Bay Mills Indian Community awaits decision on disputed casino

Wednesday, August 22, 2018  

More than four years after securing victory at the nation's highest court, the Bay Mills Indian Community is waiting for a crucial decision in the long-running dispute.

The tribe sparked significant controversy by opening a small casino the village of Vanderbilt in late 2010. The state of Michigan quickly went to court, claiming the facility was illegal.

The casino was forced to close in response to the litigation. But the tribe eventually prevailed when the U.S. Supreme Court in May 2014 ruled that the state had no standing to bring the lawsuit due to sovereign immunity.

"We hold that immunity protects Bay Mills from this legal action," Justice Elena Kagan wrote for the majority in the narrowly decided 5-4 case. "Congress has not abrogated tribal sovereign immunity from a state’s suit to enjoin gaming off a reservation or other Indian lands."

Despite the win, a big issue remains unresolved -- whether the tribe can indeed operate the casino in Vanderbilt. So the parties were back in court on Tuesday in hopes of moving forward.

"Today's hearing went well," Chairman Bryan Newland wrote on Facebook after the proceeding. "The judge was very engaged on the issue at hand, which relates to the meaning of 'Indian lands' under the Michigan Indian Land Claims Settlement Act."

The "Indian lands" issue is what tripped up the state in the first place. By arguing that Vanderbilt was not "Indian lands," the state forced the Supreme Court to rule for the tribe on immunity grounds .

The tribe, on the other hand, believes Vanderbilt is indeed "Indian lands." The tribe purchased the casino site with proceeds from the Michigan Indian Land Claims Settlement Act and that law dictates that such acquisitions “shall be held as Indian lands are held.”

"Vanderbilt is located within the lands our tribe ceded to the United States through the 1836 Treaty of Washington," Newland wrote in his August update, prior to the hearing on Monday. "Our tribe exercises jurisdiction over lands throughout the ceded territory – including Vanderbilt – by regulating hunting, fishing, and other activities by Bay Mills tribal members."

Resolution of the "Indian lands" issue is key to the lawsuit. Under the Indian Gaming Regulatory Act, tribes can only operate casinos on "Indian lands" over which they exercise jurisdiction.

But the state is hoping the case doesn't get that far. A motion for summary judgment that has been pending for more than a year argues that the tribe's purchase of lands with settlement funds "does not automatically make them Indian lands eligible for gaming under IGRA."

According to Newland, if the judge rejects the state's motion, the tribe will be able to move to a trial to determine whether it can engage in gaming in Vanderbilt. A decision on the motion is anticipated in a few weeks.

"After all this time, we simply want the opportunity to make our case and to be heard," the chairman wrote in his August update.

The state, though, isn't the the only party opposing the casino in Vanderbilt. As the case was proceeding, the Saginaw Chippewa Tribe was barred from intervening in the lawsuit.

The tribe has long spoken out against what it calls "reservation shopping" and has argued against the use of the land claim settlement to open new casinos. But the 6th Circuit Court of Appeals in January said the tribe lacked a legal interest in the outcome and waited too long to try and join the case.

"First, Saginaw filed its motion to intervene more than five years after this suit was initiated in 2011," Judge Julia Smith Gibbons wrote in the unpublished decision. "Second, Saginaw admits that it has known about this litigation since the case began. And third, this dispute has been to the Supreme Court and back, and there has been much discovery and negotiation between the original parties."

The Bay Mills Indian Community operates the Bay Mills Resort & Casino in Brimley and the Kings Club Casino, a smaller facility nearby. Kings Club is considered the first full-fledged Indian gaming facility in the United States.

"Bay Mills pioneered Indian gaming in Michigan, by opening the first tribally operated casino in the state more than three decades ago," Newland wrote in his recent update. "Since then, a half-dozen new tribes have been recognized in Michigan."

Vanderbilt is about 100 miles south of the Brimley area. It's in Michigan's lower peninsula and though only a few hundred people live there, other tribes -- namely Saginaw Chippewa and Nottawaseppi Huron Band of the Potawatomi -- fear a casino there could harm their operations.

The Saginaw Chippewas operate two casinos, both about about 110 miles south and southeast of Vanderbilt. The Nottawaseppi Huron Band's facility is more than 220 miles south.

Turtle Talk has posted documents from the summary judgment motion and the Saginaw Chippewa Tribe intervention matter.

Michigan v. Bay Mills Indian Community (May 27, 2014)

Oral Argument Transcript | Supreme Court Docket Sheet No. 12-515 | Supreme Court Order List | More from Tribal Supreme Court Project

Michigan v. Bay Mills Indian Community [Sovereign Immunity] (August 15, 2012)
Bay Mills Indian Community v. Snyder [Intervention of Saginaw Chippewa Tribe] (January 8, 2018)