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Supreme Court denies anti-casino group’s appeal

BRADLEY, Mich. – The U.S. Supreme Court has declined to hear an anti-Indian casino group’s appeal challenging the Interior Department’s decision to take land into trust for the Gun Lake Tribe’s proposed casino.

The high court’s action Jan. 21 effectively ends Michigan Gambling Opposition’s 10-year run of legal actions and public relations efforts to delay and stop Gun Lake’s plans to open a $200 million casino on 147 acres of trust land in Wayland County.

“We are very happy with the Supreme Court’s decision to reject MichGO’s appeal,” Gun Lake Chairman D.K. Sprague said. “It is, however, bittersweet. It’s been too long. One of the drawbacks to all the delay is we’ve lost a lot of tribal members. They’re walking on and they won’t be here to see the fruits of their labor. And that just saddens my heart that they aren’t here today to celebrate with us.” The Gun Lake Tribe’s formal name is the Match-e-be-nash-she-wish Band of Pottawatomi Indians.

The tribe will now do its “housekeeping” – getting all the paperwork prepared for the Interior to finalize the land into trust – and then move forward with plans for the Gun Lake Casino, Sprague said.

“Obviously, we’ve done a lot of our homework already, and it’s a matter of getting a construction team identified, and everything that goes with the financing. It’s all on the shelf. As a side bar to the long delay, I retired from the railroad in 2000. The tribe asked me to come and work full-time on this until it happens. I figured that would be a year or two,” Sprague said.

As for the sagging economy, he said the casino project will be a financial boost to the generally depressed local economy.

“The economy is going to get worse before it rebounds, but that means more job losses and we’re looking forward to providing jobs. We’ll have the construction phase and put those folks to work and we’ve committed to using union labor so the pay will be good,” Sprague said.

The casino will have 2,500 slot machines and 75 table games. It will directly employ 1,800 people with a total average annual compensation package of $40,000, and provide an additional 3,100 indirect jobs and more than $20 million per year in purchases of goods and services from the area’s businesses.

Funds will also pour into the state’s general fund from the tribal-state compact signed in 2007 that will provide the state with eight percent of gaming revenues, with two percent going to surrounding communities, on the first $150 million in annual revenue. If the casino makes more than that, the state’s share increases.

MichGO’s appeal piggybacked on Carcieri v. Kempthorne - the State of Rhode Island’s appeal of the Interior Department’s decision to take 31 acres of land into trust for the Narragansett Indian Tribe.

In the high profile case, argued Nov. 3, the Supreme Court was asked to examine two questions: Whether Section 5 of the 1934 Indian Reorganization Act authorizes the Interior secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934, and whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the secretary from creating Indian country there.

The first question revolves around the meaning of the word “now” in Section 5: “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction. …”

Rhode Island argued that “now” in that sentence meant then – that only tribes recognized in 1934 were eligible. Seventy-five years of legal practice, however, has interpreted the word “now” to mean “as of now” or “going forward from now.”

The Supreme Court has not issued its decision yet on the Narragansett case, but the denial of MichGO’s petition may bode well for the Narragansetts, according to Matthew Fletcher, associate professor of law and director of the Indigenous Law and Policy Center at Michigan State University College of Law.

“One possibility is that the Supreme Court denied cert in MichGO because the court is going to uphold the secretary of interior’s authority to take land into trust for tribes not federally recognized in 1934 (tribes like the Gun Lake Band and the Narragansett Tribe), the key issue in Carcieri. If the court was to reject the secretary’s authority in Carcieri, then there would be reason to grant cert in MichGO to correct the lower court’s holding. They might choose to do this through a tool called GVR – Grant, Vacate, and Remand. But if the court was to affirm the secretary’s holding, then the lower court decision in MichGO is correct even after Carcieri, and so there’s no reason to review the decision.”

The problem with that theory, Fletcher said, is that MichGO never argued in lower courts that Gun Lake is ineligible under Section 5 because it wasn’t recognized in 1934.

“They did raise it in the cert petition, but one suspects that it’s too late then. MichGO could have raised the question from the outset, because the Narragansett litigation had been ongoing for some time. So, maybe that’s why the court denied cert in MichGO. And, if so, the cert denial offers no clues as to the possible outcome in Carcieri.”

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