Grand Traverse Band v. Office of U.S. Atty.

• Decision Date: 24 May 2004
• Docket Number: No. 02-1679.,02-1679.
• Citation: 369 F.3d 960
• Parties: GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, Plaintiff-Appellee, v. OFFICE OF THE U.S. ATTORNEY FOR THE WESTERN DISTRICT OF MICHIGAN, Defendant, State of Michigan, Intervenor-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

369 F.3d 960

GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, Plaintiff-Appellee, v. OFFICE OF THE U.S. ATTORNEY FOR THE WESTERN DISTRICT OF MICHIGAN, Defendant State of Michigan, Intervenor-Appellant.

No. 02-1679.

United States Court of Appeals, Sixth Circuit.

Argued: March 10, 2004.

Decided and Filed: May 24, 2004.

John F. Petoskey (briefed), Grand Traverse Band Legal Department, Peshawbestown, MI, Riyaz A. Kanji (argued

and briefed), Phillip F. Katzen (briefed), Wenona T. Singel, Kanji & Katzen, Ann Arbor, MI, Matthew Fletcher, Grand Traverse Band of Ottawa & Chippewa Indians, Peshawbestown, MI, William Rastetter, Olson & Bzdok, Traverse City, MI, for Plaintiffs-Appellees.

John M. Charamella (argued and briefed), Office of the Attorney General, Native American Affairs Section Constitution Hall, Lansing, MI, for Plaintiff-Appellee.

Before: MARTIN and CLAY, Circuit Judges; MILLS, District Judge.^*

OPINION

CLAY, Circuit Judge.

The State of Michigan, the intervenor in this litigation, appeals the April 22, 2002, order of the district court, declaring that it is permissible for the Grand Traverse Band of Ottawa and Chippewa Indians ("the Band") to conduct casino-style gaming at a site which is located off of the Band's initial reservation and which was acquired and placed in trust for the Band after the enactment of the Indian Gaming Regulatory Act, 25 U.S.C. § 2710 et seq. ("IGRA"), pursuant to an exception for such gaming on lands taken into trust as part of the restoration of lands for an Indian tribe that is restored to federal recognition, 25 U.S.C. § 2719(b)(1)(B)(iii). For the reasons that follow, we AFFIRM the well-reasoned decision of the district court.

I

A. Substantive Facts¹

The Band is a federally recognized Indian tribe presently maintaining a government-to-government relationship with the United States. The Band previously maintained a government-to-government relationship with the United States from 1795 until 1872, and is a successor to a series of treaties with the United States in 1795, 1815, 1836 and 1855. In 1872, then-Secretary of the Interior, Columbus Delano, improperly severed the government-to-government relationship between the Band and the United States, ceasing to treat the Band as a federally recognized tribe. This occurred because the Secretary had misread the 1855 Treaty of Detroit, 10 Stat. 591.² Following termination of the relationship the Band experienced increasing poverty, loss of land base and depletion of the resources of its community.

Between 1872 and 1980, the Band continually sought to regain its status as a federally recognized tribe. The Band's efforts succeeded in 1980 when it became the first tribe "acknowledged" by the Secretary of the Interior pursuant to the federal acknowledgment process, 25 C.F.R. Part 54 (now 25 C.F.R. Part 83). On January 17, 1984, the Department of the Interior declared a single 12.5 acre parcel as the initial reservation of the Band. 49 Fed.Reg.2025 (Jan. 17, 1984). The history of the Band's original recognition, executive termination and later re-recognition is essentially parallel to that of the Pokagon Band of Potawatomi Indians, the Little Traverse Bay Bands of Odawa Indians, and the Little River Band of Ottawa Indians. All three tribes were parties to the same series of treaties and the same termination by Secretary Delano in 1872.

On April 20, 1989, the Band acquired title to a parcel of land in Whitewater Township, Grand Traverse County, Michigan, that is commonly referred to as the "Turtle Creek" site. Located on the east shore of Grand Traverse Bay, Turtle Creek is at the heart of the region that comprised the core of the Band's aboriginal territory and was historically important to the economy and culture of the Band. Acquisition of the Turtle Creek site was important for the Band to maintain a connection to the east shore region and to provide services and economic development to its members located on the east shore. Although the Turtle Creek site is not located within or contiguous to the Band's last recognized reservation, it is within the lands that the Band ceded to the United States by the Treaty of 1836. The trust application for the Turtle Creek site did not indicate that it was being acquired for gaming purposes, though it did specify that it may be used for future economic development. The site was placed into federal trust on August 8, 1989.

In August 1993, the Band entered into a tribal-state gaming compact with the State of Michigan pursuant to the IGRA, 25 U.S.C. § 2710, for Class III (casino-style) gaming on reservation lands. The compact is virtually identical to those signed between the State and six other Indian tribes on the same day. The United States Department of the Interior approved the compact under the IGRA's procedures. The Michigan House of Representatives and the Michigan Senate approved the compacts by concurrent resolution on September 21, 1993 and September 30, 1993, respectively. The compacts became effective on November 30, 1993, when the Secretary of the Interior published his approval of the compacts in the Federal Register. 58 Fed.Reg. 63,262 (1993).

On June 13, 1994, the National Indian Gaming Commission approved the Band's Gaming Code pursuant to 25 C.F.R. §§ 522.6 and 522.8. In accordance with the Band's Gaming Code, the Grand Traverse Band Gaming Commission issued a license authorizing casino-style gaming at the Turtle Creek site. The Band opened its Turtle Creek Casino on June 14, 1996. The casino's operations now employ hundreds of tribal members and fund hundreds of tribal government positions responsible for administering programs such as health care, elder care, child care, youth services, education, housing, economic development and law enforcement.

B. Procedural History

On June 14, 1996, the day the Band commenced casino operations at Turtle Creek, it brought a declaratory judgment action against the U.S. Attorney for the Western District of Michigan. The complaint sought a declaration concerning the legality of the Class III (casino-style) gaming being conducted at Turtle Creek. The United States filed a counterclaim, seeking to declare the Turtle Creek facility illegal and to enjoin further gaming at the facility. The State of Michigan was permitted to intervene as a defendant and to file a complaint seeking to declare the operations illegal under the tribal-state compact.

The State contended that the Turtle Creek casino operation is illegal because the IGRA, 25 U.S.C. § 2719, bars casino gaming on tribal lands taken into trust after October 17, 1988 (which is the case with Turtle Creek), unless the land meets one of the exceptions set forth in § 2719. The State argued that Turtle Creek does not meet any of the § 2719 exceptions, and, consequently, casino-style gaming is unlawful, absent a determination by the Secretary of the Interior and the consent of the Governor of Michigan, that the casino would be in the best interests of the tribe and its members and would not be detrimental to the surrounding community. The Band has not sought such a determination from the Secretary, nor the consent of the Governor, insisting that the Turtle Creek location satisfies one of the § 2719 exceptions.

The Band's original complaint asserted that the gaming prohibition contained in 25 U.S.C. § 2719 does not apply when a Tribe has a valid tribal-state compact. Following the decision of this Court in Keweenaw Bay Indian Community v. United States, 136 F.3d 469 (6th Cir.1998), the Band abandoned this claim, amended its complaint, and asserted that the Turtle Creek site is "within or contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988," pursuant to § 2719(a)(1), and thus was exempted from the prohibition against casino-style gaming. The United States then moved for a preliminary injunction against continued gaming operations at Turtle Creek. In response, the Band proffered additional theories to support its exemption from the prohibition: (1) the Turtle Creek land is exempt because it had been taken into trust as part of "the initial reservation of an Indian tribe acknowledged by the Secretary" of Interior, pursuant to § 2719(b)(1)(B)(ii) and (2) the land is exempt because it constituted part of "the restoration of lands for an Indian tribe that is restored to Federal recognition" pursuant to § 2719(b)(1)(B)(iii).

On March 18, 1999, the district court denied the United States' motion in a published opinion. See Grand Traverse Band of Ottawa & Chippewa Indians v. United States Attorney for the W. Dist. of Mich., 46 F.Supp.2d 689 (W.D.Mich.1999) ("Grand Traverse Band I"). The district court held that the government had not demonstrated a substantial likelihood of success in proving that the Turtle Creek land does not satisfy the "restoration of lands" exemption, 25 U.S.C. § 2719(b)(1)(B)(iii). Id. at 702-04. The district court further stayed the litigation, pending a reference of the matter to the National Indian Gaming Commission ("NIGC"). Id. at 706. The court found that it could benefit from the NIGC's determination of both factual and legal issues relating to the application of the "restoration of lands" exception. Id. at 707-08. The State appealed the district court's denial of the preliminary injunction, but this Court dismissed the appeal because the State, as an intervenor, had not joined with the United States' motion for preliminary injunction, and therefore lacked standing to pursue the appeal. See Grand Traverse Band of Ottawa & Chippewa Indians v. Office of the U.S. Attorney for the W. Dist. of Mich., No. 99-1584 (6th Cir. May 17, 2001).

On August 31, 2001, Kevin Washburn, General Counsel for the NIGC, sent the district court a 19-page letter regarding whether the Turtle Creek site is exempt from the prohibition against casino-style gaming for lands acquired after the effective date of the IGRA. The NIGC found that the...