BLOGGING ALL OVER THE WORLD IN 2016

blogging-all-over-the-world-in-2016

By:      Ted J. Griswold | Partner | ted.griswold@procopio.com

As we look forward to what 2017 may bring, we thought that it might be instructive to review our readers’ interests in 2016.  Thanks to those more tech savvy than yours truly, I was able to determine that the Blogging Circle was read in 10 countries around the globe over the past year.  Readers from the USA, Canada, Mexico, Chile, Brazil, India and Australia—all countries with active indigenous populations—were somewhat predictable, but gaining readership in in the UK, Italy and Ireland was a bit more surprising.  It tells us that there is a diverse audience out there that is looking to learn more about Native American legal issues that may be applicable to their local situation, wherever that is.

What were people looking for?  The top 10 Blogging Circle articles reviewed in 2016 were:

1. No Dice for California Indian Casinos?

2. Aviation in Indian Country: Seminole Tribe of Florida

3. “What’s Up? Native American Aviation and Airspace

4. Standing Rock Sioux Water Protectors Win a Battle, But More Battles to Come

5. Pride or Prejudice: Native Regalia and Graduation Ceremonies

6. Bully’s Beware: Tribal Elected Officials CAN be Sued in State Court

7. Indian Tribes May Gain Relief from NLRB Actions

8. Where are they now? 9 and Counting…The Procopio Native American Internship Alumni

9. Increasing the Numbers: Effective Recruitment of Native American Law Students (Guest column)

10. Now Accepting Applications for Procopio’s Summer 2017 Native American Law Internship Program

We appreciate your interest and hope that you enjoyed reading the Blogging Circle this year, and we look forward to surprising you with additional relevant, entertaining and newsworthy articles next year.  Wishing you a happy, safe and prosperous New Year.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Bully’s Beware: Tribal Elected Officials CAN BE Sued in State Court

By: Stephanie A. Conduff | Attorney | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Benedict Cosentino started as table games dealer at the Pechanga Casino. Then he started to notice certain criminal activity on the casino floor during his shifts. He followed company policy and reported it. When he wasn’t dealing cards, he became an external informant to criminal activities to California Department of Justice. His information led to several criminal convictions over a period of years.

You’d think he’d get a promotion, right? Well, not so much.

Four years later, in 2011, he felt he was retaliated against by a Pechanga Gaming Commission official, who had a relationship with some of the people who had been prosecuted because of Cosentino’s information. His gaming license was suspended and ultimately revoked. Because he had a license revoked from another gaming facility, he was unemployable at other tribal gaming enterprises. The economic impact and emotional distress led to the lawsuit, Benedict Cosentino v. Stella Fuller.

Defendants moved to dismiss the case on the basis that the State court lacked subject matter jurisdiction for the case, as all Defendants were elected tribal officials. Cosentino did not sue Pechanga’s Tribal Government or Gaming Commission. Instead he sued certain Gaming Commission Members in their individual capacity. The court decided that retaliation may have occurred (trial court to decide) and that tribal officials cannot retaliate as individuals from their position on the Gaming Commission and hide behind their cloak of sovereign immunity.

For sovereign immunity to apply, the claims against tribal officials must be based on actions the officials took in their official capacity AND within the scope of their official authority. Super. Ct. No. MCC1300396

This case reaffirms that there is no sovereign immunity for tribal officials who intentionally abuse their authority and act beyond their official scope. When tribal officials “act out of personal interest rather than to benefit the tribe” (Turner v. Martire, (2000) 82 Cal. App. 4th 1042, 1055.) they will be held accountable – even if they are elected. The case has been allowed to proceed and has been remanded to the state trial court to determine if retaliation occurred.

Stephanie Conduff, a citizen of the Cherokee Nation, is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. Her practice emphasizes working with tribal governments, individual Native people, and companies doing business in Indian Country. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues. Stephanie’s work focuses on tribal sovereignty and self-governance, tribal lands, and the federal trust responsibility.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

The IGRA as Protector: DOJ Weighs in on Duluth-Fond du Lac Casino Dispute

By: Tyler Fish | Guest Contributor
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The U.S. Department of Justice this week submitted a cross-motion for summary judgment in City of Duluth v. National Indian Gaming Commission (D.C.). The case concerns attempts by the City of Duluth to maintain influence over economic development efforts by the Fond du Lac Band of Lake Superior Chippewa in downtown Duluth, MN. The DOJ’s cross-motion affirms NIGC’s regulatory authority and promotes one of Congress’ original intentions in passing the Indian Gaming Regulatory Act: to protect tribal gaming interests from outside influence.

Disputes regarding the Fond-du-Luth Casino facility have been ongoing since a 1986 agreement between the band and the city was found to violate IGRA in 1993. The NIGC then issued a violation notice of IGRA’s tribal “sole proprietary interest” requirements, which ensure that revenues from gaming enterprises are used to promote the general welfare and economic development of the tribe and not a third-party interests. Pursuant to NIGC’s violation notice, the band and the city amended the agreement in 1994. However, in 2011, the NIGC reviewed the 1994 amendments and again found IGRA violations from the city’s potential for undue influence over the band’s gaming operations.

In the present case, the City of Duluth has challenged NIGC’s authority to review agreements that impact gaming operations and economic development ventures in Indian Country. The DOJ’s cross-motion rightfully supports NIGC’s oversight authority to limit influence over the band’s sovereign gaming rights. In a related case, the city has brought suit directly against Fond du Lac claiming that the band’s right to enter land into trust was contractually subverted to the city’s interests in the 1986 and 1994 amended agreements. Should an agreement between a city and an Indian tribe relieve the NIGC of its oversight authority under IGRA? Can a city possess “sole discretion to disapprove” tribal trust land acquisitions? Congress created the IGRA to regulate gaming in Indian Country, but also, to protect tribal rights to generate gaming revenue free from adverse, third-party influence.

Links

https://turtletalk.wordpress.com/2014/08/14/federal-cross-motion-for-summary-judgment-in-city-of-duluth-v-nigc/

https://turtletalk.wordpress.com/2014/04/04/city-of-duluth-sues-fond-du-lac-band-over-proposed-trust-land-expansion-at-carter-hotel-property/

http://www.northlandsnewscenter.com/news/local/Duluth-files-lawsuit-against-Fond-du-Lac-Band-253654851.html

Tyler Fish is a citizen of the Cherokee Nation and a graduate of the University of Oklahoma College of Law and has devoted his personal and professional ambitions to public service and protection of the sovereign rights of Native people and tribal governments. Before attending law school, Tyler served his tribal nation as a legislative officer and government representative in Washington, D.C. Tyler followed the footsteps of his grandfather by enlisting in the United States Marine Corps. During six years of service, and a tour of duty in support of Operation Iraqi Freedom, Tyler concurrently earned a Bachelor’s Degree in Sociology with minors in International Studies and Political Science. Tyler is a Gates Millennial Scholar and an alumnus of the Morris K. Udall Native American Congressional Internship program.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.