We have additional detail on the proposal from both sides. Here’s the scoop. Sault Tribe claims they have a mandatory trust acquisition statute, Section 108(f) of the Michigan Indian Land Claims Settlement Act. Here is the text:
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. 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). (That was back when we referred to Sault Tribe as the Darth Vader of Michigan Indian Tribes — those days are long gone. The old Sault Tribe would have considered Lansing smallpotatoes, and gone to Chicago or Cleveland instead. Maybe they will anyway. Why not? Under this theory, there’s no limiting principle.).
They still have to run through BIA’s trust acquisitions hurdles, and there’s no guarantee, even with a mandatory trust acquisition. They better hope there’s no endangered species in Lansing.
Also, as Bryan Garner will tell you, every jurisdiction in the English speaking world has held at least once that “shall” is a term, in some circumstances, that does not mean “mandatory,” but instead means “discretionary.” Sounds crazy? Ask the CSKTs (CSKT).
Sault Tribe has another hurdle, and I have no idea how this will turn out. But Sault Tribe is a party to the 1993 gaming compacts. Section 9 reads:
An application to take land in trust for gaming purposes pursuant to § 20 of IGRA (25 U.S.c. § 2719) shall not be submitted to the Secretary of the Interior in the absence of 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 that is the subject of the § 20 application.
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.
Moreover, trust land alone is insufficient. The Tribe has to exercise governmental authority over the land, too, according to the Indian Gaming Regulatory Act. Sault Tribe has no history in this area, let alone a governmental presence.
Incidentally, I misspoke on the “precedent” for a Tribe using a mandatory trust acquisition statute to force the Secretary to take land into trust for gaming purposes. I was talking about the Wyandotte Nation of Oklahoma’s effort to game in Kansas City, Kansas. They sued the Secretary last year for lagging on trust acquisitions. Their original trust application was 1992, and the suits are still going on 20 years later.