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Judge grants anti-Indian group's stay on land into trust case in Michigan

BRADLEY, Mich. - Just days after a federal district court judge tossed out an anti-Indian group's lawsuit to stop the Interior Department from taking land into trust for the Gun Lake Tribe's planned casino, the same judge, citing ''due process and fairness,'' issued a ruling to freeze the federal government's action pending an appeal.

The latest ruling is part of a long-running attempt by the Michigan Gambling Opposition group to stop Gun Lake from building a casino in southwestern Michigan.

The tribe intervened in MichGO's lawsuit challenging Interior's May 2005 decision to take into trust 146 acres of land in Bradley, Wayland County. Gun Lake is the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians.

Judge Garrett Penn dismissed the lawsuit on Feb. 23, saying the group could not prove any of the facts it alleged in the issues it raised against the federal agency.

On March 1, MichGO filed a motion for a stay to stop Interior from taking the land into trust. Penn granted the stay on March 5, a few hours before Interior intended to take the land into trust at 5 p.m.

''Upon review of the extensive record in this case, it appears that intervener, a historically oppressed tribe, has suffered and will continue to suffer every day that the litigation continues. The Court is certainly sensitive to this fact,'' Penn wrote. But, ''the guiding principles of due process and fairness dictate that the Court should grant a stay pending an appeal of its ruling.''

In issuing the stay, Penn noted that MichGO had dropped its previous arguments against Class III gaming and a procedural issue, and was seeking the stay based only on a claim that the tribe's Bradley property as an ''initial reservation'' violates the Indian Gaming Regulatory Act, and that the tribe violated the National Environmental Policy Act by issuing an Environmental Assessment instead the an Environmental Impact Statement.

In its IGRA argument, MichGO claims that the Interior secretary does not have the ''administrative authority'' to take land into trust for an initial reservation.

''Although the Court disagrees,'' Penn wrote, it is an argument of ''first impression'' that is currently before the Washington, D.C., circuit court in CETAC v. Norton. CETAC - Citizens Exposing the Truth About Casinos - is one of a cluster of anti-Indian groups collaborating against the nations in Michigan. The cluster also includes 23 Is Enough and TOMAC - Taxpayers Of Michigan Against Casinos.

''There is a chance then that the plaintiff's 'initial reservation' argument will prevail on appeal because of the novelty of the issue,'' Penn wrote.

Penn said that MichGO is not likely to prevail on its claim that Gun Lake violated NEPA procedurally because a precedent has been set in TOMAC v. Norton, which used the same argument. That case was tossed out of the appeals court last year. But there is a chance that the appeal court will hear MichGO's ''substantive challenge to Interior's findings,'' Penn wrote.

He chastised MichGO for its eleventh-hour filing of its appeal motion.

''The court is troubled by the fact that plaintiff waiting until March 1, 2007, to seek a stay although it was aware of the Court's adverse ruling on February 23, 2007,'' Penn wrote.

But Penn ultimately felt compelled to grant the stay.

''The Court is very aware of the competing interests in this case,'' he wrote. ''On the one hand, there is a tribe saddled with staggering rates of unemployment. On the other, there are many homeowners who fear that the introduction of a casino into their community will cause irreparable harm. However, the Court concludes that the public interest is best served by granting the stay pending an appeal of its ruling, which will bring both finality and certainty to the preceding questions of law.''

MichGO now has 30 days to file an appeal with the federal Court of Appeals in Washington, D.C.

In a prepared statement, tribal spokesman James Nye said the appeal is just another delaying tactic that MichGO and the other anti-Indian groups have used numerous times ''to deny tribal rights.''

''The Tribe will use every available option to expedite the lawsuit on appeal. It will ask the court of appeals for an expedited schedule, which entails expediting the briefing schedule, oral arguments and the court's decision,'' Nye said.

Nye said the tribe is confident it will prevail based on the merits of its case and the law.

''Congress and the U.S. Supreme Court have determined that federally recognized tribes have a right to conduct gaming. The inherent sovereign rights of tribal governments are recognized in the U.S. Constitution. It is inevitable that the Tribe will get trust land, and will open a Class III gaming facility,'' Nye said.

MichGO spokesman John Helmholdt told the Grand Rapids Press that the stay was ''good news ... MichGO will have an opportunity to have their appeal and case reviewed without the threat of having the land taken into trust,'' he said.