The Bay Mills Buck Stops With NIGC

Gabriel Galanda & Ryan Dreveskracht

With a case of potentially catastrophic consequence for Indian country now pending before the U.S. Supreme Court, all of the players who can possibly prevent the disaster are either sitting on their hands or pointing fingers.

The National Indian Gaming Commission has failed to act, citing a woefully incorrect legal opinion regarding its enforcement authority and the unfortunately timed departure of former NIGC Chairwoman Tracie Stevens. The Department of Justice sits publicly idle, too, despite its own civil enforcement power. Then there is Department of the Interior, whose Solicitor has written less than stellar lands opinion of her own, and whose Assistant Secretary for Indian Affairs simply blames the Bay Mills Indian Community for “put[ting] us in this position.” Meanwhile, the National Indian Gaming Association says that it is Interior who must take action “to moot the case and prevent a negative Supreme Court decision,” while completely turning a blind eye to the NIGC.

Indian country’s political representative organzations must stop passing the buck and recognize that it stops with the NIGC. Acting Chairman Jonodev Chaudhuri is mandated by federal law to “perform the functions and duties” of the Chairman pursuant to 5 U.S.C. § 3345.

This summer, the U.S. Supreme Court accepted review of Michigan v. Bay Mills Indian Community, a Sixth Circuit Court of Appeals case holding that the state cannot sue the Bay Mills Indian Community for allegedly operating a casino on non-Indian lands, in violation of a the Indian Gaming Regulatory Act and a tribal-state compact.

Bay Mills apparently built the casino as a test case to determine the scope of its rights under the Michigan Indian Land Claims Act of 1997. The Tribe took the position that any lands purchased with land claims settlement trust funds are “eligible for gaming under the ‘settlement of a land claim’ provision of Section 20” of the IGRA, and went ahead and built a casino. Shortly after operations had begun, however, the Department of the Interior issued a legal memorandum concluding that the site did not qualify as “Indian lands” and was thus not eligible for Indian gaming.

The State of Michigan immediately sought to enjoin the casino’s operation, and a federal district court soon granted an injunction against the Tribe. On appeal, though, the Sixth Circuit held that “although the State may regulate tribal activities that occur outside Indian lands, it may not (absent waiver or abrogation of tribal immunity) enforce those regulations by suing the tribe itself.” And because the court found no such waiver, it held that the Bay Mills could not be sued, and the injunction was dissolved. Now on appeal to the Supreme Court, the sole inquiry is the state’s ability to sue Bay Mills in federal court — an inquiry which threatens foundational tribal sovereignty and immunity principles vis-à-vis states’ rights, in the most dramatic way since Nevada v. Hicks in 2000.

The Bay Mills casino is closed, as it has been since early 2011. That’s right; the entire fateful dispute revolves around an indisputably illegal tribal casino that has been shuttered for nearly three years. The mere fact that Bay Mills Indian gaming monies and jobs are not even directly at risk should embolden Indian Country’s leaders to do more.

Bay Mills has devolved most specifically into a direct attack on tribal sovereign immunity — a topic that has tribal governments and advocates across Indian Country horrified. And rightly so. When the Supreme Court was last confronted with the topic in Kiowa Tribe of Oklahoma v. Manufacturing Technologies (1998), it famously stated that “[t]here are reasons to doubt the wisdom of perpetuating” tribal immunity and suggested “a need to abrogate tribal immunity, at least as an overarching rule.” At that time, Congress was actively considering changes in the law of tribal immunity, and the Justices knew it. Today, however, there is no such legislation. And with Bay Mills, the doctrine of tribal immunity has been left in the exclusive hands of a Court that wants to destroy it.

But tribal sovereign immunity under IGRA or for off-reservation “commercial” activity does not have to end like this. Clearly, both Interior and the NIGC deem the Bay Mills casino site as non-IGRA eligible. Congress has charged the NIGC and its Chairman with the enforcement of IGRA, and has entrusted the NIGC to ensure tribal gaming facility operators comply with the law. IGRA’s enforcement procedure is clearly set forth in 25 U.S.C. § 2713, and authorizes the NIGC Chairman to order closure of a gaming facility for any “substantial violation” of the IGRA or its regulations. Here, were the NIGC to issue a closure order, Michigan’s request for an injunction — and thus the Supreme Court controversy — would be mooted. But the NIGC has failed to act.

Apparently, NIGC’s only reason for its nonfeasance is a 2010 internal memorandum from an associate attorney, concluding that the authority of the NIGC to enforce federal law extends “only to gaming on Indian lands.” Unfortunately, the memorandum lumps together various sections of the IGRA that limit the power to approve gaming ordinances, management contracts, and otherwise allow gaming, with the enforcement provisions of the statute that provide the NIGC with the authority to disallow gaming. And that, of course, is the point — since Indian gaming is unpermitted except on Indian lands, the IGRA does not grant the NIGC authority to allow gaming except on Indian lands. That should come as no surprise. But this has nothing to do with the NIGC’s ability to police Indian tribes who operate in violation of the IGRA off of Indian lands.

Nowhere in IGRA is the NIGC’s authority to enforce IGRA limited only to “Indian lands.” Title 25 U.S.C. § 2713(b)(1) and 25 C.F.R. § 573.4(a)(13) expressly grant the NIGC Chairman the “power to order temporary closure of an Indian game” if a gaming facility operates on lands “not eligible for gaming under the [IGRA].” In turn, the full Commission (or at least a quorum of two Commissioners) can exercise “the power, not subject to delegation” to “make permanent a temporary order of the Chairman closing a gaming activity.” 25 U.S.C. § 2706. The NIGC’s powers are rather clear.

Contrary to the 2010 NIGC memorandum, the NIGC’s ability to intercede in illegal gaming is simply not confined to “Indian lands.” In addition to the clear language of 25 C.F.R. § 573.4(a)(13), 25 U.S.C. § 2706(b)(7) explicitly states that the “enforcement of the Commission’s regulations” is against “Indian tribes” generally, and thus is not qualified by any limitation of that authority to Indian tribes while operating on Indian land. Indeed, in January of 2012, former NIGC Chairman Philip N. Hogen declared that “[w]hen individuals conduct gaming [that] neither qualifies as lawful Indian gaming nor complies with the State Law wherein it is conducted, such activity is conduct that the NIGC has the authority to determine [i]s an illegal practice [and to] disqualify such individual officers of Indian tribes from holding tribal gaming licenses . . . .”

Even the Bay Mills Tribe, in briefing to the Supreme Court, has “call[ed] upon the [NIGC] to intervene in the dispute.” The NIGC’s feigned lack of power should no longer be allowed to provide political cover, to anybody.

If the NIGC is to fulfill its IGRA mandate to regulate Indian gaming in a manner that “protect[s] . . . gaming as a means of generating tribal revenue,” it must step up to the plate. The NIGC has a duty to enforce its governing laws and regulations, but it is regrettably failing to fulfill even this simple task. The State of Alabama has argued to the Supreme Court that the regulatory void in Bay Mills has been caused by the NIGC, stating that the “Commission only rarely invokes its authority to enforce the law against Indian tribes.” Indeed, as NCAI has aptly warned, “[i]f NIGC inaction continues, the NIGC will appear weak and ineffective in front of the Supreme Court of the United States,” a posture that does not fare well “for the future of Indian gaming, or the federal trust responsibility to protect Indian tribes from state intrusion on tribal sovereignty.” At a minimum, Acting Chairman Chaudhuri should immediately get a second legal opinion.

The time for passing the buck is over. Whoever is presently to blame for Bay Mills, it is clear that the NIGC and its Acting Chairman hold the key to a resolution. With far too much at risk for continued inaction, the NIGC must act – and act now.

Gabriel S. Galanda and Ryan Dreveskracht practice Indian law with Galanda Broadman, PLLC, an American Indian owned law firm. www.galandabroadman.com