Appeals court sides with NIGC on casino shutdown

FROM THE ARCHIVE

URL: https://www.indianz.com/News/archives/001047.asp

Thursday, August 28, 2003

An Iowa tribe's casino will remain shuttered pending resolution of an internal dispute that has festered for more than a year.

Two factions of the Meskwaki Tribe wanted a federal court to reopen the profitable facility, which brings in an estimated $3 million a week. But the 8th Circuit Court of Appeals ruled yesterday that it won't get involved in the affairs of a sovereign government.

"Jurisdiction to resolve internal tribal disputes, interpret tribal constitutions and laws, and issue tribal membership determinations lies with Indian tribes and not in the district courts," wrote Judge Michael J. Melloy in the unanimous opinion.

A three-judge panel instead affirmed a National Indian Gaming Commission (NIGC) order against the casino. NIGC Chairman Phil Hogen, a Bush appointee, issued a notice of violation (NOV) to the tribe after an appointed council took control of the tribe.

The appointed council, headed by Homer Bear Jr., wouldn't abide by the order, prompting NIGC to seek enforcement in court. A federal judge sided with Hogen on May 22, and the following day, the U.S. Marshals shut down the casino.

The closure set off a flurry of lawsuits by the competing tribal factions and their law firms. Although the disagreed over control of the tribe, they both believed that the 8th Circuit could reopen the casino somehow.

NIGC, on the other hand, wanted the casino closed. Yesterday's decision was a victory to the agency, which argued that control by the appointed council was a threat to public safety.

The decision also gave a slight nod to Alex Walker Jr., head of the council that is recognized by the Bureau of Indian Affairs as the legitimate tribal government. The 8th Circuit said Walker should be allowed to intervene on the side of NIGC and potentially oust the Bear group. The Walker council has already asked county sheriffs to evict Bear and his supporters from tribal facilities.

But there have been intervening factors that could upset matters. On August 5, the BIA told Walker to schedule a recall election that tribal members have been seeking for several months. Meskwaki voters are set to go to the polls October 21.

On August 13, Department of Interior administrative law judge disagreed with Hogen's closure order and said the casino could be reopened under Bear's leadership. The ruling is not binding on NIGC.

The source of the feud reaches back to July 2002, when Walker and his brother, who serves as tribal treasurer, approved a $37,500 bonus payment to the casino's manager. The Meskwaki Gaming Commission, which is responsible for regulating the tribe's gaming activities and ensuring they comply with tribal, federal and other applicable laws, began an investigation into the payment.

Walker's council responded by approving the bonus, as required by tribal law, but not until August 28, 2002. Two days later, the council fired three of the four gaming commissioners, who were later reinstated.

As word of the activities spread that fall, tribal members started a recall petition against the council. But Walker refused it, citing irregularities with signatures.

The battle died down but resurfaced in March after Walker tried to remove some of the gaming commissioners again. Fed up with the actions, tribal members that month appointed an entirely new council with the support of hereditary Chief Charles Old Bear.

The BIA, however, continues to recognize the Walker council. But after staying on the sidelines, the BIA now says Walker's refusal to recognize the validity of the recall effort threatens the tribe's government-to-government relationship.

Since the May shutdown, about 1,100 casino employees have been out of work.

Get the Decision:
IN RE: SAC & FOX TRIBE OF THE MISSISSIPPI IN IOWA, No. 03-2329/2355 (8th Cir. August 27, 2003)

Relevant Links:
Meskwaki Tribe Litigation, 8th Circuit Court of Appeals - http://www.ca8.uscourts.gov/casino.html