WASHINGTON - In what will likely be the last of its many legal challenges, an anti-Indian casino group has asked a federal appeals court to determine if a law that has been restoring swindled and expropriated indigenous land to Indians for almost 75 years is constitutional.
Michigan Gambling Opposition, or MichGO, petitioned the U.S. District Court of Appeals for the District of Columbia May 10 for an en banc court rehearing of its 2 - 1 panel decision to allow the Interior Department to take 147 acres of land into trust for the Gun Lake Tribe;s proposed casino.
MichGO wants the full nine-judge court to determine if the Indian Reorganization Act of 1934 violates the nondelegation doctrine by unconstitutionally allowing the Interior secretary to acquire or take into trust land for Indians.
Since the U.S. Supreme Court denied a request for a review of the same issue last February, the appeals court is likely to be the last stop on MichGO's long road of legal delays to Gun Lake's progress - obstructions that began soon after the tribe gained federal acknowledgement 10 years ago.
The panel's majority ruling in April upheld a lower court decision affirming Interior's authority to take the land into trust. The dissenting view was written by Judge Janice Rogers Brown, who is well known for another anti-sovereignty 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.
In a filing June 10, the Justice Department asked the court to deny MichGO's request for an en banc review. Every court of appeals faced with the same question - and there have been several - has ruled that the IRA's Section 5 is constitutional, Justice said.
Section 5 says, in part: ''The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing lands for Indians.''
''In line with every court of appeals to reach the issue,'' Justice wrote, ''a panel of this court held that Section 5 of the IRA is not an unconstitutional delegation of legislative authority to the Executive. ... Here, the panel correctly applied well-settled precedent and upheld the constitutionality of Section 5. There is no conflict among the circuits on this question, the panel's decision joins all the other courts of appeals to address the issue, there is no internal Circuit conflict, and the Supreme Court recently denied a petition for a writ of certiorari on the identical question presented by MichGO's petition.''
The U.S. Supreme Court case - Carcieri v. Kempthorne - is the state of Rhode Island's challenge to the 1st Circuit Court of Appeals 4 - 2 ruling last summer that affirmed Interior's authority to take 31 acres of land into trust for the Narragansett Indian Tribe.
The case, which was initiated in 1998, was - and still is - deemed so important to Indian country and its opponents that the National Congress of American Indians and dozens of tribes and organizations filed briefs as friends of the court, as did more than a dozen attorneys general and some anti-Indian groups.
While the U.S. Supreme Court has rejected a review of the constitutionality issue, it will review the 1st Circuit's assertion in the Narragansett case that the IRA does not limit federal recognition only to tribes that were recognized when the act was passed in 1934.
The outcome is critical to the dozens of tribes that have received federal recognition since 1934.
In its petition to the appeals court, MichGO also asked the court ''to determine whether it is appropriate to supplement the issues'' based on Carcieri v. Kempthorne - a baffling request, since the case will not be reviewed until the fall. A call to MichGO's attorney seeking clarification was not returned by press time. The issue was rendered moot, in any case, since the appeals court declined MichGO's request to incorporate into its appeal a case that has not been heard yet.
The parties now await an appeals court ruling on whether to hold a rehearing.
Gun Lake, whose formal name is the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, plans to build a $200 million casino in Wayland County with around 2,500 slots and 80 gaming tables. The casino will directly employ 1,800 people with an estimated total average annual compensation package of $40,000, and provide an additional 3,100 indirect jobs and more than $20 million per year in direct purchases of goods and services from the area's businesses.
Under a tribal-state compact, the state will receive 8 percent of the casino's take from slot machines for the first $150 million, 10 percent between $150 million and $300 million, and 12 percent above $300 million. Local governments will receive 2 percent of the revenue. More than 10,000 members of 40 organizations formed the Friends of Gun Lake Indians group to support the tribe against its opponents.