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Appeals court backs Michigan land-into-trust acquisition

A Michigan tribe can finally move forward with its casino plans after a federal appeals court on Tuesday dismissed yet another land-into-trust lawsuit.

The Nottawaseppi Huron Band of Potawatomi Indians gained federal recognition in 1995 and filed a land-into-trust application in 1999. The tribe wants to build a $270 million casino on 79 acres in Calhoun County.

But an anti-gaming group called Citizens Exposing Truth About Casinos has been holding up the process. Even though Michigan has more than 20 tribal and non-tribal gaming facilities, CETAC and other groups have been trying to stop other tribes from getting into the game.

The anti-gaming movement, however, has suffered a series of legal defeats. In the most recent one, the D.C. Circuit Court of Appeals denied CETAC's attempt to stop the Bureau of Indian Affairs from acquiring the land for the Nottawaseppi Huron Band.

"This is a great day for the tribe and all our supporters in the Calhoun County region," chairwoman Laura Spurr said on Tuesday. "Today, justice was done for our members and their families."

A 2012 powwow hosted by the Nottawaseppi Huron Band of Potawatomi Indians in Michigan. Photo: NHBPI

The Nottawaseppi Huron Band is the third Michigan tribe whose land-into-trust application has met with approval from the courts. This past year, a federal judge in Washington, D.C., ruled in favor of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe.

Last year, the D.C. Circuit upheld a land-into-trust acquisition for the Pokagon Band of Potawatomi Indians. The tribe plans to open its casino early next month after more than six years of litigation.

In all three cases, the tribes qualified for an exception in the Indian Gaming Regulatory Act that applies to newly recognized tribes. The Nottawaseppi Huron Band and the Match-E-Be-Nash-She-Wish Band went through the Bureau of Indian Affairs process while the Pokagon Band won legislative recognition.

Under Section 20 of IGRA, newly recognized tribes can open casinos on newly acquired land, also known as an "initial reservation." The goal of the exception is to make sure these tribes have the same opportunities as tribes with established reservations, the D.C. Circuit said in its 21-page decision.

"Congress’s primary purpose in enacting IGRA is evident as well from the inclusion of several exceptions to the gaming prohibition on after-acquired lands in order to allow newly acknowledged or restored tribes to engage in gaming on par with other tribes," Judge wrote for the majority.

CETAC tried to force the Nottawaseppi Huron Band to go through a more cumbersome and complex process known as the two-part determination. If a tribe can't meet one of the Section 20 exceptions, it must receive approval from the state governor, as well as federal approval, before opening a casino on newly acquired land.

In the history of IGRA, only four governors have concurred with a two-part determination, making it nearly impossible for a tribe to succeed. But the D.C. Circuit said the Nottawaseppi Huron Band doesn't have to go through this process because it does not have any lands held in trust by the federal government.

The state of Michigan holds title to a 120-acre parcel where the tribe has resided since the 1840s but that doesn't qualify as trust land, the court said. The tribe also doesn't exercise governmental authority over the land, a key requisite of IGRA, the court added.

With the victory, only the Gun Lake Band remains without an established land base. "Michigan has been delayed thousands of great jobs and millions of local and state revenue sharing dollars," said Chairman D.K. Sprague.

All three cases were handled by a Michigan attorney named Robert Jonker whom President Bush has nominated for a federal judgeship. The Michigan tribes unanimously oppose Jonker, saying his role in the anti-gaming lawsuits would affect his ability to rule on Indian law cases. He has said he will be a fair and impartial judge.

Court Decision:
CETAC v. Kempthorne (July 3, 2007)

Tribal Letter:
Opposition to Robert Jonker (September 8, 2006)

Relevant Links:
Nottawaseppi Huron Band of Potawatomi Indians -