Michigan Indian

Sault Tribe Finds Investors for Greektown

Matthew L.M. Fletcher

From the Detroit News (H/T Indianz):

Owners of the Greektown Casino may sidestep a potential state-ordered sale after a group of suburban businessmen announced Tuesday it will invest $100 million in the struggling downtown Detroit gambling operation.

The casino’s owners, Greektown Holdings LLC, already had missed an April deadline from the state to bring its financial performance up to required levels, and saw its debt downgraded in April by two major rating agencies over fears the state would force a sale by the end of June.

Now, Bloomfield Hills-based Entertainment Interests Group LLC, says it will buy a 40 percent stake in Greektown.

The deal needs approval by the Michigan Gaming Control Board.

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Research Note on Barriers to Indian Land Claims

Matthew L.M. Fletcher1 Comment

I’ve posted a short paper called “‘Now What the Hell You Gonna Do in Those Days?’ A Research Note on Practical Barriers to Indian Land Claims” on SSRN. Here is the abstract:

There are extra-legal barriers that American Indian people faced when confronted with the illegal theft of their lands, or with any dispossession of their lands. Indian tribes and Indian people faced numerous practical barriers to bringing land and treaty claims prior to the modern era, including without limitation: (1) lack of financial resources; (2) lack of knowledge and sophistication about the American legal system; (3) demoralization; (4) lack of a clear and authorized tribal governmental plaintiff; and (5) government interference and control over tribal affairs.

For Indian tribes pursuing a remedy for these claims, there is a significant defense raised – why didn’t the tribes or the Indians bring these claims before? Since the Supreme Court decided Sherrill v. Oneida Indian Tribe, the equitable defense of laches has been raised by states, local units of government, and property owners against the tribal claims with frightening success rates. The defense is superficially compelling in large part because the practical reasons for failing to bring suit decades sooner might not be considered excusable.

In a pending case, Oneida Indian Nation v. County of Oneida, the National Congress of American Indians attempted to flesh out the practical barriers to tribal land claims in an amicus brief. This short Essay attempts to add to that research. But the ultimate purpose of this Essay is to call for serious empirical research on this difficult question – why didn’t Indians and tribes file suit to vindicate their rights to land?

Nokomis Learning Center Article in ICT

Matthew L.M. Fletcher

From ICT:

Nokomis Learning Center educates community

OKEMOS, Mich. – Nokomis Learning Center, an American Indian cultural learning center in Okemos, provides many educational programs, exhibitions and events throughout the year.

The center estimates about 30 to 40 guests attend the center each day, with the number skyrocketing during school tours and special events.

”It really varies,” said Maria Raviele. ”A lot of school groups come in October and November. It picks up again in April and May when it’s warmer,” said the graduate student, who lives in Lansing and attends nearby Michigan State University.

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Government Sued Over Grand Traverse Trail Trust Land Decision in Peshawbestown

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

PESHAWBESTOWN — A group of local waterfront property owners are fighting a recent decision to place a former railroad corridor into federal trust status for the Grand Traverse Band of Ottawa and Chippewa Indians.

A public notice last month in Leelanau County prompted six land owners along Suttons Bay to file a federal complaint over a Bureau of Indian Affairs decision to move into trust more than 22 acres of the former railroad right-of-way.

The lawsuit, filed April 18, alleges federal officials’ final decision to put the property in trust “was unlawful, arbitrary, capricious, and an abuse of discretion, because the Grand Traverse Band does not have title to all of the land.”

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News Coverage of MichGo v. Kempthorne Case: Cert Petition Planned

Matthew L.M. Fletcher

I spoke to the author of this news article yesterday. He quotes me as making yet another prediction on whether the Court will grant cert as being “zero,” but what I thought I said was that MichGo’s chances of getting a stay is close to zero. I did say that I think a plausible Section 5 challenge will have to come from a different fact pattern, such as an off-reservation fee to trust decision, assuming there will ever be any again. Or a decision involving a wealthy gaming tribe like Oneida or Mashantucket Pequot.

Of note, the reporter told me that the MichGo attorney thought that the Carcieri case was a good sign for MichGo, in part because so many states signed on to an amicus brief supporting the cert petition. He thinks those states will support MichGo’s petition, too. But I wonder. States like Michigan and California are actually banking on the revenues from new Indian gaming operations in order to help balance their budgets. I don’t think these states would sign on, or else they’d be hurting themselves.

From Indianz:

An Indian law professor says there’s “zero” chance the U.S. Supreme Court will hear a land-into-trust case involving the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians of Michigan. Matthew L.M. Fletcher, an assistant professor of law and director of the Indigenous Law & Policy Center at Michigan State University, said the court, at some point, will hear a challenge to the Indian Reorganization Act. The 1934 law authorized the land-into-trust process and opponents say it is unconstitutional. The D.C. Circuit Court of Appeals disagreed and ruled that the Bureau of Indian Affairs can acquire 147 acres for the tribe. A casino and other development are planned at the site. One judge, however, agreed that Section 5 of the IRA is unconstitutional. A group called Michigan Gambling Opposition hopes to convince the Supreme Court that the law is too broad. But Fletcher says the case is bogged down by other details to make it appeal-worthy. “I don’t think there’s any chance,” he told The Grand Rapids Press. “I really think the odds are close to zero that the Supreme Court would hear it.”

Get the Story:
Foes of Gun Lake Casino cling to slim legal hope (The Grand Rapids Press 5/2)
Gun Lake casino opponents down to last try (The Muskegon Chronicle 5/2)

Update on SagChip Boxing Controversy

Matthew L.M. Fletcher

Our previous post on this question is here.

McKart-Marquez Judged a Draw, Not a Split Decision !
Keith Terceira

Last week we told readers of the difficulties surrounding the events that took place at Soaring Eagle Casino at Mount Pleasant, Michigan. The main event  between Bronco McKart and Raul Marquez appeared to be littered with controversy and official impropriety  after close scrutiny .

An appeal to  the Saginaw Chippewa Boxing Commission to provide the judges score sheets instead of the summary sheets went unanswered up until we received them today from Bill Miley via Gene McKart.

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Analysis of Judge Rogers’ Dissent in MichGo v. Kempthorne

Matthew L.M. Fletcher1 Comment

Yesterday’s per curiam opinion in MichGo v. Kempthorne, while very, very important to the Gun Lake Band and other Michigan tribes, did not break any new ground. It was the third time in recent years that citizens groups challenged the Secretary of Interior’s decision to take land into trust for gaming purposes for the three southwest Michigan Potawatomi tribes (the other two were TOMAC v. Norton and CETAC v. Kempthorne). Each of the challenges raised NEPA and constitutional claims of very similar character. Each time it was relatively easy for the D.C. Circuit to dispose of these arguments, which some argued bordered on frivolous.

But there is a strong threat to the future of tribal property contained in these cases.

The constitutional challenge is that Section 5 of the IRA (25 U.S.C. 465) is an unconstitutional delegation of Congressional power to the Secretary of Interior. Section 5 allows the Secretary, at his discretion, to acquire land in trust for Indians and Indian tribes. If this discretion is absolute, then it is a violation of the separation of powers inherent in the Constitution. But until yesterday, the constitutional challenge did not garner a single vote in any of the three Potawatomi cases. In fact, though this constitutional challenge has been raised by states and localities repeatedly since the early 1980s, it has not garnered a single vote from a federal judge since 1996, when Justice Scalia dissented from a GVR in United States v. South Dakota, 519 U.S. 919 (1996). The Supreme Court recently granted cert. in Carcieri v. Kempthorne, another of these challenges, but declined to hear the constitutional challenge.

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D.C. Circuit Affirms Match-E-Be-Nash-She-Wish (Gun Lake) Band’s Trust Land Decision

Zeke Fletcher3 Comments

The D.C. Circuit Court of Appeals held the Department of the Interior’s decision to place land into trust for the benefit of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians near Bradley, Michigan did not violate the National Environmental Protection Act nor did Section 5 of the Indian Reorganization Act constitute an unconstitutional delegation of legislative authority.

michgo-v-kempthorne

gun-lake-band-brief

Other briefs are here.

Discord on Pokagon Revenue Sharing Board

Matthew L.M. Fletcher

Funny/sad thing about all this is that the 1993 compacting tribes, who still retain the right to decision where the two percent money goes, never have this problem — and yet the State tries so hard to take it away.

From Indianz:

The Pokagon Band of Potawatomi Indians agreed to share 2 percent of gaming revenues with local governments in Michigan but officials in one county still can’t agree how to distribute the money.

Berrien County’s Local Revenue Sharing Board has been trying for the past six months to decide how to spend $977,266 from the Four Winds Casino. One official became so unhappy with the process that he resigned from the board. The other board members, however, say they have reached an agreement on distributing the money. They hope to receive the first payment in time for the tribe’s second on May 31.

Get the Story:
Disagreements continue over distribution of casino revenue (WSBT 4/28 )
Casino proceeds remain elusive (WNDU 4/28 )

Huron Nottawaseppi Band Casino Construction News

Matthew L.M. Fletcher

From Indianz:

Despite a lack of construction activity, the Nottawaseppi Huron Band of Potawatomi Indians says its casino near Battle Creek, Michigan, will open in June 2009.

The tribe was supposed to start work on the FireKeepers Casino this spring. But spokesperson Donna Halinski promises that construction will begin before the summer. “We haven’t set a date yet,” Halinski told The Battle Creek Enquirer. “There are still some internal things going on. … The design work is all done. … Everything’s in place.” The tribe’s land-into-trust application for the casino was held up in court for eight years. Get the Story:
Casino project awaits start (The Battle Creek Enquirer 4/28 )