From ICT:
By Gale Courey Toensing, Today staff
VANDERBILT, Mich. – In a move that astonished the gaming world in Michigan and outraged some of the state’s tribal nations, the Bay Mills Indian Community announced it has opened a new casino on off-reservation land without the usual state and federal approvals.
Bay Mills tribal leaders said Nov. 3 that the tribe’s newest gaming facility on 47 acres of land in Vanderbilt purchased in fee simple in August complies with all applicable gaming laws. The new casino has 38 slot machines.
The tribe operates two casinos in Michigan’s Upper Peninsula on reservation land. The Vanderbilt casino is in the northern part of the Lower Peninsula, about 170 miles north of Lansing.
“The new business venture was seen as positive by the residents of Vanderbilt, where the unemployment rate is one of the highest in the nation,” the tribe announced on its website – http://www.baymillsnews.com.
The new business venture was not viewed as positively by other tribes in the state.
The Grand Traverse Band of Ottawa and Chippewa Indians, Gun Lake Tribe of Pottawatomi Indians, Little Traverse Bay Bands of Odawa Indians, Nottawaseppi Huron Band of the Potawatomi, and Saginaw Chippewa Indian Tribe immediately issued a statement condemning the action.
“This attempt to conduct Indian gaming in the absence of trust land is a serious violation of the Indian Gaming Regulatory Act and long-held federal Indian gaming policy. Bay Mills has also violated the state gaming compacts, most notably Section 9 which clearly requires the consent of all Michigan tribes to pursue gaming on non-reservation lands,” the tribal leaders wrote.
The five-tribe coalition called on the National Indian Gaming Commission, the Justice and Interior departments to work quickly with state officials to close the new casino, “which threatens to undermine the significant public support for Indian gaming here within the State of Michigan and around the country.”
On Nov. 8 the Little Traverse Bay Band of Odawa Indians Chairman Ken Harrington announced that the Bay Mills casino violates the exclusivity zone provision of its gaming compact. The tribe will stop the six percent of net slot revenues to the state – a loss of millions of dollars to state’s coffers.
“There was a lot of careful thought put into this over the weekend, and we hope this will be enough, the state will have an understanding that what they’re doing is wrong, and they’ll close this thing down, we have asked the National Indian Gaming Commission to close it. What Bay Mills is doing is outrageous,” Harrington said.
Bay Mills tribal leaders could not immediately be reached for comment. However, Chairman Jeff Parker said on the tribe’s website that the tribe has met all the legal requirements to operate the new casino. According to Parker, the casino is located on “qualified Indian lands,” the tribe has a valid compact with the state and abides by tribal gaming regulations approved by the National Indian Gaming Commission and the Interior Department secretary.
But the state maintains those approvals relate to Bay Mills’ two casinos on the tribe’s reservation lands, not to the Vanderbilt property, which is held in fee simple.
“I certainly accept that the tribal chairman, who I respect, is trying to act in the best interest of his community, but it presents the state with a very difficult situation,” said John Wernet, legal counsel to Gov. Jennifer Granholm.
A meeting of state and tribal officials on Nov. 8 was “inconclusive,” Wernet said.
“They’ve developed a fairly complex theory that I’m not going to pretend to fully understand under which they assert that because they purchased the property with very specific funds received under the Michigan Indian Land Claims Settlement Act that lands acquired with these funds become ‘Indian lands’ – a term that is not well defined in Indian law,” Wernet said.
The land is not held in trust by the federal government.
“That’s one of the twists in this case. The tribe’s argument is it’s not the same as ordinary fee simple lands that the tribe would purchase with ordinary dollars and have to ask Interior to put into trust. The assertion is because the land was purchased with these settlement act funds they automatically have status as Indian lands over which the tribe has jurisdiction.”
Wernet speculated that Bay Mills’ new casino might be a “test case” for acquiring other lands and other casinos.
“My understanding is they tried to get a ruling out of the Interior Department on this and for whatever reason were unable to get it and I think out of frustration in order to advance this issue and get it resolved they’ve opened a test case casino,” Wernet said.
Bay Mills is piggybacking on an argument put forward by the Seneca Nation of Indians in New York state, Wernet said.
In the Seneca case, NIGC approved an amended Class III gaming ordinance in early 2009 for the nation’s Buffalo Creek Casino and confirmed that the restricted fee lands in downtown Buffalo where the casino is located are eligible for gaming under the Indian Gaming Regulatory Act.
But Gun Lake Tribe spokesman James Nye said the Seneca model does not apply to Bay Mills.
“It’s clear in the legislative history that funds from the Michigan Indian Land Claims Settlement Act were not intended to be used by tribes to acquire additional gaming locations in the manner that Bay Mills is trying to use the funds,” Nye said.
The National Indian Gaming Commission is aware of the situation and looking into it, according to NIGC spokesman Shawn Pensoneau.
Bay Mills’ action comes as off-reservation gaming heats up again as it did during the Bush administration. The BIA is continuing tribal consultations over IGRA’s rules for off-reservation gaming while some legislators in Washington consider a “Carcieri fix” – legislation to confirm the Interior secretary’s authority to take land into trust for all federally recognized tribes – while others consider legislation to restrict or eliminate off-reservation gaming.
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