Chief Frank Cloutier of the Saginaw Chippewa Tribe.

Another tribe chimes in with criticism of 'reservation shopping' in Michigan

Monday, July 31, 2017

Not everyone in Indian Country is upset with the Trump administration's first major land-into-trust decision.

Chief Frank Cloutier of the Saginaw Chippewa Tribe also thinks the Department of the Interior made the right call in rejecting two off-reservation casinos in Michigan. He said the Sault Ste. Marie Tribe of Chippewa Indians was rebuked for trying to "shop" for lands outside of its aboriginal territory.

“The Interior Department’s decision affirms our longstanding position that the Michigan Indian Land Claims Settlement Act does not provide the Sault Ste. Marie Tribe with authority to shop for lands anywhere in the state merely to build a casino," Cloutier said in a statement.

Cloutier joins Chairperson Jamie Stuck from the Nottawaseppi Huron Band of the Potawatomi in criticizing the so-called practice of "reservation shopping." The contentious term became popular during the 2000s, serving as the go-phrase for critics of new gaming developments.

Republican allies in Congress quickly embraced the phrase as they warned tribes not to seek land away from existing reservations. By the end of the decade, the George W. Bush administration took as stand against "reservation shopping" through a controversial policy that made such acquisitions all but impossible.

While controversy over off-reservation gaming has never gone away, the words "reservation shopping" all but disappeared from public debate during the presidency of Barack Obama. But it looks like they are making a comeback, although in a slightly modified form.

"The Interior Department’s decision reaffirms what the drafters of the original legislation have been saying all along, that Congress never intended to allow any tribe to use the law to shop for reservations throughout the state or to acquire land for gaming purposes," Stuck said last week.

Provisions in the Michigan Indian Land Claim Settlement Act authorize the Sault Ste. Marie Tribe of Chippewa Indians to acquire lands using a "self-sufficiency fund." The law dictates that such lands "shall" be held in trust. Source: Public Law 105–143

The law at issue is the Michigan Indian Land Claims Settlement Act. In seeking to build two new casinos, the Sault Tribe argued that it requires the Bureau of Indian Affairs to place the sites in Lansing and in Sibley in trust, no questions asked.

But the Trump administration asked questions. According to Jim Cason, the Associate Deputy Secretary at Interior, a mandatory acquisition must be connected to the "enhancement" of the tribe's self-sufficiency or to the "consolidation" of the tribe's land base.

With both sites located hundreds of miles from tribal headquarters, Cason found it easy to reject the land-into-trust applications. He also said the "tribe has not offered any evidence of its plans to use the gaming revenue to benefit its existing lands or its members."

The Michigan Indian Land Claims Settlement Act indeed mentions enhancement and consolidation but it also contains language that appears to place more power in the tribe's hands. The law says it's up to the tribe's governing body -- its board of directors -- to determine how to spend its "Self-Sufficiency Fund." It does not explicitly say whether the BIA, or the Secretary of the Interior, can overrule what the board of directors "determines" to be in the tribe's interests.

"Any lands acquired using amounts from the Self-Sufficiency Fund shall be held as Indian lands are held," the law reads. "Any lands acquired using amounts from interest or other income of the Self-Sufficiency Fund shall be held in trust by the Secretary for the benefit of the tribe," it states in another section.

Such provisions have the tribe convinced that it will be able to secure acquisition of the sites. Chairperson Aaron A. Payment said all options -- legal, administrative and political -- are on the table going forward.

"The law is clear: the Secretary is required to accept these parcels in trust. It is a clear, plain-language legal argument," Payment said last week.

Indianz.Com on Google Maps: Sault Ste. Marie Tribe of Chippewa Indians Gaming Operations

This isn't the first time the Michigan Indian Land Claims Settlement Act has been at the center of a gaming controversy. In November 2010, the Bay Mills Indian Community invoked the law when it opened an off-reservation casino on land acquired in connection with the law.

In that situation, the Obama administration concluded that the acquisition did not not enhance or consolidate the tribe's homeland. A December 2010 letter from the top legal official at Interior was cited by Cason in his new decision.

But Congress, for whatever reason, treated Bay Mills differently than the Sault Tribe. The "Land Trust" for Bay Mills, for example, "shall be used exclusively for improvements on tribal land or the consolidation and enhancement of tribal landholdings through purchase or exchange," the law states. The criteria for the Sault Tribe's Self-Sufficiency Fund, on the other hand, appears to be more broad.

Even so, Bay Mills leaders last winter expressed interest in re-opening their disputed casino, The Petoskey News reported at the time. Although the facility had to be shut down in response to a lawsuit filed by the state of Michigan, the U.S. Supreme Court eventually ruled that the tribe could not be sued without its consent.

The May 2014 decision in Michigan v. Bay Mills Indian Community was seen as a victory for tribal interests. But it did not address the Michigan Indian Land Claims Settlement Act so the off-reservation gaming issue remains unsettled.