Land Acquisition for Gaming On and Off-Reservation in the Era of Carcieri and Patchak

2.75 General AV CLE Credits | WSBA AV CLE Activity ID #410734

Session 4 looks at the intricacies of the Indian Gaming Regulatory Act and the impact of recent SCOTUS decisions in the Carcieri and Patchak cases.

Overview

Recorded:  07/09/2015
Credits:  2.75 General AV CLE | WSBA AV CLE Activity ID #410734
Length: 2 hours, 48 minutes

Featured Speakers:
Eric D. Eberhard, V. Heather Sibbison, Suzanne R. Schaeffer

Part I of Session: Overview of the IRA and Section 20 of IGRA
The Indian Gaming Regulatory Act (IGRA) generally permits gaming activities by Indian tribes on any land located within an Indian reservation and on all off-reservation lands held in trust by the United States or subject to a restriction by the United States against alienation and over which a tribe exercised governmental power on the date of enactment of IGRA, October 17, 1988.

However, Section 20 of the Act generally prohibits gaming on lands acquired in trust for an Indian tribe after October 17, 1988, unless one of several exceptions is applicable. There is an exception for gaming on lands located within or contiguous to the boundaries of the reservation that existed on the date of IGRA's enactment. In addition, gaming activities can occur on "after-acquired" trust lands if:

• The Secretary determines that gaming on newly-acquired trust lands would be in the best interest of the Tribe and its members and would not be detrimental to the surrounding community, but only if the Governor of the state concurs in the Secretary's determination ("two part determination exception"); or
• The lands are taken into trust as part of one of these remedial ("equal footing") exceptions:
  • Land acquired in the settlement of a land claim;
  • Land within the initial reservation of a tribe acknowledged by the Secretary under the federal acknowledgement process; or
  • Land acquired as part of the restoration of lands for an Indian tribe that has been restored to federal recognition.


Part II of Session: The Impact of Carcieri and Patchak
In 2009 the U.S. Supreme Court held in Carcieri v. Salazar, 555 U.S. 379 (2009) that the Secretary lacked authority under the Indian Reorganization Act (IRA) to take land in trust for tribes that were not "under federal jurisdiction" at the time the IRA was enacted in 1934. In 2014, the Department of the Interior responded to the Court's holding with an "M Opinion" which sets out the Department's views on how "under federal jurisdiction" should be defined.

In 2012, the Court decided Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199 (2012) (also sometimes referred to as the "Gun Lake decision"), and there held that the Quiet Title Act does not bar a challenge brought pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, to a decision by the Secretary to take land in trust for a tribe. The Department of the Interior responded to the Court's decision in Patchak with an amendment (known as the "Patchak patch") to its regulations implementing the IRA.
Despite the Department's efforts to address these decisions, the Carcieri and Patchak decisions increasingly have been used as weapons in litigation designed to delay or prevent the Secretary from acquiring land in trust for tribes (whether for gaming or any other purpose).

The session will include a discussion of two cases in which challenges have been brought based on Carcieri and/or Patchak arguments, and we will consider the potential impact on future fee-to-trust applications. These cases also involve questions related to how IGRA Section 20 should be applied.

  • Confederated Tribes of Grand Ronde, Clark County, et al. v. Jewell, involves the Cowlitz Tribe in Washington State, whether that Tribe was under federal jurisdiction in 1934 as required under Carcieri, and if so whether the land acquired in trust by the Secretary meets the IGRA Section 20 exception for an initial reservation of a tribe recognized by the Secretary under the federal acknowledgment process.
  • Big Lagoon Rancheria v. State of California, involves the question of whether the Tribe was federally recognized and exercising governmental authority over its reservation lands in 1934.
    Finally, this second session will also consider the case of State of Arizona, et al. v. Tohono O'odham Nation, which involves the application of non-IRA fee-to-trust authority. This case highlights the difference between discretionary trust land acquisitions made pursuant to the IRA, and mandatory land acquisitions made pursuant to specific federal statutory direction. The Tohono O'odham case also highlights the application of the Section 20 exception allowing tribe to use land acquired in the settlement of a land claim for gaming.

Finally, this second session will also consider the case of State of Arizona, et al. v. Tohono O'odham Nation, which involves the application of non-IRA fee-to-trust authority. This case highlights the difference between discretionary trust land acquisitions made pursuant to the IRA, and mandatory land acquisitions made pursuant to specific federal statutory direction. The Tohono O'odham case also highlights the application of the Section 20 exception allowing tribe to use land acquired in the settlement of a land claim for gaming.

Presenters

Program Chairperson

Eric D. Eberhard

Co-Faculty Director, Center for Indian Law and Policy and Distinguished Indian Law Practitioner in Residence, Seattle University School of Law

Eric D. Eberhard is a Distinguished Indian Law Practitioner in Residence at the Law School at Seattle University. From 1995 to 2009 he was a partner in the Seattle office of Dorsey and Whitney LLP. He received his B.A. degree from Western Reserve University in 1967; a J.D. degree from the University of Cincinnati in 1970 and an LL.M. from George Washington University in 1972. He has been actively engaged in the practice of Indian Affairs law since 1973, including employment in legal services, private practice and as the Deputy Attorney General of the Navajo Nation and Executive Director of the Navajo Nation Washington Office. His practice has involved all aspects of the representation of Indian tribes, organizations, individuals and entities doing business with Indian tribes in federal, state and tribal judicial, legislative and administrative forums.

From 1989 to 1995 he served as the General Counsel and Staff Director on the Senate Committee on Indian Affairs for Senator John McCain of Arizona. In that capacity he had direct responsibility for legislation relating to the protection of the environment on Indian lands, Indian cultural resources protection, gaming, water rights, self-determination and self-governance, tribal courts and economic development.

In December, 2000, the U. S. Senate confirmed President Clinton's appointment of Mr. Eberhard to the Board of Trustees of the Morris K. Udall Foundation. President Bush nominated Mr. Eberhard for a second term on the Board in 2005 and he was confirmed by the Senate in 2007. From 2001 to 2011 he chaired the Board's Committee on the Native Nations Institute. In 2011, he was elected as Chairman of the Board of Trustees. He also serves as the Vice-Chairman of the Native American Concerns Committee of the American Bar Association's Committee on Individual Rights and Responsibilities and is a Life Fellow of the American Bar Foundation. Mr. Eberhand is an Associate Justice of the Court of Appeals of the Confederated Tribes of Coos, Lower Umpqua and Suislaw Indians in Oregon.

He has been recognized by Best Lawyers in America and Chambers. At Dorsey & Whitney he was recognized as the Partner of the Year, the Diversity Partner of the Year and the Pro Bono Partner of the Year. He has been honored by the United South and Eastern Tribes, Navajo Nation and its courts, the National Indian Gaming Association, the National Association of Indian Legal Services Programs, the Intertribal Timber Council and the American Indian Religious Freedom Coalition for outstanding service and contributions. In 2013 Mr. Eberhard was presented with the Lifetime Achievement Award by the Northwest Indian Bar Association.

Presenters:

Session 4

V. Heather Sibbison, Dentons, Washington, D.C.

Heather serves as chair of the Dentons' Native American Law and Policy practice, which serves clients on matters related to American Indian, Alaska Native, and Native Hawaiian issues. Her practice is primarily focused on all matters related to Indian lands, including trust acquisitions, Indian lands opinions, Carcieri v. Salazar issues, land claim settlement issues, and related compliance with the Indian Gaming Regulatory Act (IGRA) and the Natural Environmental Policy Act (NEPA).

During the administration of President Clinton Heather served in the Office of the Secretary at the Department of the Interior (Special Assistant to the Secretary, Counselor to the Deputy Secretary, and Director of the Secretary's Office of Indian Water Rights), and also at the Department of Justice (Counsel to the Assistant Attorney General for Environment and Natural Resources, focus on work with the Indian Resources Section). During her federal service, her duties included management of issues related to fee-to-trust and Indian gaming, and she was lead federal negotiator in various settlement negotiations involving Indian land claims, Indian water rights and treaty fishing rights.

Heather's long experience with the Indian Reorganization Act, IGRA, NEPA, various land and water rights settlements, and the legal issues that have been spawned by the Supreme Court's decisions in Carcieri and Patchak, enable her to assist clients in developing and implementing workable fee-to-trust and reservation proclamation strategies for tribes needing additional land for gaming, non-gaming economic development, housing or any other use.

Her practice also encompasses extensive representation of tribes in the tribal-state compacting process, the development of inter-governmental services agreements and most matters for which federal administrative approval is required from either the Department of the Interior (Interior) or the National Indian Gaming Commission (NIGC). Heather also has been actively engaged in federal recognition issues. In all of these matters, she has assisted clients to navigate their issues both with the federal agencies and with the United States Congress.

Suzanne R. Schaeffer, Dentons, Washington, DC

Suzanne (Susi) Schaeffer is a member of the Public Policy and Regulation and Native American Law and Policy practices, and concentrates her practice on Indian lands and environmental compliance issues.
Drawing on her years of experience in both the federal government and private sector, Susi advises clients in acquiring land in trust for both gaming and non-gaming purposes pursuant to the fee-to-trust authorities of the US Department of the Interior. She is also well versed in other Indian lands issues, including land claims, reservation proclamations, leasing and rights-of-way over Indian lands, and Section 81 approval requirements. She has extensive experience working with the Department to achieve clients' land acquisition and other lands-related objectives.

Susi has particular expertise in handling environmental compliance issues on Indian lands, and she regularly counsels clients regarding compliance with the National Environmental Policy Act (NEPA) as well as other environmental requirements in conjunction with acquiring land in trust.

Susi also is very familiar with the requirements of the Indian Gaming Regulatory Act and has significant experience working with both the DOI and the National Indian Gaming Commission on gaming matters. This experience serves as a foundation for providing strategic and practical advice to clients regarding tribal gaming ordinances, management contracts, Indian lands issues and other matters related to the development of Indian gaming facilities.

Prior to returning to private practice, Susi served as the Assistant Solicitor for Environment, Land & Minerals in the Office of the Solicitor's Division of Indian Affairs, as well as a trial attorney at the U.S. Department of Justice in the Environment and Natural Resources Division.

Pricing

General Registration (in-person attendance) - $80.00

SU School of Law Alumni/Tribal Attorneys (in-person attendance) - $65.00