Michigan Attorney General Mike Cox has filed a federal suit to shut down the new Bay Mills casino in Michigan, located just a few miles north of Gaylord off of I-75 -- that's in Michigan's northern Lower Peninsula, while the Bay Mills Indian Community has its headquarters and reservation in the Upper Peninsula.  Cox claims that the casino is located on land that does not qualify as "Indian lands" under IGRA, so that the tribe's casino is not authorized either by IGRA or by the tribal-state compact.  The Little Traverse Bay Bands of Odawa Indians filed a similar suit against Bay Mills on Wednesday.  We've been following this situation in the last several posts.

According to the Detroit Free Press, the tribe's position is that because the land was purchased with money from a land claim settlement, the land qualifies as Indian land.  But according to other reports, the tribe purchased the land just this summer -- that means that the land, regardless of how it was purchased, was acquired after 1988.  And that means that it must fall into one of the exceptions to IGRA's general prohibition against gaming on newly acquired lands.  And to fall into any of those exceptions, the land must be "acquired in trust" by the Interior Secretary.  The Interior Department says that the land doesn't qualify as Indian lands, and hasn't been taken into trust.  All that doesn't look good for the tribe.

It's quite interesting that Cox filed a federal lawsuit.  We noted that the state has no authority to enforce IGRA or the Johnson Act, as those are federal laws that must be enforced by federal authorities.  But we also noted that IGRA and the Johnson Act should apply only to "Indian country," where the federal government has jurisdiction.  Just because land is owned by a tribe doesn't automatically make it Indian country; a tribe can own land that falls under state jurisdiction, just like anyone else.

We had speculated that if the land in question is neither trust land for purposes of IGRA nor Indian country land for purposes of the Johnson Act and other federal laws, then the state should have jurisdiction over the land.  That would mean that the state could enforce its own gambling laws against the tribe, at least with regard to that land.  Now, there of course would be issues of tribal sovereignty and immunity, but procedurally that approach would open the possibility of state law enforcement and/or a state lawsuit.

But Cox filed a federal lawsuit, which claims that the casino is operating in violation of IGRA and the tribal-state compact.  That could suggest that the state is conceding that the land in question is not state land, but instead tribal or federal land.  Or, it could be that the state is just trying to avoid the tribe's immunity defense against a state suit.  We're guessing that the tribe certainly isn't going to challenge federal jurisdiction, since it claims that the land is Indian land.  Looks like the district court will have to figure out whether it has jurisdiction over the operation of a casino on this particular piece of land . . . . very, very interesting.

Read more in the Times Herald
Download the state's complaint in U.S. District Court for the Western District of Michigan:

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BMICcomplaint.pdf	379.68 KB