Yesterday’s interesting statement by a lawyer for the Burt Lake Band suggesting that all the Band would need to commence gaming is simple legislation from the State Legislature deserves a spot of commentary. I guess their lawyer is reading this provision of the Michigan Constitution, added by state referendum in 2004, for support:
The legislature may authorize lotteries and permit the sale of lottery tickets in the manner provided by law. No law enacted after January 1, 2004, that authorizes any form of gambling shall be effective, nor after January 1, 2004, shall any new state lottery games utilizing table games or player operated mechanical or electronic devices be established, without the approval of a majority of electors voting in a statewide general election and a majority of electors voting in the township or city where gambling will take place. This section shall not apply to gambling in up to three casinos in the City of Detroit or to Indian tribal gaming. [Mich. Const. sec. 41, emphasis added]
Since Burt Lake Band is not a federally recognized tribe, they would not be subject the requirements of the Indian Gaming Regulatory Act, nor would the Department of Interior take land into trust for the Band under 25 U.S.C. 465. So the lawyer’s statement (“A bill will have to be introduced, passed by a simple majority in the House and Senate, has to be signed by Gov. Granholm, and we can rock and roll from there”) that the Band isn’t subject to all these difficult regulatory hurdles is correct, perhaps, but only if the Band would be considered eligible for “Indian tribal gaming” under Section 41.
Leaving aside for the moment the very real political problem the Band would face getting the Michigan Legislature to pass a special statute for them, I think there might be a significant legal problem facing the Band. Literally read, Section 41 applies to all Indian tribes. Burt Lake Band is an Indian tribe, as are the 12 federally recognized tribes. And so are the other non-federally recognized tribes as the Mackinaw Band, the Black River and Swan Creek Band, and Grand River Band. However, I strongly suspect the intent of the provision was to protect the federally recognized tribes of Michigan.
In short, I doubt the “Indian tribal gaming” language was intended to include tribes like the Burt Lake Band. It is my understanding (I was living in Grand Forks, N.D. when the voters adopted this referendum) that the key sponsors of the language were the federally recognized tribes. If there is any legislative history on this Section, I’d like to see it. Moreover, the State of Michigan has cut deals with all 12 federally recognized tribes to conduct gaming under the Indian Gaming Regulatory Act, so it makes additional sense to limit the “Indian tribal gaming” language.
I think there are also some sound public policy reasons for limiting the application of that language. The key one for me is that, if Burt Lake Band gets special legislation, Michigan will be innundated by Johnny-come-lately “Indian tribes” from all over looking for the same backdoor to a casino.
I’m a very strong supporter of Burt Lake’s petition for federal recognition, and any efforts to convince Congress to recognize the Band. But I surely hope their lawyer is doing more than just blowing smoke. There isn’t going to be much “rock and roll” from here.
Turtle Talk 
I was one of the several authors of the constitutional language, and you are correct that federally recognized tribes were involved in incduing this language. The argument for the two exemptions from the local and statewide vote requirements was that commercial gaming in Detroit had already been approved by the voters, and tribes have the right under federal law to engage in gaming and therefore could not be subjected to a new state-imposed hurdle. (Editorial note: this didn’t stop Saginaw Chippewa, the primary tribal funding source for the Porposal 1 campaign, from arguing last year that the provision would apply to casinos sought by the Bay Mills Indian Community and Sault Ste. Marie Tribe, even though Saginaw Chippewa did not find it necessary to seek such a vote before opening their new Saganing Landing casino in 2007.)
As for “legislative history,” since this was a provision added by the voters, the proper interpretive test under Michigan law if the language is seen as ambiguous is “what did the voters intend?” Evidence of intent can be found in newspaper editorials and other materials in the public domain discussing the issue, and will likely all reference, implictly or explicitly, federal recognized tribes gaming under IGRA.
I too think that the language should not be read as including so-called state recognized tribes, although there’s no telling what a court would do with this question. Unlike some states, which actually have a process for conferring “state” recognition, Michigan does not. The Governor makes such a decision based on his or her own standards, and the only legal effect of this decision is to make the “recognized” group eligible for federal Community Development Block Grant funding. When I handled state-tribal issues for the Governor, we were very careful to explain that the Governor’s decision meant nothing more. Under these circumstances, it is hard to conceive of “state recognition” actually meaning that a group is an “Indian tribe.”
The possible application of Article IV, Section 41, though, is not the biggest and most daunting problem for the Burt Lake Band under Michigan law. The big issue is that the Michigan Gaming Control and Regulatory Act prohibits all gambling of any type in the State unless specifically authorized or exempted from that law. The MGCRA has an exception for tribal gaming, but explicitly ties that exception to gaming on land held in trust, for a federally recognized tribe, and conducted under IGRA. Thus, any legislative act to authorize gaming for a state recognized tribe like the Burt Lake Band would require or work an amendment to the MGCRA. Because the MGCRA is an initiated law, it takes a 3/4 supermajority vote in both chambers of the Michigan Legislature to amend it – or a statewide vote of the people. That is a hurdle that will be extraordinarily difficult to overcome.
Under federal law, (the IGRA) the only way any federally recognized tribe can engage in class II or class III gambling operations is if they comply with federal law. That is, they are a federally recognized Indian tribe and have eligible land that is either a federally recognized reservation or is held by the federal government in trust or restricted Indian status. (25 USC 2703)
Furthermore if the land was acquired by a tribe after October 1988 and is transfered into trust or restricted Indian lands status, then there are additional requirements imposed by 25 USC 2719 because that statute creates a few exceptions to the prohibition against class II or class III gambling occuring on Indian lands after October 1988: Keeping in mind that an Indian tribe that is not federally recognized cannot transfer fee land into trust under 25 USC 465 et.seq. (The Indian Reorganization Act) unless they are a federally recognized (and probably a historic) Indian tribe.
It is unclear whether a reservation could be created by Congress or a federal law enacted to place land into trust or to establish a reservation for a tribe that is NOT a federally recognized tribe at the time. Most likely Congress would refuse to act and defer any proposed transfer of lands or creation of a reservation to The Department of Interior Bureau of Indian affairs to require the tribe to become federally recognized first, in accordance with the rules established by the DOI/BIA as set out in 25 CFR Parts 81. through Part 83. et. Seq. and become federally acknowledged BEFORE any land could be transferred into trust or restricted Indian status or any federally recognized reservation could be created for such a tribe. Also under federal law, to engage in class III casino gambling, any Indian tribe must enter into a tribal-state compact that is “lawfully in effect” according to state law, 25 USC 2710 (d) (3).
Lastly, it would seem that if the state were to approve gambling on lands that would not be eligible under federal law, for an Indian tribe that was not federally recognized, then it would take a Michigan Constitutional amendment, and not just a statute authorizing that particular tribe to engage in gambling that otherwise would be unlawful under Michigan law. No statute could be enacted by the state legislature that constituted a violation of the state’s Constitution.
In addition, if class III gambling were allowed it would, in many cases be illegal under federal law (The Johnson Act) prohibiting the use, possession, transporting and traficking in “slot machines”, which would be federal felony and not protected, because the only defense to that crime, would be if the slot machines were being used, transported or possessed lawfully under the provisions of the IGRA!
Generally the federal regulatory agencies take the position that if any class III gambling is being operated by an Indian tribe that is not recognized and/or is on ineligible lands, then the State government is the entity with jurisdiction to take enforcement action because the federal agencies (not including Johnson Act violations) take the position that their jurisdiction to enforce the Indian Gaming and Regulatory Act [IGRA] is that same statutory scheme which gives them the authority to take enforcement action. If a tribe is operating class II or class III gambling outside of the authorization of the IGRA it is up to the state to enforce their own anti-gambling laws.