proposed Lansing casino – Page 2

City Pulse: Fletcher’s Four Barrier to the Lansing Casino Proposal (and Additional Commentary)

January 27, 2012Matthew L.M. Fletcher1 Comment

Andy more or less catches my drift (via Pechanga). A few quotes:

In his piece, Fletcher goes on to outline three potentially significant legal obstacles: the Bureau of Indian Affairs’ “trust acquisition hurdles”; language in the Land Claims Settlement Act provision that says the Interior Department “shall be held in trust” (the word “shall” may not mean “has to”); and a provision in the Indian Gaming Regulatory Act that would require the Sault Tribe to submit its application to the Interior Department after “a prior written agreement between the Tribe and the State’s other federally recognized Indian Tribes that provides for each of the other Tribes to share in the revenue of the off reservation gaming facility.”

That last quote is actually from the 1993 gaming compacts.

And fourth:

A fourth hurdle, Fletcher wrote, is that the Sault Tribe “has to exercise governmental authority over the land, according to the Indian Gaming Regulatory Act. Sault Tribe has no history in this area, let alone a governmental presence.”

I haven’t really expounded on a possible fifth hurdle, which is really related to the mandatory trust acquisition language. I can assure you Congress would never have intended that the Sault Tribe would be able to use this provision to buy land for off-reservation gaming purposes (especially, way off-reservation gaming purposes. See the legislative history here (Judgment Funds Hearing), which is virtually silent as to gaming. [Although to be fair, Rep. Kildee says his grandfather from the Traverse City area remembers when Indians had more “mobility” than they do now.] Ultimately, legislative history doesn’t trump the plain language. Usually.

Sault Tribe has to worry that a court construing the Secretary’s authority under the so-called mandatory trust acquisition language is unlimited, and perhaps unconstitutional as applied to this circumstance. The judgment funds settle treaty claims related to the 1836 treaty signatories. The 1836 treaty ceded territories do not include Lansing. And frankly, the Sault Tribe and Bay Mills have only a tenuous claim to lower peninsula territory, given that they are located in the Upper Peninsula, and importantly, there are already three federally recognized Lower Peninsula tribes who are 1836 treaty signatories. I mentioned in yesterday’s post that Lansing is small potatoes compared to other metropolitan areas, like Chicago and Cleveland, that don’t have Indian casinos now. Nothing stops Sault Tribe from going there with their casino proposals, and that fact alone will make a court wary of allowing Sault Tribe, Lansing, and Interior (if Interior goes along with it) to set aside trust lands in Lansing.

I recall this comment from the Eighth Circuit in a different context (involving the Secretary’s authority under Section 5 of the Indian Reorganization Act) but it makes the point here as well:

By its literal terms, the statute permits the Secretary to purchase a factory, an office building, a residential subdivision, or a golf course intrust for an Indian tribe, thereby removing these properties from state and local tax rolls. Indeed, it would permit the Secretary to purchase the Empire State Building in trust for a tribal chieftain as a wedding present. There are no perceptible “boundaries,” no “intelligible principles,” within the four corners of the statutory language that constrain this delegated authority-except that the acquisition must be “for Indians.” It delegates unrestricted power to acquire land from private citizens for the private use and benefit of Indian tribes or individual Indians.

It’s on page 882 here (SD v DOI). I can easily see a court rejecting the plain language reading the Tribe will want them to make on these grounds. It would be a terrible precedent for all of Indian country. But tribes take risky actions in desperate times, I suppose.

Updated Commentary on Lansing Casino Proposal

January 26, 2012January 26, 2012Matthew L.M. Fletcher

We have additional detail on the proposal from both sides. Here’s the scoop. Sault Tribe claims they have a mandatory trust acquisition statute, Section 108(f) of the Michigan Indian Land Claims Settlement Act. Here is the text:

Any lands acquired using amounts from interest or other income of the Self-Sufficiency Fund shall be held in trust by the Secretary for the benefit of the tribe.

The statute is more complex, but if the Tribe’s theories pan out, that provision is the kicker. So, the land goes into trust and the Tribe starts gaming right away? Well, probably not. Pokagon Band has a mandatory trust acquisition statute. It took them nearly a decade to wade through the regulatory and legal thicket. They did still win, though (TOMAC v. Norton). So did Little Traverse — they have virtually the same statute and they eventually defeated Sault Tribe’s efforts to shut them down (SSM v. US and LTBB). (That was back when we referred to Sault Tribe as the Darth Vader of Michigan Indian Tribes — those days are long gone. The old Sault Tribe would have considered Lansing smallpotatoes, and gone to Chicago or Cleveland instead. Maybe they will anyway. Why not? Under this theory, there’s no limiting principle.).

They still have to run through BIA’s trust acquisitions hurdles, and there’s no guarantee, even with a mandatory trust acquisition. They better hope there’s no endangered species in Lansing.

Also, as Bryan Garner will tell you, every jurisdiction in the English speaking world has held at least once that “shall” is a term, in some circumstances, that does not mean “mandatory,” but instead means “discretionary.” Sounds crazy? Ask the CSKTs (CSKT).

Sault Tribe has another hurdle, and I have no idea how this will turn out. But Sault Tribe is a party to the 1993 gaming compacts. Section 9 reads:

An application to take land in trust for gaming purposes pursuant to § 20 of IGRA (25 U.S.c. § 2719) shall not be submitted to the Secretary of the Interior in the absence of a prior written agreement between the Tribe and the State’s other federally recognized Indian Tribes that provides for each of the other Tribes to share in the revenue of the off reservation gaming facility that is the subject of the § 20 application.

So, assuming Sault Tribe is going to apply to take the land into trust for gaming purposes using their mandatory trust acquisition statute, which is a land claims settlement, they’re doing so under Section 20 of IGRA. I’m almost certain Saginaw Chippewa, another party to the compact, isn’t going to agree to anything (I don’t know, unless they get 75 percent or something). That will probably kill it.

Moreover, trust land alone is insufficient. The Tribe has to exercise governmental authority over the land, too, according to the Indian Gaming Regulatory Act. Sault Tribe has no history in this area, let alone a governmental presence.

Incidentally, I misspoke on the “precedent” for a Tribe using a mandatory trust acquisition statute to force the Secretary to take land into trust for gaming purposes. I was talking about the Wyandotte Nation of Oklahoma’s effort to game in Kansas City, Kansas. They sued the Secretary last year for lagging on trust acquisitions. Their original trust application was 1992, and the suits are still going on 20 years later.