Native American Law Blog

Follow Up: Florida Senate makes offer to give up fight for full blown casinos.

As reported in an earlier post, there is a possiblity that the Florida budget session may close without a gambling deal. However, that does not mean state lawmakers are throwing in the towel. As reported on tampabay.com, the Senate made a "beefy offer" to the House late last night; essentially backing off a deal allowing for full casinos for the Seminole Tribe. Here is some of what was offered:

"* No more craps and roulette for the Seminole Tribe, as had been the offer in its original bill.

* Only limited gambling for Brighton, Immokalee and Big Cypress facilities -- with a definition as to what that means to come.

* $500 million in upfront cash for the first year; with the revenue declining to $400 million minimum in the second year and $250 million minimum for the remaining 23 years.

* Broward and Miami-Dade parimutuels could seek a voter referendum to get black jack at their cardrooms and pay $25 million to operate the games.

* Parimutuels outside of Miami-Dade and Broward could get slot machines if they get a county referendum and pay a $3 million license fee. If they don't seek slot machines, they can obtain a historic racing games.

* Gambling age is raised to 21."

Both sides view this as a good faith start to continued negotiations. You can read the full story on tampabay.com.

Check back for updates.

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Follow Up: Looks like Florida Lawmakers may finish session without a gambling deal.

The Florida Legislature has yet to reach an agreement on gambling expansion, but they have now agreed that  any money from a gambling deal will go into savings --instead of earmarking it for state education as suggested by Governor Crist. Insiders say that separating the gaming money from education allows lawmakers to pass a state budget without having to reach an agreement on gambling.  As pointed out in the Miami Herald story, if the gambling money is no longer tied to funding education, it makes it a little easier for opponents to vote against gambling expansion.

We will continue to follow this story.

Read the entire article in the Miami Herald.

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Turtle Talk posts letter from 17 State AG's concerned about a quick Carcieri fix.

As reported by Turtle Talk, the attorneys general of 17 states "sent a letter to the ranking members of the SCIA and the House Resources Committee. . . .asserting that Carcieri is a symptom  of a greater frustration felt by state governments relating to the current fee to trust process and asking Congress to consider state interests."  The letter, which is posted on Turtle Talk, references a story from last month in "Indian Country Today" which seemed to suggest that Indian country officials were calling for a "quick legislative fix so that state and local interests will not have time to make arguments that Congress should let the Carcieri decision stand." The attorneys general request that they "be allowed to participate in any discussions regarding legislation affecting the Secretary's authority to take land into trust because of the significant impacts such legislation has on the states."

 

Go to TURTLE TALK  for the link to the letter.  

 

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Spirit Lake Sioux tribe members vote 2-1 in favor of allowing University of North Dakota to retain "Fighting Sioux" nickname

As reported in News From Indian Country, "Members of the Spirit Lake Sioux tribe say they’re proud of the University of North Dakota’s Fighting Sioux nickname and they showed it with their votes. State officials say the tribal vote is just one of the factors they must consider.

Results from the tribe’s primary election, announced April 22 by the tribal election committee, showed 764 votes in favor of UND’s nickname and Indian head logo and 371 against it.

Under a settlement with the NCAA, UND needs approval from the Sioux tribes in the state to continue using the nickname and Indian-head logo without penalties. The NCAA considers it hostile and abusive."

Your erstwhile editor has always felt that anyone, to include the NCAA, which cries "Racism!" at the first possible moment, and who doesn't bother to consult that alleged victims of the alleged racism before popping off are, themselves, suspect.  Call it "reverse racism" if you will - the plain fact is that there are those who have an agenda that has more to do with targetting someone or something they don't like than it has to do with justice or fairness or removing racial discrimination.  Any entity which insists or actions or speech that they deem to be politically correct are particularly suspect.  

Or, to put it in a more succinct fashion, where does the NCAA get off telling the tribes what to think?

In any event, other Sioux tribes have not yet voted, and this issue isn't settled....but it's far better settled by the Sioux themselves than it is in an NCAA hearing, or, worse yet, a lawsuit.  So kudos to Spirit Lake for having the fortitude to put it to a vote.

See the full story HERE.

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Last Minute Reminder - Indian Law Research CLE at ASU

Unlocking the Secrets to Researching Indian Law

 

The emergence of Indian tribes as powerful economic, legal and political entities has made Indian law an important area of law in Arizona as well as the rest of the United States.  Research in this area can be complex and challenging because of its multi-jurisdictional nature (federal, state, and tribal) and many of the over 560 federally recognized tribes and Alaska Native Villages have developed their own judicial systems. Until recently, few of these primary (or tribal) resources have been published or distributed to the public. Using practical, business oriented examples, this program will focus on the latest free, authoritative resources for Indian Law research including Arizona State University Ross-Blakely Law Library's new Indian Law Research Portal.

 

The program is offered in two modules. Both sections will include information on the Indian Law Research Portal. The modules can be taken separately or together. The first half of the program will focus on researching federal Indian law including how to locate federal cases, statutes and administrative agency materials related to Indian law and an overview of how to research the documents of the legislative process for "legislative intent". The second half of the program will focus on researching Tribal law including using the latest resources for finding tribal constitutions, codes, and opinions. The second half of the program will also cover the best "free websites", how to research treaties and how to find non legal materials relating to Indian law.

 

 

Indian Legal Research CLE Seminar

May 1, 2009

 

Module One (AM) 8:30 a.m. - Noon (3.0 general CLE credits)

Module Two (PM) 1:00 p.m. - 5:00 p.m. (3.50 general CLE credits)

Read more and register HERE.

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Followup - Cobell case hearing coming up in D.C.

The DC Circuit Court of Appeals will hear oral arguments in the Cobell case on Monday, May 11.

Read the full story HERE on Indianz.com.

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Florida lawmakers extend session to hammer out differences in gambling deal.

On Tuesday, Florida lawmakers announced that they had agreed on "the broad framework for a budget reliant on federal stimulus money, increased fees and a $1-per-pack cigarette-tax increase to balance the books" but the budget does not  include any gambling money. It seems that the Houses still can not agree on whether or not to allow Class III gaming. The session was supposed to end this week, but because the Houses have yet to reach a gambling deal, they have extended the session. A final vote is scheduled for next Thursday or Friday.

We will continue to keep you updated.

Read the full story HERE.

ddg

Obama Administration ignores wishes of Navajo Nation

Navajo Nation President Joe Shirley says he is "disappointed" with the actions of the Obama Administration's EPA, which has, without notice to the Tribe, "...asked an appeals board to allow the agency to reconsider an air permit issued last year for a planned coal-fired power plant on the Navajo Nation in northwestern New Mexico."

The Desert Rock Power Plant has been controversial, pitting environmentalists and traditionalists against the government of the Navajo Nation and the Tribe's desire for jobs and economic development - this even though the new power plant is intended to be  "one of the cleanest coal-burning power plants in the nation and it would generate more than $50 million in annual revenues for the tribe and create jobs for a reservation where more than half of people are unemployed."

President Shirley has asked for a meeting with US President Obama to discuss the issue.  However, since the EPA didn't even notify the tribal government officials before making the request, it is doubtful that Washington will respond favorably.

Read the full story HERE in the Santa Fe New Mexican.

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Followup - Navajo Nation v. Forest Service: Tribe hopes for a settlement

The Gallup (NM) Independent reports that the Navajo Nation hopes to come to a settlement with the federal government over the issue of spraying "reclaimed sewage" over the San Francisco Peaks to make artificial snow on the ski area near Flagstaff, Arizona.  As the paper reports:  "The Navajo Nation Council has given its approval for the Nation’s attorneys and leaders to meet with the Obama administration in hopes of working out a settlement to protect the sacred San Francisco Peaks from desecration.

The Nation is seeking an expedited meeting prior to May 8, when the U.S. Solicitor General’s response brief is due to the U.S. Supreme Court.

In “Navajo Nation v. United States Forest Service,” the Nation and three other tribes challenged the Forest Service’s approval of an expansion of the Arizona Snowbowl ski resort on the San Francisco Peaks near Flagstaff under the Religious Freedom Restoration Act.

The expansion included using reclaimed sewer water to make artificial snow, which in the view of Indian religious practitioners, desecrates the mountain."

Read the full story HERE.

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Significant change in land use on Navajo Nation

For many years, if you held a grazing right on a piece of the Navajo Nation, you could pretty much determine if anyone else could build on or use that piece of the Nation.  Now, as the Navajo Times reports, "A landmark ruling by the Navajo Nation Supreme Court signals that the days when Navajo grazing permittees exercised total control over development in their realms are numbered."

See the full story HERE.

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NY Times reports - Sioux Split on Suit Seeking Money for Black Hills

It's an interesting legal problem.....and there is almost certainly no way to "win."

Over a century ago, the Sioux were driven out of the Black Hills and onto reservations.  Eventually, the US Government offered compensation.  The compensation hasn't been accepted or paid......the tribes insisting, instead, that the government should return the property.

Now, it's pretty obvious that's never going to happen, with due respect to the tribes' position.

So now there is a federal lawsuit filed as a class action suit which seeks to have a federal court release as much as $900 million in compensation and interest.

But as the NY Times reports, "The dispute has split the tribes. Some 5,000 tribal members have signed up for the class-action lawsuit, but just 19 plaintiffs are listed because many others live on reservations and fear retribution, said lawyer Wanda L. Howey-Fox of Yankton.

She said tribal members are wrong if they believe taking the money amounts to selling the Black Hills.

''There is no selling to be done because the court determined it was an improper taking and all the court can give as far as a remedy is money,'' Howey-Fox said. ''They can sit and hope and pine away that the government is going to give the Black Hills back, but that is never going to happen.''

But Charlotte Black Elk, who has been active in traditional native issues including the Black Hills, said she would never consider taking money for the Black Hills, which the Sioux hold sacred.

''To take the money would bless the theft,'' said Black Elk, who lives on the Pine Ridge Indian Reservation."

To say that is issue is dividing the tribes would be a bit of an understatement.

Read the full story HERE.

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First Native American and first woman in line to be Solicitor for the Department of Interior

Hilary Tompkins, a Navajo woman, is set to be confirmed by the Senate to be the top attorney at the Department of the Interior.  Read the full story HERE on Indianz.com.  (You could read the full story in the Albuquerque Journal, but that newspaper wants you to pay for a subscription before it lets you read any news).

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Turtle Talk has link to an article about adding Indian Law to the Arizona state bar exam

Here is what they say about it: "Here is an excellent paper by Ray Campbell and Brian Lewis, ASU law students, arguing in favor of adding Indian law to the Arizona bar exam. It’s published by Arizona Attorney, the state bar journal, and is titled “Indian Law: A Needed Addition to the Arizona Bar Exam.”

Find the link to the paper on Turtle Talk.

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Governor Crist and Seminoles offer $1.1 billion in cash over two years in return for gambling monopoly.

While the House and Senate continue to debate over the future of gambling in Florida, Governor Crist and the Seminoles worked on their own deal to offer the state a "financial lifeline." According to the Miami Herald, the deal would guarantee the state a two-year, $1.1 billion loan from the tribe in exchange for exclusive rights to offer blackjack games in Florida. Specifically, the Seminoles would hand over a "check for $600 million in 2009-10 and another for $500 million, if needed, in 2010-11. During the 25-year agreement, the total minimum payment to the state would be $2.5 billion, minus interest payments for the upfront money in the first two years. The trade off for Florida: no payment at all in year three, then payments that would slowly ramp up again in years four through 25. The deal would allow the Seminoles to continue running blackjack tables at their Hard Rock Casinos, plus five other tribe sites, and it would give them the exclusive right to operate Class III slot machines outside of Miami-Dade and Broward counties."  As reported on SunSentinel.com, it also entitles the pari mutuels in  Broward and Miami-Dade to get a lower tax rate on their voter-approved slots machines, as well as expanded poker room hours and betting limits; but they would not be allowed to have blackjack tables. The deal also provides the Seminoles with another "lucrative edge:" outside of Broward and Miami-Dade counties, they would have statewide rights to Vegas-style slot machines.

Whether or not the Legislature sees this as a good deal remains to be seen, although things do not look too promising at the moment, since, as reported in the Miami Herald, the lead gambling negotiators in the House and Senate called it a bad deal for Florida.

We will continue to update you on this story. 

ddg

 

Follow Up: Bill to ban smoking at Connecticut casinos moves forward.

In an 8-3 vote, the state's Goverment Administration and Elections Committee passed legislation to ban smoking at Connecticut casinos. As we reported back in March, the bill, which has already triggered a threat of legal action from tribal officials, was previously approved by the Public Health Committee, 28-2.  The vote went down party lines, Democrats supporting the ban, claiming that they have the right to ban smoking in order to protect the health of casino workers; and Republicans opposing it, asserting their position that the bill is unconstitutional and would violate the compacts between the state and Indian tribes that operate the casinos. They also cited to the fact that the bill "specifically targets casinos while allowing private clubs" to continue to permit smoking. 

As reported on courant.com, Attorney General Blumenthal Monday that "a ban would be legally enforceable because both tribes have already agreed — as a condition in their state gaming compacts — to adopt Connecticut's public health standards." The bill is headed to the state House of Representatives and Senate. The casinos would prefer to reach a resolution with the governor's office rather than be forced to ban smoking by legislation. The tribes have stated that the legislature's action would result in a guaranteed federal lawsuit.

You can read the article on both courant.com and theday.com

ddg

 

Follow Up: Florida House passes bill limiting Seminoles to slots-only casinos.

As expected, the House, by a vote of 84-27, passed a bill (HB 7129), that would require the tribe to shut down their card tables but allow them exclusive rights to operate slots in counties that don’t already have them. The House also approved a related bill which allows pari-mutuel facilities to become more competitive through extended hours, expansion of poker rooms, and higher wagering limits; and those that currently operate slot machines would enjoy a reduced tax rate. The House plan would require the Seminoles to guarantee $100 million to the state.

 

As we reported earlier, the Senate passed its version of the Seminole compact legislation (SB 788), which differs considerably from the House version.  

We will continue to follow this story.

You can find the full story on sunsentinel.com. 

ddg

Ninth Circuit Court of Appeals finds that overtime provisions of FLSA apply to tribal owned business on reservation land.

The court addressed the question of whether overtime provisions applied to the Indian owned business on reservation land, and whether the Secretary of Labor for the United States Department of Labor has the authority to enter the Indian reservation to inspect the books of that business. 

In an opinion filed yesterday, the Ninth Circuit answered both questions in the affirmative. The Ninth Circuit agreed with the trial court that the overtime requirements of the FLSA apply to the retail business in this case and because the FLSA applies to the retail business, further concluded that the Secretary had the authority to enter the Indian reservation to audit the books of the business, "as would be done with respect  to any private business." The court noted that "the central aim of the FLSA is to achieve certain minimum labor standards, such as overtime requirements, with respect to industries engaged in commerce" and explained that "FLSA is a statute of general applicability, and that Indians and their tribes are equally subject to statutes of general applicability" but noted that "a statute of general applicability that is silent on the issue of applicability to Indian tribes, like the FLSA, does not apply to Indian tribes if: (1) the law touches exclusive rights of selfgovernance in purely intramural matters; (2) the application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or (3) there is proof by legislative history or some other means that Congress intended the law not to apply to Indians on their reservations. In any of these three situations, Congress must expressly apply a statute to Indians before we will hold that it reaches them." The tribe argued the intramural affairs exception (1) and/or (2) the treaty exception applied. 

The court rejected both arguments. In rejecting the first argument, the court provides an in depth discussion of prior case law that leads them to conclude that because the Puyallup Tribe has not enacted wage and hour laws, the overtime provisions of the FLSA apply to the Mathesons and the intramural affairs exception does not apply. The court also rejected the tribes treaty rights exception that the Medicine Creek Treaty addresses employment or wages and hours. The court specifically found that "there  is nothing in the Medicine Creek Treaty directly on point discussing employment or wages and hours. Moreover, the language regarding freeing all slaves is not so ambiguous that it could be construed to cover the payment of required wages."  

You can read the full opinion on Turtle Talk. 

ddg

 

Former Tribal Judge sues Ute Tribe over dismissal from position

From the Deseret News: "FORT DUCHESNE, Uintah County — Larry Kee Yazzie was the Ute Indian Tribe's chief judge for a little more than a year. Now, he is suing his former employer for breach of contract.

Yazzie, an Arizona attorney, claims the tribe's Business Committee improperly fired him because members of the governing body were upset with a sentence he had meted out in a criminal case. He said the victim in the case is related to a committee member who felt the defendant should have received a harsher sentence."

See the full story HERE.

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Followup - Az. Supreme Court to review Havasupai blood lawsuit

From the Arizona Republic:  "The Arizona Supreme Court will review a lower court's decision reviving lawsuits filed by Havasupai Indians who allege that university researchers misused blood samples taken from tribal members."

See the full story HERE.

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Winnemem Wintu tribe files suit to replace tribal lands flooded by the 1941 construction of Shasta Dam.

The tribe filed the lawsuit against several federal agencies, including the Department of the Interior, Department of Agriculture, Bureau of Reclamation, Bureau of Indian Affairs, Bureau of Land Management and the U.S. Forest Service demanding the government "fulfill its obligation to replace tribal lands flooded when the dam was built and to provide funds to rebuild the infrastructure." The tribe claims that the Congress promised to acquire a reservation for the tribe after the Shasta Dam was created, replacing the 4,480 acres of tribal land that was damaged. The tribe claims that the government has not kept its promise. In fact, the tribe says that the government not only did not fulfill that obligation, but they continue to appropriate sacred land and have even prohibited the tribe from use of a tribal cemetery. The lawsuit seeks damages for lost and damaged lands.

 

You can read the story HERE. 

 

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