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The Rise of Tribes and the Fall of Federal Indian Law
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Appeals court sides with tribe in trust land dispute
Monday, January 9, 2006

A federal appeals court cleared the way for Michigan's newest tribal casino on Friday, rejecting a lawsuit that sought to invalidate a land-into-trust application.

Less than a month after hearing the case, the D.C. Circuit Court of Appeals delivered victory to the Pokagon Band of Potawatomi Indians. Recounting a history of neglect by the federal government, a three-judge panel said the tribe is entitled to acquire trust land and use it to achieve economic self-sufficiency.

"The tribe has determined that the most effective way to generate revenue is to build and operate a gaming resort," wrote Senior Judge Harry T. Edwards in the unanimous opinion.

In the 25-page decision, the court dismissed three challenges raised by Taxpayers of Michigan Against Casinos, or TOMAC. The nonprofit group tied up the tribe's land-into-trust application for more than four years, citing environmental, legal and constitutional concerns.

But now that the court rejected TOMAC's claims as groundless, the tribe can move forward with plans for the $160 million Four Winds Casino Resort. "We have been heard and understood," Pokagon Chairman John Miller said. "The tribe is jubilant."

Michigan is home to more than 20 tribal and non-tribal gaming facilities. At least three tribes, including the Pokagon Band, are hoping to get into the action but no new casinos have been built in several years due to lawsuits filed by non-Indian opposition groups like TOMAC.

Along with other cases, the challenges have forced the Bureau of Indian Affairs to take a tougher look at land-into-trust applications whenever casinos are involved. Due to the heightened scrutiny, final decisions on gaming projects are made by Washington, D.C. bureaucrats who now require tribes to complete and finance costly environmental impact reports.

The climate heated up recently when Jack Abramoff, the disgraced lobbyist who pleaded guilty to defrauding tribes and attempting to bribe a member of Congress, boasted of derailing the expansion of tribal gaming in Michigan. In an e-mail released by the Senate Indian Affairs Committee, he claimed that former Interior deputy secretary J. Steven Griles was "committed" to blocking one of the proposed casinos.

Griles denied doing any favors for Abramoff or his wealthy tribal clients -- including the Saginaw Chippewa Tribe of Michigan -- but the scandal has further tainted how gaming is viewed in Washington. On Thursday, before the court announced its decision, Rep. Mike Rogers (R-Michigan) called for a two-year moratorium on new casinos, saying lobbyists "exploited" the land-into-trust process.

"Putting a complete halt to new tribal casinos for two years would give us time to get our arms around the process and better understand the problem," Rogers said.

The request was met with criticism from the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, whose land-into-trust application was the target of Abramoff's lobbying. The tribe has sought an investigation of the Griles-Abramoff links but Chairman D.K. Sprague said Rogers' proposal is misplaced.

"A moratorium will do nothing to clean the problems with lobbying and federal abuse, and only promotes the interests of those trying to prevent competition," Sprague said.

The Pokagon decision marks the fourth time this year that a federal appeals court has rejected a land-into-trust challenge. In every case, the courts have said the BIA has handled the applications properly and that the BIA has the legal power to acquire trust lands for tribes.

After decades of waiting, the Pokagon Band was recognized by an act of Congress in 1994. The law required the Interior Department to restore a land base for the tribe, a provision that was upheld in the court decision on Friday.

Get the Decision:
TOMAC v. Norton (January 6, 2006)

Relevant Links:
Pokagon Band of Potawatomi Indians - http://www.pokagon.com

Related Stories:
Michigan tribe questions land-into-trust delay (01/05)
Appeals court hears Pokagon Potawatomi casino case (12/09)
Michigan tribe not worried about industry changes (10/04)
Tribal leader wants probe of Griles-Abramoff links (08/31)
Abramoff tried to hire Griles at lobbying firm (8/29)
Traffi crime a concern for Nottawaseppi casino (08/25)
BIA holds public hearing on Nottawaseppi casino (08/24)
Michigan tribe wants to intervene in casino case (07/29)
Lawsuit planned over Michigan tribe's casino (06/13)
Michigan tribe ready to hire for disputed casino (06/02)
Pokagon Band predicts win on land-into-trust appeal (05/25)
Michigan group files appeal of land-into-trust case (05/24)
Michigan tribe pushes for compact negotiations (05/17)
GOP congressman introduces anti-Indian gaming bill (05/13)
Michigan governor ready to negotiate compact (04/22)
BIA takes land into trust for Michigan tribe's casino (04/20)
Michigan tribe scores victory in casino land case (03/29)
Editorial: Ruling for Michigan casino not good news (03/29)
Michigan tribes pleased with action over compacts (02/23)
Supreme Court turns down gaming compact case (02/22)
Michigan governor surprised by anti-compact vote (12/16)
Michigan court considers tribal compact dispute (12/14)
Michigan Supreme Court upholds gaming pacts (08/02)
Mich. tribe clears hurdle for $100M casino project (03/24)
Mich. tribe's casino plans scuttled by lawsuits (03/15)
Mich. tribe's casino plans scuttled by lawsuits (03/15)

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