Massachusetts Implications

Bay Mills, seemingly far from the Massachusetts quagmire, clearly defines "Reservation Shopping."

In their application for recognition, the Mashpee Wampanoag Tribe included solely the Town of Mashpee.

The Tribe lacks historical ties (as defined by statute) to either Middleboro or Fall River, yet blinded by the Casino Glitter of 3 Slot Barns, many ignore history, facts and statutes.

Little Traverse, Michigan state lawsuits seek Bay Mills casino shut down
Bay Mills ‘off reservation’ casino draws legal heat
By Gale Courey Toensing, Today staff

VANDERBILT, Mich. – When the Bay Mills Indian Community opened a new casino on off reservation land without state or federal approvals in early November, five Indian nations in Michigan issued a statement condemning the action. Now one of the five tribes – the Little Traverse Bay Band of Odawa Indians – has filed a federal lawsuit, asking the court to shut down the Bay Mills casino immediately.

“The lawsuit seeks to uphold the integrity and viability of Indian gaming on a national level,” Little Traverse Bay Chairman Ken Harrington said. “If the Vanderbilt casino is allowed to remain open, it will set a dangerous precedent that would allow Indian tribes to unilaterally establish off-reservation casinos without the input or approval of surrounding tribal, local, state or federal governments. There are huge implications riding on the outcome of this lawsuit.”

Little Traverse’s lawsuit is bolstered by support from members of Congress and the federal government who have both weighed in with opposition to the Vanderbilt Casino. Additionally, the State of Michigan filed a similar lawsuit against Bay Mills.

Little Traverse filed its lawsuit Dec. 22 in the U.S. District court for the Western district of Michigan. The complaint asserts that Bay Mills has violated various provisions of the tribal-state compact and the Indian Gaming Regulatory Act, including requirements that gaming is to be conducted on Indian land acquired before October 1988; land that is held in trust by the federal government or approved under a regulatory exception; that the land is restricted from alienation and that an Indian tribe exercises governmental power over the land.

The State of Michigan filed a similar lawsuit a day earlier, charging Bay Mills with two counts of violations of the tribal-state gaming compact, which was signed Aug. 20, 1993 by former Gov. John Engler, and one count of violation of the Indian Gaming Regulatory Act by conducting Class III gaming on property that is not “Indian lands.” The state suit asks the court to shut down the casino permanently.

Bay Mills opened the Vanderbilt Casino, the tribe’s third gaming facility, Nov. 3. The casino is located on 47 acres of land the tribe purchased in fee simple in August. The new casino has around 40 slot machines. Days after Bay Mills announced its opening, the tribe announced plans to expand the facility.

The tribe operates two casinos in Michigan’s Upper Peninsula on reservation land and has a state compact relating to gaming on that land, but the casino in Vanderbilt is located in a more densely populated and, therefore, more lucrative area.

The Vanderbilt Casino is in the northern part of the Lower Peninsula, about 170 miles north of Lansing. The casino was opened without state or federal approvals on non-trust land. Bay Mills Chairman Jeff Parker presented a unique argument for why the casino was “legal.” Parker said on the tribe’s website that the casino is located on “qualified Indian lands,” because the land was purchased with money received under the Michigan Indian Land Claims Settlement Act.

Parker could not be reached for comment.

Little Traverse and its coalition partners, the Grand Traverse Band of Ottawa and Chippewa Indians, Gun Lake Tribe of Pottawatomi Indians, Nottawaseppi Huron Band of the Potawatomi, and Saginaw Chippewa Indian Tribe called on the National Indian Gaming Commission, [www.nigc.gov] the Justice and Interior departments to work quickly with state officials to close the new casino.

Michigan congressional representatives and the federal agencies responded within weeks.

On Dec. 17, U.S. representatives Mike Rodgers, R-Mich., and Carolyn Kilpatrick, D-Mich., wrote to Attorney General Eric Holder, Interior Secretary Ken Salazar, and NIGC Chairwoman Tracie Stevens expressing their “deep concern with the continued operation of an off reservation casino.”

The legislators asked the agency heads to act quickly to determine whether or not the Vanderbilt land is eligible for gaming and, if not, to shut down the casino.

The answers came a few days later.

On Dec. 21, Interior Solicitor Hilary Tompkins issued a legal opinion detailing the reasons why the Vanderbilt Casino is not operating on “Indian lands” as defined by the Michigan Indian Land Claims Settlement Act or IGRA.

“I do not believe that even a liberal construction of the Michigan Indian Lands Claims Settlement Act can support the tribe’s position that its land trust purchases in fee simple automatically become restricted fee lands under the definition of Indian lands set forth in the Indian Gaming Regulatory Act,” Tompkins wrote, concluding that the land is not eligible for gaming.

The NIGC responded to the Interior with a memorandum saying the Vanderbilt Casino is not operating on Indian land that is eligible for gaming and, therefore, does not come under NIGC jurisdiction.

“Further, when the commission obtains information that may indicate a violation of federal, state or tribal statutes, it is obligated to turn that information over to the appropriate law enforcement officials,” NIGC’s Associate General Counsel Michael Gross wrote.

Harrington was elated by the federal opinions.

“The federal and state legal opinions shred to pieces the bogus legal arguments put forth by Bay Mills. Therefore, the only acceptable action is for the Michigan State Police to move in, shut down the illegal casino, and confiscate the illegal gambling devices,” he said.

If allowed to continue to operate, the Vanderbilt Casino located 37 miles from the Little Traverse Odawa Casino would have a “devastating impact” on the Little Traverse government to provide services for its citizens, Harrington said. Furthermore, Harrington said, Bay Mills has said it plans to open more casinos on off-reservation lands near population centers.

“It’s a perversion of federal law to try and identify Indian gaming sites based solely on market location,” Harrington said. “We are tribal governments, not corporations. Reservation shopping threatens the integrity of Indian gaming here in Michigan and around the country.”