HomePublicationsNewsletter ArchiveNewslettersVolume 20Issue 16Michigan AG Requests U.S. Supreme Court Review of Sixth Circuit Decision

On Wednesday, May 14, 2014, Michigan Attorney General Bill Schuette filed a Petition for a Writ of Certiorari (“Petition”) in the United States Supreme Court, asking the court to review a decision by the United States Court of Appeals for the Sixth Circuit allowing the Sault Ste. Marie Tribe of Chippewa Indians (“Tribe”) to continue its pursuit of constructing a casino in Lansing.

The Tribe is proposing to invest $245 million in building and operating a 125,000 square foot casino with 3,000 slot machines and 48 gaming tables.  The casino would be located at Michigan Avenue and Cedar Street, adjacent to the Lansing Center and is projected to create approximately 2,200 jobs.

At issue is the State’s ability to enforce Section 9 of Tribe’s Tribal-State Gaming Compact with the State of Michigan, which requires the Tribe to obtain written revenue sharing agreements with the other federally recognized Indian Tribes in Michigan prior to making application to the U.S. Secretary of Interior to have lands taken into trust. Having the land taken into trust is required before a Native American Tribe can open a casino pursuant to the federal Indian Gaming Regulatory Act (“IGRA”).  It does not appear that the Tribe has entered into any revenue sharing agreements with other tribes in connection with the proposed Lansing casino, but has argued, among other things, that its plans are nonetheless allowable under the provisions of the 1997 Michigan Indian Lands Claims Settlement Act (“MILCSA).

In its December 18, 2013 decision, the Sixth Circuit Court held that the preliminary injunction was improper “because the State is not suing to enjoin class III gaming activity, but instead a trust submission under MILCSA, §2710(d)(7)(A)(ii) of IGRA does not abrogate the Tribe’s sovereign immunity, and the district court lacked jurisdiction. The issue of whether class III gaming on the casino property will violate IGRA if the Tribe’s MILCSA trust submission is successful is not ripe for adjudication because it depends on contingent future events that may never occur.”

The Petition states that “[t]he net result of the Sixth Circuit’s approach is that States may not sue in federal, or any other court, to enjoin a tribe’s imminent violation of significant provisions of its gaming compact.  This ruling not only thwarts the State’s bargained-for ability to limit off-reservation gaming, it has a negative impact on Michigan’s other tribes, many of which signed compacts with identical language barring trust applications for off-reservation gaming.” 

The State argues first that the common-law doctrine of tribal immunity “has never extended so far as to grant tribes immunity for conduct such as operating an illegal casino off-reservation or violating their tribal-state compacts.” Alternatively, if the Court finds that tribes do enjoy common law immunity, Congress surely intended by the creation of the IGRA, and its tribal-state compact requirement, to allow states (and tribes) to enforce the provisions of tribal-state compacts in court, thereby waiving tribal immunity statutorily.

The Petition focuses on the Sixth Circuit Court’s insistence that merely petitioning  to have land held in trust by the Secretary of the Interior is not “gaming activity” as contemplated by the IGRA when the only reason a tribe would petition therefor is to create a casino. 

Further, the State argues that the Sixth Circuit’s reliance on its assertion "that to satisfy  § 2710(d)(7)(A)(ii) [of the IGRA] the gaming to be enjoined cannot be at ‘sites unrelated to the alleged compact violation,’” in disallowing the State’s attempt to enjoin allgaming conducted by the Tribe.  The State contends that “[t]he only ‘site’ requirement in § 2710(d)(7)(A)(ii) is that the gaming occur on Indian lands, and there is no question that the Tribe’s ongoing casino operations here are on Indian lands.” 

Also, the State relies on previous decisions from the Seventh and Tenth Circuits that are consistent with its position on common law and statutory tribal immunity and urges the Court resolve the split in authority consistent with those decisions.

It remains to be seen whether the Supreme Court will grant review.  In the meantime, the February 24, 2014 order to stay proceedings in the matter remains in effect.

 

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