Bill Text: MI SR0154 | 2019-2020 | 100th Legislature | Introduced
Bill Title: A resolution to amend the tribal-state gaming compact between the Little River Band of Ottawa Indians and the state of Michigan made and entered on December 3, 1998.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2020-12-09 - Referred To Committee On Government Operations [SR0154 Detail]
Download: Michigan-2019-SR0154-Introduced.html
senate resolution no.154
Senator Bumstead offered the following resolution:
Whereas, The Little River Band of Ottawa Indians (the "Tribe") is descended from, and is the political successor to, the Grand River Ottawa Bands, signatories of the 1836 Treaty of Washington (7 Stat 491) with the United States. The Tribe’s status was reaffirmed by federal law in P.L. 103-324 (1994); and
Whereas, The Tribe is a federally recognized Indian tribe with rights under federal law to operate gaming as a means of economic development within states that allow such gaming. The state of Michigan permits Class III (casino-style) gaming to be operated under state law, including the Michigan Gaming Control and Revenue Act, 1996 IL 1, MCL 432.201 to 432.226; and
Whereas, Under the federal Indian Gaming Regulatory Act, P.L. 100-497 (1988) (“IGRA”), before a tribe may engage in Class III gaming, the tribe must be a party to a tribal-state gaming compact with the state in which the tribe is going to engage in gaming; and
Whereas, IGRA requires a state that permits gaming for any purpose by any person, organization, or entity, upon the request of a tribe that has eligible Indian lands in the state, to negotiate in good faith for a tribal-state gaming compact; and
Whereas, While IGRA prohibits a state from taxing a tribal gaming facility, revenue-sharing payments from tribal gaming to a state may be lawful under IGRA when such payments are bargained for in exchange for meaningful concessions from the state, i.e., quantifiable economic benefits over which the state is not required to negotiate under IGRA, such as substantial exclusive rights to engage in Class III gaming; and
Whereas, IGRA allows a tribe to engage in gaming on land taken into trust after IGRA’s passage in 1988 (“After Acquired Lands”) only if the land qualifies under specific statutory criteria; and
Whereas, The Tribe and the state of Michigan (the "State") made and entered into a tribal-state gaming compact on December 3, 1998 (the "Compact"). The Compact was initially approved by the Michigan Legislature with the adoption of House Concurrent Resolution No. 115 on December 11, 1998; and
Whereas, The Michigan Supreme Court in Taxpayers of Michigan Against Casinos v State of Michigan, 471 Mich. 306; 685 N.W.2d 221 (2004), cert. denied, 543 U.S. 1146 (2005), ruled that the Michigan Legislature holds the power to bind the State to a tribal-state gaming compact and may do so by means of a resolution; and
Whereas, The Michigan Supreme Court in Taxpayers of Michigan Against Casinos v State of Michigan, 478 Mich. 99; 732 N.W.2d 487 (2007), ruled that the Michigan Legislature, through the provisions of Section 16 of the Compact, properly delegated the ability to enter into amendments to tribal-state gaming compacts to the Governor of the State; and
Whereas, The Tribe and the State have previously amended the Compact, through an amendment dated January 24, 2008, by means of the Governor acting for the State; and
Whereas, The Compact defines “eligible Indian lands” as “trust or reservation lands acquired under 25 U.S.C. § 1300k-4(b) within Manistee or Mason Counties. A total of one (1) tribal Class III gaming facility may be located on eligible Indian lands”; and
Whereas, Section 16 of the Compact prohibits amendment of “the definition of ‘eligible Indian lands’ to include counties” other than Manistee or Mason Counties; and
Whereas, While the Legislature thereby does not allow the Governor to amend the Compact to include additional counties in the definition of “eligible Indian lands”, one Legislature cannot constrain the authority of a future Legislature to exercise its powers, and therefore, the 100th Legislature, with the agreement of the Tribe, may act to amend the definition of “eligible Indian lands”; and
Whereas, Only three of the state of Michigan's twelve tribal-state gaming compacts limit tribes to a single gaming facility. Two compacts entered into by the state of Michigan with other tribes simultaneously with the Compact have since been amended to allow those tribes to operate multiple gaming facilities, and six Michigan tribes currently operate multiple gaming facilities; and
Whereas, While at the time of the Compact, the Tribe did not have trust or reservation lands outside of Manistee County, the Tribe has the right under federal law to obtain additional trust lands, and those After Acquired Lands may be eligible for gaming under IGRA if they satisfy statutory criteria allowing gaming on After Acquired Lands; and
Whereas, One means provided in IGRA for a tribe to engage in gaming on After Acquired Lands is if the United States Secretary of Interior determines that gaming on such land would be in the best interest of the tribe and not detrimental to the surrounding community, and the governor of the state, at her discretion, concurs in that determination (a “2-Part Determination”); and
Whereas, Ten tribal casinos operating in the state of Michigan today are sited on After Acquired Lands, including one on land made eligible by a 2-Part Determination following the concurrence of then Governor John Engler. Two other 2-Part Determinations have been approved by the federal government, but governors did not concur in the federal decision; and
Whereas, In 2007, the Tribe acquired the former Great Lakes Downs thoroughbred racetrack in Fruitport Township, Muskegon County, and on February 25, 2015, filed an application with the federal government to have 60 acres of land at that location (the “Muskegon Site”) taken into trust for the benefit of the Tribe and for a 2-Part Determination to allow the Tribe to develop a gaming facility and related amenities (the “Muskegon Project”) on the Muskegon Site; and
Whereas, The process for the federal government to decide to take the Muskegon Site into trust and issue a 2-Part Determination has included multiple public hearings with hundreds of attendees; public opportunities to comment on thousands of pages of reports and studies; federal consultation with federal and state and local governments and agencies; and the publication of a Final Environmental Impact Statement (“FEIS”) on October 23, 2020; and
Whereas, The FEIS, after considering a range of alternatives, concluded that the Muskegon Project is the preferred federal alternative, and the federal government can issue a Record of Decision granting the federal portion of the 2-Part Determination as soon as December 1, 2020; and
Whereas, The Muskegon Project enjoys overwhelming local support, including unanimous resolutions of support by the Muskegon County Commission and Fruitport Township; resolutions of support from other nearby governments; the support of local business organizations and organized labor; and tremendous citizen support, exceeding 90 percent among those commenting at public hearings; and
Whereas, The Tribe has entered into Municipal Services and Law Enforcement Agreements with Muskegon County and Fruitport Township; and
Whereas, The Muskegon Project will lead to investment and jobs without the use of any tax dollars, including well over $100 million in construction costs, approximately 1,500 construction jobs, approximately 1,500 permanent jobs, and an upgrade to the I-96/US-31 interchange; and
Whereas, Through revenue sharing with the state of Michigan, the State can also see increased revenues as a result of the Muskegon Project; and
Whereas, The Tribe has long ties to Muskegon, as the Tribe’s membership criteria trace back to the Ogemuk of villages in Muskegon County; one of the former reservations of the Tribe’s predecessors is located in Muskegon County 17 miles from the Muskegon Site; and grave sites and historic trails of the Tribe’s predecessors are within 10 miles of the Muskegon Site; and
Whereas, The Tribe also maintains modern ties to Muskegon County, as more of the Tribe’s members live in Muskegon County than any other county in the State. The Muskegon area is home to 45 percent of the Tribe’s Michigan populace, and the Tribe has operated a Muskegon government office for many years, just six miles from the Muskegon Site; and
Whereas, No Michigan tribe has bargained for market exclusivity with respect to Muskegon County. While a number of Michigan tribes do not pay revenue sharing to the state of Michigan, the Michigan tribes that do make revenue sharing payments to the State in exchange for market exclusivity have identified multiple counties as their “Competitive Market Areas” for purposes of gaming exclusivity, but no Michigan tribe has designated Muskegon County; and
Whereas, Governor Rick Snyder, acting for the State, waived Section 9 of the Compact to allow the Tribe to proceed with federal applications for the Muskegon Project, just as Governor John Engler waived Section 9 of the State’s tribal-state gaming compact with the Keweenaw Bay Indian Community, before concurring in a 2-Part Determination by which the Keweenaw Bay Indian Community now operates a gaming facility on After Acquired Lands near Marquette, which actions were found permissible by the United States District Court for the Western District of Michigan; and
Whereas, A 2004 amendment to Article IV, Section 41 of the Constitution of the State of Michigan of 1963 expressly allows the authorization of tribal casinos on Indian lands without the requirement of a statewide vote, as demonstrated by the opening of seven tribal gaming facilities without such a vote since 2004; and
Whereas, The State and the Tribe, in recognition of the sovereign rights of each party and in a spirit of cooperation in the interests of the citizens of the State and the members of the Tribe, wish to realize the benefits of approval of the Tribe’s Muskegon Project; now, therefore, be it
Resolved by the Senate, That, subject to the agreement of the Tribe and approval by the Michigan House of Representatives, Section 2(B)(1) of the Compact made and entered on the 3rd day of December, 1998, by and between the Little River Band of Ottawa Indians and the State, and approved by the Secretary of the Interior by publication in the Federal Register on February 18, 1999, at 64 Fed. Reg. 8111, and subsequently amended and approved by the Secretary of the Interior by publication in the Federal Register on April 21, 2008, at 73 Fed. Reg. 21362, is hereby amended to read as follows:
(B) (1) "Eligible Indian lands" means trust and reservation lands acquired by the tribe within Manistee, Mason, or Muskegon Counties, Michigan. A total of two (2) tribal Class III gaming facilities may be located on eligible Indian lands; provided however, if any tribe which attains federal recognition subsequent to the date of this Compact is granted the right, under a valid Compact with the State of Michigan, to operate more than two (2) Class III gaming facilities on its eligible Indian lands, the Tribe shall be afforded the same right subject to the same terms and conditions imposed on such newly recognized tribe.
; and be it further
Resolved, That all provisions of the Compact not explicitly added or amended herein shall remain in full force and effect; and be it further
Resolved, That we urge the Governor to concur in a 2-Part Determination in favor of the Tribe’s Muskegon Project, subject to such reasonable conditions as the Governor may request on behalf of the State, including, at a minimum, an increase in revenue sharing payments to reflect the greater value of exclusivity provided to the Tribe; and be it further
Resolved, That copies of this resolution be transmitted to the Michigan House of Representatives, the Governor, representatives of the Tribe, and the United States Secretary of the Interior.
