US v. Bay Mills Indian Community, No. M85-335CA.

• Court: United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
• Writing for the Court: Jeanette Wolfley, Native American Rights Fund, Boulder, Colo., for Bay Mills Indian Community
• Citation: 692 F. Supp. 777
• Parties: UNITED STATES of America, Plaintiff, v. BAY MILLS INDIAN COMMUNITY, Saulte Ste. Marie Tribe of Chippewa Indians, Keweenaw Bay Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, and Hannahville Indian Community, Defendants.
• Docket Number: No. M85-335CA.
• Decision Date: 11 August 1988

692 F. Supp. 777

UNITED STATES of America, Plaintiff,
v.
BAY MILLS INDIAN COMMUNITY, Saulte Ste. Marie Tribe of Chippewa Indians, Keweenaw Bay Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, and Hannahville Indian Community, Defendants.

No. M85-335CA.

United States District Court, W.D. Michigan, N.D.

August 11, 1988.

692 F. Supp. 778

John Smietanka, U.S. Atty., Daniel M. LaVille, Asst. U.S. Atty., Grand Rapids, Mich., for plaintiff.

Michigan Indian Legal Services, Michael D. Petoskey, Traverse City, Mich., for Hannahville Indian Community; Michael C. Parish, Sault Ste. Marie, Mich., of counsel.

Jeanette Wolfley, Native American Rights Fund, Boulder, Colo., for Bay Mills Indian Community.

Daniel T. Green, Sault Ste. Marie, Mich., Bruce R. Greene, Boulder, Colo., for Sault Ste. Marie Tribe of Chippewa Indians.

Garfield W. Hood, L'Anse, Mich., for Keweenaw Bay Indian Community.

William Rastetter, Cedar, Mich., for Grand Traverse Band of Ottawa and Chippewa Indians.

OPINION

HILLMAN, Chief Judge.

Factual Background

The United States filed this suit against five Indian tribes in November of 1985, requesting declaratory relief and a permanent injunction that would prohibit the tribes from operating casinos on tribal land in Michigan. The government alleges that defendants' activities are illegal under two federal criminal statutes: The Organized Crime Control Act of 1970, 18 U.S.C. § 1955 ("OCCA") and the Assimilative Crimes Act, 18 U.S.C. § 13 ("ACA"). One of the tribes filed a counterclaim seeking a declaratory judgment that its operations are not unlawful.

The government moved for summary judgment under OCCA on November 21, 1986. The tribal defendants filed a cross-motion for summary judgment under OCCA in January of 1987. During 1987, the parties filed several briefs with the court accompanied by lengthy appendices. At a hearing on the motions held December 2, 1987, the court heard arguments from counsel, requested briefs on the ACA, and took the parties' motions under advisement. The parties subsequently filed cross-motions for summary judgment under the ACA. Final briefs were filed in late April, 1988.

The parties have submitted affidavits, deposition transcripts, and responses to interrogatories which total several hundred pages. The essential facts are not in dispute and all parties concede that the case is ripe for a decision on the cross-motions for summary judgment. Four of the five tribal defendants presently operate casino gambling games on tribal lands. The gaming operations of the Bay Mills Indian Community were closed in August of 1987. Tribal bingo enterprises are not an issue in this case, although some of the tribes operate bingo games as well.

692 F. Supp. 779

Three of defendants' casinos are open to the public, seven days a week year round. One is open 5 days a week. Most offer blackjack, pull-tabs, poker, and craps games. The tribal casinos generate substantial revenues which are used to fund governmental services. The United States Department of Housing and Urban Development and the Department of Health and Human Services contributed $225,000 to the development of one of the tribes' gaming enterprises. This tribe also received assistance for its gaming operations from the Department of Interior's Bureau of Indian Affairs in the form of a loan guarantee. Several of the tribes' casinos are governed by tribal ordinance. These ordinances impose safeguards such as background checks for employees, annual audits, and bet or winning limits.

The smallest casino in current operation employs about 30 people, over 70 percent of whom are tribal members, the largest employs over 200 people, over 50 percent tribal members. Unemployment for the tribes in 1986 ranged from 32-62 percent. In an affidavit submitted to the court, an anthropologist specializing in Michigan Indian tribes stated that tribal government and tribally owned enterprises probably account for up to one-third of all Indian jobs and that gaming operations account for at least half of all tribal employment. He concludes that the tribal governments are heavily dependent on gaming for their economic welfare. A report of a Michigan House of Representatives Ad Hoc Committee dated May 1986 states that many tribes use gambling as a means of reducing dependence on government funded social welfare programs and that gambling on Indian reservations in Michigan has led to financial benefits for the reservations as well as surrounding Michigan communities.

Discussion

Before reaching the merits of the dispute, that is, whether or not defendants are violating federal criminal statutes, I feel obligated to consider an issue not raised by the parties: the propriety of enforcing criminal statutes through declaratory judgment and injunction rather than through criminal prosecution.

As a general rule, a court may not enjoin the commission of a crime. See In re Debs, 158 U.S. 564, 593, 15 S.Ct. 900, 909, 39 L.Ed. 1092 (1895); United States v. Zenon, 711 F.2d 476, 479 (1st Cir.1983); SEC v. Carriba Air, Inc., 681 F.2d 1318, 1321 (11th Cir.1982); United States v. Jalas, 409 F.2d 358 (7th Cir.1969); Wharton's Criminal Procedure §§ 22-27 (12th ed. 1974); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2942, pp. 386-87 (1973); 5 Moore's Federal Practice ¶ 38.243 at 38-199 to 38-204 (2d ed. 1987); Developments in the Law — Injunctions, 78 Harv. L.Rev. 994, 1013 (1965); 42 Am.Jur.2d Injunctions § 157 (1969). See also United States v. Guest, 383 U.S. 745, 769 n. 4 (1966) (Harlan, J., concurring in part and dissenting in part).

The rule is based on two concerns: First, criminal prosecution generally provides an adequate remedy at law so that equitable relief is unnecessary, and, second, injunctive relief may deny a defendant the procedural rights otherwise available in a criminal prosecution. See Developments, supra at 1016; Moore's, supra.

At least three exceptions to the rule that courts will not enjoin criminal activity have developed over the years. A court may properly enjoin activity that is in violation of criminal law, if 1) that activity is...