Another Challenge to NIGC's Indian Lands Determination

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

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

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

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.

Things Are Brewing in Buffalo!

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 . . . .

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

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.

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

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

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.

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

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.