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April 24, 2014

Indian Gaming Issues to Watch in 2013

The coming year will see major developments on a number of hot button issues for Indian gaming. The following list is certainly far from comprehensive, but it consists of matters that already are hot and even contentious. In each case, the stakes are high and the outcome will have enormous impacts, both negative and positive, for the players. The readers likely will have personal favorites to add to their own lists as the year proceeds, but the following includes what surely will be in the news throughout 2013.

1. The Mashpee Wampanoag Casino Project

The Mashpee Wampanoag Tribe continues to have major problems in the development of a tribal casino in Massachusetts, and the clear indication is that things are not getting better in the time frame necessary for the Tribe to qualify for a casino under the state law authorizing three casinos, one of which was designated for a recognized Indian tribe to be located in southeastern Massachusetts.

Mashpee clearly was the preferred tribal licensee, but the law imposes stringent requirements for license qualification including (a) a federally approved Class III Gaming Compact and (b) federal acceptance of tribal land into trust with qualification for gaming within a time frame viewed by most observers as virtually impossible to satisfy. These requirements became less onerous last month when the Massachusetts Gaming Commission voted to delay by three months the deadline imposed, giving Mashpee until March 15 in which to meet the requirements. This certainly eases the Tribe’s burden, but whether even the new deadline provides sufficient time to conclude both the Compact and the trust acquisition remains to be seen.

2. Shinnecock Efforts to Develop Gaming on Long Island

The Shinnecock Indian Nation received federal recognition approximately 30 months ago and has been pursuing a casino development on Long Island ever since. In early August, tribal members voted to suspend two of the three tribal Trustees and two members of the tribal Gaming Authority. These suspensions were approved a second time only eight weeks ago, meaning that only one tribal Trustee ostensibly is still in office.

While it is unclear whether the tribal government could function under this situation, the Bureau of Indian Affairs became involved in November by indicating that it recognized the ostensibly removed Trustees as continuing to serve as members of the Board of Tribal Trustees because they may not have been lawfully ousted in the earlier removal actions. Indeed, the Bureau’s Eastern Regional Director Franklin Keel suggested that a federal mediator be employed to resolve the dispute. The situation has been quiet since the BIA’s action in November, but the fact there were removal votes by the membership cannot be ignored.

3. The Continuing Saga in Alabama

The Poarch Band of Creek Indians has established a profitable gaming industry in Alabama, although it has been limited to Class II gaming due to the lack of a Class III Gaming Compact. Still the Band has moved forward and continued to flourish. But its progress has been subjected to continuing opposition at the state level over several years, and the principal boogeyman is Alabama Attorney General Luther Strange.

Strange has challenged any element of the Poarch Creek development that he can conjure up, including whether tribal land can be used for any gaming at all. He has been as persistent as a hound dog with a bone. The continuing saga of State v. Poarch Creek merits attention if for no reason other than as spectator sport.

4. Tohono O’odham’s Battle with the City of Glendale, Arizona

This is a case of a tribe that has done everything right, but its project still is in litigation and the subject of contentious public debate. The Tohono O’odham Nation proposes to build a Las Vegas-style casino and resort on a site of unincorporated land surrounded by the City of Glendale. The Secretary of Interior accepted the parcel into trust status in July 2010. However, that acceptance has been challenged in federal litigation that continues to this date. The plaintiffs include the federally recognized Gila River Indian Community, the City of Glendale, and assorted local residents and leaders of both houses of the Arizona Legislature.

5. Gaming Tribes Fighting Proposed Competing Tribal Casinos

The ugliest showdowns in Indian Country come when Indian tribes fight other tribes, and the battle for the gaming dollar is beginning to fuel such confrontations. The most visible of these disputes involves an Oregon tribe against a Washington tribe, a different Oregon tribe promising litigation against another Oregon tribe, and two California tribes opposing a third California tribe.

Tribes fighting tribes represents an unfortunate byproduct of the development of the Indian gaming industry, and each of these three instances is driven by a desire to preserve economic positions in the potentially affected markets. Their resolution will be closely watched both for their outcome and what they say about the current state of inter-tribal relationships.

© Copyright 2014 Dickinson Wright PLLC

About the Author

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Expertise in development of economic projects, including casinos, for Indian tribes in America and Canada

Served as legal counsel to both unrecognized and federally recognized Indian tribes, providing counsel on Indian gaming law and Indian lands as well as a wide range of state and federal taxation issues unique to Indian tribes, individuals and lands

Served as Special Counsel for Gaming to the cities of Detroit; Buffalo, NY; Battle Creek, MI; Lima, OH; Middleborough, MA; and Barstow, CA as well as Calhoun County, MI, DeKalb County, IL, and seven...

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