Appeals court delays casino for Michigan tribe

Law | Trust

Monday, August 18, 2008

A Michigan tribe's casino project was put in extended limbo on Friday so that an anti-gaming group can pursue an appeal to the U.S. Supreme Court.

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, has been seeking to establish a reservation since gaining federal recognition in 1998. But a group called Michigan Gambling Opposition tied up the tribe's land-into-trust application with a lawsuit against the Bush administration.

After years of delays, a decision from the D.C. Circuit Court of Appeals finally gave the Bureau of Indian Affairs approval to acquire 147 acres in trust for the tribe. The April 29 ruling -- the third of its kind for a Michigan tribe -- rejected all of MichGO's arguments against the project.

But the group isn't giving up the cause, which represents its last chance at stopping a tribal casino in Michigan. Seizing on the dissenting opinion of one of President Bush's judicial nominees, MichGO is now asking the Supreme Court to invalidate the land-into-trust provisions of the Indian Reorganization Act of 1934.

The justices have never ruled on the constitutionality of the IRA although the issue has come up in a slew of cases over the years. The D.C. Circuit, the 10th Circuit, the 2nd Circuit, the 1st Circuit and the 8th Circuit have upheld the land-into-trust process as legal.

So far, the Supreme Court has refused to hear a single case that challenges the IRA. This fall, the justices will hear a land-into-trust appeal from the 1st Circuit but they specifically ruled out the IRA question.

Given the history, MichGO's chances of success appear slim. But the stay issued by the D.C. Circuit on Friday allows the group to delay the Match-E-Be-Nash-She-Wish casino for several more months, possibly until early 2009, while the Supreme Court processes briefs before deciding whether to take the case.

By that time, the Nottawaseppi Huron Band of Potawatomi Indians will be much closer to opening its $300 million FireKeepers Casino. The tribe's land-into-trust lawsuit was held up by a group called Citizens Exposing Truth About Casinos (CETAC).

The Pokagon Band of Potawatomi Indians opened its $160 million Four Winds Casino Resort a year ago this month after beating a lawsuit from Taxpayers of Michigan Against Casinos (TOMAC). The tribe reportedly generates $24 million a month in slot machine revenues.

MichGO, CETAC and TOMAC have different names but their cases were filed by the same Michigan attorney, Robert Jonker. When Bush nominated Jonker for a federal judgeship, Michigan united to oppose him but he was eventually confirmed by the Senate in July 2007.

The dissent of Janice Rogers Brown, another Bush nominee, is fueling MichGO's appeal to the Supreme Court. Brown is the only circuit court judge who has written an opinion against the IRA.

D.C. Circuit Decisions on Land-Into-Trust:
MI Gambling Oppo v. Kempthorne, Dirk (April 29, 2008) | CETAC v. Kempthorne (July 3, 2007) | TOMAC v. Norton (January 6, 2006)