Piliero Mazza & Pargament, PLLC
Vol. 4, Issue 4 April 2002
Addressing Tribal and Alaska Native Corporation
Legal and Business Issues
The articles shown here are excerpts -- if you'd like to subscribe to Tribal Advocate, please contact Susan Brock at (202) 857-1000 or at
A R T I C L E S
GAMING: Court of Appeals Upholds Tribe's Challenge to Local Casino Ordinance
ON THE HILL: Indian Affairs Committee Criticizes Portions of President's Budget
SELF-GOVERNANCE: Indian Health Service Proposes Tribal Self-Governance Regulations
COURT WATCH: Supreme Court Agrees to Hear Nextwave Case
LAND: DOI Issues Notice on Changes in Indian Estate Law
FEDERAL: Comment Period Extended for Tribal Consultation Meetings
Court of Appeals Upholds Tribe's Challenge to Local Casino Ordinance
On January 11, 2002, the Sixth Circuit Court of Appeals struck down a Detroit casino ordinance that was viewed as limiting a tribe's ability to obtain a license to open a casino off-reservation. The Court found that the ordinance at issue violated First Amendment and equal protection principles. The case, Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Bd., provides an interesting analysis of the permissible boundaries of local gaming ordinances.
The case arises from Detroit's efforts to introduce and regulate non-reservation casino gambling within its city limits. In late 1994, Detroit passed two ballot initiatives authorizing casinos within the city if approved in a statewide referendum. In 1996, a statewide referendum was placed on the Michigan ballot and passed by the voters of Michigan. Both the initiatives and the referendum were organized in large part by Atwater Entertainment Associates (Atwater) and Greektown Casino (Greektown), two non-Indian organizations that sought to expand gambling beyond Michigan's tribal reservations. Both organizations desired to personally develop and operate casinos if the initiatives and referendum passed.
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ON THE HILL
Indian Affairs Committee Criticizes Portions of President's Budget
On March 5, 2002, the Senate Indian Affairs Committee held the first of three hearings on President Bush's proposed Fiscal Year 2003 budget. At the hearing, both Democrats and Republicans criticized President Bush's budget figures for Tribal education, job training and prison construction.
The first of the three hearings dealt with funding for Indian programs outside of the Department of the Interior. Representatives from the Departments of Education, Labor, Justice, and Health and Human Services testified on Tribal allocations in each of their individual budgets.
The first testimony was provided by David Dye, the Deputy Assistant Secretary of the Department of Labor's Employment and Training Administration. During Mr. Dye's testimony, Senator Ben Nighthorse Campbell (R-CO) criticized the DOL'S lack of funding for vocational training for unemployed Indians on reservations where unemployment exceeds 50 percent.
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Indian Health Service Proposes Tribal Self-Governance Regulations
On February 14, 2002, the Indian Health Service (IHS) division of the Department of Health and Human Services (DHHS) proposed regulations implementing Title V of the 2000 Tribal Self-Governance Amendments Act. The regulations were developed by a joint committee composed of 12 self-governance tribal representatives, 11 non-self-governance tribal representatives and 7 federal officials. The Committee was co-chaired by one tribal representative and one federal representative.
The proposed rule includes provisions governing the manner in which IHS/DHHS and tribes carry out their responsibilities under the Act. The issues addressed in the rule include self-governance compacts, funding agreements and construction project agreements between DHHS and self-governance tribes. The regulations are binding on DHHS and tribes carrying out programs, services, functions and activities under self-governance contracts.
In developing the regulations, the Committee was able to come to a consensus on a majority of the issues addressed. The key areas of disagreement between tribal and federal officials include:
- Application of the regulations to statutorily mandated grants added to a self-governance funding agreement;
- Application of prevailing wage rates to construction projects funded with both federal and non-federal funds; and,
- Federal representation of tribes and tribal certifying officers on environmental claims.
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Supreme Court Agrees to Hear NextWave Case
On March 4, 2002, the United States Supreme Court agreed to hear arguments in FCC v. NextWave Personal Communications, Inc., a case involving the auction of wireless spectrum licenses. This case will decide the fate of $2.9 billion in licenses purchased by Alaska Native Wireless, an Alaska Native Corporation joint venture, at a Federal Communications Commission auction held in 2000 (See the September 2001 issue of the Tribal Advocate).
At issue in the case is the interplay between the bankruptcy code and FCC auction rules which allow for repossession of auctioned licenses when the bidder fails to make timely payments. The ANC joint venture bid on and won 44 licenses that had been reclaimed from NextWave after it defaulted on more than $4 billion in installment payments owed for the licenses. NextWave contested the award of the re-auctioned licenses, claiming that the FCC violated bankruptcy laws in reclaiming the licenses. The Federal Court of Appeals for the District of Columbia agreed with NextWave and declared the re-auction invalid.
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DOI Issues Notice on Changes in Indian Estate Law
On February 19, 2002, the Department of the Interior (DOI) issued a notice concerning changes to Indian estate law contained in the 2000 Indian Land Consolidation Act Amendments. This Act imposes restrictions on the passing of a trust or restricted land upon the owner's death. The Act requires the DOI to publish a notice informing Indian owners of trust or restricted land (Tribal landowners) of their available estate planning options.
The notice highlights changes that will go into effect after February 19, 2003. The most significant changes include the following:
- Tribal landowners who have a will may leave trust land to any Indian or to their tribe. However, land left to a non-Indian may only be left as a life estate, meaning that the non-Indian recipient cannot control who receives the land upon his/her death.
- Upon the death of a non-Indian land recipient, the land will pass to the spouse or immediate family of the original tribal landowner, if any of these individuals are Indian. If no spouse or close family members are Indians, the estate will transfer to an Indian "close family" member upon the death of the non-Indian life estate holder.
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Comment Period Extended for Tribal Consultation Meetings
On December 5, 2001, the Department of the Interior (DOI) requested comments regarding the reorganization of its trust asset management responsibility functions (See January 2002 issue of the Tribal Advocate). In light of the deficiencies noted in Cobell v. Norton, the Department determined that there was a need for substantial change in the management of Indian trust assets. Based upon an independent consultant's review and recommendations regarding the Department's trust reform activities, the DOI scheduled several consultation meetings with tribes and interested parties across the nation. Since December 2001, eight consultation meetings have been held and widely attended.
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