The success — shocking and aweing (surely to the MichGO plaintiffs — :)) — of the Gun Lake Band in getting their Class III gaming compact through the Michigan Senate (controlled by Republicans) and House (controlled by Dems, and a few years back had previously approved the compact) should be a serious sign to the rest of the Michigan tribes — NOW is the time to renew or renegotiate gaming compacts.
Here are the facts:
- Michigan, and the rest of the US, is in a serious, serious economic downturn.
- The State of Michigan, losing tax revenue each and every day, and suffering through year after year of declining governmental revenues.
- Michigan tribes, also, are suffering through declining revenue. It turns out that gaming may be recession-proof, but it surely isn’t depression-proof. Now is the time to prove to the State’s negotiators that tribes will be hurt — perhaps even killed — by increased revenue sharing.
- Gov. Granholm isn’t going to be the State’s governor forever. The next governor may be someone far less likely to (a) negotiate an Indian gaming compact with reasonable terms, or (b) negotiate a gaming compact at all.
- Tribes like Burt Lake will be knocking at the State’s door offering something more than 10 percent, all the way up to the Detroit casino’s 36 percent (did I get that percentage right?).
The writing’s on the wall. Maybe United Tribes of Michigan could step to the plate. Michigan tribes do best when they’re negotiating as a group, even if one or two sit this one out. Other states have negotiated gaming compacts that don’t expire. Maybe that could be a starting point. Or how about guaranteeing the Michigan Indian Tuition Waiver, or more influence over the Michigan Economic Development Corporation? Or how about keeping the Michigan Gaming Control Board, now practicing the epitome of “agency creep” in relation to the 1993 compacting tribes, out of tribal business once and for all?
Turtle Talk 
Not a bad idea, but tribes would need to do their own mathematical calculation to see if their situation would support seeking amended compacts today, understanding the state will have zero incentive to negotiate without receiving revenues. Gov. Granholm has set out a marker with Gun Lake and other amended compacts and is highly unlikely to accept much less, even from the 1993 tribes not currently making revenue sharing payments to the state.
In today’s economy, I’m not sure that a successful Lower Peninsula tribe could stomach paying even 5% when that means a drop in per caps, or if the UP tribes could add state payments without cutting jobs and tribal programs when their bottom line shrinks – some and maybe even most tribes may be economically or politically unable to agree to resume revenue sharing payments right now. Tribes will have to weigh the possible cost of doing so against the costs of uncertainty that stem from not knowing if they’ll get compact renewals or be in an extensive legal fight for a few years if they don’t. (I don’t think for a second that any tribal casinos will close or even be close to closing if there are no new compacts or extensions in 2013; rather there will be years of litigation, with the 1993 consent decree and court action providing a vehicle for settlement.)
As for who the Governor might be after 2010, at least some of the candidates are hardcore anti-gaming, which obviously presents a concern. More daunting is that Bill Schuette has to be considered a front runner if not THE front runner for Attorney General – he led the fight against tribal gaming in the state legislature, continued to do so as a Court of Appeals judge, and would be a very significant opponent to tribal interests as A.G.
But don’t forget the ultimate result of the TOMAC litigation – while the Governor is the natural point of contact for tribes and will have some sway, the TOMAC litigation confirmed that in Michigan the Legislature holds the state’s contracting power all by itself. So long as the terms of a new compact don’t cross over into “legislation” by imposing duties on third parties subject to the state’s unilateral power, the Governor need not have any role whatsoever in negotiating new compacts. And the 1993 compacts, unlike the 1998 compacts, do NOT have an express delegation of the Legislature’s amendment power to the Governor. The Legislature, more than the Governor, is in the driver’s seat for the state.
PS: The state tax rate on the Detroit casinos is a combined 19% to the state and city. Despite the obvious legal and market differences, there will likely be members of the Michigan Legislature who argue that this should be the revenue sharing rate for tribal casinos.