NIGA-NCAI amicus brief in support of their Petition for Rehearing/Rehearing En Banc in New Mexico v. Department of Interior

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NIGA Member Tribes

Chairman Ernest L. Stevens Jr.
Jason C. Giles, Executive Director
Danielle Her Many Horses, Deputy Executive Director/General Counsel

NIGA-NCAI amicus brief in support of their Petition for Rehearing/Rehearing En Banc in New Mexico v. Department of Interior

June 21, 2017

The National Indian Gaming Association (NIGA), National Congress of American Indians (NCAI), and Tribal Supreme Court Project are working with the Pueblo of Pojoaque to solicit participation by Indian tribes as signatories to a NIGA-NCAI Tribes amicus brief in support of their Petition for Rehearing/Rehearing En Banc in New Mexico v. Department of Interior.  This case involves the question of whether a Tribe has a viable remedy when a State acts in bad faith during tribal-state gaming compact negotiations and asserts sovereign immunity to suit in federal courts when a Tribe seeks compliance with the Indian Gaming Regulatory Act.   A 3-judge panel of the U.S. Court of Appeals for the Tenth Circuit held that the Part 291 regulations - promulgated by the Secretary of the Interior in the wake of the U.S. Supreme Court's decision in Seminole Tribe - are not a valid exercise of the Secretary's authority under IGRA.  The Tenth Circuit barred the Secretary from taking any further action on the Pojoaque's request for the issuance of gaming procedures under them.

This case has the potential to negatively impact nearly every Tribal-State Gaming Compact being negotiated or subject to renewal.  The decision by the Tenth Circuit gives each State a decisive advantage in negotiations by ignoring the fact that Congress intended Tribes to have a direct remedy when a State chooses to not negotiate in good faith.  NIGA, NCAI and individual Indian tribes are joining together on an amicus brief. The brief will argue that the Part 291 regulations are a valid exercise of the Secretary's authority under the IGRA and 25 U.S.C. § 9; that the Part 291 regulations are consistent with IGRA and Congress' intent in enacting IGRA; and that without the Part 291 regulations, all tribes whose gaming compacts are subject to negotiation or renewal will be without an effective remedy when a State chooses to not negotiate in good faith, a result Congress did not legislate or intend. The Petition for Rehearing/Rehearing En Banc is due on June 20, 2017, and the Amicus Brief in support is due on June 27, 2017.

For tribes interested in participating as a signatory to the NIGA-NCAI Tribes Amicus Brief, please contact Joel Williams at williams@narf.org. A draft of the Amicus Brief will be available no later than Wednesday, June 21, and will be forwarded upon request.  To join as a signatory, the tribal chairman, designated tribal leader, or tribal attorney must send an email directly to Joel Williams at williams@narf.org which clearly states the intent of the Tribe to join as an amicus party, along with the correct name and spelling of the Tribe as it should appear on the brief.   The DEADLINE to join as a signatory on the NIGA-NCAI Tribes Amicus Brief is next Monday, June 26, by 5 p.m. (Eastern).

For further information please contact Jason Giles at 202-548-3810, Danielle Her Many Horses at 202-548-3819, or Joel Williams at 202-785-4166.