acknowledgment or court decision, then the land in question must meet the requirements of section 292.12: the land must be located in the state (or states) where the tribe currently is located (as with the initial reservation exception, the tribe's current location is determined by the presence of tribal government and population centers); the tribe must have a "significant historical connection" to the land; and the tribe must have at least one "modern connection" to the land. For restored lands, modern connections include: within a "reasonable commuting distance" of the tribe's existing reservation, "near" the residences of a "significant number" of tribal members, within 25 miles of the tribe's headquarters or other government facilities, or "other factors [that] demonstrate the tribe's current connection to the land." Additionally, the tribe must show a "temporal connection" between the acquisition of the land and the restoration of the tribe's federal recognition, in the form of evidence that either the land was included in the tribe's first land-into-trust request following its restoration or the tribe requested that the land be taken into trust within 25 years of its restoration (this latter temporal connection also requires that the tribe is not operating gaming on other lands).

Up next: the Big One. We’ll explain the new regs concerning the “best interests” exception, otherwise known as the “two-part determination.”

New "Section 20" Regulations: Initial Reservation Exception

2008-06-18T14:46:00.000-07:00

More on the National Indian Gaming Commission’s new “Section 20” regulations concerning gaming on newly acquired lands:

In section 2719(b), IGRA creates an exception for "lands are taken into trust as part of . . . (ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process." In 25 C.F.R. section 292.6, the new regulations set forth four conditions for meeting the initial reservation exception.

First, as the statutory language indicates, the tribe must be federally recognized through the federal administrative tribal acknowledgment process (see 25 C.F.R. pt. 83). Second, the tribe must not already operate a gaming facility under IGRA's restored land exception. Third, the land must be proclaimed as a reservation under 25 U.S.C. section 467, and must be the first proclaimed reservation of the tribe following its federal recognition.

The fourth requirement applies to tribes without a proclaimed reservation on the effective date of the new regulations (June 19, 2008). For those tribes, in order for the land to be a proclaimed initial reservation, the land must be located in the state (or states) where the tribe currently is located. The tribe's current location is determined by the presence of tribal government and population centers. Additionally, the land must be "within an area" where the tribe has "significant historical connections," and at least one "modern connection," to the land. Modern connections include: "near" the residences of a "significant number" of tribal members; within 25 miles of the tribe's headquarters or other government facilities; or "other factors that establish the tribe's current connection to the land."

In the definitions section, section 292.2, "significant historical connection" is defined as either within the boundaries of the tribe's last treaty reservation, or documentation of the existence of tribal villages, burial grounds, occupancy, or subsistence use in the vicinity of the land.

Up tomorrow: the “restored lands” exception.

New "Section 20" Regulations: Settlement of a Land Claim Exception

2008-06-17T12:33:00.000-07:00

The Interior Department's new "Section 20" regulations clarify when settlement lands will meet the exception to IGRA's general prohibition against gaming on newly acquired lands. In section 2719(b), IGRA creates an exception for "lands are taken into trust as part of . . . (i) a settlement of a land claim."

Under 25 C.F.R. section 292.5, the land must be either acquired through resolution of the claim via federal statute, a settlement agreement executed by the parties (including the U.S.), or a final court order or judicially enforceable settlement agreement. The last settlement mechanism, a court order or judicially enforceable settlement, must predate IGRA's enactment (October 17, 1988).

In section 292.2, the new regulations also limit "land claim" to claims arising under federal law ("United States Constitution, Federal common law, Federal statute or treaty"). Additionally, the claim must have accrued on or before IGRA's date of enactment or involve lands placed in trust or restricted status on or before the same date.

Not too much here that rocks the boat. Up tomorrow: the “initial reservation” exception.

Interior Issues New "Section 20" Regulations: Big News, Big Implications

2008-06-11T06:58:00.000-07:00

In section 2719 (or, as it's often called, "Section 20," in reference to the numbering of the statutory sections in bill form), the federal Indian Gaming Regulatory Act (IGRA) sets forth a general prohibition against tribal gaming on trust lands acquired after IGRA's date of enactment:

Except as provided in subsection (b) of this section, gaming regulated by this chapter shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988 . . . .

Such lands are commonly referred to as "newly acquired" or "after acquired" lands. There are, however, a number of general and state- and tribe-specific exceptions.

These exceptions, though relatively rarely applied, are political lightning rods, giving rise to charges of "reservation shopping." For more than eight years, the Interior Department has been working on regulations interpreting section 2719. (Since 1994, the BIA's application of the section 2719 exceptions has been guided by a "Checklist for Gaming Acquisitions and Two-Part Determinations Under Section 20 of IGRA" issued by the BIA's Office of Indian Gaming Management. A checklist, of course, doesn’t carry the force of law or even of formal policy.)

In late May, Interior published its new "Section 20" regulations in the Federal Register. This is big news for a whole bunch of tribes. In the next few posts, we'll walk you through the new regulations (25 C.F.R pt. 292), so stay tuned.

The Second of Two New "Indian Lands" Opinions by NIGC

2008-06-09T09:56:00.000-07:00

On May 19, the NIGC, through its acting general counsel, issued two opinions on whether particular land satisfied IGRA's "Indian land" requirement, so that the tribe could conduct gaming on the land.

We discussed the first opinion, concerning the Poarch Band of Creek Indians, in our last post. The second opinion concerned the Fort Sill Apache Tribe's plans to open a Class II operation on trust lands in New Mexico. Here, too, section 2719 applied, as the land was acquired by the Tribe in 1998. The Tribe argued that one of three exceptions to IGRA's general prohibition against gaming on newly acquired lands should apply: last recognized reservation, restored lands, and/or initial reservation.

As for the last recognized reservation exception under section 2719(a)(2)(B), the NIGC concluded that the Tribe is not "presently located" in New Mexico and that the Tribe failed to provide sufficient evidence that the land was located within the boundaries of its last recognized reservation. The restored lands exception (section 2719(b)(1)(B)(iii)) did not apply here, as there was insufficient evidence that the Tribe's tribal status was "restored," and that the land in question was part of a "restoration of lands." Finally, the initial reservation exception (section 2719(b)(1)(B)(ii)) did not apply, as the BIA provided information that although the land was coded as "reservation" land, it had not yet determined whether to proclaim the trust land in question as a reservation. Further, the initial reservation exception is limited to tribal groups acknowledged through the administrative process.

Both opinions are available through the NIGC's website, here.

Two New "Indian Lands" Opinions by NIGC

2008-06-05T12:18:00.000-07:00

On May 19, the NIGC, through its acting general counsel, issued two opinions on whether particular land satisfied IGRA's "Indian land" requirement, so that the tribe could conduct gaming on the land.

The first opinion concerned a parcel of land near Montgomery, Alabama, on which the Poarch Band of Creek Indians currently is conducting gaming. In 2003, Alabama officials questioned whether the Band's Class II operation was legal. The land was taken into trust in 1995, thus triggering section 2719's general prohibition against gaming on lands acquired after 1988 -- unless the land satisfies one of the handful of exceptions set out in IGRA. The NIGC concluded that the land met the "restored lands" exception, as it was taken into trust as part of the Band's restoration of lands following federal tribal acknowledgement in 1984.

Interestingly, the NIGC opinion was issued while the Interior Secretary continues to contemplate formal regulations governing newly acquired lands. As the acting general counsel noted at the start of her opinion letter, "I recognize that this decision, coming from me and at this time, is a bit unusual." Referencing the assistance provided by the Band and the delay in the issuance of the opinion, the letter states that it would be "significantly unfair" to require the Band to wait for new regulations.

As for the nearly five years that passed between the state's request for review and the NIGC opinion letter, the letter states, "Thank you for your extraordinary patience as our office reviewed the question of the status of the Parch Band's Tallapoosa Site. I recognize that this review was disruptive to the Tribe financially and for that I apologize."

More on the second opinion, concerning the Fort Sill Apache Tribe’s plans to open a Class II operation in New Mexico, in our next post.

Nelson Westrin, Former NIGC Vice Chair and a Leader in Indian Gaming Regulation, Has Died

2008-06-02T11:12:00.000-07:00

We are sorry to share the sad news that Nelson Westrin passed away last week. He was 61.

After he provided legal counsel to Michigan's governor regarding Class III compact negotiations, Nelson was named by Gov. Engler as the state's Racing Commissioner in 1993. A few years later, he became the Executive Director of the newly created Michigan Gaming Control Board, charged with regulating the state's nascent casino industry. Nelson held this position for six years, and was responsible for proposing legislation and developing and implementing regulations governing the Detroit casinos. He also was the Governor's designated state representative under Michigan's 1993 and 1998 tribal-state compacts, and directed the inspection and audit of Class III tribal gaming operations in the state.

In 2002, Nelson was appointed by President Bush to serve on the three-member National Indian Gaming Commission, where he was elected Vice Chair. During his tenure as NIGC Vice Chair, Nelson was instrumental in shaping the NIGC's policy and practices. He developed and authored the NIGC's first ever Government-to-Government Tribal Consultation Policy, and also helped to promulgate amendments to the MICS and new regulations clarifying the distinction between Class II and Class III machines.

After his three-year term with the NIGC ended, Nelson was a partner with the Lansing firm of Honigman Miller, where he practiced in the areas of gaming regulation and federal Indian and tribal law.

We first met Nelson when he was the NIGC Vice Chair. He was committed to tribal sovereignty and the federal government's obligation to work with tribes on a government-to-government level. He knew that respect for tribal sovereignty was not inconsistent with effective regulation of Indian gaming, and his work at the NIGC achieved both.

Nelson also was extraordinarily generous and genuinely nice. At our first meeting with him in Washington, DC, we brought along a copy of our book, Indian Gaming and Tribal Sovereignty: The Casino Compromise, which had just come out. When we presented it to him, he pulled out the copy he had already bought -- and read. What followed was a highly interesting and enjoyable discussion about the importance of tribal gaming and the challenges of effectively implementing and enforcing IGRA.

Most recently, we had the good fortune to be able to perform a small favor for Nelson. In mid-May, as he was experiencing some health issues, he asked us to sit on a panel, along with attorneys Mary Magnuson and Lance Boldrey, at a gaming industry conference. The panel was on the future of tribal-state compact negotiations, an area in which Nelson certainly had both experience and expertise. After the conference, we emailed Nelson to report on the success of the panel, and to thank him for inviting us to participate, particularly since we had the pleasure of meeting Mary and Lance, both of whom practice in the area of Indian gaming. Nelson's reply, of course, was characteristically gracious. He expressed the hope that we would soon meet and work together again—an honor for us.

We will miss Nelson very much, both personally and professionally. His untimely death is no small loss to the industry and the best ideals of Indian gaming.

Read more here in the Lansing State Journal.

NIGC Reports Successful Government-to-Government Consultations—However One Defines “Success”

2008-05-28T13:21:00.000-07:00

During last week's Great Plains/Midwest Indian Gaming Conference and Trade Show at the Shakopee Mdewakanton Sioux Community's Mystic Lake Casino Hotel near Minneapolis-St. Paul, the National Indian Gaming Commission conducted government-to-government consultations with tribal leaders from the region. According to NIGC Chair Phil Hogen, the consultations allowed "ample time" for tribal delegations to discuss "anything on their minds."

The NIGC has drawn criticism for its tribal consultation practices, with some tribal leaders complaining that the consultation is pro forma -- that is, that the Commission conducts consultation sessions, but tribal input has little if any effect on the NIGC's actions. Recently, criticism directed at the NIGC was the subject of an April 17th U.S. Senate Indian Affairs Committee oversight hearing at which we testified.

Can the NIGC ever overcome criticism of its actions? Like any regulated industry, Indian gaming has numerous stakeholders, and we all know the old saying about pleasing everybody, all the time….

Read more about the Conference and Trade Show here.

Read our testimony at the April 17th Senate Indian Affairs Committee Hearing here.

Wow – California Negotiated in Bad Faith?

2008-05-20T09:14:00.000-07:00

As we discussed in our last post, a federal district court has held that California's revenue sharing demands in its negotiations with the Rincon Band of Luiseno Mission Indians amounted to an illegal tax, and therefore were evidence of the state's bad faith. What was the Band hoping to do – and what are the implications of this holding?

The Band sought to add 900 slot machines at its Harrah's Rincon Casino & Resort. In return, the state sought annual payments of 15% of the average net win for each of the new machines, as well as 10% of the net win on the existing machines. According to numbers crunched by Prof. Bill Eadington, who served as an expert witness for California, this would mean that the state would receive nearly $38M, while the Band's new profits from the deal, after making the required revenue sharing payments to the state, would be less than $2M. (The tribe’s income with or without the new machines would hover around $60 million.) The concessions offered by the state were "an agreement to reduce its fee payment in the future should gaming one day be opened up to non-tribal gaming establishments (a scenario the Court finds speculative and unlikely . . .), 900 more machines and five additional years to operate under its Compact." The court concluded that "[i]t is difficult to regard the State's proposed plan as anything more than a tax." And, the court expressly found that California negotiated in bad faith: "[T]he Court finds that the State's insistence on the payment of such a large fee to its general fund in return for concessions of markedly lesser value was in bad faith . . . ."

We believe this may be the first time a federal court has found that a state has negotiated in bad faith. In an early "scope of gaming" case, Mashantucket Pequot Tribe v. Connecticut, the Second Circuit avoided finding that the state had negotiated in bad faith, noting that the state's refusal to negotiate, whether or not in bad faith, could trigger IGRA's mediated negotiation process. The district court in Lac du Flambeau Band v. Wisconsin similarly avoided a finding of bad faith on the part of the state. Are we right? Let us know what you think!

Read more in Onell Soto's story in the San Diego Union-Tribune by clicking here.

Court Finds that California Negotiated in Bad Faith

2008-05-05T14:25:00.000-07:00

In the “so significant it merits a two-part post” file….

A federal district court has held that California's revenue sharing demands in its negotiations with the Rincon Band of Luiseno Mission Indians amounted to an illegal tax, and therefore were evidence of the state's bad faith.

IGRA specifically prohibits states from using tribal-state compacts to tax tribes or to charge tribes a fee to conduct Class III gaming. IGRA also provides that state demands for taxes or fees are evidence of bad faith in compact negotiations. The Interior Secretary has adopted a practice of approving revenue sharing provisions if the state gives up meaningful concessions in exchange for the tribe's revenue sharing payments. Typically, the state concessions are some form of exclusivity -- a promise not to legalize gambling, or to allow tribes to operate games others may not, such as slot machines.

Due to the U.S. Supreme Court's 1996 decision in Seminole Tribe holding that tribes could not sue states under IGRA without state consent, the federal courts rarely examine whether state demands during compact negotiations violate IGRA. In California, however, the state has consented to suit. In 2003, the Ninth Circuit decided one of the very few cases examining state demands for revenue sharing. In that case, In re Indian Gaming Related Cases, which concerned the revenue sharing provisions in the compacts negotiated under Gov. Gray Davis, the Ninth Circuit adopted the Interior Secretary's general approach. The court upheld the revenue sharing provisions in light of the meaningful concessions on the part of the state as well as the provisions' consistency with IGRA's goals.

In Rincon Band v. Schwarzenegger (S.D. Cal. Apr. 29, 2008), the district court applied In re Indian Gaming Related Cases to hold that California was negotiating in bad faith with the Rincon Band over an amended compact. In our next post, we’ll take a look at what the Band sought to do, and how the court held what it did.

Class III Gaming in Maine?

2008-04-30T10:46:00.000-07:00

Earlier this month, the Maine state legislature approved a bill that would allow the Penobscot Indian Nation to operate 100 slot machines at its Class II facility at Indian Island. Governor John Baldacci, however, vetoed the bill, stating his position that any expansion of gambling must be approved directly by the voters through a referendum. Now the tribe is seeking alternatives that would allow it to operate slot machines, and also acting on its disappointment with the governor's veto.

The Penobscot Nation has resigned from the Main Indian Tribal-State Commission, which was created by Gov. Baldacci in 2006 to improve tribal-state relations. The tribe also is considering pursuing repeal of the Maine Implementing Act, a state law that implemented the federal Maine Indian Claims Settlement Act of 1980.

Read more here in the Bangor Daily News.

Senate Indian Affairs Committee Oversight Hearing on the NIGC

2008-04-25T08:59:00.000-07:00

We testified at the April 17 U.S. Senate Indian Affairs Committee's oversight hearing on the National Indian Gaming Commission. The impetus for the hearing was tribes' concerns about the NIGC's consultation practices. The NIGC has an internal policy that obligates it to conduct government-to-government consultation with tribes in adopting policy and promulgating regulations. As the Committee heard, though, many tribes perceive that the NIGC's consultation process is form over substance -- that is, that tribes' concerns don't have much affect on the NIGC's policies and regulations. This criticism has been raised throughout the NIGC's protracted process of drafting new Class II "bright line" regulations. Rep. Nick Rahall (D-WV) has introduced a bill in the House that would create a statutory obligation on the NIGC to engage in meaningful consultation with tribes. Several of the hearing witnesses urged the Committee to introduce a similar bill in the Senate. At the hearing, Sen. Byron Dorgan (D-ND), Chair of the Indian Affairs Committee, did not indicate whether the Committee would draft its own version of the Rahall bill.

After the hearing, it seemed that the focus was less on consultation and more on Class II machines. NIGC Chair Phil Hogen caught much attention for two comments he made. First, that he intended to shepherd the promulgation of the new "bright line" regulations before he left the NIGC. And second, that he estimated that 60% of so-called "bingo slots" are being operated in violation of current law. Interestingly, Sen. Dorgan did not follow up with what we thought were two obvious questions on the second point: if the machines are illegal, what is the NIGC doing to enforce current law, and if they're illegal under current law, why are new regulations necessary? We think Hogen may have overstated his certainty that the machines are in violation of current law, but perhaps that will be the topic of another hearing . . . . .

Download our testimony or link to the April 17 oversight hearing by clicking here and then on the announcement of Kathryn's testimony at the hearing.

Find press coverage of the hearing here and here.

The Battle Over Bingo in California

2008-04-15T13:56:00.001-07:00

There’s a battle brewing in California over an attempt to expand charitable bingo in that state. A state bill that would increase prize limits beyond $250 is backed by the Catholic Church and various charities and nonprofits.

But the bill, SB 1238, along with another bill (SB 1626) set for a state senate hearing next week that would authorize electronic bingo machines for charities, has run into significant opposition from gaming tribes. Gaming tribes assert that bingo machines are illegal under state law, and also, that electronic bingo machines would violate tribes’ exclusive right to operate electronic games, as codified in tribal-state compacts.

Bingo battles aren’t just in palaces anymore.

For more in the San Diego Union-Tribune, click here.

Mashpee Wampanoag Casino Plan

2008-04-11T13:29:00.000-07:00

Now that state-sanctioned casinos are (temporarily) off the table in Massachusetts, the Mashpee have shared a plan for a casino that would operate under IGRA, should the tribe be successful in its efforts to have land taken into trust.

The casino would be located off of Route 44 in Middleboro. At 240,000 square feet, the casino would include a retail area and event center, as well as an attached 1,200 room hotel. An 18-hole golf course would be added later.

Read more here: Tribe Offers Peek at Casino Plans

Interior Disapproves Catskills Casino Plans

2008-04-07T09:18:00.000-07:00

Some of you may have heard that the Interior Department recently issued a letter rejecting the St. Regis Mohawk Tribe's (NY) plan for an off-reservation casino in the Catskills. The letter, issued by Interior Associate Deputy Secretary James Cason, stated,

"The remote location of the proposed gaming facility may encourage reservation residents to leave the reservation for an extended period to take advantage of the job opportunities created. . . . The potential departure of a significant number of reservation residents and their families could have serious and far-reaching implications for the remaining tribal community and its continuity as a community."

The rationale reflects the current Secretary's stance on so-called "far flung" lands—which has raised both procedural and substantive questions about the extent of the agency’s authority—but nevertheless is surprising given that the support of Governor Spitzer for a tribal casino in the Catskills.

Read more at "US Officials Reject Catskill Casino Plans."

Revenue Sharing in Wisconsin

2008-03-28T14:48:00.000-07:00

Over the last three years, tribes in Wisconsin have contributed $196 million to the state under current revenue-sharing provisions in the tribal-state compacts. This is big money being kicked back to the state compared to the prior compact provisions, and also is big in relation to revenue sharing in most other states.

The compacts have been subject to convoluted litigation in state court, as Kathryn detailed in her article, "Caught in the Middle: How State Politics, State Law, and State Courts Constrain Tribal Influence over Indian Gaming" (90 Marquette Law Review, pp. 971-1008 (2007)).

It’s worth exploring how the state is using those newfound dollars. General fund? Public schools? Budget offsets? Feel free to drop us a line if you’ve looked into that.

Read more at Tribes Yield Big Profits, in the Chicago Sun-Times.

2008-03-26T12:57:00.000-07:00

A reference to Kathryn's quotes on the Mashpee in Massachusetts showed up recently in this "Casino Friend" blog on the Mashpee Wampanoag casino plan.

The post asks,

"Kathryn Rand suggests that the BIA might be suspicious of a claimed reservation sited in an ideal location for a casino. Would she say the same thing if the tribe acted like any big corporation would in their position and shopped about to have a reservation on land that was perfectly suited for a specific business, be it an industrial park, a shopping center, or for that matter for growing cranberries?"

The answer is no, not because Kathryn thinks that there is good cause to be "suspicious" of casino-style gaming on newly acquired lands, but because the current political climate is one of hostility toward so-called "reservation shopping."

In fact, we have been critical of this hostility, and called for policymakers to be guided not by politics, but by IGRA's policy goals and tribal sovereignty. We'd point this blogger to our 2007 article in the Virginia Journal of Social Policy and the Law, "How Congress Can and Should 'Fix' the Indian Gaming Regulatory Act."

Mass. Votes Against Legalizing Casino Gambling, at Least for Now

2008-03-21T12:49:00.000-07:00

Breaking news:

Instead of approving Gov. Deval Patrick's proposal for three casinos, the state House voted 106-48 to form a commission to study the issue further, effectively killing Patrick's plan for the year. The Mashpee Wampanoag will continue to pursue their land-into-trust application, with plans of opening at least a Class II facility and perhaps negotiating a Class III compact with the state.

Kathryn's quoted in this article on the likely issues to come. Read more here in the Cape Cod Times.

Report from BingoWorld (sounds intriguing, no?)

2008-03-08T12:16:00.000-08:00

We've just returned from BingoWorld Conference and Expo , hosted by BNP Media Gaming Group at the South Point Casino in Las Vegas. We spoke on a panel titled, "Class II Bingo: The Battle for the Bright Line," along with National Indian Gaming Commission (NIGC) Chair Phil Hogen and Quapaw Tribe Vice Chair J.R. Mathews.

Chairman Hogen set out the history of the NIGC's proposed regulations, meant to clarify the distinction between Class II bingo machines and Class III slot machines. Vice Chairman Mathews spoke eloquently on the impact on tribes, particularly in Class II states like Oklahoma.

For our part, we detailed the legal background and legal issues raised by the proposed regulations, as well the political impetus and policy implications of the proposed regulations. (More to come on our comments.) The comment period is fast drawing to a close on March 9, though Chairman Hogen seemed to suggest that it could once again be extended.

For more on the proposed regulations, click here.

More on "Bingo Slots"

2008-02-19T14:40:00.000-08:00

In our last post, we talked about the impact of the National Indian Gaming Commission's proposed Class II regulations on the debate over casino gaming in Massachusetts. The Mashpee Wampanoag, though, isn't the only tribe impacted by the proposed regulations.

A handful of states are "Class II only" states, meaning that because state law doesn't allow casino-style gaming, tribes can't operate Class III or casino-style games. That's because IGRA only allows tribes to operate Class II or Class III gaming if the state allows "such gaming." In those states, tribal gaming is limited to Class II games. It's easy to imagine the role of Class II machines, or so-called "bingo slots", in achieving IGRA's goals in those states. Just picture a bingo hall and a casino -- with a few exceptions driven by market, there's no question that casino-style gambling is more lucrative. And, since one of the common criticisms of Indian gaming is that some tribes are still facing extreme poverty and unemployment, Class II machines can help to equalize Indian gaming's positive effects across tribes.

The economic impact study concerning the proposed regulations, commissioned by the NIGC, found the rules would have "a significant negative impact" on Class II gaming revenue, and therefore on the tribes that operate such games. The study concluded that the proposed changes would reduce gaming revenue by $142.7 million, with an accompanying loss of $9.6 million in non-gaming revenue and a $17.4 million reduction in tribal government revenue. The NIGC report is Alan Meister, The Potential Economic Impact of Proposed Changes to Class II Gaming Regulations, Report Submitted to the National Indian Gaming Commission (November 3, 2006).

But there's more at stake than money. Under IGRA, tribes are entitled to operate Class II games, including those played on machines, without state interference. We've argued elsewhere that any changes to how machines are classified should be grounded in IGRA's policy goals -- in other words, it isn't enough to say "But they look like slots!" The NIGC's proposed regulations will impact tribal sovereignty by changing what machines tribes are entitled to operate free of state control, and by impairing -- in some cases, drastically -- tribes' ability to negotiate compacts on a level playing field. And in Class II only states, the regulations may intensify the uneven positive impacts of Indian gaming across the country.

Read more:

NIGC's Proposed Classification Standards for Class II games, Definitions for Electronic or Electromechanical Facsimile, Technical Standards for Class II games and Minimum Internal Control Standards (MICS) for Class II games. Click here.

“Bingo Slots" and Indian Gaming in Massachusetts

2008-02-08T15:10:00.000-08:00

The National Indian Gaming Commission's proposed Class II regulations are impacting debates over Indian gaming across the country, including in Massachusetts, where casino gaming is very much a hot topic.

The proposed regulations are the NIGC's latest effort to clarify the distinction between a Class II machine (which is regulated by the tribe with NIGC oversight) and a Class III machine (which requires a tribal-state compact). Class II machines play Class II games, such as bingo or pull-tabs, but resemble slot machines with spinning reels. Though the underlying game played by a Class II machine is clearly different -- a live bingo draw with multiple players rather than the internal random number generator of a slot machine -- its superficial similarity to a slot machine is troubling to some federal and state policymakers. The challenge for the NIGC is to respond to increasing political pressure to create a "bright-line" rule while staying true to Congress's intent in IGRA to allow tribes to use technology to enhance the play of Class II games.

In Massachusetts, the debate centers on casino-style gaming, including Class III machines. As the Mashpee Wampanoag Tribe and the state continue to struggle over the issue of casinos, the NIGC's proposed regulations may have the effect of lessening the tribe's bargaining power. Because the Class II machines don't require a compact, the tribe can operate them without state consent. As it stands, that's a powerful argument for the tribe in a market like Massachusetts, where even a Class II "casino" is likely to be extraordinarily lucrative -- perhaps rivaling the Seminoles' financial success in Florida with Class II machines. But if the NIGC's proposed regulations require slower play and less superficial similarity to slot machines, then those requirements may make the Class II machines less attractive or exciting to customers -- and that may make the Mashpee Wampanoag's "chip" of a Class II casino worth less, both in terms of potential profits and in terms of the tribe's ongoing negotiations with Massachusetts officials.

Read more here in the Cape Cod Times.

An Active Interior Department

2008-01-23T14:49:00.000-08:00

In prior posts, we've mentioned the recent activity of the Interior Department. We've also talked about the prospects for Indian gaming in Massachusetts.

Here's a link to an article in the Cape Cod Times where Kathryn is quoted on the implications of Interior's recent decisions on other tribes' efforts to conduct gaming on newly acquired lands. Click on this: Decision Could Sour Mashpee Wampanoag's Casino Plans.

Those Politically Pesky Proposed Class II Regulations

2008-01-15T07:55:00.000-08:00

The National Indian Gaming Commission's proposed regulations for Class II machines are, without a doubt, extremely controversial.

Originally slated for formal issuance in 2005, interagency contestation with the Department of Justice and continued criticism from tribes and games manufacturers considerably slowed the process. Following the initial announcement of the proposed standards, a group of prominent manufacturers formed the Technical Standards Work Group (TSWG) to draft an alternative regulatory scheme to submit to the NIGC. Together with the Technical Standards Tribal Advisory Committee, a group of tribal operators and experts that had been advising the Commission, the TSWG submitted alternative Technical Standards to the NIGC in early 2007. The NIGC announced in 2007 that it would issue the new rules in summer 2007. Months passed, and the NIGC finally issued the revised proposed regulations in late October 2007. A few weeks later, the NIGC announced that it would extend the public comment period on the regulations until January 24, 2008.

Many of the public comments that have been submitted by tribes are critical of the proposed regulations with regard to both substance and process. Procedurally, some tribes have demanded more meaningful consultation with tribal governments under the NIGC's "government-to-government" policy, and also requested a longer public comment period to allow thorough review of the complex proposed regulations and appropriate tribal government responses. Substantively, a number of tribes take issue with a "sea change" in the law regarding Class II gaming, criticizing the regulations as inconsistent with Congress's intent and also noting that current Class II machines comply with federal court cases interpreting IGRA.

The public comments are available at http://www.regulations.gov/: a search for "Class II gaming" will turn up the proposed regulations as well as some additional documents; you can also enter a specific title (Classification Standards for Class II games, Definitions for Electronic or Electromechanical Facsimile, Technical Standards for Class II games and Minimum Internal Control Standards for Class II games). Then, click on "Docket ID" for the proposed regulation you wish to view. The public comment submissions are embedded in the docket, and can be viewed in .pdf form.

The Indian Gaming Debate in Massachusetts

2008-01-11T12:53:00.000-08:00

If you're interested in following the complex debate over Indian gaming in Massachusetts, here are some useful links:

"The State's Big Bet: Is Gambling Good for Massachusetts?" This page, on CapeCodTimes.com, provides links to a three-part series on casino gambling, covering economic and social impacts and the state's political climate, as well as links to recent articles.

Boston Magazine's coverage of the casino debate in Massachusetts: "The Smart Money on Casinos" and "The Gambling Man."

Social Law Library links related to casino gaming in Massachusetts.

Breaking News: Interior Disapproves Catskills Casino Plans

2008-01-08T11:33:00.000-08:00

Late Friday, the Department of Interior issued a letter rejecting the St. Regis Mohawk Tribe's plan for an off-reservation casino in the Catskills.

The letter, issued by Interior Associate Deputy Secretary James Cason, stated, "The remote location of the proposed gaming facility may encourage reservation residents to leave the reservation for an extended period to take advantage of the job opportunities created. . . . The potential departure of a significant number of reservation residents and their families could have serious and far-reaching implications for the remaining tribal community and its continuity as a community."

This reflects the current Secretary's stance on so-called "far flung" lands, but nevertheless is surprising given that the support of Governor Spitzer for a tribal casino in the Catskills.

Read more by clicking here.

Secretary Kempthorne Under Fire for Delays on "Off-Reservation" Casinos

2008-01-03T09:20:00.000-08:00

In New York and Wisconsin, tribes are growing tired of waiting for Interior Secretary Dirk Kempthorne to issue decisions on "off-reservation" casino proposals.

The St. Croix Chippewa Indian Tribe in Wisconsin has had a proposal for a casino near Beloit in the works for some seven years, while the St. Regis Mohawk proposal for a casino in New York's Catskills region dates back to 1996.

Both proposals are proceeding under IGRA's "best interests" exception, which allows a tribe to operate gaming on newly acquired lands. For the best interests exception to apply, the Interior Secretary must make a two-part determination: that gaming on the land would be in the best interest of the tribe, and would not be detrimental to surrounding communities. Additionally, the state governor must concur with the Secretary's favorable decision. Often, casino proposals under the best interests exception fail because of the lack of gubernatorial support.

That makes the Secretary's delay on the Mohawk proposal particularly surprising, given Governor Spitzer's public endorsement of an off-reservation casino in the Catskills.

Read more here, and here.

Will Legalized Gambling in Massachusetts Affect the Debate Over Indian Gaming in Connecticut? You Bet!

2007-12-26T09:04:00.000-08:00

There are few states in which Indian gaming is as controversial as in Connecticut -- there, the Mashantucket Pequots and Foxwoods Resort Casino have drawn intense scrutiny and hyperbolic criticism. At the same time, of course, the revenue-sharing provisions of both the Pequots' and the Mohegans' compacts with the state have generated literally billions of dollars in state revenue. Last year, Connecticut's 25 percent take of slot revenue from Foxwoods and the Mohegan Sun amounted to $430 million, nearly 2 percent of annual state revenue. As in other states, Indian gaming also provides jobs -- some 20,000 of them -- in Connecticut.

Attacks on Indian gaming in Connecticut, such as those from Jeff Benedict, erstwhile expose author and founder of the Connecticut Alliance Against Casino Expansion, might be one thing, but competition from a neighboring state? That's a whole new can of worms. Some state leaders are now talking about how to protect Indian gaming in Connecticut, and showing more vocal support for the expansion of the Pequots' and the Mohegans' casinos.

Read more here.

Interesting Article . . . .

2007-12-20T12:31:00.000-08:00

Our friend and colleague Kevin Washburn has written an article titled, "The Legacy of Bryan v. Itasca County: How a $147 County Tax Notice Helped Bring Tribes $200 Billion in Indian Gaming Revenue." In the article, Kevin tells the story of Bryan, a U.S. Supreme Court case interpreting the scope of Public Law 280.

Bryan held that the grant of civil jurisdiction was limited to adjudicatory jurisdiction and thus did not "confer general state civil regulatory control over Indian reservations." Despite Bryan's clear language, states continued to assert civil authority over tribal lands. The jurisdictional contest came to a head over the Cabazon Band's high-stakes bingo operation, when California officials threatened to prosecute tribal officials for violation of state bingo laws.

In California v. Cabazon Band of Mission Indians, the Supreme Court relied on Bryan to hold that while California could enforce a criminal prohibition against gambling on the Band's reservation, it could not enforce its civil laws regulating gambling against the tribe. Cabazon, of course, is Indian gaming's landmark case. It opened the door for tribal gaming to grow into what it is today -- a $25 billion industry that has far-ranging impacts on reservation quality of life as well as intergovernmental relations among the federal, tribal, and state governments.

Read the abstract and download the article (which is forthcoming in the Minnesota Law Review) here.

“No Sioux Logo? No Sioux Casinos!” Shirt Sent Wrong Message

2007-12-13T15:03:00.000-08:00

As some of you may know, the University of North Dakota (where we work) has as its athletic nickname the “Fighting Sioux.” This nickname, along with an accompanying “Indian-head” logo, have been the object of considerable contention, most recently culminating in a UND lawsuit against the NCAA for its finding that UND’s nickname and logo created a “hostile and abusive” atmosphere on campus. The federal suit was recently settled, giving the university a three-year window to seek permission from two “Sioux” tribes in the state to retain the nickname and logo.

Last week, the Grand Forks (ND) Herald reported on a T-shirt being sold by a company in Jamestown, N.D.

The shirt, which read, “No Sioux Logo? No Sioux Casinos!,” was critical not only of the settlement reached in the lawsuit between UND and the NCAA, but also of Indian gaming in North Dakota. As the shirt's creator said, “[American Indians] put their name all over a casino, which I think is addictive and destructive.”

Although people certainly are entitled to their opinions on whether casino gambling is good or bad, we think the T-shirt - which no longer is being sold, the Jamestown company announced Wednesday - was a powerful symbol of some all-too-common misunderstandings about Indian gaming.

Without specifically weighing in on the merits of the UND nickname and logo debate or lawsuit settlement, we wrote an op-ed which appeared in the December 10 issue of the Herald to provide perspective rooted in our research on the law and policy of Indian gaming.

Click here for our op-ed.

Could Florida Have Negotiated a “Better Deal” With the Seminole? Steve Quoted in November 15th South Florida Sun-Sentinel

2007-12-03T14:30:00.000-08:00

The Florida compact agreement continues to generate questions in Florida. Here’s a quote from the November 15th Sun Sentinel:

Steven Light, a political scientist and co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota, said the [Seminole] tribe's robust financial health made it less desperate to cut a deal for Class III gambling.

The biggest factor encouraging agreement, he said, may have been the federal government's warning that if an accord weren't reached by today Florida might not get any money at all.

National gambling revenue statistics and studies show many Midwestern and Southwestern states are moving toward deals with tribes that bring smaller shares of gambling revenues, making it easier for tribes to expand their operations, potentially bringing in more revenue. Arizona has a sliding royalty scale of 1 percent to a high of 8 percent.

In that context, Florida should still fare well, even if it doesn't charge the high royalty percentages levied by California or Connecticut, analysts said.

"There is a tremendous latent demand for Class III gaming in Florida, especially when you have a continual influx of tourists and [snowbirds]," Light said. "Gov. [Charlie] Crist realizes that, and certainly the Seminoles have realized that for a long time. It wouldn't surprise me to see the revenue numbers increase dramatically."

Click here for the full story.

Is Industry Growth for Indian Gaming Taking a Downturn?

2007-11-26T08:33:00.000-08:00

After a short holiday break, we better get right back to it!

After years and years of rapid growth that has outpaced the legalized gambling industry more generally, is Indian gaming revenue heading for a downturn?

According to Lyle Brennan, CEO of Lakes Entertainment, Inc., "Indian gaming is not a growth business." Lakes Entertainment hasn't signed a management deal with a tribal casino in three years.

Of course, IGRA's limitations on management contracts are meant to encourage tribes to operate their own casinos. Under IGRA, management contracts must be approved by the NIGC, and may run only for 5 years (or 7 years in extraordinary circumstances). Additionally, new tribal casinos may be more likely to require approval for gaming on newly acquired lands -- meaning that the opening of the casino is less of a sure thing.

Yet with the recent agreement negotiated between the Seminoles and Governor Crist of Florida to move forward with Class III gaming, there should be more growth in that state – assuming the political and legal wrangling over the compact eventually comes to a halt.

Read more here.

Does the Florida Compact Hold Lessons for Massachusetts? Steve Quoted in Boston Globe

2007-11-19T06:43:00.000-08:00

Sunday’s Boston Globe argues that the politics of the recent compact agreement in Florida may hold some lessons for the state of Massachusetts in its consideration of an expansion of legalized gambling – and its consideration of how and whether that expansion will incorporate casino-style gaming operated by the Mashpee Wampanoag.

Steve’s quoted in that article, noting that the state’s public policy toward gambling generally really is the key to understanding the prospects for Indian gaming (under the federal Indian Gaming Regulatory Act), or the Mashpee being able to bid for a commercial license (not technically “Indian gaming”).

The recent federal acknowledgment or “recognition” of the Mashpee represented a “tipping point” for state policymakers, Steve states.

Click here for the article in the Globe, which provides an intriguing look at some of the potential parallels—and differences—between Florida and Boston.

Breaking News: Florida and the Seminoles Sign Compact Agreement

2007-11-14T14:44:00.000-08:00

Breaking news out of Florida that may signal the end of more than 15 years of negotiations: Florida Gov. Charlie Crist and Seminole Tribal Chairman Mitchell Cypress have signed a tribal-state compact that would allow the tribe to operate Class III games and guarantee the state a massive cut of casino revenue.

The 25-year deal would require the tribe to pay a $50 million signing fee to the state up front—that is, assuming federal approval—and then a minimum of $100 million per year. As of the third year, the state would receive between 10 and 25 percent of the gaming revenue.

The Seminoles will be granted the exclusive authority to operate casino-style games, including slot machines, baccarat, and blackjack. The compact also provides for the forfeiture of the state’s share of tribal casino revenue if the state allows for the expansion of legalized gambling on non-tribal land other than existing pari-mutual facilities in Broward and Miami-Dade counties. This creates a clear disincentive for the statewide expansion of legalized gambling.

While a breakthrough, there still are political hurdles to clear, including federal approval and possible state legislative disapproval of the governor’s actions.

For more, click here.

Patrick's Plan for Casinos in Massachusetts -- Kathryn's Quoted in Cape Cod Times

2007-11-13T07:37:00.000-08:00

The Mashpee Wampanoag are proceeding with their plans to open a casino on newly acquired trust lands under IGRA, rather than bidding on one of the commercial casino licenses in Gov. Deval Patrick's proposal.

The tribe is seeking over 600 acres in two parcels of trust land as its initial reservation. Under IGRA, although gaming generally is prohibited on trust land acquired after 1988, an exception is made for land taken into trust as the initial reservation of a tribe.

The tribe is hoping for a quick decision, but Kathryn cautions that when gaming is an issue, it's more likely that the Interior Department's dual land-into-trust and gaming processes will take longer.

Read more here: Tribe Gambling on Federal Agency, Cape Cod Times

Interior Dep't Sets Nov. 15 as Deadline for Florida Compact with Seminoles

2007-11-07T13:16:00.000-08:00

In a letter to Gov. Charlie Crist, Assistant Secretary for Indian Affairs Carl Artman warned that if the state fails to reach a compact with the Seminole Tribe by November 15, "the Department will issue Class III gaming procedures."

Reportedly, the state and the tribe are close to finalizing a deal that would require the tribe to pay the state some $100 million annually.

Said Crist, "I want to make sure we're protecting (taxpayers') interests first, Florida's interests first ... We'll do the right thing."

According to the tribe's attorney, neither the state nor the tribe would prefer the administrative procedures to a compact. The state's preference for a compact is obvious, as the administrative procedures would not include any revenue-sharing provision requiring the tribe to make payments to the state. The tribe's preference presumably is because the compact is likely to allow a wider range of casino-style games than are expressly allowed under state law.

Our prediction: If a compact is reached, expect it to be challenged by Florida lawmakers opposed to the expansion of casino-style gaming. If a compact is not reached and the Interior Secretary issues administrative procedures, expect a federal lawsuit mimicking Texas' successful challenge to the Secretary's statutory authority to issue such procedures in Texas v. U.S., 497 F.3d 491 (5th Cir. 2007).

Read more in Forbes at Feds Set Indian Gaming Deadline

UND School of Law Student Wins Shannon Bybee Award for Indian Gaming Paper

2007-11-01T08:13:00.000-07:00

One of the students in Kathryn's Indian Gaming Law course at the University of North Dakota School of Law recently won a national award for his paper on Indian gaming. Current 3L student Chris Rausch won the Shannon Bybee Scholarship Award, awarded to the two best research papers in the area of gaming law written by law students.

The award is sponsored by the International Association of Gaming Advisors.

Chris's paper, "The Problem with Good Faith: The Indian Gaming Regulatory Act a Decade after Seminole," was published in the Gaming Law Review. See 11 Gaming L. Rev. 423 (2007).

Great job, Chris! We’re glad to see more students having the opportunities to learn about the burgeoning area of gambling law, including Indian gaming. Back in 2001, Kathryn was one of the first to offer a course on Indian gaming law; others have followed suit. At the time, she had to put together her own materials to teach the course.

Now, we’re pleased to announce that we’re just finishing up our casebook, Indian Gaming Law: Cases and Materials with Carolina Academic Press. Click here for info and the chance to preorder the book with the publisher's web discount. It’ll be out this January, and should be an indispensable reference tool for teachers--indeed, we've written an accompanying Instructor's Manual, too--and those practicing in the field.

Rhode Island Seeks Supreme Court Review of Narragansett Land-Into-Trust Decision

2007-10-29T12:34:00.000-07:00

Rhode Island's governor and attorney general have filed a petition asking the U.S. Supreme Court to overrule lower court decisions upholding the Interior Secretary's determination to take land into trust for the Narragansett Indian Tribe.

In 1991, the Narragansetts purchased 31 acres across the road from their reservation near Charleston, RI. The tribe intended to use the land to build housing for elderly tribal members. After the housing project stalled due to state and local permit requirements, the tribe successfully sought trust status for the land from the Interior Secretary. Rhode Island and the town of Charleston challenged the Secretary's decision in federal court. In 2003, the federal district court ruled in favor of the Secretary, as did the U.S. Court of Appeals for the First Circuit in 2005. The state sought en banc review, but again the First Circuit upheld the Secretary's decision.

Now, the state (joined by the town of Charleston) wants the Supreme Court to review and overturn the Secretary's decision.

The state's argument is that the Secretary's authority to take land into trust for the benefit of an Indian tribe is limited to the 258 tribes which were federally recognized in 1934, the date of the Indian Reorganization Act. Since the Narragansett Tribe was federally recognized in 1983, the state argues, the Secretary has no power to take land into trust for the benefit of the Narragansett.

As there are more than 560 federally recognized tribes today, the state's position would mean that the Secretary could not take land into trust for the hundreds of tribes recognized after 1934.

For more from the Providence Journal, click here.

Gambling and the American Moral Landscape

2007-10-23T20:32:00.000-07:00

We’re excited to be the folks tapped to talk about the morality of Indian gaming at “Gambling and the American Moral Landscape,” hosted by the Boisi Center for Religion and American Public Life at Boston College on Oct. 25 & 26.

Specifically, we address moral policymaking and Indian gaming, arguing that Indian gaming is fundamentally different than legalized gambling and thus involves different considerations and imperatives for sound policymaking. The conference features presenters from Duke, Penn, Yale, Harvard (and, of course, the University of North Dakota!).

There will be panels on politics & policy (our panel), individual behavior and social impacts, theology and gambling, and gambling in American culture. Given the current controversy and media coverage of the same over Indian gaming as well as Gov. Patrick’s stance toward commercial casinos in Mass., the conference organizers are expecting significant press attention. (Of course, there's that World Series thingie, too....)

The Boisi Center website provides detailed information, including panels, speakers, links, and a gambling quiz, at http://www.bc.edu/gambling

“The Donald” and Indian Gaming-- and Kathryn in Boston Magazine

2007-10-17T06:50:00.000-07:00

“I certainly wouldn’t expect him to stay quiet.” That’s how Kathryn characterizes the likelihood that Donald Trump will stay mum on the chance that the Mashpee Wampanoag will seek a casino license in Massachusetts. She’s quoted in Boston Magazine’s October 17th “BostonDaily” feature.

Governor Deval Patrick has proposed a bidding process for three new casinos in the highly lucrative Massachusetts market. Trump has expressed strong interest in the prospects for that action. Boston Magazine reports that Trump is embroiled in a billion dollar lawsuit with Suffolk Downs owner Richard Fields, who is also a potential bidder.

But Trump may have an even greater problem with the Wampanoag.

Given his track record in expressing his strongly held opinions on Indian gaming, Trump should have a few things to say as Governor Patrick’s proposal develops. In the Boston Magazine piece, Kathryn notes that Trump frequently has been on the record as a critic of Indian gaming –- and of tribes themselves: “He was one of the very early critics of whether newly recognized tribes were actually tribes. He’s attacked the authenticity of tribal members.”

The Donald is always good for a "killer" quote. Asserting that tribes aren’t able to regulate their own gaming operations, Trump once said, “That some Indian chief is going to tell Joey Killer to get off his reservation is unbelievable.”

For more, including Kathryn’s analysis in today's story ("Casinos: Indian Trump Card"), click here.

And guess what? We're heading to Boston next week to talk about the morality of Indian gaming at a conference on "Gambling and the American Moral Landscape" at Boston College's Boisi Center for Religion and American Public Life. Check out the speakers at www.bc.edu/gambling

“This tribe has integrity”

2007-10-09T13:25:00.000-07:00

The Oct. 7 Sacramento Bee profiles Jessica Tavares, United Auburn Indian Community chairwoman and CEO of Thunder Valley, one of the world's three most profitable casinos. The tribe is known for spreading the wealth – it has given more than $5 million to county groups and charities since Thunder Valley opened in 2003 – and for working cooperatively with county officials. The tribe has gone out of its way to comport with the terms of state and local land-use laws that, according to the article, “other tribes ignore in the name of sovereignty.”

According to Cheryl Schmit of Stand Up For California, a self-professed “watchdog” group concerning Indian gaming, "This tribe has integrity. Not all tribes are like this tribe -- if they were, Indian gaming would not be an issue in California."

A backhanded compliment? Um, you bet.

While her leadership and the tribe’s political and business savvy are laudable, Tavares and the United Auburn Indian Community in essence “play well with others” as a result of their situation in a highly lucrative gaming market, which affords them the luxury to share revenue and compromise limited aspects of tribal sovereignty.

Despite Schmit’s admonishment, the lesson that might be drawn from the story is a more difficult one for many less fortunate tribes in California or across the U.S. to follow.

Read the Bee story at http://www.sacbee.com/101/story/418980.html

Wampanoag Casino Plans

2007-10-03T12:11:00.000-07:00

A recent Boston Globe article details the Wampanoag's plans for a casino-resort complex near Middleborough, Mass. The Wampanoag hope to develop a destination resort, not unlike the Pequots' Foxwoods, that would draw visitors from across the nation.

Massachusetts residents continue to have a lot to talk about in the area of legalized gambling--tribal or commercial--that may or may not distract them from rooting for the Patriots and the Red Sox.

Read more here.

Kathryn Quoted in Miami Herald Re. Seminoles and “Administrative Compact”

2007-10-01T09:57:00.000-07:00

Kathyrn’s quoted in the September 24th edition of the Miami Herald concerning the efforts of the Seminole Tribe to operate casino-style gaming in Florida.

The Seminole have filed suit in federal court seeing to obtain the go-ahead to install Class III games. That’s the case’s posture, but as the Seminole’s attorney noted, the suit is intended to place political pressure on the state and Governor Charlie Crist to negotiate a tribal-state compact. Said lawyer Barry Richard. ``It's been years they've been asking for this. They want to get what they're entitled to.''

Kathryn’s commentary is more indirect. She notes that the suit, which asks the judge to require Interior Secretary Dirk Kempthorne to approve an “administrative compact,” potentially is affected by State of Texas v. U.S.A., a recent Texas appeals court decision (see our post last month). Although in a different circuit, and therefore not binding in Florida, that case “casts doubt on the ability of the secretary not only to issue the administrative rules so a tribe could operate Class III slot machines but also undermines the secretary's ability to encourage the state to reach a compact because it takes away the secretary's stick,” as Kathryn put it.

Click here for the story.

Steve Quoted in New York Times Re. the Pequots/Mohegans

2007-09-26T07:47:00.000-07:00

Here's a story about an interesting -- if outside the norm for most gaming tribes -- development in Connecticut. We're pleased to note that Steve is quoted in this New York Times story, reprinted in the International Herald Tribune.

The story is about the efforts of the highly successful Mashantucket Pequots (Foxwoods Resort and Casino, the world’s largest casino) and the Mohegans (Mohegan Sun) in Connecticut to invest in massive casino developments in Philadelphia, Kansas, Massachusetts, and elsewhere. The tribes are providing financing, venture capital, and management expertise. They’re partnering not only with other tribes, but also with major commercial gambling conglomerates like MGM Mirage.

Click here for the link in the September 22 edition of the Times.

If you are unable to access the article on the Times website because of registration issues, click here for the September 21st edition in the International Herald Tribune.

Constitution Day

2007-09-17T17:59:00.000-07:00

Most Americans know that July 4th is our nation's birthday. Surveys show that far fewer know that September 17th is the birthday of our system of government, the date in 1787 on which 39 of the 55 original delegates to the Philadelphia Convention completed and signed the U.S. Constitution. This year therefore marks the 220th anniversary of the signing of the Constitution.The Constitution embodies principles which inform our system of government and our relationship to it, including a commitment to the rule of law, the separation of powers and checks and balances among the three branches of government, federalism that marks the distinctive and cooperative authority of the federal government and the states, and the ideals of liberty, equality, and justice that undergird individual civil rights and liberties.In 2004, federal law designated every September 17th as Constitution Day. Any educational institution that receives federal funds is mandated to celebrate Constitution Day by offering an educational program on or around the holiday. Constitution Day encourages Americans to remember the significance of the Constitution in establishing our system of government, securing our individual civil rights and liberties, and providing the means to keep government accountable to the people in times of war and peace.

Constitution Day also is an opportunity to reflect on tribal governments' role in the American political system. The U.S. Constitution assigns authority to Congress to "regulate commerce . . . with the Indian tribes." This power has been interpreted by the U.S. Supreme Court as exclusive to the federal government, meaning that there is no state role (unless, of course, Congress delegates authority to the states, as it did in IGRA through the tribal-state compact agreement).

The Supreme Court also has interpreted Congress's power under the so-called "Indian Commerce Clause" as plenary, or absolute and complete, and has upheld federal laws that have little to do with the regulation of commerce with the Indian tribes. As political scientist David Wilkins has asked, should our democratic system of government allow Congress to have unlimited, and perhaps absolute, power to regulate tribes? Or is there a better way to think about the federal government's relationship to tribes? There's certainly much to debate on Constitution Day. See, e.g., David Wilkins, American Indian Sovereignty and the U.S. Supreme Court (1997).

Fla. AG adopts restrictive interpretation of "scope of gaming"

2007-09-14T07:01:00.000-07:00

According to state Attorney General Bill McCollum, Governor Charlie Crist would overstep his authority if he negotiated Class III games beyond those games specifically permitted by Florida law.

Presumably, Crist has been negotiating additional games, such as blackjack and craps, in exchange for a state cut of the Seminoles' gaming revenue. McCollum's opinion suggests that such a deal may be challenged on state law grounds, as similar deals have been challenged in Wisconsin and New York. If all Crist can negotiate is slots, then that will hamper his ability to demand multi-million-dollar payments from the tribe.

Since revenue-sharing is allowed only where the state gives the tribe something of value beyond what the tribe is entitled to under federal law, Crist may be left with only the number of slots allowed as his bargaining chip. That "give" shouldn't entitle the state to as much "take" as would bargaining over additional games that the tribe would have exclusive rights to operate.

Read more here.

Issues amiss in Mass.

2007-09-11T12:46:00.000-07:00

Mashpee Wampanoag leader Glenn Marshall has given up his duties as tribal chair amid reports that he lied about his military record and had been convicted of rape in 1982. Predictably, this scandal is influencing the public debate over Indian gaming in Massachusetts, leading one columnist to conclude that IGRA is "one of the worst pieces of legislation ever to come out of Congress."

See "Liar's Poker," by Boston Globe columnist, here.

For background on Marshall, see "The Gambling Man" in Boston Magazine, here.

Class III Gaming in Texas and State Power

2007-09-08T12:37:00.000-07:00

Although it seems to have flown under the radar screen, the recent Fifth Circuit decision in State of Texas v. USA (No. 05-50754) decision threatens to eviscerate the federal government’s attempts to prevent tribes from being politically subordinate to states.

The decision clearly frustrates the Kickapoo’s efforts to bring Class III gaming to Texas. But more significantly, it places into question the Interior Secretary’s attempt to bring balance to the politics of negotiating tribal-state compacts by promulgating regulations to compensate for the 1996 Supreme Court decision in Seminole Tribe v. Florida, whose implications for state political power over tribes we've discussed in other posts.

The court’s analysis was rather technical –- it relied on the complicated Chevron legal doctrine for judicial review of agency discretionary authority –- but its political implications are broader for the tribes/states across the U.S. The possibility of an appeal is next, and that in turn would go to the important question of Interior Secretary’s authority under IGRA.

Read the court’s opinion here.

More from Florida: A "game rigged" against the state?

2007-08-30T09:52:00.000-07:00

A few posts ago, we mentioned an op-ed in Florida as an example of the perception that revenue-sharing agreements are how states tax Indian gaming. Despite IGRA's prohibition against state taxation of Indian gaming operations, this perception is widespread and apparently influential.

This editorial in the Ocala Star Banner takes a similar stance, criticizing the U.S. Interior Department for "order[ing] the state to the negotiating table -- if it wants to collect any future taxes off the Indian casinos, that is." The editorial also characterizes current revenue-sharing provisions as a bad deal for states across the U.S., suggesting that tribes should be paying states in the neighborhood of 50% of their gaming revenues: "no state in the country collects more than 25 percent taxes on any Indian gambling operations."

If revenue-sharing is a tax, of course, then the state need not give up anything at the bargaining table, an additional twist in this wrong-headed perspective. As for what the Seminole Tribe should get in exchange for any revenue sharing at all, the editorial concludes that the governor "should hold out for a reasonable return and under no circumstances relinquish the exclusivity of the Class III gaming to the Indian casinos."

With the media representing a perspective that seemingly is wholly ignorant of IGRA and tribal sovereignty – that is, of the law – is it any wonder that public opinion often follows suit?

Read the editorial here.

Steve’s Quoted in the San Bernardino Sun Re. the San Manuel Band

2007-08-27T13:58:00.000-07:00

When it comes to economic diversification stemming from gaming revenue, the San Manuel Band of Mission Indians is leading the way. Tribal officials from the San Manuel Band, the Viejas Band of Kumeyaay Indians in San Diego County and the Oneida Nation of Wisconsin have formed Three Fires LLC and are about to kick of the grand opening of their Marriott Residence Inn in Sacramento. Marriott also partnered with these tribes and the Potawatomi in Wisconsin to open a hotel in Washington, D.C., located near the National Museum of the American Indian.

Steve is quoted on the San Manuel Band in the August 26 edition of the San Bernardino (CA) Sun. Although the article in part is focused on the political implications of the tribe opening a hotel near the state’s capital, Steve further contextualizes the politics of the issue thusly:

"'At one level it just makes good business sense. No one suggests that you should put all your eggs in one basket,' said Steven Light, a political scientist and co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota. 'It also makes good political sense because there is no guarantee that the status quo as far as federal and state policy and regulation will remain the same in regard to Indian gaming.'

He said the San Manuel partnership with the three tribes in opening a Marriott in Washington was a pioneering effort in that the tribes secured a visible and reputable corporate partner in Marriott.

'If a tribe can convince a corporate partner to come on board in any venture, especially off the reservation, the tribe has almost instant credibility with investors and local officials,' Light said."

It’s easy to underestimate how significant gaming revenue is in getting financial institutions and commercial investors to partner with tribes on enterprises that otherwise would be left on the drawing board. Several tribes in California are meeting tremendous success in that regard; however, there are lesser ventures operated by those at the other end of the spectrum of success sprinkled throughout the U.S.

Read the article here.

Haves vs. Have-Nots

2007-08-24T10:36:00.000-07:00

With so much at stake in the current political environment and so many different interests to represent, the most prominent tribal organization in California may be showing signs of an intertribal divide between “haves” and “have-nots.” (We discuss the haves vs. have-nots idea at length in our book, Indian Gaming and Tribal Sovereignty: The Casino Compromise.)

The California Nations Indian Gaming Association (CNIGA), a lobbying and advocacy organization—in other words, a tribal special interest group—decided early on that membership would not be limited to gaming tribes. Now CNIGA’s membership is split, numerically, between its gaming (35) and nongaming (30) members. According to a recent article in the San Diego Tribune, it turns out there also may be a growing divide in terms of organizational perceptions and representation, as well.

Much of the organization’s budget comes from dues paid by wealthier gaming tribes, while nongaming tribes have been accused by some of dominating CNIGA’s meetings and perhaps, its political agenda. Should some of the heavy hitters, including the Agua Caliente near Palm Springs, the Pechanga near Temecula, or the Morongo of eastern Riverside County, decide to bolt CNIGA, its political efficacy may be undercut. Conversely, should CNIGA decide to change its internal rules to marginalize nongaming tribes, they too might leave.

Such fissures are not uncommon in member-based interest groups, but few have as much at stake—or as limited alternative options in terms of maintaining political clout—as do the tribes in California.

Tax the Tribes?

2007-08-20T12:49:00.000-07:00

The Rincon Indian Band is resisting California's efforts to condition expanded slots on higher payments to the state. A lawyer for the tribe says that the state's demands are effectively a tax on the tribe's casino. IGRA explicitly prohibits states from imposing any tax or fee on tribes, and further provides that "any demand by the State for direct taxation of the tribe" is evidence that the state is negotiating in bad faith.

So how is it that tribal-state revenue sharing provisions have been included in a number of Class III compacts for casino-style gaming? This is an issue we addressed in an article we wrote with economist Alan P. Meister, "Spreading the Wealth: Indian Gaming and Revenue Sharing Agreements," 80 North Dakota Law Review 657 (2004). Loosely speaking, here’s how it goes:

The U.S. Secretary of the Interior has interpreted IGRA to mean that if the state gives up something of sufficient value in exchange for a share of the tribe's casino revenue, then it won't be a tax. Usually this means some additional measure of market exclusivity in casino-style gaming, such as the right to operate slot machines when they're otherwise illegal to non-Indian gaming operations under state law. Although generally accepted in practice, this approach has not been widely tested in federal court.

Is the Rincon Band right that state revenue-sharing demands can cross the line into illegal state taxation? Consider the language used in a recent op-ed calling for Florida to negotiate "a fair tax" on the Seminole's proposed Class III operations. The writer characterizes revenue-sharing agreements in other states as state taxes, and proposes that since the state is "offering" the tribe Class III games, the state should demand a tax in the ballpark of 50%. In the face of this demand, the writer continues, "if the tribes refuse to negotiate in good faith and seek a better deal [from the Interior Secretary], the state should consider legalizing casinos that compete directly with the tribal facilities. Having a new competitor across the street will damage a tribal casino's fortunes more than any state-mandated tax."

Hmmm. Sounds like an untenable (unlawful?) position no matter how you slice it. Does merely using the correct terminology fix the problem?

Read more on the Rincon Band's stance here. And here's the Florida op-ed piece.

"Indian Mafias"?!?

2007-08-14T14:51:00.000-07:00

In a piece titled "Native American Corruption," syndicated columnist David Mittell blames the "virus" of Indian gaming for what he sees as the Cherokee Nation's illegitimate and money-driven decision to expel black Cherokee descendents from its membership rolls. In so doing, Mittell's criticism goes far beyond the complex issues raised by the Cherokee vote, and charges an entire industry -- and some 300 tribes -- as corrupt.

He writes, "Indian-only gaming really amounts to a perfect Mafia for government and casino companies to manipulate and be manipulated by. Each corrupts the other and all are corrupted by the enormous amounts of cash gambling brings in. Indian Mafias can 'rub out' their own, thereby increasing their profits, their control and their reliability to corruptible politicians. It is Havana or Las Vegas, 1955, with a new dress."

In our first book, Indian Gaming and Tribal Sovereignty: The Casino Compromise, we discuss five anti-Indian gaming themes that are pervasive in public discourse on tribal gaming. Mittell's rhetoric feeds two themes we critique in our book: Tribal governments can't be trusted, and tribal sovereignty is simply an unfair advantage. (Mittell also states that in passing IGRA, "Congress gave up all pretense of equality under the law, and propped up tribal sovereignty for purposes of casino gambling.")

As we state in The Casino Compromise, such statements are ill-informed, strident, and one-sided, yet unfortunately they tend to set the tone of public conversation. Perhaps Mr. Mittell should read our book before he writes anything else on Indian gaming....

Read Mittell's column here.

Interesting NIGC Reasoning on the Seneca Nation

2007-08-10T08:13:00.000-07:00

A couple of days ago, we posted on NIGC’s recent approval letter for the Seneca Nation to open the Buffalo Creek Casino on newly acquired lands. The NIGC determined that the land in question fell within an exception to IGRA's general prohibition against gaming on newly acquired lands.

Interestingly, the NIGC stated, "In addition to the current exercises of governmental power, by operating and regulating gaming, which is a governmental function under IGRA, the Nation will exercise governmental authority over the lands."

We are confused by this last part, since IGRA's "Indian lands" requirement is best understood as a prerequisite to gaming -- that is, gaming should not be evidence of the exercise of governmental authority that is required to allow gaming on the lands. The question of Indian lands, especially in conjunction with gaming on newly acquired lands, is increasingly important, and considered and consistent legal standards are imperative. One of the reasons that the question is tricky is that the term "Indian lands" is unique to IGRA, and there simply aren't a lot of federal court opinions interpreting the meaning of the term to provide clear guidance to the NIGC.

The NIGC Indian Land Opinion is available here. See also "Opponents Say Indian Casino Illegal" in Newsday.

The Seneca Nation and "Off-Reservation" Gaming in New York

2007-08-08T15:10:00.000-07:00

Whaddaya get when you go on vacation? A whole lot of new events related to Indian gaming! Look for a flurry of posts as we try to catch you up!

In July, the NIGC issued an approval letter for the Seneca Nation to open the Buffalo Creek Casino on newly acquired lands. The NIGC determined that the land in question fell within an exception to IGRA's general prohibition against gaming on newly acquired lands.

(The characterization of the casino as "off-reservation" is technically correct, as the land falls outside the boundaries of the current Seneca reservation, but it is important to note that the Seneca acquired the land through the settlement of a land claim. In other words, the Seneca had asserted not only a historical tie to the land, but also had claimed an existing right to the land because it was wrongfully removed from the tribe's reservation. The tribe's claims were settled through the Seneca Nation Land Claims Settlement Act, and the tribe used funds provided through the Act to purchase the land in question. We reserve the term "off-reservation" for casinos that fall under IGRA's "best interests" exception, which does not require any historical ties or legal claims to off-reservation land.)

In addition to finding that the "settlement of a land claim" exception applied, the NIGC also determined that the land in question qualified as "Indian lands" – IGRA requires that both Class II and Class III gaming be conducted on "Indian lands." For lands that aren't part of the tribe's current reservation, in order to qualify as Indian lands, the tribe must have jurisdiction and exercise governmental authority over the land. The NIGC found that the Seneca has asserted that tribal law applies to the land, has fenced the land, and that tribal law enforcement patrols and polices the land.

For more on this, including the NIGC Land Opinion and our own opinions about the NIGC’s findings, check back tomorrow!