legal history

A CLOSER LOOK AT GAMING COMPACT NEGOTIATIONS IN MICHIGAN PART I: The history of Michigan’s first gaming compacts

bryannewland4 Comments

The Bay Mills Indian Community’s pending Supreme Court case has sucked a lot of the oxygen out of the room here in Michigan.  And it has definitely overshadowed an impending showdown between the State of Michigan and seven six* tribes over the negotiation of new Class III gaming compacts.

The negotiation of new tribal-state gaming compacts here in Michigan will offer a unique case study in how the Indian Gaming Regulatory Act’s compact provisions affect the negotiation of “second generation” gaming compacts – compacts that follow, rather than extend, a tribe’s previous compact.

We’re going to take a closer look at these negotiations in upcoming posts.  But, first, it is important to understand how the current agreements – approved in 1993 – came into effect. WARNING: Marathon Blog Post.

THE HISTORY

As in other parts of the country, a number of Michigan tribes were already operating Class III gaming when IGRA was enacted in 1988.  In enacting IGRA, Congress required tribes to negotiate a gaming compact with states to engage in Class III gaming – even for those tribes that were already operating such games.  Congress also required states to negotiate these agreements in “good faith.”

Six Michigan tribes sought to negotiate Class III gaming compacts with the State of Michigan almost immediately after IGRA’s enactment.  Then-Governor Jim Blanchard refused to negotiate over Class III slot machines, and ultimately refused to enter into a compact.

In 1990, those six tribes filed a lawsuit against the State of Michigan in the U.S. District Court for the Western District of Michigan, alleging that the State violated IGRA’s requirement to negotiate in good faith, and seeking a declaratory judgment that Class III slot machines would be permissible to include in the Compact.

In 1992 – 4 years before the Supreme Court’s decision in Seminole –  the Western District of Michigan ruled in that lawsuit (Sault Ste. Marie Tribe v. Engler) that the Tribes’ lawsuit was barred by sovereign immunity. 

After an unsuccessful appeal, the Tribes amended their lawsuit to name then-Governor John Engler as the defendant in an Ex parte Young action.  That case – Sault Ste. Marie Tribe of Chippewa Indians, et al. v. Engler – ended through a negotiated settlement agreement.  That agreement was entered by the U.S. District Court for the Western District of Michigan as a Consent Judgment in 1993.  That Consent Judgment included several key provisions that will impact ongoing compact negotiations:

  • The seven tribes that were party to the litigation agreed to pay 8% of the net win from electronic games of chance to the State of Michigan’s “Strategic Fund” – provided that the Tribes “collectively enjoy the exclusive right to operate electronic games of chance in the State of Michigan.” (Sections 6 and 7 of the 1993 Stipulation)
  • The Tribes also agreed to pay 2% of the net win from electronic games to “any local units of state government in the immediate vicinity of each tribal casino.”  Importantly, the Tribes were permitted to determine which local units of government would receive the payments (Section 8 of the 1993 Stipulation).
  • Section 5 of the Consent Judgment expressly states that the Tribes are only obligated to make revenue sharing payments to the state “only so long as there is a binding Class III compact in effect between each tribe and the State of Michigan…and then only so long as the tribes collectively enjoy the exclusive right to operate” electronic games of chance in Michigan.
  • Section 8 of the Consent Judgment states that both the Stipulation and the Consent Judgment may be modified or rescinded “only in the above captioned case, and only by the mutual written consent of all parties and with the Court’s concurrence.”

Concurrent with the Western District of Michigan’s entry of the Consent Judgment, the seven Tribes and the State of Michigan entered into separate Class III gaming compacts that were identical to one another.  Those gaming compacts were approved by the Department of the Interior in 1993.

Each of those compacts stated that they would remain in effect “for a term of twenty (20) years from the date it becomes effective[.]”  In other words, they would remain in effect until November 2013.

But those compacts also included language that has created some…(ahem) room for interpretation:

[12(B)]  At least one year prior to the expiration of twenty (20) years after the Compact becomes effective, and thereafter at least one year prior to the expiration of each subsequent five (5) year period, either party may serve written notice on the other of its right to renegotiate this Compact.

Continue reading →

California COA Decides ICWA-Related Appeal Involving Cherokee/Choctaw Freedmen Descendants

Matthew L.M. Fletcher1 Comment

The opinion in In re D.N. is here.

An excerpt:

The “by blood” requirement in the Choctaw Nation‟s Constitution, as well as others, has been interpreted as excluding the descendants of freedmen. (Allen v. Tribal Council (2006) 9 Okla. Trib. 255.) The exclusion of the descendants of former slaves of the Five Civilized Tribes is a matter of ongoing controversy. (See, e.g., Cherokee Nation v. Nash (N.D.Okla. 2010) 724 F.Supp.2d 1159.) It cannot be addressed in this dependency proceeding since membership criteria are the tribe‟s prerogative, and its determination of a child‟s eligibility for membership is conclusive for purposes of ICWA. (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979); § 224.3, subd. (e)(1); In re Jack C., III (2011) 192 Cal.App.4th 967, 978.)

Slate Publishes 1830 Petition Protesting Indian Removal Act

Matthew L.M. Fletcher2 Comments

Here for details.

And here for the petition:

PetitionFinal.jpg.CROP.article920-large

UNM Symposium on United States v. Sandoval

Matthew L.M. Fletcher

Here is the notice:

UNM symposium on United States v Sandoval

The description:

On October 20, 1913, the United States Supreme Court issued its decision in United States v. Sandoval, a case that addressed whether Congress could prohibit the introduction of intoxicating liquor into Santa Clara Pueblo lands notwithstanding the admission of New Mexico to statehood. The Court validated Congress’s power by virtue of the “Indian” status of the Pueblo people and their homelands, establishing an immensely important precedent asserting broad federal authority in Indian affairs generally. This symposium highlights three themes tied to Sandoval ’s legacy: Federal Authority in Indian Country, Indian Identity and Status, and the Rights of Defendants in Tribal Court. An additional related theme, Liquor in Indian Country, will be explored in the associated conference for tribal public defenders and Indian law clinicians, which will interweave with the symposium. This symposium is the third in a series of anniversary symposia commemorating landmark Indian law cases and legislation.

1894 Hopi Petition to US: “Let Us Keep Our Communal Land”

Matthew L.M. Fletcher

Here, from Slate’s history vault.

Judge Richard G. Kopf – Deconstructing the Mythology of the Standing Bear Case

Adrea Korthase1 Comment

Here.

I agree with Judge Kopf that there is a mythology surrounding  Standing Bear v. Crook case and believe it was perpetuated by those who were “bent on publicizing the Indian cause.” I am particularly interested in how this mythology played into Elk v. Wilkins. While there is little written or known about John Elk, there was sentiment that the legal team involved in Standing Bear sought out Elk to continue the pursuit of this cause. A couple years ago, I found an article written in  “Seen & Heard” (1904) and think about it whenever I hear about either of these cases. The whole piece on both cases starts at page 4753, but the excerpt starts on page 4762 and describes what happened after Standing Bear.

After Judge Dundy’s decision, Bishop Clarkson, of Nebraska, and James Cook urged Mr. Tibbles to continue the fight. He did so with vigor, and for the next five years lectured on Indian reforms all over the United States. To push the matter still further, one Presidential election day Mr. Tibbles went to Omaha and induced John Elk, a full blooded Indian, to go to the polls and vote.

NYTs on California’s “Forced Apprenticeship” of Indians (Civil War History Series)

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

On April 27, 1863, nearly five months after President Abraham Lincoln issued the Emancipation Proclamation, California abolished its system of forced apprenticeship for American Indians. Under the apprenticeship provisions of the state’s Act for the Government and Protection of Indians, several thousand California Indians, mostly children, had suffered kidnapping, sale and involuntary servitude for over a decade.

Also:

Sources: “An Act for the Government and Protection of Indians, April 22, 1850”; Michael Magliari, “Free Soil, Unfree Labor,” Pacific Historical Review 73 (August 2004); “Minority Report of the Special Joint Committee on the Mendocino War,” in Appendix to the Journals of the California Senate (1860); “An Act Amendatory of an Act entitled ‘An Act for the Government and Protection of Indians,’ April 16, 1860”; Mendocino Herald, April 10, 1863; George Hanson to William P. Dole, July 15, 1861, Office of Indian Affairs, Letters Received; Sacramento Union, May 5 – 12, 1862; Brendan C. Lindsay, “Murder State: California’s Native American Genocide, 1846 – 1873”; Elijah Steele to William P. Dole, Oct. 30, 1863, Office of Indian Affairs, Letters Received; Report of the Commissioner for Indian Affairs, 1867; Alta California, June 8, 1874.

MSNBC: Contextualizing the Indian Child Welfare Act

Matthew L.M. Fletcher

Here.

Featuring NCAI Executive Director, Jacqueline Pata.

Elizabeth Cook-Lynn on “Unjustifiable Expectations”

Ann Tweedy

I’m honored that historian and Professor Emerita Elizabeth Cook-Lynn has reviewed one of my law review articles in Native Sun News.

A Book Review: ‘Unjustifiable Expectations’ by Ann E. Tweedy

Blast from the Past: 1939 Oberlin College Master’s Thesis: “Decline of Indian Tribal Sovereignty in the Nineteenth Century”

Matthew L.M. Fletcher1 Comment

Interesting read, in that it comes right as World War II began and reads like it could have been written in the modern era. Also includes the text of the letter from President Jackson to Georgia Gov. Lampkin strongly implying he ought to let Samuel Worcester et al. go home:

Decline of Indian Tribal Sovereignty in the Nineteenth Century