WAYLAND COUNTY, Mich. - In an effort to take advantage of every possible opportunity to delay the Gun Lake Tribe;s casino, the anti-Indian casino group Michigan Gambling Opposition - MichGO - has asked a court to stop all further action while the group files a petition for a writ of certiorari with the U.S. Supreme Court.
MichGO's latest tactic followed a July 25 ruling by the U.S. District Court of Appeals for the District of Columbia denying the group's request for a full panel, or en banc, rehearing of the court's 2 - 1 decision in April upholding a district court decision to allow the Interior Department to take 147 acres of land into trust for the tribe's proposed $200 million casino.
MichGO's ''Emergency Motion for Stay of Mandate Pending Petition for Certiorari'' was filed Aug. 1 with the Washington, D.C., appeals court. The stay of mandate would mean that the appeals court would not immediately send its decision back to the district court, thereby further delaying Interior's finalization of its land into trust decision.
Over the past three years, both the federal government and the lower court had stayed the land into trust action to allow MichGO to pursue its appeals. But once the appeals court mandate is issued, the stay that is preventing the federal government from taking the land into trust will be lifted as well.
The decision to deny an en banc hearing was rendered by the full 10-judge court in a 7 - 3 majority ruling. Judge Janice Rogers Brown was among the three dissenting judges and wrote the single dissenting view in the court's three-judge panel decision in April. She is known in Indian country for another controversial decision: She wrote the majority opinion in San Manuel Band of Mission Indians v. National Labor Relations Board, which ruled that a casino owned by the southern California tribe was subject to federal labor laws. That decision is now being tested in the courts by the Mashantucket Pequot Tribal Nation as it battles a unionization effort under federal labor law rather than tribal law.
One of the requirements for a stay of mandate is that MichGO must demonstrate under Supreme Court rules that the high court would likely hear the case.
The group said it will ask the Supreme Court the intertwined questions of whether the Indian Reorganization Act of 1934 violates the Constitution by delegating legislative authority to the executive branch and whether Interior lacked the authority under Section 5 of the IRA to acquire the land in trust for Gun Lake.
But the Supreme Court denied a request for a review of the identical issue last February in Carcieri v. Kempthorne, the state of Rhode Island's attack on Interior's decision to take 31 acres of land into trust for the Narragansett Indians.
A number of circuit courts have also upheld the constitutionality of Interior's authority under the IRA.
Both Gun Lake and the Department of Justice have filed motions within the 11-day window in opposition to MichGO's request for a stay of mandate.
''MichGO's argument fails to come to grips with the fact that MichGO has lost on the merits of its claims at every step of this litigation,'' the Justice Department and Gun Lake attorneys wrote. ''It lost in the district court, it lost in the court of appeals, and it lost again in the court of appeals when it sought rehearing en banc. MichGO has taken full advantage of judicial review in the district court and its appeal as of right. Supreme Court review is discretionary and ... an extremely unlikely proposition here.
''MichGO cannot carry its burden of establishing irreparable harm and further delaying Interior's lawfully rendered decision on the slender reed of what MichGO may or may not be able to raise in an almost surely futile certiorari petition.''
By filing the motion in the same appeals court that has denied its appeals twice, MichGO gives itself another opportunity for delay, said Gun Lake spokesman James Nye.
''If they are rejected on this motion for a stay, they also have the option of trying to file an emergency stay with the Supreme Court.''
Now that Gun Lake and the Justice Department have filed their motions in opposition, the court may render its decision any time and the tribe is hoping that will happen sooner rather than later, he said.
Todd Boorsma, MichGO's executive director, did not return a call seeking comment.
Meanwhile, on Aug. 15, Boorsma lost his bid in a primary election to be the candidate for the Michigan House of Representatives 88th District - where Gun Lake's land is located. His profile and politics are available at www.voicewithaction.com.
The primary winner was Bob Genetski, who was endorsed by the Friends of Gun Lake Indians, a 10,000-member organization that supports the tribe (www.fogli.org).
Both the appellate court decision and the primary results were good news for the tribe, Nye said.
''We're just staying positive and looking forward to bringing in thousands of jobs to an area of Michigan that really needs them.''