Legal Thoughts on Lake Band Casino Development

Yesterday's interesting statement by a lawyer for the Burt Lake Band suggesting that all the Band would need to commence gaming is simple legislation from the State Legislature deserves a spot of commentary. I guess their lawyer is reading this provision of the Michigan Constitution, added by state referendum in 2004, for support:

The legislature may authorize lotteries and permit the sale of lottery tickets in the manner provided by law. No law enacted after January 1, 2004, that authorizes any form of gambling shall be effective, nor after January 1, 2004, shall any new state lottery games utilizing table games or player operated mechanical or electronic devices be established, without the approval of a majority of electors voting in a statewide general election and a majority of electors voting in the township or city where gambling will take place. This section shall not apply to gambling in up to three casinos in the City of Detroit or to Indian tribal gaming. [Mich. Const. sec. 41, emphasis added]

Since Burt Lake Band is not a federally recognized tribe, they would not be subject the requirements of the Indian Gaming Regulatory Act, nor would the Department of Interior take land into trust for the Band under 25 U.S.C. 465. So the lawyer’s statement (”A bill will have to be introduced, passed by a simple majority in the House and Senate, has to be signed by Gov. Granholm, and we can rock and roll from there”) that the Band isn’t subject to all these difficult regulatory hurdles is correct, perhaps, but only if the Band would be considered eligible for “Indian tribal gaming” under Section 41.

Leaving aside for the moment the very real political problem the Band would face getting the Michigan Legislature to pass a special statute for them, I think there might be a significant legal problem facing the Band. Literally read, Section 41 applies to all Indian tribes. Burt Lake Band is an Indian tribe, as are the 12 federally recognized tribes. And so are the other non-federally recognized tribes as the Mackinaw Band, the Black River and Swan Creek Band, and Grand River Band. However, I strongly suspect the intent of the provision was to protect the federally recognized tribes of Michigan.

In short, I doubt the “Indian tribal gaming” language was intended to include tribes like the Burt Lake Band. It is my understanding (I was living in Grand Forks, N.D. when the voters adopted this referendum) that the key sponsors of the language were the federally recognized tribes. If there is any legislative history on this Section, I’d like to see it. Moreover, the State of Michigan has cut deals with all 12 federally recognized tribes to conduct gaming under the Indian Gaming Regulatory Act, so it makes additional sense to limit the “Indian tribal gaming” language.

For the complete blog post, please see Commentary on Possible Burt Lake Band Casino Development, Turtle Talk, February 17, 2009.