Texas-Size Those Casinos!

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

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

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.