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July 22, 2014

White House Tribal Conference – What Gaming Issues Should be on the Table?

In past years, the non-tribal gaming industry had little interest in the White House Tribal Nations Conference attended by tribal leaders from across the country. However, this year is different and many eyes will be turned to the session when it convenes today at the Department of the Interior. Internet gaming (“i-Gaming”) has been a major topic at gaming conferences for much of the past two years, and the discussions on that issue will be closely followed by the industry.

The attention-getting factor this year is that federal i-Gaming legislation has been elevated to the “front line” for Congressional action both during the “lame duck” session this year and the next session of Congress that convenes in January. And the Indian gaming community is seeking a spot at the table with its own agenda. While there is a division of opinion as to whether i-Gaming should be the subject of federal legislation or left to state action, the Senate leadership is clearly looking to enact a comprehensive regulatory framework.

With this, other gaming issues that may be discussed during the White House Conference should look a lot like the following.

Item A – Off-Reservation Trust Acquisitions

The Obama Administration has loosened the decision-making process for taking off-reservation land into trust for gaming. This has been a particularly divisive matter in various states such as California, with firmly established gaming tribes opposing the acquisitions on the grounds that the projects represent nothing more than “reservation shopping.” Much of this opposition seems to be driven by a desire to maintain territorial monopolies, and the established tribes have been sophisticated in their political relationships with their Governors and state legislatures (some of which must approve Gaming Compacts negotiated by the Governor). If this issue is not raised during the Conference, it will be something of a surprise.

Item B – Legislating a “Carcieri Fix

The 2009 Supreme Court decision in Carcieri v. Salazar held that the Secretary of the Interior can only take land into trust for tribes that were “under federal supervision” as of June 18, 1934, the date of enactment of the only law authorizing trust acceptance. Since then, there have been continuous discussions as to legislating a “fix” to that law so that the Secretary can take land into trust for all federally recognized tribes. The opposition to the remedial proposals has been aggressive, with states and local governments demanding that they have a veto over any trust acquisition of land within their boundaries. This issue is enormous for Indian Country in general and Indian gaming in particular.

Item C – Legislating a “Patchak Fix”

A direct consequence of the Carcieri decision came earlier this year with the Supreme Court’s ruling in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, a case coming out of Michigan. The Supreme Court ruled that Patchak has standing to maintain his litigation under the federal Administrative Procedure Act and its six-year statute of limitations, essentially voiding the 30-day appeal period previously established by Interior Department regulations. The impact on any tribal casino development on new trust land was immediate, since the financial community correctly wants to know that casino operations are permanent and not subject to termination with a judicial decision that the land was illegally taken into trust – especially if the tribe is newly recognized and potentially ineligible for trust land under Carcieri. Moreover, without regard to the Carcieri ruling, the six-year statute of limitations could prove to be a deal breaker for many projects since the uncertainty of a permanent land status would not be eliminated until the statutory appeal period has run.

To learn more about the issues that could be addressed at the White House Tribal Conference, read the full article here.

© Copyright 2014 Dickinson Wright PLLC

About the Author

Dennis J. Whittlesey tribal law attorney, dickinson wright law firm
Member

PROMINENT ASSIGNMENTS 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 California counties...

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