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 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.

Aviation in Indian County: Seminole Tribe of Florida

By: Sandra L. Shippey | Partner | sandra.shippey@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com
Stephanie Conduff | Law Clerk | stephanieconduff@procopio.com

Seminole Tribe of Florida Chairman James E. Billie, an ex-military and licensed pilot, used to land his plane on a desolate reservation road. His airplane allowed him to travel independently to and from the Seminole Tribe of Florida reservation as he worked to develop Tribal businesses. My, how things have changed. Today that road has become the Big Cypress Airfield. Privately owned by the Seminole Tribe of Florida, the airfield employs 18 staff members and is buzzing with 3 winged aircraft – including a 13 passenger Gulfstream IV – and 4 helicopters, and it is growing. It seems Chairman Billie was onto something.

The Seminole Tribe has begun to realize the business and governmental benefits of having its own airfield on its Reservation. Other tribes may want to take notice.

The operational costs of the Big Cypress Airfield are limited and the benefits substantial. The Tribal airfield uses existing reservation land, so there was no acquisition cost and no lease. Likewise, state property taxes on the airfield itself are not an issue and there are no state property or use taxes on the aircraft. Oh, and parking is free.

Many reservations struggle with a geographic challenge of isolation from business centers. The Seminole Tribe has mitigated this issue by making travel more efficient and flexible. The Big Cypress Airfield allows Tribal business leaders to use the Seminole Tribe’s own aircraft to visit its off-reservation business operations, conduct business, and attend intergovernmental meetings without being tied to a commercial airline schedule. This becomes important when Tribal executives are running both a business empire and a Nation. The Seminole Tribe has more than 4,000 citizens and booming businesses including the Hard Rock International purchased in 2007 from the Britain-based company Rank Group plc for an estimated $965 million. The unprecedented deal now includes 191 venues in 59 countries, including 145 Hard Rock Cafes, 21 Hard Rock Hotels and 10 casinos.

In addition, the Seminole Tribal government generates billions of dollars in economic impact in Florida and elsewhere through vendor contracts and indirect spending spun-off from its gaming and governmental operations, as well as its other business interests. For this tribal government, the efficiency of using its Aviation Department to fly Tribal executives to and from the Reservation is a valuable business tool for saving time and increasing revenues.

Tribal governmental services can be more efficient and immediate with the availability of aircraft. When West Nile virus was detected at the Brighton Reservation, the Seminole Tribe’s Aviation Department was able to immediately ramp up mosquito control with the Bell 206B helicopter through aerial applications of mosquito control throughout the reservation. Tribal citizens were quickly protected from encephalitis and other mosquito-borne illnesses.

The Big Cypress Airfield has long been used as a home base for fire suppression efforts. The Seminole Tribe, in conjunction with the Bureau of Indian Affairs, has created a fire suppression and response program that extends beyond the reservation jurisdictional boundaries. By servicing the surrounding community, the Tribe ensures the safety of both Native and non-Native communities.

The Aviation Department also supports the Seminole Police Department in providing aerial security on and off the reservation. During the Super Bowl activities at the Seminole Hard Rock Hotel, the Department provided aerial support for security and traffic control.

The Tribe also holds open houses at Big Cypress Airfield to inspire and attract Native youth to careers in aviation.

Tribal airfields and aircraft are not reserved for the largest of Tribal Nations. The benefits of a tribal airfield along with the right aircraft can assist even moderate sized reservations shorten the distance from the reservations to economic centers and the use of aircraft on and around the reservations can better serve tribal citizens. Does your reservation have a dusty road waiting for a new use?

A special thanks to Clinton A. El-Ramey, Director of the Aviation Department, at the Seminole Tribe of Florida, for his public service to Indian Country and the United States.

Sandy Shippey is co-chair of Procopio’s Aviation Practice Group and a member of the Native American Practice Group.

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 9^th 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 9^th 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 9^th 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 9^th 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.