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Monday, March 18,2013

Lansing casino: A closer look

MSU indigenous law expert shows a little more confidence in Lansing’s ability to bring in a casino, but serious doubts remain

by Andy Balaskovitz
Matthew Fletcher

Thursday, Jan. 26 — When Matthew Fletcher examined the Michigan Indian Land Claims Settlement Act a little closer this week, he thought, maybe the Sault Ste. Marie Tribe of Chippewa Indians can open an off-reservation casino in Lansing.

Fletcher, a Michigan State University professor of law and director of the MSU Indigenous Law and Policy Center, told City Pulse on Monday that it seemed “fanciful” to rely on the settlement act for an affirmative decision by the Department of the Interior to hold the land in trust, allowing for a casino to open. But, he noted then, “anything can happen.”

Today, Fletcher said after examining the settlement act a little closer, his position has changed “a little — not a lot. …They do have a plain language argument, that’s very compelling,” Fletcher said in an interview today.

He added that it’s unlikely all of the legal issues will be settled within the next 10 years. “Is this going to happen if we take the timeline away? I suspect it will. The timeline we had from the mayor (Virg Bernero) is all but blown away as a practical matter.”

Fletcher wrote about the issue on the Indigenous Law and Policy Center’s blog Turtle Talk today in the post, “Updated Commentary on Lansing Casino Proposal." Click here for more on the legal arguments, including how the Lansing city attorney and the Sault Tribe's general counsel became believers in the plan after initial skepticism. MLive.com reported Tuesday that Fletcher gave the project a "decent chance" and a fourth attorney, Lansing-based Richard McLellan, who believes the Sault Tribe will be successful in opening a casino in Lansing.

Click here for more details on the Kewadin Lansing Casino proposal.

Fletcher said after a closer look at the Land Claims Settlement Act, this provision is what he calls “compelling”: “Any lands acquired using amounts from interest or other income of the Self-Sufficiency Fund shall be held in trust by the Secretary for the benefit of the tribe.”

“The statute is more complex, but if the Tribe’s theories pan out, that provision is the kicker,” Fletcher wrote in his piece on Turtle Talk.

However, Fletcher doesn’t think the Sault Tribe’s and Lansing’s argument puts the casino on a fast track to operating.

“So, the land goes into trust and the Tribe starts gaming right away? Well, probably not. Pokagon Band has a mandatory trust acquisition statute. It took them nearly a decade to wade through the regulatory and legal thicket. They did still win, though (TOMAC v. Norton). So did Little Traverse — they have virtually the same statute and they eventually defeated Sault Tribe’s efforts to shut them down (SSM v. US and LTBB),” he wrote.

In his piece, Fletcher goes on to outline three potentially significant legal obstacles: the Bureau of Indian Affairs’ “trust acquisition hurdles”; language in the Land Claims Settlement Act provision that says the Interior Department “shall be held in trust” (the word “shall” may not mean “has to”); and a provision in the Indian Gaming Regulatory Act that would require the Sault Tribe to submit its application to the Interior Department after “a prior written agreement between the Tribe and the State’s other federally recognized Indian Tribes that provides for each of the other Tribes to share in the revenue of the off reservation gaming facility.”

“So, assuming Sault Tribe is going to apply to take the land into trust for gaming purposes using their mandatory trust acquisition statute, which is a land claims settlement, they’re doing so under Section 20 of IGRA. I’m almost certain Saginaw Chippewa, another party to the compact, isn’t going to agree to anything (I don’t know, unless they get 75 percent or something). That will probably kill it,” he wrote.

Following up in an interview, Fletcher said: “They (the Sault Tribe) have 11 negotiations to conduct before they can even submit an application.” But the Sault Tribe and the city may choose not to go the route of permission from other tribes, he added. “What if they say, ‘Forget it?’ No one really knows.”

A fourth hurdle, Fletcher wrote, is that the Sault Tribe “has to exercise governmental authority over the land, according to the Indian Gaming Regulatory Act. Sault Tribe has no history in this area, let alone a governmental presence.”

“Problems remain despite mandatory trust,” Fletcher said in a phone interview today.

And if this proposal works out, what would keep the Sault Tribe from expanding into, say, Cleveland, Chicago or Nashville? Fletcher asks. “If they can go off reservation to Lansing, they can go off anywhere. That’s going to get national congressional interests.”

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