Law

Michigan tribe wins land-into-trust lawsuit

Monday, February 26, 2007

A Michigan tribe whose leaders have been waiting more than six years for a land base declared victory on Friday when a federal judge dismissed a lawsuit against the Interior Department.

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, won federal recognition in 1999. Since then, the tribe has sought to create an initial 146-acre reservation and open a casino in Allegan County in western Michigan.

The Bureau of Indian Affairs had agreed to acquire the land on January 5 of this year. But a group called Michigan Gambling Opposition help up the already slow-moving land-into-trust process.

With the dismissal of the group's lawsuit, however, the tribe hopes to get back on track. The BIA has indicated it could take the land into trust as early as March 5.

"We are now one very short step from recovering an important piece of our traditional homelands and we will continue to work with the federal government to expeditiously complete the trust process," said D.K. Sprague, the tribe's chairman.

Sprague wasn't concerned that MichGO might continue litigating. He noted that the D.C. Circuit Court of Appeals ruled against the group in a very similar case involving the Pokagon Band of Potawatomi Indians, also of Michigan.

"We don't believe an appeal by MichGO will delay the taking of our land into trust due to the previous decision of the appellate court," he said.

The tribal track record before the D.C. Circuit is a positive one. The court took less than a month to uphold the Pokagon Band's land-into-trust application and the tribe is now constructing a casino on its 675-acre initial reservation.

Even if the Gun Lake land goes into trust, the tribe still has one more hurdle to clear. Sprague hopes to negotiate a Class III compact with Gov. Jennifer Granholm (D) and open a casino as early as summer of 2008.

Michigan is home to more than 20 tribal and non-tribal gaming facilities but lawsuits have tied up new casinos for the Gun Lake, Pokagon and Nottawasepi Huron bands. As a result, the Interior Department imposed new administrative requirements on tribes who seek to acquire land for gaming purposes. The changes will be implemented in regulations the BIA expects to finalize this spring

In the Gun Lake case, MichGO argued that the BIA failed to conduct a proper environmental analysis of the proposed casino. Judge John Garrett Penn rejected the group's claims, saying they "lack merit."

Additionally, MichGO challenged a provision in the Indian Gaming Regulatory Act that applies to newly recognized tribes. The group claimed the BIA lacked the authority to make a initial reservation declaration for the Gun Lake Band.

MichGO instead wanted to force the tribe to seek a two-part determination under Section 20 of IGRA, a process that requires the state governor's approval. But Penn said the BIA correctly determined that the tribe qualified for the initial reservation exception.

MichGO also said the land-into-trust application couldn't proceed without an approved Class III gaming compact. But Penn said the tribe could offer Class II gaming in the interim.

Finally, MichGO challenged the constitutionality of the Indian Reorganization Act, which authorized the land-into-trust process. Citing the legislative history of the IRA, Penn said the group's claim "fails as a matter of law."

Court Decision:
Michigan Gambling Opposition v. Kempthorne (February 23, 2007)

Department of Justice Letter:
Gun Lake Band Land-into-Trust (October 27, 2006)