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.

No Dice for California Indian Casinos?

By:     Kele Bigknife | Intern | kele.bigknife@procopio.com

Theodore J. Griswold | Partner | ted.griswold@procopio.com

If you have ever ventured onto the gaming floor of one of the many Indian casinos in California, you have likely been puzzled by the diceless craps tables, or the roulette games conspicuously missing the iconic ball-bearing wheel. These games are often wildly popular in casinos. The history behind these creative work-arounds lies in the origins of gambling in California, the enactment of California’s Gambling Control laws, and Tribal-state gaming compacts negotiated as early as 1999.

Beginning largely in the mid-1800’s, the allure of “striking it rich in the west” brought copious amounts of miners to the golden-state of California in search of their share of the riches. As settlement camps grew larger with an abundance of mostly risk-loving men, gambling tents flourished. However, soon after, public opinion turned in the United States with many viewing gambling as socially immoral. In 1860, California banned all banked games (games where the player bets against the house) with Penal Code § 330. Fast forward to the mid-1980’s, the Supreme Court of the United States handed down its decision in California v. Cabazon, which concluded that while States in a Public Law 280 state could prohibit activities on Tribal lands as part of a general law, if the activity is regulated rather than prohibited, the State did not have jurisdiction. This decision culminated in the passage of the 1988 federal gaming statute, the Indian Gaming Regulatory Act (IGRA).

IGRA provides the legislative and regulatory framework for Tribes to establish gaming operations in an effort to promote tribal economic development, self-sufficiency, and strong tribal governments. IGRA defines three classes of games that each have their own regulatory scheme, with Class III including the games commonly associated with Las Vegas-style gambling including roulette and craps. Before a Tribe can lawfully operate a class III gaming operation, Tribes must do the following: (1) look to see if the chosen form of class III gaming is regulated in the state where the Tribe is located, (2) negotiate a compact with the state that is approved by the Secretary of the Interior, and (3) adopt a Tribal gaming ordinance that has been approved by the Chairman of the National Indian Gaming Commission.

In 1999, the Governor of California negotiated gaming compacts with many of California’s federally recognized Indian Tribes. As part of these Tribal-state negotiations, house-banked card games were regulated, but certain games such as craps, roulette, and dice-games based on chance remained prohibited under the state constitution and laws. Essentially, California forbids games where a ball or dice alone determines the outcome. With these restrictions in mind, Tribal casinos got clever and invented new games that simulated the same or similar odds to craps and roulette, but retained the legal definition of house-banked card games.

California Roulette varies from casino to casino, but the idea remains consistent. Players wager bets on a typical roulette layout, but the ultimate winning pick is based on a card numbered and colored identical to that of a roulette wheel. Some casinos have a spinning card wheel that uses a flapper to stop on the winning card. Others casinos draw three random cards and place them face-down on three regions on the table labeled “1-12”, “13-24”, and “25-36”; representative of the range of numbers. A roulette wheel is spun, and the number range that the ball lands in determines which card is flipped over to reveal the winning card.

California Craps sidesteps the dice “chance” prohibition by using a combination of dice and playing cards, or cards alone. Again, the variations differ from casino to casino, but the essential idea is that cards are representative of the winning “dice” numbers, thus making it a house-banked card game.

The California Division of Gambling Control has released Tribal Casino Advisory bulletins in favor of allowing California Roulette and diceless forms of California Craps, but has explicitly called out some variations of California Craps, stating that it considers any house-banked games played with dice, whether or not they incorporate the use of cards, to be unauthorized Class III gaming activities. While these advisory opinions have scared some Tribes into doing away with any form of craps or roulette, it is important to remember that the advisory opinions do not constitute legal advice. As long as Tribes can continue to present the viable argument that the particular game is a house-banked card game, the Tribal casinos are functioning within the boundaries of their Compacts, and players can continue to “roll the dice.”

Kele Bigknife is a citizen of the Cherokee Nation and is entering his third year at the University of Michigan Law School. He is a member of the Editorial Board for the Michigan Business and Entrepreneurial Law Review. Kele is a recipient of the 2016 Procopio Native American Internship.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with him 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.

Does the 9th Circuit Have Buyer’s Remorse? Carcieri in the Context of IGRA’s “Good Faith” Requirement of States

By: Christopher R. Scott | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

In a move heartening to many in the field of Indian Law, the 9th Circuit has decided to rehear en banc the appeal of the Big Lagoon Indian Gaming Regulatory Act (IGRA) case.  The previous hearing in front of a three-judge panel resulted in a decision against the Tribe founded on the Carcieri principle, apparently applied retroactively.  The decision caused concerns among the Native American Bar, and now the 9th Circuit is reconsidering its decision.

Despite 10 years of negotiation history with the Big Lagoon Rancheria Tribe wherein the State of California claimed State interests trumped Tribal interests, the State switched its legal position to a brand new position adopted for litigation purposes — that the land on which the Tribe proposed to build a casino was not legally taken into trust, according to Carcieri.  The Carcieri decision stated that Tribal Governments not specifically recognized when the Indian Reorganization Act was adopted in 1934 were unable to have land taken into Trust by the BIA on their behalf.  Carcieri v. Salazar, 555 U.S. 379 (2009).  The Tribe filed an action in Federal District Court alleging that the State had violated the good faith negotiation requirements in its Compact.  The State reasoned that the Compact good faith bargaining requirement was irrelevant if gaming could not occur on the proposed land.

The lower District Court saw through this newfound position of the State and held that they could not be acting in good faith by ignoring past negotiations and now rely on a legal theory to justify their behavior in compact negotiations; after all, negotiations began around 1998 and Carcieri wasn’t decided until 2009! Big Lagoon Rancheria v. State of California, No. 09-01471 CW (2010).

However. the 9th Circuit panel held in favor of the State, ruling  that valid Tribal jurisdiction over property on which a casino is proposed under an IGRA compact is a necessary prerequisite in order for the Tribe to rely on its Compact requirement that the State engage in good faith dealings.   On second thought, perhaps the 9th Circuit has recognized the extraordinary limitations this decision would have on Tribal-State compacts and relations, and is now rehearing the matter.  Stay tuned!

Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law. 

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.