Here:
1 – Petition for Review of NLRB Decision
NLRB materials here.
Sixth Circuit
Full Panel of the Sixth Circuit Strikes Down Prop 2, Michigan’s Anti-Affirmative Action Amendment.
A split of the Sixth Circuit upheld the 3 judge panel. Our previous coverage of Prop. 2 here.
Here.
COLE, J., delivered the opinion of court in which MARTIN, DAUGHTREY, MOORE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined; and BATCHELDER, C. J., and GIBBONS, ROGERS, SUTTON, COOK, and GRIFFIN, JJ., joined in Part II.B and C. BOGGS, J. (pp. 37–40), delivered a separate dissenting opinion, in which BATCHELDER, C. J., joined. GIBBONS (pp. 41–57), delivered a separate dissenting opinion, in which BATCHELDER, C. J., and ROGERS, SUTTON, and COOK, JJ., joined, and GRIFFIN, J., joined with the exception of Part III. ROGERS (pg. 58) delivered a separate dissenting opinion, in which COOK, J., joined. SUTTON (pp. 59–69), delivered a separate dissenting opinion in which BATCHELDER, C. J., and BOGGS and COOK, JJ., joined. GRIFFIN, J. (pp. 70–74), delivered a separate dissenting opinion.
A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change. We therefore REVERSE the judgment of the district court on this issue and find Proposal 2 unconstitutional. We AFFIRM the denial of the University Defendants’ motion to be dismissed as parties, and we AFFIRM the grant of the Cantrell Plaintiffs’ motion for summary judgment as to Russell.
MLive on the Bay Mills Vanderbilt Casino Case & Proposed Lansing Casino
Here.
An excerpt:
Bay Mills has a reservation located on tribal land in the Upper Peninsula’s Chippewa County on the eastern end of Lake Superior.
In 2010, the tribe used earnings from a land settlement trust to purchase 40 acres of land in Vanderbilt, a tiny town just north of Gaylord that’s located more than 100 miles south of the tribe’s main reservation.
The Michigan Indian Land Claims Settlement Act says that land acquired with funds from a land trust “shall be held as Indian lands are held.” So Bay Mills used that language as legal authority to open a small casino in November 2010 in Vanderbilt. Continue reading
Fletcher on IPR re: Michigan v. Bay Mills Indian Community Decision
Here.
Does Michigan v. Bay Mills Create a Circuit Split with Mescalero v. New Mexico over Whether IGRA Waives Tribal Immunity?
Well, maybe, but it probably doesn’t matter because of State of Michigan’s amended complaint below.
Yesterday the Sixth Circuit held the Indian tribal immunity survives the enactment of the Indian Gaming Regulatory Act for cases in which a non-federal party with standing sues the tribe for alleged violations of the Act. The court criticized the Tenth Circuit’s holding Mescalero Apache Tribe v. New Mexico (PDF) that IGRA does waive tribal immunity:
Mescalero offers virtually no analysis in support of its contrary reading of § 2710(d)(7)(A)(ii)—a point which the State, to its credit, concedes here; and to the extent the opinion does offer any analysis, it mistakenly cites waiver cases rather than abrogation ones. We agree with the Eleventh Circuit, therefore, that Mescalero’s reasoning is “muddled” rather than persuasive.
The CA6 cited the CA11, also critical of the Tenth Circuit’s holding. In Florida v. Seminole Tribe (PDF), the court also criticized the Mescalero holding:
As an initial matter, we find that Mescalero provides no support for the State’s argument. The Mescalero panel, in discussing section 2710(d)(7)(A)(ii), claimed that a majority of courts agree that “IGRA [abrogated] tribal sovereign immunity in the narrow category of cases where compliance with IGRA’s provisions is at issue and where only declaratory or injunctive relief is sought.” 131 F.3d at 1385. In actuality, however, the cases that the panel cited in support of its claim addressed an entirely different matter, to wit: whether a tribe voluntarily waives its own sovereign immunity by engaging in gaming under IGRA. See infra part II.A.2 (discussing tribal waiver of immunity). In light of this absence of supporting authority, we find the Mescalero panel’s claim difficult to credit.
So one circuit has held that IGRA waives tribal immunity, and two circuits expressly disagree with the first circuit. Circuit split, right? Get ready for Michigan v. Bay Mills Indian Community in the Supreme Court?
Well, probably not. If the Tenth Circuit’s decision is so patently wrong (and mind you, it didn’t have the benefit of any other cases upon which to rely), it probably doesn’t matter. If confronted with the same question again, one could predict the Tenth Circuit going the other way. This is why the Supreme Court doesn’t take questions of first impression very often. They like to let things percolate in the lower courts. Whether IGRA waives tribal immunity is still percolating. The Tenth Circuit is looking like an obvious outlier decision that won’t be repeated. I’d guess, if anyone made the effort, that a Supreme Court cert petition would be denied.
IPR on Vanderbilt Casino Ruling
Here.
An excerpt:
A written statement from Bay Mills Chair Kurt Perron says the tribe ultimately plans legal victory, and to move forward with its “planned developments.” The tribe did not immediate elaborate on the statement’s meaning.
If Bay Mills is ultimately victorious, the tribe would likely be allowed to build casinos anywhere it wants, without state approval, as long as it buys the land with a specific pool of funds.
“Probably the biggest implication (of today’s ruling) in the long run is just to highlight exactly how difficult it is to shut down a casino opened by an Indian tribe under these circumstances,” says Matthew Fletcher, of MSU’s Indigenous Law Center.
The Vanderbilt Casino is widely regarded as a test site for its Upper Peninsula owner. The tribe has expressed interest in building in Port Huron, and perhaps elsewhere.
It’s not clear what implications this case might have for another Upper Peninsula tribe’s plans to build a casino in downtown Lansing.
Sixth Circuit Vacates Injunction against Bay Mills’ Vanderbilt Casino
Here is today’s opinion (PDF).
Here are the briefs:
BMIC Opening Brief in CA6 Appeal
State of Michigan Appellee Brief
BMIC Motion to Strike Appellee Briefs
Lower court materials here.
Here is the casino:
Guess they can take this sign down now:
Update in Patrick Devlin Suit against Michigan Gaming Control Board
Here is today’s Sixth Circuit opinion in Devlin v. Kalm.
An excerpt:
Plaintiff Patrick J. Devlin appeals the district court’s order granting Defendants’ motions to dismiss based on the abstention doctrine and the court’s denial of Plaintiff’s motion for default judgment. Plaintiff argues that his termination from the Michigan Gaming Control Board was retaliatory in violation of his First Amendment rights under 42 U.S.C. §§ 1983, 1985, 1986, and 1988 and his due process rights, after he made disparaging remarks to the press about the Michigan Attorney General and the application of the state’s gaming laws to Native American tribes.
Sixth Circuit Issues Opinion against EPA in Clear Air Act Ruling involving Natural Gas on the Saginaw Chippewa’s Isabella Reservation
Here is the opinion in Summit Petroleum Corp. v. EPA.
Harvest Institute Freedman v. Salazar, Sixth Circuit
The Sixth Circuit dismissed the Harvest Institute Freedman Federation’s claim against the Cobell v. Salazar settlement:
The Harvest plaintiffs claim that the Freedmen were wrongfully excluded from ownership of the IIM Accounts due to racism, and that it perpetuates racial discrimination for Congress to not address their claims at the same time that it addresses the claims of the Cobell class. Along with their Complaint, the Harvest plaintiffs moved the district court for a temporary restraining order; the United States responded by filing Rule 12(b)(1) and 12(b)(6) motions to dismiss based on lack of subject matter jurisdiction and failure to state a claim, respectively.
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