Keweenaw Bay Indian Community v. US, 2:94-CV-262.

• Citation: 914 F. Supp. 1496
• Decision Date: 05 February 1996
• Docket Number: No. 2:94-CV-262.,2:94-CV-262.
• Parties: KEWEENAW BAY INDIAN COMMUNITY, Plaintiff, v. UNITED STATES of America, U.S. Department of the Interior, and U.S. Department of Justice, Defendants.
• Court: U.S. District Court — Western District of Michigan

914 F. Supp. 1496

KEWEENAW BAY INDIAN COMMUNITY, Plaintiff, v. UNITED STATES of America, U.S. Department of the Interior, and U.S. Department of Justice, Defendants.

No. 2:94-CV-262.

United States District Court, W.D. Michigan, Northern Division.

February 5, 1996.

Joseph P. O'Leary, Keweenaw Bay Indian Community Tribal Center, Baraga, MI, Konrad D. Kohl, Kohn, Harris & Peters, PC, Metamora, MI, for plaintiff.

Edward J. Passarelli, U.S. Department of Justice, Environment & Natural Resources, Division-General Litigation Sec., Washington, D.C., for defendants.

OPINION

McKEAGUE, District Judge.

This case presents the questions of whether the tribal-state compact between Keweenaw Bay Indian Community and the State of Michigan permits class III gaming on a particular tract of land in Marquette County, Michigan, and whether § 2719 of the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., applies to class III gaming on Indian lands when a tribal-state compact authorizing such gaming exists. Presently before the Court are plaintiff's motion for summary judgment and declaratory and injunctive relief, and defendants' motion for summary judgment and motion to take judicial notice.

I. INDIAN GAMING REGULATORY ACT

The Indian Gaming Regulatory Act ("IGRA") was enacted by Congress in October of 1988 and provides a comprehensive scheme for regulating gaming activities on Indian lands. 25 U.S.C. §§ 2701-2721. According to the legislative history, the purposes of IGRA are to (1) provide a system for joint regulation by tribes and the federal government of class II gaming on Indian lands, and (2) a system of compacts between tribes and states for regulation of class III gaming. S.Rep. No. 100-446, 100th Cong., 2d Sess., reprinted in 1988 U.S.Code Cong. & Admin.News 3071 hereinafter "U.S.C.C.A.N.". IGRA divides gaming into three classes, each subject to differing degrees of tribal, state and federal jurisdiction and regulation.

Class I gaming includes social games for nominal prizes or traditional forms of "Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations." 25 U.S.C. § 2703(6). When conducted on Indian lands, class I gaming is within the exclusive jurisdiction of the Indian tribe. Id. § 2710(a)(1). Class I gaming "shall not be subject to the provisions of this Act IGRA." Id.

Class II gaming includes bingo and related games such as pull tabs, lotto, punch boards and card games such as poker in which the players play against one another rather than against the house. 25 U.S.C. § 2703(7)(A), (B). Class II gaming does not include black jack or any electronic games of chance, slot machines, or any "banking" card games, in which players play against the house and the house acts as a banker. 25 U.S.C. § 2703(7)(B). Tribes may engage in class II gaming if "such Indian gaming is located within a state that permits such gaming for any purpose by any person, organization or entity ..., and the governing board of the Indian tribe adopts an ordinance or resolution which is approved by the Chairman" of the National Indian Gaming Commission. Id. § 2710(b)(1)(A), (B). Such gaming is within the jurisdiction of Indian tribes, but regulated by the provisions of IGRA. Id. § 2710(a)(2).

Class III gaming encompasses all forms of gaming which are not included in either class I or class II. In order for class III gaming to be lawful on Indian lands, the gaming must be "authorized by an ordinance or resolution that — (i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands, (ii) meets the requirements of subsection (b) of this section, and (iii) is approved by the Chairman."¹ 25 U.S.C. § 2710(d)(1)(A)(i)-(iii). In addition, the activities must be "located in a State that permits such gaming for any purpose by any person, organization, or entity, and ... conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State...." 25 U.S.C. § 2710(d)(1)(B)-(C). Class III gaming is "fully subject to the terms and conditions of the Tribal-State Compact."² 25 U.S.C. § 2710(d). Neither party disputes the fact that class III gaming is the only type of gaming at issue in this litigation.

II. FACTUAL BACKGROUND

On October 14, 1988, the Keweenaw Bay Indian Community (the "Tribe") obtained title to the parcel of land in Marquette County, Michigan, on which it is conducting the class III gaming at issue in the present case. This land was placed into trust by the Department of the Interior for the benefit of the Tribe on September 24, 1990.³ Under the Constitution of the Tribe, this land became part of the reservation on that same date.

The Tribe previously operated a class II bingo facility in Marquette, Michigan, under the name "Big Bucks Bingo II" on this same parcel of land. An action for declaratory relief and an injunction to close down that class II facility was filed by a United States Attorney. On September 27, 1993, the United States District Court for the Western District of Michigan granted the United States of America declaratory relief, holding that the class II gaming conducted by the Tribe violated 25 U.S.C. § 2719(a). United States of America v. Keweenaw Bay Indian Community, No. 92-CV-265, 1993 U.S.Dist. LEXIS 15664 (W.D.Mich. Sept. 27, 1993). After the Court's ruling, the Tribe ceased operating class II gaming on this parcel of land, and appealed.⁴

On August 20, 1993, the Tribe and the State of Michigan entered into a tribal state compact authorizing class III gaming on the Tribe's "Indian lands" within the State of Michigan.⁵ The compact defines "Indian lands" as:

(1) all lands currently within the limits of the Tribe's Reservation;

(2) any lands contiguous to the boundaries of the Reservation of the Indian Tribe on October 7, 1988; and

(3) any lands, title to which is either held in trust by the United States for the benefit of the Tribe or individual, or held by the Tribe or individual subject to restriction by the United States against alienation and over which the Tribe exercised governmental power.

Compact between the Keweenaw Bay Indian Community and the State of Michigan, sec. 2(B) (hereinafter "Compact").

The Tribe then submitted a tribal gaming ordinance to the National Indian Gaming Commission, as required by IGRA. See 25 U.S.C. § 2710(d)(2)(A). The Chairman of the National Indian Gaming Commission approved the ordinance, and the approval was published in the Federal Register on March 3, 1994. Fed.Register, Vol. 59, No. 42, March 3, 1994, pp. 10185-10186.

Prior to opening the class III gaming facility,⁶ the Tribe sought approval from the Bureau of Indian Affairs. The Bureau of Indian Affairs responded that the land was subject to the requirements of 25 U.S.C. § 2719 which prohibits gaming unless the Tribe meets one of the exceptions provided within. The Tribe opened the class III facility on September 28, 1994, and commenced this lawsuit. At this facility, the Tribe operates six blackjack tables, one craps table, and electronic and/or video games of chance at the casino, including, but not limited to, approximately 100 video poker games and slot machines.

The Tribe claims that a valid tribal-state compact exists which allows class III gaming on the land in question and seeks declaratory and injunctive relief against defendants the United States of America, the United States Department of the Interior, and the United States Department of Justice (collectively "federal defendants"). Specifically, the Tribe seeks a declaratory judgment that the class III gaming activities are lawful and to enjoin the federal defendants from taking action to prohibit the gaming.⁷

The federal defendants claim that IGRA prohibits all gaming on land taken into trust after October 17, 1988, unless an exception contained within is satisfied. The federal defendants claim that the Tribe is conducting class III gaming contrary to the express prohibition of IGRA. The federal defendants further claim entitlement to an injunction prohibiting and abating the gaming.

Both parties have filed motions for summary judgment,⁸ and a hearing was conducted on September 5, 1995. The Court has reviewed the parties' respective briefs and considered the arguments offered at the hearing. The Court now considers this matter ripe for determination.

III. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. at 2512. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-248, 106 S.Ct. at 2510 (emphasis in original).

The substantive law determines which facts are material. Id. at 248, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. An issue of material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.

Neither party contends that a genuine issue of material fact exists; thus, summary judgment is appropriate.

IV. THE TRIBAL-STATE COMPACT

The Keweenaw Bay Indian Community has...