By Steve Thorpe
Legal News
The Sault Ste. Marie Chippewa tribe is betting that they’ll be able to build a spectacular $245-million casino in downtown Lansing. Are they holding a winning hand? A noted legal expert on Indian gaming thinks probably not.
In a Feb. 7 letter, Michigan Gov. Rick Snyder and Attorney General Bill Schuette notified the Sault Ste. Marie Chippewa Indian tribe they will oppose a planned off-reservation casino in Lansing.
“I have no idea how this is going to come out, but I suspect the tribe is going to lose,” said Prof. Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University.
The letter from the two top state officials contained tough talk including, “We respectfully advise you that the State will take whatever steps are necessary to prevent the opening of the proposed casino, and if the tribe persists in these efforts, it does so at its own risk.”
Fletcher thinks its possible that such strong language might be the first step in staking out a position for future negotiations.
“The history of Indian gaming in the state is that ‘front end’ negotiations are always really far apart,” says Fletcher. “There’s no doubt in my mind that if the Sault tribe opens a line of communication and negotiated significant revenue sharing with the state that this letter would go away in a hurry.”
But there’s likely to be strong opposition from forces other than state government. Other tribes in the state are going to be unhappy at the disturbance of a delicate status quo.
“The fact that this tribe is plopping down in the heart of the traditional territories and gaming markets of three other tribes means that everybody is going to go straight to war over this,” Fletcher said. “These are incredibly wealthy tribes and no expense will be spared. They will fight the Sault tribe, really, to the death.”
And the governor and attorney general are taking seriously their responsibility to protect the interests of the other tribes.
“The state has an obligation to protect the market exclusivity of those two tribes,” Fletcher said. “Those two tribes have agreed to share their revenue with the state in exchange for that exclusivity. If the Sault Ste. Marie tribe opens the Lansing casino, the state is technically in violation of the compact and would probably lose the revenues they get from those two tribes.”
But in the end, some of the important steps in the process take place at the federal level, far away from the influences of the governor’s office or the tribes.
“It’s really going to come down to whether the Department of Interior takes land into trust and concludes that the land is ‘gaming eligible,’ “ Fletcher said. “It’s two steps: One is arguably nondiscretionary but the other is very discretionary. If the land goes into trust, the state has no authority over it, as a general matter. The state already has a compact with the Sault Ste. Marie tribe and that’s why they’re saying ‘you’re in violation of our compact.’ It’s an argument and you can litigate it. Maybe you’ll win, but it’ll probably be a close call.”
At the federal level, part of the story may be the evolving interpretation of the word “shall.”
“Because of the word ‘shall,’ the secretary has to take the land in trust, but there’s no temporal limitation. It doesn’t say when and it doesn’t say the secretary’s obligations are,” Fletcher said. “The mandatory trust acquisition statute that they’re hanging their hat on isn’t as strong as they think. In fact, there’s a Ninth Circuit case with similar language where they said that, for all practical purposes, the word ‘shall’ is discretionary. That is important, because as legal language expert Brian Garner says, every single English language jurisdiction has at least one case in which the word ‘shall’ has now been interpreted as not being mandatory.”
Fletcher believes that the interpretation of the federal aspect of the process could be the key.
“Without a mandatory trust acquisition statute, this thing would be dead before it was even mentioned,” he said.
Fletcher also believes it’s possible that bigger questions may eventually be raised.
“I could even see someone making a constitutional challenge. Perhaps a violation of the 10th Amendment or the guarantee clause. You take a chunk of land in Lansing, far away from the reservation and take it away from state jurisdiction. That is a big deal.”
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