Meskwaki factions ask court to reopen casino

FRIDAY, JULY 25, 2003

The battle over a shuttered tribal casino in Iowa landed before a federal appeals court on Thursday as the parties faced the the possibility that complete resolution could be months away.

In St. Paul, Minnesota, a three-judge panel of the 8th Circuit Court of Appeals heard round after round of arguments from different sides in the Meskwaki Tribe case. The federally recognized tribal council, a recently appointed tribal council, the National Indian Gaming Commission and three law firms presented their version of a dispute that has kept the casino, which brings in $3 million a week, closed since late May.

The court is being asked by the tribal factions to reopen the facility and put 1,100 people back to work. The rivals said a federal judge got it wrong when she enforced an NIGC order that cut a significant source of revenue for the tribe.

"There's no dispute that the tribe is suffering irreparable injury," said Dennis Johnson, an attorney for the recognized council headed by Alex Walker Jr. "Their customers have gone to other casinos. Some of them will take years to come back if the casino opens. Some of them never will. Their per capita payments to tribal members depend on this revenue."

"It's a drastic situation," he added.

But a Department of Justice attorney said the actions of NIGC chairman Phil Hogen were justified under the Indian Gaming Regulatory Act. "The chairman found there was a threat to public safety by operation of this casino by the dissident group," David Shilton told the court.

Weighing in for Homer Bear, the head of the appointed council, was attorney Charles Gribble. He disputed any threat to the casino operation and said the Meskwaki people expressed their will by voting Bear and his supporters into office in a contested election held late May.

The judges grappled with a number of issues as they considered what they could do to remedy the situation. They questioned whether they have the authority to recognize a tribal faction without intruding on tribal sovereignty, their extent of jurisdiction over the NIGC's closure order, and what role the Bureau of Indian Affairs could play.

"If there's ever a case that cried out for settlement, it's this case," said Judge Michael J. Melloy. "But apparently it can't happen for whatever reason."

Johnson argued that the proper solution is for the court to order the Bear faction to relinquish control of all tribal entities and funds, saying that members of the Walker council was operating out of their homes.

"I've attended a number of meetings with Indian people in South Dakota and around the country and the recurring theme is, 'We are separate sovereign nations, keep out of our business,'" responded Judge Roger L. Wollman "Doesn't your request for relief fly in the face of that recurring theme?"

The tribe is supposed to hold a new election October. But when pressed, Johnson said the Walker council would not commit to it.

Gribble argued that IGRA requires a tribe to be in control of a casino, not necessarily a "recognized" tribal council. But the panel, which included Judge Diana E. Murphy, questioned whether Bear's takeover was legal under the Meskwaki tribe's constitution, which places all power in the council and lacks an independent judiciary.

As for the NIGC, the judges questioned why there hasn't been a "final" action by the agency. Although Hogen shut down the casino, the government argues that his decision can't be reviewed by the courts unless the Meskwaki parties exhaust their administrative appeals to the entire three-member commission.

When pressed, Shilton would not commit to a timeline. It could be months before NIGC finalizes its position, the judge reasoned, as they wondered why Hogen didn't take another route in the dispute, such as imposing fines.

In addition to deciding the casino issue, the 8th Circuit is facing the feuding law firms. Dorsey & Whitney has filed a motion to disqualify the BlueDog, Olson & Small firm. BlueDog claims to represent the tribe as a whole, not individual officials such as Walker.

Tribal members voted last month to rescind a contract with Dorsey & Whitney but Walker's council has continued to retain the firm, which has a number of tribal clients.

There is no indication on when the 8th Circuit panel will rule. The court had placed the case on an expedited schedule.

The tribal factions were jockeying for a meeting with acting assistant Aurene Martin and BIA director Terry Virden, who were at the hearing. The BIA continues to recognize the Walker council as the legitimate tribal leadership but the record is conflicting on this point, according to the Bear group.

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