Saginaw Chippewa Indian Tribe

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

Matthew 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

Matthew 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.

News Coverage on Proposed Lansing Casino

Matthew L.M. Fletcher

Interlochen Public Radio

Lansing Channel 10

Detroit Free Press

Lansing State Journal

State News

Battle Creek Enquirer

WKAR: East Lansing Public Broadcasting

WUOM: Michigan Public Radio

Commentary on Sault Tribe’s Proposed Lansing Casino

Matthew L.M. Fletcher2 Comments

I can’t not say anything, since this proposed casino is in our own backyard. But seriously? The mayor says in 12-24 months he expects construction to start, and then another year or so after that there will be a fully functioning Indian casino in Lansing.

Wow.

We’re going to predict that it won’t happen. No chance.

Off-reservation Indian gaming is the most hotly-contested, politicized issue in American Indian affairs right now and maybe forever. Think of the interests arrayed against a Lansing casino, let alone one owned by an Indian tribe. The Detroit casinos will be opposed because it will cut into their bottom lines, and the entire City of Detroit, the Michigan Congressional delegation, the unions, everyone will throw their weight against this casino proposal.

More, up north just a few miles is another big problem for the mayor — the Saginaw Chippewa Indian Tribe. They’ll throw their weight against a Lansing casino, too, since a Lansing casino might destroy that tribe’s gaming market. They’ll have nothing to lose by fighting this every step of the way because they will be so severely injured by a Lansing casino that no lobbyist, no lawsuit, nothing will be too expensive to throw at it.

Finally, the law makes this difficult. Been saying this for months now. I suppose Sault Tribe believes, as I imagine the Bay Mills Indian Community does, that Bay Mills will eventually win on its legal theories relating to the Vanderbilt casino. it seems doubtful at best, given that Interior and the NIGC disagree. If that happens, then there will be 10-15 more Indian casinos in and around Lansing, Detroit, Grand Rapids, Muskegon, and so on in the next five years, especially if Bay Mills doesn’t comply with its revenue sharing obligations to the other tribes contained in the 1993 compacts (that’s right, even if they win, they only get one-seventh of the profit — go read section 9 of the 1993 compacts). Really hard to believe that will happen. Let’s set that aside for a minute.

The Sault Tribe will have to purchase land in Lansing, maybe the Lansing convention center or something. Then they’ll have to ask the Secretary of Interior to take the land into trust. And every trust acquisition application for gaming purposes requires an Environmental Impact Statement, and those take a few years to conclude. Once that’s done, the tribe will have to persuade Interior to take this land into trust. And that’s not so easy. The Indian Gaming Regulatory Act requires the governor to concur on any off-reservation gaming proposals. The Secretary has to then agree to take the land into trust, and even then someone in the Michigan Congressional could push through a rider preventing that action. It’s happened before.

And then, assuming the Secretary does take the land into trust, the lawsuits start. Trust acquisitions are governed by the Administrative Procedures Act. Anyone can sue, pretty much. The experiences of the three Potawatomi tribes in Michigan are instructive. The suits take years and years to conclude.

Of course, I’m no political scientist. Politics is money (see Citizens United) and anything can happen, including a backlash against Indian gaming that persuades Congress to ban off-reservation gaming. But the mayor’s three years is a dream, and kind of sick thing to promise to people in Lansing who might believe the mayor and see this as a real possibility for improving their lives.

DFP: Sault Tribe’s Proposed Lansing Casino Causes Saginaw Chippewas to Deploy Phil Hogen

Matthew L.M. Fletcher

Here.

Saginaw Chippewa Indian Tribe Changes Tribal Membership Criteria

Matthew L.M. Fletcher3 Comments

Here is the news coverage. An excerpt:

A deeply divided Saginaw Chippewa Tribal Council has voted to change the requirements to become a member of the Tribe.

In a 6 to 5 vote, the council voted to tighten the source of the Indian blood quantum requirement for members.

The Tribe’s constitution, adopted in 1986, requires that members be descended from a person on one of three lists compiled in the 19th century, or from a Tribal base role compiled in 1982, plus be at least one-quarter “Indian blood.”

The constitution does not, however, define what is meant by Indian blood.

Early version of the Tribe’s enrollment ordinance also left it largely undefined, and it was interpreted to mean descent from most North American indigenous people. The council then tightened that to define it as descent from a member of any federally recognized Tribe.

The newest version, adopted at a special session of the Tribal Council Oct. 26, specifies that only “Saginaw Chippewa Indian Tribe of Michigan” blood counts toward the one-quarter Indian blood.

“Tribal Council finds that the current definition of ‘Indian blood’ provided in (the enrollment ordinance) is overly broad and inconsistent with the constitution,” said the resolution adopting the revised law. “The Tribal Council finds that blood inherited from the Saginaw Chippewa Indian Tribe of Michigan is the only blood directly relevant to membership under the constitution of the Saginaw Chippewa Indian Tribe.”

Under the old law, for example, a child born to a Saginaw Chippewa Tribal member with one-fourth Indian blood and a full-blooded member of the federally recognized Navajo Nation would qualify for membership. By most reckonings, that child would have five-eighths Indian blood quantum.

Under the new law, that child would not qualify as a Saginaw Chippewa.

Reburial Ceremony for Saginaw Chippewa Ancestors Found in Flint

Matthew L.M. Fletcher

Here.

Shrinking Federal and State Budgets a Possible Boon to Indian Country?

Matthew L.M. Fletcher5 Comments

Thomas Jensen’s article in ICT (available here) identifying a possible “silver lining for tribal sovereignty” in the context of shrinking federal and state budgets seems, on first glance, to be counterintuitive, but the thinking is dead-on.

All around Michigan, anyway, tribes and local governments have become more and more interconnected and interdependent. Since 1993, when the first Class III compacts came into being, and where the tribes agreed to share two percent of their net win the local units of government, local governments have grown used to (and even dependent upon) tribal revenue sharing. The two percent payments fill needs in local government budgets, and generate more and more cooperation between governments.

Similarly, and on a broader scale, the settlement of a major reservation boundaries case at Saginaw Chippewa has provided models on how tribes and local governments can cooperate on everything from tax collection to hot pursuits to environmental protection.

The theme for the 21st century in Indian country should be about exercising good governance (in Angela Riley’s words), or Native Nation building or just plain intergovernmental cooperation. Local governments need Indian country, and vice versa.

Jensen’s point is well taken. State and local governments are losing the capacity to govern. Tribal capacity to govern is growing. Helping local (and even state) governments fill needs is an important way to help tribes grow into mature sovereigns.

News Coverage of Saginaw Chippewa Disenrollment Efforts

Matthew L.M. Fletcher1 Comment

Here. An excerpt:

By MARK RANZENBERGER

TheMorningSun.com

A hearing officer has ruled that the Saginaw Chippewa Indian Tribe cannot revoke the membership of an 87-year-old elder, despite the fact that she is not directly descended from a person listed on one of the Tribe’s base rolls.

But the disenrollment case of Anna Bell Atwell may not be over, according to her attorney.

“Tribal government officials, both certifiers and enrollment department staff, had a policy that collateral tracing to a constitutional base roll was sufficient to satisfy the tracing requirement for membership eligibility for enrollment,” said a ruling from the Tribe’s Office of Administrative Hearings. Continue reading →

Saginaw Chippewa Disenrollment Effort Begins Anew

Matthew L.M. Fletcher

Here is the news article, via Pechanga. And here is an excerpt:

The “D” word has again surfaced on the Isabella Reservation: Disenrollment.

The Saginaw Chippewa Indian Tribe’s Office of Administrative Hearings last week conducted the first hearing in several years into the possibility of removing a current member from the rolls. No decision was reached.

The case involves an 87-year-old elder who lives in Pennsylvania. Anna Bell Atwood. She became a member of the Tribe in 1988 during the Tribe’s open enrollment period, a time when the Tribe reached out to Natives who might qualify to become members.

Since that time, Tribal membership has become extremely valuable. Members qualify for numerous benefits, including per-capita payments of several thousand dollars per month based on income from the Soaring Eagle Casino & Resort, free health care and other perks.

But a high birth rate has caused membership in the Tribe to grow rapidly. At the same time, the economic downtown has cut into the Tribe’s income.

Tribal attorney Shawn Frank admitted during the hearing that a change in the makeup of the Tribal Council had put the disenrollment issue back into the spotlight.