Michigan tribe set to open casino after court victory

Wednesday, August 29, 2007  

The Interior Department lost another Indian lands case on Tuesday when a federal judge cleared the way for a Michigan tribe to open a casino.

Judge R. Allan Edgar granted a preliminary injunction that bars the government from interfering with the operation of the Sault Ste. Marie Tribe's new casino. Despite being completed over a year ago, the facility has been sitting unused due to a dispute over its legal status.

But with the favorable ruling, the tribe said it would have the Kewadin Shores Casino up and running in time for the busy Labor Day weekend. Gaming machines from a temporary facility next door were already being moved yesterday afternoon.

"We have worked diligently to pursue all available remedies to the resolve the issue of our inability to operate gaming as it was intended in our new $41 million casino in St. Ignace," Chairman Aaron Payment said in a statement.

The tribe wanted to open the casino in June 2006 but was blocked by the National Indian Gaming Commission. In a series of legal opinions, the agency said the site did not meet the definition of "Indian lands" under the Indian Gaming Regulatory Act.

The law bars gaming on land taken into trust after 1988 unless certain exceptions are met. Kewadin Shores was built on land the tribe acquired in 2000, well past the IGRA deadline.

The tribe argued that the 2000 parcel met one of the exceptions because the casino is "contiguous" to land that was taken into trust in 1983, long before the passage of IGRA. The NIGC responded that the 1983 parcel was not a reservation.

But when it came time to explain, government lawyers were stumped. Magistrate Timothy P. Greeley, who was assigned to weigh the issue for the court, said no one could offer a reason why the 1983 was not a reservation.

"During oral argument, the undersigned repeatedly attempted to have counsel for the defendants identify what factors are utilized in determining whether a parcel of land is reservation land," Greeley wrote in his July 23 report. "Counsel was unable to clarify this for the court."

"In fact, at the conclusion of oral argument, it appeared to the undersigned that defendants' position is that land is reservation land if defendants conclude it is, and is not reservation land if they conclude otherwise," he added.

Greeley's report came just a month after George Skibine, a Bureau of Indian Affairs official in charge of gaming, told Congress that the Bush administration had no objections to legislation that would declare the 1983 parcel a reservation. During a House hearing on June 13, he agreed that the government's inaction put the tribe in its position.

But government lawyers took a different stance and blamed the tribe for its "self-inflected" wounds, arguing that the court shouldn't allow the casino to open against NIGC's wishes. The response to Greeley's report was filed on August 6, only a few days after the House passed H.R.2120 by unanimous consent.

Allan rejected the government's views and agreed with the recommendation of the report to grant the preliminary injunction. He pointed out that David L. Bernhardt, who is now Interior Solicitor, told a member of Congress in 2006 that the tribe would suffer "significant potential economic impact" if the casino sat unused.

"This statement made by Deputy Solicitor Bernhardt in his letter tends to support the court's determination here that the plaintiff Indian tribe has met its burden of showing that the plaintiff will suffer substantial economic harm and irreparable injury unless the court issues a preliminary injunction," Allen wrote.

"Pending the final disposition of this case and pending further order of this district court, defendants shall not take any further action and steps to impede, prevent, stop, or otherwise interfere with the plaintiff's opening and operating said new gambling casino," he added.

The decision marks the third time this year that the Interior Department has been hit for its Indian lands opinions. In January, a judge in New York said the NIGC allowed the Seneca Nation to open an off-reservation casino without considering whether the site was legal under IGRA.

In July, a judge in Oklahoma said the BIA approved a Class III gaming compact for the Chickasaw Nation based on an administrative record "lacking in substance." The casino site at issue was taken into trust after 1988.

The BIA has been working on regulations to address these kinds of issues for more than a year. But assistant secretary Carl Artman confirmed earlier this month that they will be delayed a few more months.

Get the Decision:
Sault Ste. Marie Tribe v. US (August 28, 2007)

Court Documents:
Magistrate's Report (July 23, 2007) | Government's Objections (August 6, 2007)

DOI Documents:
NIGC Opinion (February 14, 2006) | David Bernhardt Letter (July 26, 2006) | NIGC Opinion (July 31, 2006) | NIGC Final Decision (September 1, 2006) | Carl Artman Letter (December 8, 2006) George Skibine Testimony (June 13, 2007) |

House Natural Resources Committee Hearing:
H.R. 673, H.R. 1575 And H.R. 2120 (June 13, 2007)

Related Court Decisions:
Apache Tribe v. US (July 18, 2007) | Citizens Against Casino Gambling in Erie County v. Kempthorne (January 12, 2007)

Relevant Links:
Sault Ste. Marie Tribe of Chippewa Indians - http://www.saulttribe.com
Kewadin Casinos - http://www.kewadin.com
Sault Tribe Times, independent site - http://www.saulttribetimes.com
National Indian Gaming Commission - http://www.nigc.gov