Patrick B. McGuigan, Editor and Publisher
OKLAHOMA CITY – To repeat with fresh nuances themes first raised in this space in 2012 and offered anew when the Legislature’s special session began in September, times may be a-changin’ in Indian Country.
Or, maybe not, for here is the context: Oklahoma faces a budget crunch.
That is not change, of course. It is business as usual.
The distressing situation, arises in part from the inability of the Republican majority in state government to deliver on promises made in past elections to “right-size” (reduce) government and concentrate on core functions.
As our government scurries around for money to cover policy and managerial ineptitude (or in some cases, it now seems, malfeasance), many ideas have floated.
As things stand on Sunday evening, November 5, legislators seem on the verge of providing over $100 million to sustain some health-related government operations in present form. Things might go further, with gross production tax/fee increases, and other revenue-raising.
The next few days should tell. While the Senate and the governor want a broader fiscal impact (i.e. higher taxes) than the House, the key players are broadly speaking agreed on finding a way to get to the regular session in February without budget cuts at certain agencies.
The least worthy of all suggestions raised at 23 Street and Lincoln is to allow the state’s Indian tribes more gambling opportunities. That idea floated early in the special session, floated away for a few weeks, but now has drifted back in the form of House maneuvers to allow roulette and dice games at certain tribal casinos.
A Land Deal, masked as a budget deal
Tracking closely with that is scuttlebutt in the halls of power that some legislators want to “cover” a land problem facing the larger Indian tribes, most notably the Chickasaw Nation. That is a bigger issue than controversy over any one casino site, and/or the current budget crunch.
There have been whispers for years concerning the means through which casinos began popping up all over southern and Eastern Oklahoma in the most opportune places – in areas that had not been Indian territory for a century.
Of the 120 casinos in Oklahoma, roughly half are located on such newly acquired sites for a handful of tribes – even though the Indian Gaming Regulatory Act prohibited such location decisions/permits except in specific circumstances.
Over the years, there have been efforts by smaller tribes to challenge decisions putting them in a comparative disadvantage in the Trust/Indian Country/BIA processes.
The latest is a case, brought by the Comanche Nation of Oklahoma in a lawsuit against the latest proposed Chickasaw casino to be located on good real estate just north of the Red River. The Chickasaw want to add that to the two dozen locations the tribe (wealthiest of all the Oklahoma tribal units) already operates.
The Chickasaw have pressed on in their customary manner, which I wrote just weeks ago “might be described as smiling as they do whatever they please, regardless of the impact on other Native enterprises.”
Pleadings in the case include assertions that the deeds to all casinos comparable to the new situation have been (and are) suspect at best.
Massive (i.e. billions of dollars) for the big tribes have flowed from this defective approach to land trust and related areas of the law in Oklahoma. That is money which should belong to the smaller tribes – and in specific instances to the state of Oklahoma.
Many believed the legality of casinos such as this proposed Chickasaw site along the Red River – sites long protected by a combination of dubious decisions at the Bureau of Indian Affairs (BIA) and the notable power and influence of the largest tribal entities – would never be challenged.
The Beginning: Patchak and the Band
That belief – an assumption more than a necessity of judicial construction – should have changed when the Supreme Court ruled in 2012 that such sites may be challenged legally.
In an 8-1 decision in “Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,” the High Court allowed a legal challenge to a casino location/permitting process. The gist of that decision is found in an elegant case summary at the Supreme Court of the United States blog:
“In this case, the federal government took certain land into trust for an Indian tribe, which means that it took ownership of the land to allow the tribe to use it. The tribe planned to build a casino on the land. The Supreme Court held that a neighbor could sue the government to stop the casino project on the ground that the law did not permit the government to take the land into trust for this particular tribe.”
In deliberations on the matter, the late Justice Antonin Scalia wondered what the impact on casino land processes would be if falsehoods were perpetrated in said process. He asked explicitly, right out loud, the question that has long haunted this issue in Oklahoma: “What if they lied?”
Although the case did not pivot around that dramatic (in retrospect) moment, Scalia’s colleague Justice Elana Kagan reflected there was no doubt the federal government would be held to the letter of the law if any other matter were under consideration.
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak has deserved broader currency in judicial proceedings.
David Patchak, who owned land adjacent to recently acquired Indian Trust land, wanted legal standing to challenge, and potentially stop, trust designation. He got it, as he should have.
On the surface, the decision was simple. Patchak’s original suit argued the federal government could not put the land in trust, and even if it could, the U.S. Interior Department had not considered harms flowing from intended use of the property.
The federal district court, however, never reached the substance in Patchak’s arguments against the location of the band’s casino. Instead, the court declared that Patchak lacked standing to challenge the U.S. Secretary of the Interior’s grant of trust status to the area, known as the Bradley property.
Eventually, the U.S. court of Appeals for the District of Columbia Circuit slapped down the trial court on the standing issue, and further rejected arguments that assertions of sovereign immunity protected the federal government and the band from litigation.
To linger briefly, in upholding the D.C. Circuit, the 8-1 U.S. Supreme Court decision awarded standing to Patchak, sending the case back to the district court for new consideration. Justice Kagan crafted the majority opinion, joined by every other member save for Sonia Sotomayer, the only other justice appointed by President Barack Obama.
Kagan’s 18-page ruling included humor. She wrote that Justice Scalia — a Ronald Reagan appointee — “in a former life as Assistant Attorney General” had argued against grants of sovereign immunity beyond narrow instances authorized in law.
Kagan said she used his rationale “not as legislative history, but only for its persuasive force.”
Levity aside, the result in Patchak reinvigorated the right of adjacent property owners — regardless of ethnicity — to raise concerns about use of trust lands, whether those worries are, as the Supreme Court’s opinion put it, “economic, environmental or aesthetic.”
The decision could still yield overdue discussion of Interior Department edicts. The Band did not gain federal recognition as a tribe until 1999 — long after passage of the Indian Reorganization Act of 1934. Congress has not formally granted authority to grant land trust status to tribes recognized post-1934.
Thus, at least some trust decisions of the last quarter century or more could come under fresh scrutiny in the wake of Patchak. To be clear, Patchak has been infrequently applied, but also never reversed.
Even if you are a Big Tribe, Trust decisions are Federal Action
Placing land into trust is a “federal action,” which is supposed to require application to the National Environmental Policy Act (NEPA), but that stricture has been ignored or undermined frequently over recent decades. The Bureau of Indian Affairs (BIA) has too often granted categorical exclusions from NEPA to lands headed for, or already granted, trust status (making that area “Indian country”).
To be clear: If a tribe and the U.S. government take land into trust for a new casino, an environmental assessment under NEPA is required to determine if an environmental impact statement is needed before finalizing trust status.
A case can be made that NEPA has been violated frequently, when tribal applications list the trust purpose as “economic development” — a means to mask the intended use for gaming. If officials with Interior’s Bureau of Indian Affairs knowingly granted categorical exclusions avoiding NEPA in years past, while aware that gaming was in fact the intended purpose, then the law was violated.
Some leaders of smaller American Indian tribes believe many trust decisions favoring larger tribes have been fraudulent, awarding unfair market advantages to the “big boys” over the smaller entities.
The Chickasaw have in some instances purchased lands adjacent to suspect deeds and claimed a second exception to legal requirements, by using a version of “contiguous exception.” But if first deeds are void, the subsequent exceptions must also fall.
Given the initial hint of stricter judicial scrutiny in Patchak, an often-divided court may be ready to grant a nearly unified look at contentions that many modern trust acquisitions have been marred by inattention to environmental policy, dismissal of legitimate land use limitations, and insensitivity to the just economic liberty interests of America’s smaller Indian tribes.
Let’s Don’t Make a Deal
To begin a wrap-up, here is a verity that, for some, dares not be spoken:
Under the status quo, absent meaningful applications of Patchak, LLCs and similar operations can be used to snatch up land (billions are involved already, with more to come unless underlying laws are actually enforced) that would become sub-sets of Big Tribe Indian Country, for purposes of legal jurisdiction, rather than part of the state of Oklahoma.
At that point, the old division between Indian Territory and Oklahoma would be recreated. Would it be named Sequoyah, or perhaps bear the name of some modern tribal leader?
Even as the state considers an expansion of revenue by allowing the tribes to have roulette and dice games (a decision many of us could not support), absolutely nothing should be done to fix the problem of tribes with dubious operations. All told, the possibility of a so-called “land fix” for about 60 casino locations would really be a land grab – on behalf of the Big Tribes at the expense of the smaller tribes and the state as a whole.
The State of Oklahoma has its problems, but on this matter it stands perfectly positioned to await further developments in courts of law, and to retrade existing compact(s) with those same tribes – soon perhaps, or certainly in 2020 when the natural course of events allows for new compact negotiations. There is no need to trade a few million dollars in “new” revenue for the billions in value that lie hidden under the misbegotten status quo.
At stake could be billions of dollars that should be used in appropriate instances for state revenue needs (and as a way to avoid tax hikes on individuals and businesses in the state), to improve per capita disbursements for tribal members (the aforementioned billions rest in bank accounts not subject to scrutiny as the corpus grows daily) and better tribal programs.
As a final nuance, I admit that wrapped into the whole legal mess is a case (Murphy v. Royal ) dealing with a challenge to law enforcement jurisdiction over murder cases on certain lands, a matter which could, through “penumbras,” be folded over casino issues.
Judge Joe Heaton, presiding over the current Comanche case versus the Chickasaws, seems disinclined to venture into Murphy territory as he considers the Red River litigation.
(Perhaps he doesn’t want to trigger a new version of the older, widely-known Murphy’s Law? Still, there is merit to concerns that leaving “well enough alone” on certain decisions in the bowels of the Bureau of Indian Affairs could cause more than indigestion for powerful counsel for the big tribes.)
Many have no doubt nodded off. But all of this can impact Billions of dollars in resources for the functions of government.
Let’s put it this way.
If Patchak is to have any progeny in American courts of law, for starters let’s have, for now: No Dice, No Roulette, and No More Special Deals for the most powerful players in Indian Country.
Give the little guy, and the government of all Oklahomans, a fighting chance for justice.