Sault Ste. Marie Tribe of Chippewa Indians v. U.S.

• Decision Date: 29 August 2008
• Docket Number: No. 2:06-cv-00276.,2:06-cv-00276.
• Citation: 576 F.Supp.2d 838
• Parties: SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

576 F.Supp.2d 838

SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Plaintiff, v. UNITED STATES of America, et al., Defendants.

No. 2:06-cv-00276.

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

August 29, 2008.

Bruce Richard Greene, Greene Meyer & McElroy PC, Boulder, CO, John D. Pirich, Honigman Miller Schwartz and Cohn LLP (Lansing), Lansing, MI, for Plaintiff.

Jennifer L. McManus, Ronald M. Stella, U.S. Attorney (Grand Rapids), Grand Rapids, MI, for Defendants.

MEMORANDUM

R. ALLAN EDGAR, District Judge.

This matter is before the court on the parties' cross-motions for summary judgment. Plaintiff Sault Ste. Marie Tribe of Chippewa Indians ("Sault Tribe" or the "Tribe") seeks a judgment from this court that it is entitled to conduct "Class III Gaming" on a parcel of its trust land pursuant to the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-21. [Court Doc. No. 61]. Defendants United States of America, the National Indian Gaming Commission ("NIGC") and its Chairman, and the Department of the Interior (the "Department") and its Secretary (collectively "Defendants") oppose the Tribe's motion and move for summary judgment seeking this court's affirmance of their decision to deny the Tribe the right to conduct "Class III Gaming" on their trust land. [Court Doc. No. 76].

The case revolves around the interpretation of two provisions under the IGRA. These provisions relate to exceptions to the limitation of certain types of Indian gaming. See 25 U.S.C. §§ 2719(a)(1) and 2719(b)(1)(B)(iii). Class III gaming refers to casino style gaming, such as slot machines, blackjack, and roulette.¹ The Tribe seeks this court's review of agency action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, relating to the Secretary of the Interior's right to proclaim new Indian reservations. 25 U.S.C. § 467.

The court has reviewed the administrative record, the arguments of the parties, the relevant statutes, cases, and agency decisions. In addition, the court has heard the parties argue the merits of the issue at a hearing on the motions. The motions are now ripe for this court's review. After a careful analysis of the relevant issues, the court determines that it will GRANT the Tribe's motion for summary judgment and DENY the Defendants' motion for summary judgment.

I. Background

The essential relevant facts are undisputed by the parties in this matter. For the most part, the parties do not dispute that the Tribe has roots in the Upper Peninsula and northern portions of Michigan that stretch back in years to the period of time prior to the arrival of white settlers in the area. As the Chairman of the Tribe, Aaron Payment, explains: "The Sault Tribe is the modern day political organization of the Chippewa bands which inhabited the eastern portion of the Upper Peninsula of Michigan since before the coming of Europeans." Administrative Record ("A.R."), p. 394 (Affidavit of Aaron Payment ("Payment Aff."), ¶ 1). The parties do not dispute the Tribe's ties to the area. The NIGC opinion dated July 31, 2006 admits that the "Tribe has a historical nexus to the St. Ignace parcel." A.R., p. 26.

As Chairman Payment describes it:

Under the Treaty of March 28, 1836, 7 Stat. 491, the Chippewas and Ottawas of northern Michigan reserved extensive tracts of land for their use, while ceding the remainder of the eastern half of the Upper Peninsula and the approximate northern half of the Lower Peninsula to the United States. By approximately 1880, however, almost all of these reservation lands had left Indian ownership.

Payment Aff., ¶ 3. An expert for the Tribe, Dr. Charles Cleland, a Professor of Anthropology at Michigan State University has described the aboriginal ties of the Tribe to the St. Ignace area:

The [Tribe] is the modern political successor to distinct historic bands of Ojibwe peoples, who occupied five disparate geographic locations in the Upper Peninsula of Michigan. The Constitution and Bylaws of the Sault Tribe divides the historic Ojibwe bands into five units of the Tribe, each of which is represented on the Board of Directors of the Sault Tribe. Unit 3 is located in Mackinac County, Michigan, and includes the City of St. Ignace, the area surrounding St. Ignace, and Mackinac Island. Native Ojibwe people have occupied the coast along Lake Huron in the St. Ignace area since time immemorial. European, records show that the members of Unit 3 of the Sault Tribe have continuously occupied the St. Ignace area since at least as early as the time the area was first visited by French traders in the 1650s.... [T]he St. Ignace area is within the aboriginal territory of the Sault Tribe. The Sault Tribe members who live in St. Ignace, and their ancestors, have continuously occupied the St. Ignace lands, even though the United States did not always hold those lands in trust for the benefit of the Sault Tribe and its members residing in Unit 3. Because the Treaty of 1836 was not a removal treaty, the native Ojibwe people of the St. Ignace were not required to, and therefore, never left the area.

The St. Ignace area has always been critically important to the Sault Tribe and its members. Its strategic location on the Straits of Mackinac emphasizes its importance for the exercise of reserved hunting, fishing, trapping, and gathering rights pursuant to the 1836 Treaty, and it has always served as a homeland for members of the Ojibwe bands that became part of the modern Sault Tribe.

A.R., pp. 558-559 (Affidavit of Dr. Charles Cleland, ¶¶ 5-9); see also, A.R., pp. 662-750 (Report of Dr. Charles Cleland entitled The Administrative Termination and Restoration of the Sault Ste. Marie Tribe of Chippewa Indians with attachments providing evidence of aboriginal history of Tribe, as well as government's lack of acknowledgment of Tribe and its subsequent restoration of Tribe).

In 1972 the U.S. Government acknowledged the Tribe. Payment Aff., ¶ 2; see also, A.R., pp. 619-620. The Tribe was organized in 1975 pursuant to the Indian Reorganization Act ("IRA"), 25 U.S.C. § 476. See e.g., United States v. Michigan, 471 F.Supp. 192, 204 (D.C.Mich.1979). On February 20, 1975 the Commissioner of Indian Affairs proclaimed a tract of land to be a reservation for the Tribe for their use and benefit effective December 13, 1974. This parcel of land consisted of forty acres on Sugar Island. Administrative Record ("A.R."), pp. 32-33; Payment Aff., ¶ 30. In 1984 the Department of the Interior designated another portion of land in Chippewa County, Michigan as part of the Sault Ste. Marie Indian Reservation. A.R., p. 88.

Since recognition by the U.S. Government in 1972, the Tribe has been acquiring tracts of land to be held in trust by the U.S. for the benefit of the Tribe. See Payment Aff., ¶ 4. These trust lands include 1,070 acres in the City of Sault St. Marie and another 567 acres located in Manistique, Wetmore, St. Ignace, Hessel, Marquette, and Escanaba, Michigan. Id. The Tribe's enrollment is approximately 33,000. Id. at ¶ 5.

The U.S. took a parcel of land in St. Ignace into Trust for the Tribe in 1983, five years prior to the enactment of the IGRA. Payment Aff., ¶ 12, A.R., pp. 413-414. The Tribe operated one of its six casinos on the 1983 parcel of land ("1983 Trust Parcel"). The parties agree that the 1983 Trust Parcel has never been formerly proclaimed to be a reservation. In 2000 the U.S. took another parcel of land into trust for the Tribe that is immediately contiguous to the 1983 Trust Parcel ("2000 Trust Parcel"). Payment Aff., ¶ 13. It is the proposed operation of a Class III gaming casino on this parcel of land that is at the heart of this lawsuit.

The Tribe sought an exception to the IGRA under either 25 U.S.C. § 2719(a)(1) or 25 U.S.C. § 2719(b)(1)(B)(iii) so that it could conduct Class III gaming on the 2000 Trust Parcel. The Tribe desired to replace the aging casino located on the 1983 Trust Parcel for several reasons, as explained by Chairman Payment:

the new facility, unlike the Quonset huttype facility it will replace, will be far more attractive, using the most modern equipment and luxurious finishes available.

The advantages of this location compared with the location of the existing casino are considerable:

a. The proposed site significantly betters the use of the natural beauty of the area, as compared to the site of the existing casino.

b. It will be a brand new facility, constructed specifically for use as a casino. The existing facility is outdated, with an unattractive floor plan, as well as woefully inadequate exterior and interior finishes.

c. A new facility will help the Tribe compete in an ever increasing competitive casino environment and hopefully assist in getting more casino goers to cross Mackinac Bridge.

d. The new casino will be a part of a destination/resort entertainment project.

e. If the new facility was constructed solely on the 1983 parcel, it would be necessary to demolish some of the Tribal HUD housing located thereon. It is not clear that could be accomplished consistent with the HUD grant obtained for the construction of those houses.

Payment Aff., ¶¶ 14-15. The 1983 Trust Parcel contains 59 homes for Tribal members. Id. at ¶ 20. The Tribe also operates an outpatient clinical facility on the 1983 Trust Parcel. Id. at ¶ 22. The facility provides a number of services, including optometry, dentistry, and pharmacy, as well as counseling and health education. Id. The Tribe also operates a number of facilities in neighboring St. Ignace, such as a Tribal Court, a middle school, and a convenience store and gas station. Id. The Tribe further operates a water supply and sewage treatment plant in St. Ignace. Id. The Tribe has an agreement under which the Mackinac County Sheriffs Office and the St. Ignace Police Department provide law enforcement support for activity occurring on land held in trust for the Tribe around St. Ignace. Id. at ¶¶ 24-25. A "cross-deputiz...