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Court Victory Brings West Michigan Casino One Step Closer

18 January 2006

Earlier this month, the United States Court of Appeals for the District of Columbia Circuit upheld a decision by the Bureau of Indian Affairs that will allow the agency to take land into trust for the Pokagon Band of Potawatomi Indians (the "Tribe"). The land at issue is located near Lake Michigan just off I-94 close to the Indiana border. The Tribe is working with Lakes Entertainment, Inc., on the development of a new casino, to be named Four Winds Casino.

The Tribe entered into a gaming compact with the State of Michigan back in 1998. The Taxpayers of Michigan Against Casinos ("TOMAC") fought the development and filed the lawsuit for which the Appellate Court recently confirmed the dismissal.

"We have been heard and understood," said Pokagon Band Tribal Chairman John Miller. "The Tribe is jubilant. This Court decision is a monumental victory for the membership of the Pokagon Band, residents of Southwest Michigan, and all of Indian Country."

"This is great news, jobs and economic development are finally coming to Southwest Michigan," continued Chairman Miller. "Tribal sovereignty, federal Indian law, and the spirit of the U.S. Constitution have all prevailed today. The Tribe will move expeditiously to begin construction of Four Winds Casino Resort. Our people have persevered through an incredibly trying time these last five years and today justice has finally been granted," said Chairman Miller.

The Court's 25-page decision, eloquently describing the history of the Pokagon Band, rejected TOMAC's claims that the Secretary of the Interior, Gale Norton, failed to comply with federal environmental law and had no authority to approve the Band's gaming project. The Court systematically set aside each environmental argument, finding that the Secretary complied with the law by taking a "hard look" at the environmental effects of the project.

Of most significance to the Pokagon Band is the Court's vindication of its status as a federally recognized Indian Tribe. "TOMAC attacked our history and our identity," said Chairman Miller. "We knew they were wrong. And the Court has made our legal status as a federally recognized, sovereign Indian Tribe crystal clear."

Under the 1988 federal law regulating Indian gaming, Congress established clear procedures for tribes "restored" to federal recognition after 1988 to proceed with casino gaming operations. TOMAC claimed that the Band was not a "restored" tribe as Congress intended and, therefore, that the Secretary could not approve the Band's intended gaming project.

The Court said that TOMAC offered "no support" for this claim and failed "to account for the recognized history of the Pokagon Band." It described the federal government's "termination" of the Tribe as a result of "faulty and inconsistent administrative decisions." In 1994, Congress "remedied that improper termination and 'restored' the Band to its rightful place," the Court said, describing the 1994 Pokagon Restoration Act.

Finally, the Court "categorically rejected" TOMAC's assertion that Congress acted unconstitutionally by giving the Secretary of the Interior overly board authority to take land into trust on the Band's behalf to restore its reservation.

"We will now move forward with our economic development plans, the restoration of our land base, and the restoration of our tribal government as we and the Congress intended," said Chairman Miller. "Under this ruling, the Department of Interior should be free and clear to put our land into trust."

Lakes Entertainment, Inc., a company that has actively promoted the World Poker Tour, has been working with the Tribe for several years. The company is planning to assist in building a 125,000-square-foot casino with over 3,000 slot machines and 100 table games. Lakes Entertainment projects an opening in the first half of 2007.

It will be interesting to see how successful a casino in West Michigan will be. The most vocal opponents to gambling expansion have come from this part of the state. However, given the proximity of the Four Winds Casino site to Chicago and the border, my guess is that it will be very successful.

David Waddell
David Waddell is an attorney for Regulatory Management Counselors, P.C. (RMC), which assists businesses in navigating the legislative, regulatory and licensing systems governing Michigan’s commercial and tribal casino industries. He is the co-author of The State of Michigan Gaming Law Legal Resource Book and one of the founders of The Michigan Gaming Newsletter.

David Waddell Websites:

www.michigangaming.com
David Waddell
David Waddell is an attorney for Regulatory Management Counselors, P.C. (RMC), which assists businesses in navigating the legislative, regulatory and licensing systems governing Michigan’s commercial and tribal casino industries. He is the co-author of The State of Michigan Gaming Law Legal Resource Book and one of the founders of The Michigan Gaming Newsletter.

David Waddell Websites:

www.michigangaming.com