TAXPAYERS OF MICHIGAN V STATE OF MICHIGAN
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 30, 2004
TAXPAYERS OF MICHIGAN AGAINST CASINOS,
AND LAURA BAIRD,
Plaintiffs-Appellants,
v
No. 122830
THE STATE OF MICHIGAN,
Defendant-Appellee,
and
NORTH AMERICAN SPORTS MANAGEMENT
COMPANY, INC, IV, and GAMING
ENTERTAINMENT, LLC.,
Intervening Defendants-Appellees,
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
In this declaratory action, we must determine:
(1)
whether House Concurrent Resolution (HCR) 115 (1998), the
Legislature’s approval by resolution of tribal-state gaming
compacts, constituted “legislation” and therefore violated
Const
1963,
art
4,
§
22;
(2)
whether
the
compacts’
amendatory provision providing that the Governor may amend
the
compacts
without
legislative
approval
violates
the
separation of powers doctrine found in Const 1963, art 3, §
2; and (3) whether HCR 115 is a local act in violation of
Const 1963, art 4, § 29.
We
hold
that
the
Legislature’s
approval
of
the
compacts through HCR 115 did not constitute legislation.
In approving those compacts by resolution, the Legislature
did not modify Michigan law in any respect; instead, the
Legislature
contracts
simply
between
expressed
two
its
approval
independent,
of
sovereign
valid
entities.
Although Michigan’s gaming law would have applied to gaming
on tribal lands in the absence of a tribal-state compact,
it
applied
only
as
a
matter
of
federal
law.
Compacts
establishing the terms of class III gaming on tribal lands
modified
only
federal
law.
Therefore,
our
Constitution
does not require that our Legislature express its approval
of these compacts through bill rather than resolution.
We
further
hold
that
although
the
issue
of
the
amendment provision in the compacts may now be ripe for
review, the lower courts have yet to review this issue and
make any specific findings regarding whether the amendatory
provision
in
the
Granholm,
violates
compacts,
the
as
now
separation
found in Const 1963, art 3, § 2.
2
invoked
of
powers
by
Governor
provisions
Finally, we hold that HCR
115 is not a “local act” and therefore does not violate
Const
1963,
amendment
art
4,
§
provision
consideration,
but
29.
Accordingly,
issue
to
Court
affirm
otherwise
the
the
we
of
remand
the
Appeals
for
decision
of
the
Court of Appeals.
I. FACTUAL HISTORY
AND
PROCEDURAL POSTURE
A. BACKGROUND: FEDERAL LAW REGARDING TRIBAL GAMING
Knowledge of the underlying federal law is necessary
to
understand
the
factual
posture
of
this
case.
In
California v Cabazon, 480 US 202, 207; 107 S Ct 1083; 94 L
Ed 2d 244 (1987), the United States Supreme Court held that
state laws may only be applied to tribal lands “if Congress
has expressly so provided.”
Congress
had
not
provided
The Court held that because
for
the
regulation
of
tribal
gaming, a state could only prohibit gaming on tribal lands
if the state completely prohibited all gaming within its
borders.
In
response
to
Cabazon,
Congress
passed
the
Indian
Gaming Regulatory Act (IGRA), 25 USC 2701 et seq., which
divides
gaming
gaming
consists
activities
of
into
“social
three
games
classes.
solely
for
Class
prizes
I
of
minimal value or traditional forms of Indian gaming engaged
in by individuals as a part of, or in connection with,
tribal ceremonies or celebrations.”
3
25 USC 2703(6).
Class
II gaming includes bingo and card games (but not banking
card games) that are played in conformance with state laws
and
regulations
regarding
hours
limitations on wagers or pot sizes.
of
operation
25 USC 2703(7).
and
Class
III gaming includes all other forms of gambling, including
casino gaming.
25 USC 2703(8).
At issue in this case is class III gaming.
Under
IGRA, tribes may engage in class III gaming only pursuant
to a tribal-state compact that is approved by the Secretary
of the Interior.
25 USC 2710(d) provides, in relevant
part:
(1) Class III gaming activities shall be
lawful on Indian lands only if such activities
are—
* * *
(B) located in a State that permits such
gaming
for
any
purpose
by
any
person,
organization, or entity, and
(C) conducted in conformance with a TribalState compact entered into by the Indian tribe
and the State under paragraph (3) that is in
effect.
* * *
(3) (A) Any
Indian
tribe
having
jurisdiction over the Indian lands upon which a
class III gaming activity is being conducted, or
is to be conducted, shall request the State in
which such lands are located to enter into
negotiations for the purpose of entering into a
Tribal-State compact governing the conduct of
gaming activities. Upon receiving such a request,
4
the State shall negotiate with the Indian tribe
in good faith to enter into such a compact.[1]
* * *
(C) Any
Tribal-State
compact
under subparagraph (A) may include
relating to -
negotiated
provisions
(i) the application of the criminal and
civil laws and regulations of the Indian tribe or
the State that are directly related to, and
necessary for, the licensing and regulation of
such activity;
(ii) the allocation of criminal and civil
jurisdiction between the State and the Indian
tribe necessary for the enforcement of such laws
and regulations;
(iii) the assessment by the State of such
activities in such amounts as are necessary to
defray the costs of regulating such activity;
(iv) taxation by the Indian tribe of such
activity
in
amounts
comparable
to
amounts
assessed by the State for comparable activities;
(v)
remedies for breach of contract;
(vi) standards for the operation of such
activity and maintenance of the gaming facility,
including licensing; and
(vii)
any
other
directly related to the
activities.
1
subjects
operation
that
are
of gaming
In Seminole Tribe of Florida v Florida, 517 US 44;
116 S Ct 1114; 134 L Ed 2d 252 (1996), the United States
Supreme Court held that 25 USC 2710(d)(7), which permits
Indian tribes to sue a state in federal court when that
state has refused to negotiate in good faith for a tribalstate compact, was an unconstitutional violation of state
sovereign immunity as preserved by the Eleventh Amendment
of the United States Constitution.
5
* * *
(5) Nothing in this subsection shall impair
the right of an Indian tribe to regulate class
III gaming on its Indian lands concurrently with
the State, except to the extent that such
regulation
is
inconsistent
with,
or
less
stringent than, the State laws and regulations
made applicable by any Tribal-State compact
entered into by the Indian tribe under paragraph
(3) that is in effect.
Through § 2710(d), Congress expressly provided for tribalstate
negotiations
this
compacting
regarding
process,
class
the
III
tribes
gaming.
and
the
Through
states
may
agree to the terms governing such gaming.
B.
FACTUAL HISTORY
The compacts at issue in this case were first signed
by Governor Engler and four Indian tribes2 in January of
1997.
Each compact provided that it would take effect
after
“[e]ndorsement
concurrence
in
by
that
Michigan Legislature.”3
2
Odawa
Little
Huron
Little
3
the
Governor
endorsement
by
of
the
State
resolution
of
and
the
The compacts were modified and re-
These tribes are the Little Traverse Bay Band of
Indians, the Pokagon Band of Ottawa Indians, the
River Band of Ottawa Indians, and the Nottawaseppi
Potawatomi.
The Little Traverse Bay Band and the
River Band currently operate casinos.
See § 11 of the compacts.
6
executed
in
December
1998,
and
the
Legislature
then
approved the compacts by resolution through HCR 115.4
The
through
validity
several
of
the
1998
lawsuits.5
compacts
Plaintiffs
was
filed
challenged
this
suit
against defendant in the Ingham Circuit Court, seeking a
declaratory judgment that the compacts do not comport with
various constitutional provisions.
Plaintiffs argue that
the compacts amount to legislation and, therefore, pursuant
to Const 1963, art 4, § 22 the Legislature was required to
adopt them by bill rather than approve them by resolution.
The circuit court held that the compacts should have been
approved
by
bill.
The
Court
of
Appeals
reversed
the
circuit court decision, concluding that the compacts do not
4
Although a bill must be passed by a majority of
elected
and
serving
members
of
the
Legislature,
a
resolution may be passed by a majority vote of those
legislators present at the time, provided a quorum is
present.
The House of Representatives approved the
7compacts by a resolution vote of 48 to 47, and the Senate
followed suit by a resolution vote of 21 to 17.
5
The Sault Ste. Marie Tribe of Lake Superior sued in
federal court to enjoin the operation of the new casinos,
but the United States Court of Appeals for the Sixth
Circuit dismissed this suit on standing grounds. Sault Ste
Marie Tribe v United States, 288 F3d 910 (CA 6, 2002). Two
state legislators also challenged the approval of the
Secretary of Interior of Michigan’s 1998 compacts, but that
suit was also dismissed on standing grounds by the United
States Court of Appeals for the Sixth Circuit.
Baird v
Norton, 266 F3d 408 (CA 6, 2001).
7
constitute legislation because they contain no enforcement
provision that would ensure that their terms are satisfied
and because the power of the state to legislate in this
area is preempted by federal law.
opined
that
the
compacts
The Court of Appeals
constitute
mere
contracts
and,
therefore, approval by resolution was not constitutionally
infirm.
Plaintiffs
also
contend
that
the
provision
in
the
compacts that purports to empower the Governor to amend
them without legislative approval violates Const 1963, art
3, § 2, the “separation of powers” doctrine.
court
agreed
with
plaintiffs.
The
Court
The circuit
of
Appeals,
however, reversed the decision of the circuit court on the
basis that the amendatory provision issue was not ripe for
review because the Governor had not yet attempted to amend
the compacts.
Plaintiffs
Const
1963,
art
further
4,
§
argue
29,
the
that
the
“local
compacts
acts”
violate
clause.
The
circuit court disagreed, holding that art 4, § 29 is not
implicated.
The Court of Appeals agreed and affirmed the
circuit court on this issue.
This Court granted leave to appeal.
8
II. STANDARD
REVIEW
OF
This Court reviews de novo a trial court’s decision
regarding a motion for summary disposition.
460
Mich
320,
326;
597
NW2d
Van v Zahorik,
15
(1999).
The
constitutionality of a legislative act is a question of law
that is reviewed de novo.
DeRose v DeRose, 469 Mich 320,
326; 666 NW2d 636 (2003).
III. THE LEGISLATURE’S APPROVAL
OF THE
COMPACTS WAS NOT LEGISLATION
Resolution of whether HCR 115 constituted legislation
necessarily
Plaintiffs
turns
the
that
argue
on
the
definition
of
Legislature’s
“legislation.”
approval
of
the
compacts must be legislation because HCR 115 had the effect
of altering legal rights and responsibilities.
this
definition
of
“legislation”
overly
We find
simplistic.
Although it is true that legislation alters legal rights
and
responsibilities,
not
everything
that
alters
legal
rights and responsibilities can be considered legislation.
Legal
rights
through
and
responsibilities
contracts.
Therefore,
the
may
also
fact
that
be
altered
the
legal
rights or responsibilities of the parties involved may have
been altered in some way is not dispositive.
We
hold
“legislation”
that
is
one
a
more
of
accurate
unilateral
definition
regulation.
of
The
Legislature is never required to obtain consent from those
9
who are subject to its legislative power.
Boerth v Detroit
City Gas Co, 152 Mich 654, 659; 116 NW 628 (1908).
This
unilateral action distinguishes legislation from contract:
“‘The power to regulate as a governmental function, and the
power to contract for the same end, are quite different
things.
other
One requires the consent only of the one body, the
the
Utilities
consent
Comm,
of
288
two.’”
Mich
Detroit
267,
288;
286
v
Michigan
NW
368
Pub
(1939),
quoting City of Kalamazoo v Kalamazoo Circuit Judge, 200
Mich 146, 159-160; 166 NW 998 (1918).
Here,
the
Legislature
was
required
to
approve
the
compacts only as the result of negotiations between two
sovereigns:
the Legislature could not have unilaterally
exerted its will over the tribes involved.
Because the
tribes’ consent is required by federal law, the compacts
can only be described as contracts, not legislation.
A.
THE STATE’S LIMITED ROLE
UNDER
IGRA
In order to understand the contractual nature of the
compacts, it is essential to understand the state’s limited
role under federal law generally, as well as IGRA.
at
least
1832,
the
United
recognized tribal sovereignty.
States
Supreme
Court
Since
has
In Worcester v Georgia, 31
US 515, 557; 8 L Ed 483 (1832), the United States Supreme
Court
noted
that
the
tribes
10
were
“distinct
political
communities,
having
territorial
boundaries,
within
which
their authority is exclusive, and having a right to all the
lands
within
those
not
only
acknowledged, but guarantied by the United States.”
This
tribal
“The
sovereignty
boundaries,
is
limited
which
only
by
is
Congress:
sovereignty that the Indian tribes retain is of a unique
and limited character.
It exists only at the sufferance of
Congress and is subject to complete defeasance.”
United
States v Wheeler, 435 US 313, 323; 98 S Ct 1079; 55 L Ed 2d
303 (1978).
Similarly, only the federal government or the
tribes themselves can subject the tribes to suit; tribal
immunity
“is
not
subject
to
diminution
by
the
States.”
Kiowa Tribe of Oklahoma v Mfg Technologies, Inc, 523 US
751, 754, 756; 118 S Ct 1700; 140 L Ed 2d 981 (1998).
Through IGRA, however, Congress has permitted the states to
negotiate with the tribes through the compacting process to
shape the terms under which tribal gaming is conducted.
The
states
have
no
authority
to
regulate
tribal
gaming
under the IGRA unless the tribe explicitly consents to the
regulation in a compact.
Although 25 USC 2710(d)(1)(C) provides that class III
gaming
activities
are
only
lawful
if
conducted
in
conformance with a tribal-state compact, that does not mean
the states have any authority to regulate class III gaming
11
activities in the absence of a compact.
States may not
enforce the terms of IGRA; rather, the only enforcement
provided for in the IGRA is through the federal government.
The IGRA provides that civil enforcement lies only with the
tribes
themselves
Commission,
with
was
which
or
the
created
National
by
Indian
IGRA.
25
Gaming
USC
2713.
Judicial review of the Commission’s decision may only be
obtained
in
federal
criminal
court.
enforcement
is
25
2714.
solely
left
USC
to
government under 18 USC 1166(d).
Similarly,
the
federal
See also Gaming Corp of
America v Dorsey & Whitney, 88 F3d 536, 545 (CA 8, 1996)
(“Every reference to court action in IGRA specifies federal
court
jurisdiction.
mentioned.”).
In
.
.
other
.
State
words,
courts
although
are
it
never
may
be
“unlawful” for the tribes to engage in class III gaming
absent a compact, the Legislature is powerless to regulate
or
prohibit
regulatory
such
role
gaming.
under
IGRA
State
legislatures
aside
from
that
have
no
negotiated
between the tribes and the states.
In Gaming Corp, supra at 546-547, the court explained:
Congress thus left states with no regulatory
role over gaming except as expressly authorized
by IGRA, and under it, the only method by which a
state can apply its general civil laws to gaming
is through a tribal-state compact. Tribal-state
compacts are at the core of the scheme Congress
developed to balance the interests of the federal
12
government, the states, and the tribes. They are
a creation of federal law, and IGRA prescribes
“the permissible scope of a Tribal-State compact,
see § 2710(d)(3)(C).”
Seminole Tribe of Florida
v Florida, [517 US 44; 116 S Ct 1114; 134 L Ed 2d
252 (1996).] Such compacts must also be approved
by
the
Secretary
of
the
Interior.
§
2710(d)(3)(B).
* * *
Congress thus chose not to allow the federal
courts to analyze the relative interests of the
state, tribal, and federal governments on a case
by case basis.
Rather, it created a fixed
division of jurisdiction.
If a state law seeks
to regulate gaming, it will not be applied. If a
state law prohibits a class of gaming, it may
have force. The courts are not to interfere with
this balancing of interests, they are not to
conduct a Cabazon balancing analysis.
This
avoids inconsistent results depending upon the
governmental interests involved in each case.
With only the limited exceptions noted above,
Congress left the states without a significant
role under IGRA unless one is negotiated through
a compact.
The only way the states can acquire regulatory power over
tribal gaming is by tribal consent of such regulation in a
compact.
In
fact,
state’s
our
Legislature
has
recognized
authority
cannot
extend
regulatory
gambling.
that
to
the
tribal
MCL 432.203(5) provides that state regulation of
tribal casinos can only occur “[i]f a federal court or
agency rules or federal legislation is enacted that allows
a
state
Absent
to
such
regulate
federal
gambling
on
Native
authorization,
13
American
MCL
land.”
432.203(2)(d)
acknowledges
that
the
state’s
gambling
regulatory
requirements do not apply to “[g]ambling on Native American
land and land held in trust by the United States for a
federally recognized Indian tribe on which gaming may be
conducted under [IGRA].”
Further, contrary to plaintiffs’ contentions, 18 USC
1166 does not change this analysis.
Section 1166 provides:
(a) Subject to subsection (c), for purposes
of Federal law, all State laws pertaining to the
licensing,
regulation,
or
prohibition
of
gambling, including but not limited to criminal
sanctions applicable thereto, shall apply in
Indian country in the same manner and to the same
extent as such laws apply elsewhere in the State.
(b) Whoever in Indian country is guilty of
any act or omission involving gambling, whether
or not conducted or sanctioned by an Indian
tribe, which, although not made punishable by any
enactment of Congress, would be punishable if
committed or omitted within the jurisdiction of
the State in which the act or omission occurred,
under
the
laws
governing
the
licensing,
regulation, or prohibition of gambling in force
at the time of such act or omission, shall be
guilty of a like offense and subject to a like
punishment.
(c) For the purpose of this
term "gambling" does not include—
section,
the
(1) class I gaming or class II gaming
regulated by the Indian Gaming Regulatory Act, or
(2) class III gaming conducted under a
Tribal-State compact approved by the Secretary of
the Interior under section 11(d)(8) of the Indian
Gaming Regulatory Act [25 USC 2710(d)(8)] that is
in effect.
14
(d) The United States shall have exclusive
jurisdiction
over
criminal
prosecutions
of
violations of State gambling laws that are made
applicable under this section to Indian country,
unless an Indian tribe pursuant to a Tribal-State
compact approved by the Secretary of the Interior
under section 11(d)(8) of the Indian Gaming
Regulatory Act [25 USC 2710(d)(8)], or under any
other provision of Federal law, has consented to
the
transfer
to
the
State
of
criminal
jurisdiction with respect to gambling on the
lands of the Indian tribe. [Emphasis added.]
Section 1166 does not grant the state regulatory authority
over tribal gaming; rather, it simply incorporates state
laws
as
the
federal
law
governing
nonconforming
tribal
gaming.
Thus, although a state’s gaming laws apply in the
absence
of
a
federal law.
tribal-state
compact,
they
apply
only
as
It follows that when the Legislature approves
a tribal-state compact, it approves a change in federal law
rather than its own.
Moreover,
this
“federalization”
of
state
law
regulating gambling does not give a state enforcement power
over
violations
of
state
gambling
laws
on
tribal
lands
because “the power to enforce the incorporated laws rests
solely with the United States.”
United Keetoowah Band of
Cherokee Indians v Oklahoma, 927 F2d 1170, 1177 (CA 10,
1991).
The
state
remains
powerless
to
assert
any
regulatory authority over tribal gaming unless the tribes
have assented to such authority in a compact under IGRA.
15
AT&T Corp v Coeur D’Alene Tribe, 295 F3d 899, 909 (CA 9,
2002).
Although 18 USC 1166(d) effectively “borrows” Michigan
law for purposes of federal law, it does not delegate any
regulatory power to the states.
Section 1116(d) is not a
way to extend the state’s power to regulate tribes through
the federal government.
Rather, the federal government may
conclude at any time that it will no longer apply state law
and so amend the IGRA.
purposes
of
currently
chosen
In other words, the fact that, for
expediency,
to
apply
the
federal
Michigan
government
law
for
has
purposes
of
federal law does not mean that it will always choose to do
so.
Therefore, § 1166(d) cannot be viewed as a delegation
of regulatory power to the states.
B.
As
explained
THE CONTRACTUAL NATURE
above,
IGRA
only
OF
COMPACTS
grants
the
states
bargaining power, not regulatory power, over tribal gaming.
The Legislature is prohibited from unilaterally imposing
its
will
on
the
tribes;
rather,
under
IGRA,
it
negotiate with the tribes to reach a mutual agreement.6
6
must
As
IGRA even prohibits the state from frustrating the
tribe’s desire to enter into class III gaming by refusing
to negotiate. In the event that a state will not negotiate
or an agreement cannot be reached, although under Seminole
(continued…)
16
further
noted
unilateral
unilateral
above,
imposition
imposition
the
of
of
hallmark
legislative
legislative
of
legislation
will.
will
is
Such
is
a
completely
absent in the Legislature’s approval of tribal-state gaming
compacts under IGRA.
Here, the Legislature’s approval of
the compacts follows the assent of the parties governed by
those compacts.
Thus, the Legislature’s role here requires
mutual assent by the parties—a characteristic that is not
only the hallmark of a contractual agreement but is also
absolutely foreign to the concept of legislating.
Rood v
Gen Dynamics Corp, 444 Mich 107, 118; 507 NW2d 591 (1993).
See
Confederated
Tribes
of
the
Chehalis
Reservation
v
Johnson, 135 Wash2d 734, 750; 958 P2d 260 (1998) (“Tribalstate gaming compacts are agreements, not legislation, and
are interpreted as contracts.”)
Further, the compacts approved by HCR 115 do not apply
to the citizens of the state of Michigan as a whole; they
only bind the two parties to the compact.
Legislation
“looks to the future and changes existing conditions by
making a new rule to be applied thereafter to all or some
part of those subject to its power.”
Dist of Columbia
(…continued)
Tribe the state may not be sued, it appears that the tribe
may approach the Secretary of the Interior, who can approve
a compact under 25 USC 2710(d)(8).
17
Court of Appeals v Feldman, 460 US 462, 477; 103 S Ct 1303;
75 L Ed 2d 206 (1983), quoting Prentis v Atlantic Coast
Line Co, 211 US 210, 226; 29 S Ct 67; 53 L Ed 150 (1908).
Here, the compacts approved by HCR 115 have no application
to those subject to legislative power; rather, they only
set
forth
sovereign
the
parameters
nations,
facilities.
have
within
agreed
which
to
the
operate
tribes,
their
as
gaming
Under the terms of the compacts, the tribes
themselves, not the state, regulate the conduct of class
III
gaming
on
tribal
lands.
The
Legislature
has
no
obligations regarding the regulation of gaming whatsoever,
nor can the state unilaterally rectify a violation of the
compacts.
Similarly, in approving the compacts at issue here,
the Legislature has not dictated the rights or duties of
those
other
than
the
contracting
parties.
Despite
plaintiffs’ arguments to the contrary, we find that § 18 of
the compacts does not obligate local units of government to
create local revenue sharing boards.
Indeed, because the
local government units are not parties to the contract, it
would
not
be
possible
for
the
compacts
obligations on the local governments.
be
bound
compacts
by
the
make
terms
local
of
the
units
18
of
to
impose
any
Third parties cannot
compacts.
government
Instead,
the
third-party
beneficiaries of the compacts, with the creation of the
revenue
sharing
receiving
those
boards
simply
benefits.
A
a
condition
party
is
precedent
a
to
third-party
beneficiary if the promisor “has undertaken to give or do
or refrain from doing something directly to or for said
person.”
MCL 600.1405(1).
Here, the tribes have promised
to give 2% of their net earnings to local communities,
provided
those
communities
create
the
revenue
boards to receive and disburse the payments.
sharing
If the local
governments choose not to create the sharing boards, they
simply can no longer receive the benefit of the funds.
But
they are under no obligation to create the revenue sharing
boards and receive the benefit granted by the tribes.
Further,
Legislature’s
we
reject
approval
by
plaintiffs’
argument
resolution
has
that
the
affected
the
rights of state citizens by setting age limitations for
gaming
or
employment
restrictions
are
not
in
the
tribal
restrictions
on
casinos.
the
These
citizens
of
Michigan; rather, they are restrictions only on the tribes.
The
compacts
provide
the
minimum
requirements
that
the
tribes agree to use in hiring and admitting guests to the
casinos.
The state has no power to regulate the casinos or
enforce violations of the compact, but must use the dispute
19
resolution
procedure
provided
in
the
compacts
if
a
violation occurs.
Finally, we hold that the Legislature’s approval of
the tribal-state compacts does not create any affirmative
state obligations.
The compacts do not create any state
agencies or impose any regulatory obligation on the state.
The
state
compacts’
tribes
also
has
no
responsibility
requirements—that
alone.
In
this
to
responsibility
way,
the
enforce
falls
compacts
here
on
can
the
the
be
distinguished from those at issue in the cases relied upon
by plaintiffs.
In Kansas v Finney, 251 Kan 559; 836 P2d
1169 (1992), the compact at issue created a state gaming
agency responsible for monitoring the tribe’s compliance
with the contract, and the compact was not submitted to the
legislature for any form of approval.
The court found
that, under Kansas law, the creation of a state agency was
a legislative function.
Absent an appropriate delegation
of power by the legislature or legislative approval of the
compact,7
increased
the
compacts
obligations.
could
not
Unlike
bind
the
the
state
compact
in
to
the
Finney,
however, the compacts at issue here do not create any state
7
The court did not specify what form that legislative
approval would have to take.
20
agencies
and
were
presented
to
the
Legislature
for
approval.
Similarly, in New Mexico v Johnson, 120 NM 562; 904
P2d 11 (1995), the compacts authorized more forms of gaming
than were otherwise permitted in New Mexico.
As in Finney,
the compacts were not presented to the state legislature
for any form of approval.
The court held that the governor
could not enter into the compacts and thereby create new
forms of gaming without “any action on the part of the
legislature.”
Id. at 574.
Unlike the compacts in Johnson,
the compacts here do not create new forms of gaming and
were presented to the Legislature for approval.
Thus, the
compacts do not impose new obligations on the citizens of
the state subject to the Legislature’s power; they simply
reflect the contractual terms agreed to by two sovereign
entities.
C.
LEGISLATIVE APPROVAL
VIA
RESOLUTION
WAS
APPROPRIATE
Once it is determined that HCR 115 did not constitute
legislation, we must then determine whether resolution was
an
appropriate
compacts.
Constitution
method
of
legislative
approval
of
We therefore turn to our Constitution.
does
not
prohibit
the
Legislature
the
Our
from
approving contracts, such as the compacts at issue here, by
concurrent resolution.
Unlike the federal constitution,
21
our
Constitution
“is
not
a
grant
of
power
to
legislature, but is a limitation upon its powers.”
the
In re
Brewster Street Housing Site, 291 Mich 313, 333; 289 NW 493
(1939).
Therefore, “the legislative authority of the state
can do anything which it is not prohibited from doing by
the people through the Constitution of the State or the
United States.”
Attorney General v Montgomery, 275 Mich
504, 538; 267 NW 550 (1936).
This has been discussed by
this Court in the past by analogizing our Legislature to
the English Parliament.
See Young v City of Ann Arbor, 267
Mich
579
241,
243;
255
NW
(1934),
in
which
this
Court
stated:
A different rule of construction applies to
the Constitution of the United States than to the
Constitution of a State. The Federal government
is one of delegated powers, and all powers not
delegated are reserved to the States or to the
people. When the validity of an act of congress
is
challenged
as
unconstitutional,
it
is
necessary to determine whether the power to enact
it has been expressly or impliedly delegated to
congress.
The
legislative
power,
under
the
Constitution
of
the
State,
is
as
broad,
comprehensive, absolute and unlimited as that of
the parliament of England, subject only to the
Constitution of the United States and the
restraints and limitations imposed by the people
upon such power by the Constitution of the State
itself.[8]
8
See also Thompson v Auditor General, 261 Mich 624,
642; 247 NW 360 (1933), in which the Court stated:
(continued…)
22
Regarding any limitations in our constitution, art 4, § 22
only requires the approval of legislation by bill, but is
silent regarding the approval of contracts.
We
power
have
to
240,
that
contract
limitation.
PA
held
400
acknowledged
our
Legislature
unless
there
is
has
a
the
general
constitutional
Advisory Opinion on Constitutionality of 1976
Mich
by
311;
all
that
254
our
NW2d
544
(1977).
Constitution
It
is
contains
no
limits on the Legislature’s power to bind the state to a
contract with a tribe; therefore, because nothing prohibits
it from doing so, given the Legislature’s residual power,
we
conclude
that
the
Legislature
has
the
discretion
to
approve the compacts by resolution.9
(…continued)
The power of the legislature of this State
is as omnipotent as that of the parliament of
England,
save
only
as
restrained
by
the
Constitution of the United States and the
Constitution of this State. . . . 1 Cooley,
Constitutional Limitations (8th Ed.), p. 354.
9
In fact, action by concurrent resolution is common
when the Constitution is silent regarding the appropriate
procedure.
Various constitutional provisions require
legislative action but fail to specify its form:
Const
1963, art 4, § 53 (appointment of auditor general); Const
1963, art 11, § 5 (approval of certain civil service pay
increases); Const 1963, art 4, § 17 (establishing special
legislative committees); and Const 1963, art 10, § 5
(designation of land as part of state land reserve).
In
such situations, the Legislature has historically acted by
concurrent resolution.
23
This
understanding
established.
resolution
process
enacted
a
did
law,
571;
177
ratify
Court
power
such
not
engage
but
NW
merely
amendments
has
in
proposed amendment.
565,
to
This
proper
Legislature
legislative
is
well-
Our Legislature has in the past used the
constitution.
process
of
a
of
declared
circumstance
in
a
the
the
resolution
because
legislative
expressed
its
federal
act
assent
the
that
to
the
Decher v Secretary of State, 209 Mich
388
(1920).
In
the
same
way,
the
Legislature here is merely expressing its “assent” to the
compacts through HCR 115.
More
discretion
than
by
legitimate
importantly,
because
to
approve
the
bill,
the
courts
exercise
of
our
compacts
cannot
legislative
Legislature
by
had
resolution
interfere
discretion.
the
rather
with
that
As
this
Court recognized long ago in Detroit v Wayne Circuit Judge,
79 Mich 384, 387; 44 NW 622 (1890):
It is one of the necessary and fundamental
rules of law that the judicial power cannot
interfere with the legitimate discretion of any
other department of government. So long as they
do no illegal act, and are doing business in the
range of the powers committed to their exercise,
no outside authority can intermeddle with them
. . . .
24
Therefore,
this
Legislature’s
Court
should
interfere
decision
discretionary
not
with
the
to
approve
the
compacts by resolution.
IV. THE BLANK/CHADHA
For
the
above
reasons,
we
FACTORS
are
not
persuaded
by
plaintiffs’ argument that the factors set forth in the lead
opinion in Blank v Dep’t of Corrections, 462 Mich 103; 611
NW2d 530 (2000), adopted from Immigration & Naturalization
Service v Chadha, 462 US 919; 103 S Ct 2764; 77 L Ed 2d 317
(1983), apply to this case.
Legislature’s
delegating
statute.
power
to
rule-making
Blank and Chadha involved the
alter
or
authority
amend
without
the
doing
statute
so
by
Blank held that once the Legislature grants power
to an agency by statutory action, it cannot then diminish
or qualify that power except by further statutory action.
This “legislative veto” practice at issue in Blank also had
a significant state constitutional history.
Const 1963,
art 4, § 37 allowed temporary legislative vetoes of agency
regulations
between
legislative
sessions.
In
1984,
the
people rejected a proposal to amend § 37 and permit the
type of permanent legislative veto at issue in Blank.
The
fact that the legislative veto at issue in Blank was not
permitted by the Constitution and had been rejected by the
people further illuminates the Blank decision.
25
No
such
environment
Constitution
is
exists
silent
here,
regarding
however,
the
our
form
proper
as
of
legislative approval of tribal-state gaming compacts under
IGRA
and
the
people
question.
have
Therefore,
not
we
expressed
do
not
a
view
this
that
believe
on
the
Blank/Chada analysis should be applied here.
In response to the Justice Markman’s dissent, however,
we note that even were the
Blank/Chadha
applied,
not
the
Legislature’s
factors
do
approval
of
the
analysis to be
demonstrate
compacts
was
that
an
the
act
of
legislation.
A. THE COMPACTS DO NOT ALTER
RELATIONS OF PERSONS OUTSIDE
To
make
outside
the
sense,
this
legislative
THE
THE
factor
branch
LEGAL RIGHTS, DUTIES,
LEGISLATIVE BRANCH
must
who
apply
are
to
AND
persons
subject
to
the
Legislature’s authority.
Here, the compacts do not give
the
alter
state
the
power
to
the
rights,
duties,
or
relations of anyone subject to the Legislature’s authority.
Rather,
the
compacts
tribes
agree
will
facilities.
only
apply
set
to
forth
their
the
parameters
operation
of
the
gaming
The Legislature has no regulatory duty under
the compacts, nor do the compacts confer any “rights” upon
the
state
although
other
the
than
state
contractual
may
inspect
26
rights.
tribal
For
example,
facilities
and
records, it has no power to enforce those provisions.
Any
contractual disputes under the compacts must be submitted
to
the
dispute
compacts.
resolution
procedure
outlined
in
the
All duties and restrictions in the compacts fall
on the tribes themselves, who are sovereign entities and
have consented to the restrictions and additional duties.
THE RESOLUTION DID NOT SUPPLANT LEGISLATIVE ACTION
B.
Unlike the actions taken in Blank, HCR 115 did not
have
the
effect
of
amending
or
repealing
legislation when it approved the compacts.
given
the
Constitution’s
silence
existing
As noted above,
regarding
the
form
of
approval necessary for tribal-state gaming compacts, the
Legislature had the discretion to approve the compacts by
resolution.
Further, as explained above, the compacts do
not impose any affirmative obligations on the state, create
rules of conduct for Michigan citizens, or create new state
agencies.
Such changes would require legislation, but are
absent from the compacts.
required
and
Legislature’s
this
Court
discretion
Therefore, legislation is not
should
in
concurrent resolution.
27
not
interfere
approving
the
with
compacts
the
by
C. THE COMPACTS DO NOT INVOLVE POLICY DETERMINATIONS REQUIRING
LEGISLATION
First,
it
must
be
remembered
that
not
all
policy
decisions made by the Legislature are required to be in the
form of legislation.
J.).
See Blank, supra at 170 (Cavanagh,
As the United States Supreme Court explained in Yakus
v United States, 321 US 414, 424; 64 S Ct 660; 88 L Ed 834
(1944), “[t]he essentials of the legislative function are
the determination of legislative policy and its formulation
and promulgation as a defined and binding rule of conduct
. . . .”
(Emphasis
added.)
Here,
HCR
115
neither
promulgated a legislative policy as a defined and binding
rule of conduct nor applied it to the general community.
Instead, HCR 115 simply assented to the negotiated contract
between
two
sovereign
entities,
recognizing
that
the
compacts created no new legal rights or duties for the
state or its citizens.
Indeed, HCR 115 could never be
considered a “promulgation of a legislative policy as a
defined
and
binding
rule
of
conduct”
because
the
Legislature lacks the authority to bind the tribes at all.
Without the tribes’ approval, the compacts have no force.
Through IGRA, Congress has determined that states may not
unilaterally
impose
their
will
28
on
the
tribes
regarding
gaming;
rather,
the
states
may
only
negotiate
with
the
tribes through the compacting process.
D. CHADHA’S CONSTITUTIONAL FACTOR IS NOT APPLICABLE GIVEN
NATURE OF OUR STATE CONSTITUTION
As
federal
noted
above,
constitution:
Congress
its
plenary
power
power,
of
our
our
Constitution
the
while
federal
our
differs
constitution
Constitution
Legislature.
from
As
this
THE
the
grants
limits
the
Court
has
recognized:
A different rule of construction applies to
the Constitution of the United States than to the
Constitution of a state.
The federal government
is one of delegated powers, and all powers not
delegated are reserved to the states or to the
people. When the validity of an act of Congress
is
challenged
as
unconstitutional,
it
is
necessary to determine whether the power to enact
it has been expressly or impliedly delegated to
Congress.
The legislative power, under the
Constitution
of
a
state,
is
as
broad,
comprehensive, absolute, and unlimited as that of
the Parliament of England, subject only to the
Constitution of the United States and the
restraints and limitations imposed by the people
upon such power by the Constitution of the state
itself.
[Young v Ann Arbor, 267 Mich 241, 243;
255 NW 579 (1934).]
Thus, the fourth Chadha factor, which was not applied in
Blank, is inapplicable here because our Constitution does
not grant authority to the Legislature, but instead limits
the Legislature’s plenary authority.
As explained above,
our Constitution’s silence regarding the form of approval
needed for tribal-state gaming compacts, therefore, does
29
not
lead
to
prohibited
the
from
conclusion
approving
that
the
the
Legislature
compacts
by
is
resolution;
rather, it leads to the conclusion that the form of the
approval is within the discretion of the Legislature.
V. THE AMENDMENT PROVISION ISSUE SHOULD
Although
we
agree
with
BE
plaintiffs
REMANDED
that
Governor
Granholm’s recent amendments make the amendment provision
issue ripe for review, the lower courts have not yet been
able to assess this issue since the amendments.
proper for us to do so now.
issue
to
provision
the
Court
in
the
of
Therefore, we remand this
Appealsto
compacts
It is not
consider
purporting
to
whether
the
empower
the
Governor to amend the compacts without legislative approval
violates the separation of powers doctrine found in
1963, art 3, § 2.
Const
The Court of Appeals should remand to
the trial court if it determines that further fact-finding
is necessary to resolve the issue.
VI. HCR 115 DOES NOT VIOLATE CONST 1963,
ART
4, § 29
The “local act” provision of art 4, § 29 of Michigan’s
Constitution provides:
The legislature shall pass no local or
special act in any case where a general act can
be made applicable, and whether a general act can
be made applicable shall be a judicial question.
No local or special act shall take effect until
approved by two-thirds of the members elected to
and serving in each house and by a majority of
30
the electors voting
affected. . . .
thereon
in
the
district
In Hart v Wayne Co, 396 Mich 259; 240 NW2d 697 (1976),
this Court considered whether a provision of the municipal
courts of record act requiring Wayne County to supplement
salaries for recorder's court judges constituted a “local
act” subject to Const 1963, art 4, § 29.
We held that the
provision
act”
did
not
constitute
a
“local
because
a
recorder’s court performs state functions and the funding
of such a court is a state function.
Id. at 272.
In
Attorney General ex rel Eaves v State Bridge Comm, 277 Mich
373; 269 NW 388 (1936), this Court considered whether state
legislation authorizing a bridge to Canada located at Port
Huron constituted a local act.
We held again that it did
not, stating: “The bridge in question is international in
character and will be used by those from all parts of both
nations who desire to enter or leave the United States
through Port Huron.”
Id. at 378.
Hart and Eaves, applied to the facts of this case,
lead to the same conclusion: tribal-state compacts are not
“local
acts.”
consent,
the
In
the
absence
Legislature
has
casino gambling on Indian lands.
of
no
express
authority
congressional
to
regulate
Like the bridge in Eaves,
Indian casinos, located as they are on tribal lands, are
31
“international
in
character”
and
are
likely
to
be
frequented by Michigan citizens from throughout the state
as well as by members of various Indian tribes.
the
approval
of
state
compacts
regarding
Therefore,
Indian
casinos
pursuant to IGRA constitutes a unique state function with
interests
“international
in
character,”
rather
than
a
function of a local unit of government with predominantly
local interests.
Thus, we hold that the compacts are not
“local acts.”
Further, tribal lands subject to compact negotiations
are
declared
tribes,
but
as
such
by
the
not
by
the
Department
of
state
the
or
even
by
Interior.
the
The
Department of the Interior has thus far granted to the
tribes
lands
compacts.10
tribe
lands
located
in
the
counties
specified
in
the
If, however, the department were to grant to a
located
outside
such
counties,
IGRA
would
direct the state to negotiate in good faith with the tribe
10
The mere fact that Indian land is located in a
specific county does not give that county jurisdiction over
that land, just as Michigan does not have absolute
jurisdiction over all tribal lands located within its
borders.
As already noted, absent express congressional
consent, neither the state nor a local unit of government
may regulate tribal affairs.
Thus, the compacts are not
“local acts” because the tribal lands that they regulate
are not subject to local jurisdiction as contemplated by
Const 1963, art 4, § 29.
32
to reach a compact applicable to that land as well.
For
this
the
additional
compacts
are
reason,
“local
we
acts”
are
not
merely
persuaded
because
they
that
reference
those specific counties in which the tribes have thus far
been granted lands by the department.
Accordingly, we affirm the decision of the Court of
Appeals that the compacts do not violate Const 1963, art 4,
§ 29, albeit for the reasons expressed above.
VII. CONCLUSION
We hold that HCR 115 was a valid method of approving
the compacts.
The compacts, and hence the Legislature’s
approval of those compacts, do not alter the legal rights
or duties of the state or its citizens, nor do they create
any state agencies.
to approve them.
Therefore, no legislation is required
Rather, the compacts are simply contracts
between two sovereign entities.
Without the compacts, the
state is prohibited under IGRA from unilaterally regulating
tribal gaming in any manner.
Further, our Constitution
does not limit the Legislature’s discretion regarding the
proper approval method for tribal-state gaming compacts.
Absent
a
discretion
constitutional
to
determine
approving a contract.
limitation,
the
the
Legislature
appropriate
method
has
for
Moreover, we hold that HCR 115 is
not a “local act” and so does not violate Const 1963, art
33
4, § 29.
Finally, because no lower courts have had the
opportunity
to
consider
the
issue
of
the
amendment
provision in the compacts since the issue became ripe for
review, we remand that issue to the Court of Appeals for
consideration.
In
all
other
respects,
we
affirm
decision of the Court of Appeals.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
CAVANAGH, J.
I concur only with respect to part IV.
Michael F. Cavanagh
MARKMAN, J.
I concur only with respect to part VI.
Stephen J. Markman
34
the
S T A T E
O F
M I C H I G A N
SUPREME COURT
TAXPAYERS OF MICHIGAN AGAINST
CASINOS and LAURA BAIRD,
Plaintiffs-Appellants,
v
No. 122830
THE STATE OF MICHIGAN,
Defendant-Appellee,
and
NORTH AMERICAN SPORTS MANAGEMENT
COMPANY, INC, IV, and GAMING
ENTERTAINMENT, LLC.,
Intervening Defendants-Appellees,
_______________________________
KELLY, J. (concurring).
In
1997
tribal-state
tribes.
Under
and
1998,
gaming
their
Governor
compacts
terms,
John
with
the
Engler
four
compacts
negotiated
west
would
Michigan
become
effective only when all of the following occurred:
(A) Endorsement by the tribal chairperson
and concurrence in that endorsement by resolution
of the Tribal Council;
(B) Endorsement by the Governor of the State
and concurrence in that endorsement by resolution
of the Michigan Legislature;
(C) Approval by the Secretary
Interior of the United States; and
of
the
(D) Publication in the Federal
[Compact with Little Traverse Bands
Indians, § 11.]
Register.
of Odawa
The compacts met all four requirements and became effective
on February 18, 1999.
The Legislature approved the compacts by concurrent
resolution. The plaintiffs then filed suit asserting that
the compacts are legislation.
Consequently, they argue,
the Michigan Constitution requires that they be approved
only by bill. Const 1963, art 4, § 22. At issue in this
appeal is whether the approval process used by the Michigan
Legislature was constitutional.
A majority of Justices, myself included, hold that the
tribal-state gaming compacts at issue are not legislation.
They
are
between
more
appropriately
sovereign
entities.
viewed
The
as
compacts
a
communication
do
not
impose
duties on or restrict the people of the state. Instead,
they are contractual in nature, conveying the rights and
obligations
of
the
parties,
the
state,
and
the
various
tribes. Therefore, the Legislature's approval by concurrent
resolution was appropriate.
2
We
this
find
Court's
unpersuasive
decision
Justice
Blank1
in
Markman's
contrary
conclusion. Blank is inapplicable to this case.
Because
tribal-state
gaming
compacts
reach
on
a
the
to
reliance
are
valid,
a
majority
affirms the decision of the Court of Appeals in favor of
defendants with the exception of the issue regarding the
governor's
recent
compact
amendment.
On
that
issue,
a
majority agrees to remand the case to the Court of Appeals
for consideration of the plaintiffs' argument.
I. Standard of Review
The
circuit
court
ruled
for
motions for summary disposition.
summary
disposition
are
plaintiffs
on
cross-
Decisions on motions for
reviewed
de
novo.
American
Federation of State, Co and Muni Employees v Detroit, 468
Mich 388, 398; 662 NW2d 695 (2003).
is
whether
Similarly,
novo.
the
issues
legislative
of
action
The question presented
was
constitutionality
constitutional.
are
reviewed
de
Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767
(2003).
1
Blank v Dep't of Corrections, 462 Mich 103; 611 NW2d
530 (2000). The Blank plurality adopted the United States
Supreme Court's test regarding legislative veto enunciated
in Immigration & Naturalization Service v Chadha, 462 US
919; 103 S Ct 2764; 77 L Ed 2d 317 (1983).
462 Mich at
115.
3
II. The Role of Federal Law
Through
Constitution
the
Commerce
grants
the
Clause,
the
federal
United
government
States
exclusive
jurisdiction over relations with Indian tribes. US Const,
art I, § 8, cl 3. The clause gives Congress the power "[t]o
regulate
commerce
with
foreign
nations,
and
among
several States, and with the Indian Tribes.” Id.
the
The so-
called Indian Commerce Clause places relations with Indian
tribes
within
“the
exclusive
province
of
federal
law.”
Oneida Co v Oneida Indian Nation of New York, 470 US 226,
234; 105 S Ct 1245; 84 L Ed 2d 169 (1985). Given the
existence
of
generally
is
reservations
the
Indian
not
Commerce
applicable
unless
Congress
to
has
Clause,
Indians
state
on
specifically
law
tribal
made
it
applicable. McClanahan v Arizona State Tax Comm, 411 US
164, 170-171; 93 S Ct 1257; 36 L Ed 2d 129 (1973).
In recognition of this principle, the United States
Supreme Court has held that, if state gambling policy is
regulatory
rather
than
prohibitory,
then
state
inapplicable to Indian gaming on Indian lands.
law
is
California
v Cabazon Band of Indians, 480 US 202, 209; 107 S Ct 1083;
94 L Ed 2d 244 (1987).
seeks
to
regulate
it,
If state law allows gaming but
the
state
is
not
authorized
to
enforce that law on Indian reservations. The Cabazon Court
4
made
clear
that
regulation
of
Indian
fundamentally the province of federal law.
gaming
is
Tribes retain
the exclusive right to regulate gaming on their lands in
states where all gaming activity is not prohibited. Id. at
207.
In response to the Cabazon decision, Congress passed
the Indian Gaming Regulatory Act (IGRA), 25 USC 2701 et
seq. With this act, Congress has provided a comprehensive
federal regulation of tribal gaming. This framework allows
state regulation only to the extent that it is negotiated
into the terms of a tribal-state compact.
Such a compact
must set forth the parameters under which an Indian tribe
will establish and operate casino-style gaming facilities.
25 USC 2710(d)(3).
IGRA provides that Indian tribes may engage in class
III gaming only if “conducted in conformance with a TribalState compact entered into by the Indian tribe and the
State . . . .” 25 USC 2710(d)(1)(C).
Because it is not
classified as class I or class II style gaming, the casinostyle gambling at issue in this case involves class III
gaming. 25 USC 2703(8).
By allowing the states to play a role through the
compacting process, IGRA “extends to the States a power
withheld from them by the Constitution.”
5
Seminole Tribe of
Florida v Florida, 517 US 44, 58; 116 S Ct 1114; 134 L Ed
2d
252
(1996).
IGRA
does
not
furnish
states
ability to unilaterally regulate tribal gaming.
with
the
Rather, it
provides them an opportunity to oversee tribal gaming.
The
role of the state is limited to the terms the state is able
to negotiate with a tribe.
IGRA requires a tribe to obtain a compact with a state
in order to engage in casino-style gambling. A compact is
[a]n agreement or contract between persons,
nations or states. Commonly applied to working
agreements between and among states concerning
matters of mutual concern. A contract between
parties, which creates obligations and rights
capable of being enforced, and contemplated as
such between the parties, in their distinct and
independent characters.
[Black's Law Dictionary
(6th ed).]
States
cannot
prevent
tribal
gaming
by
refusing
negotiate or by demanding unreasonable conditions.
to
They
must negotiate in good faith upon a request by the tribe
for such negotiation. 25 USC 2710(d)(3)(A).
While Seminole
held that Eleventh Amendment immunity protects states from
suit by Indian tribes, it did not eliminate a state's duty
to negotiate in good faith.
If
a
negotiations,
state
refuses
it
lose
can
to
its
engage
ability
in
to
good-faith
influence
the
regulation of casino gaming on tribal land. The Seminole
Court expressly refused to comment on substitute remedies
6
tribes might seek for a state's failure to negotiate in
good faith. Seminole, supra at 76 n 18.2
According to IGRA:
Indian tribes have the exclusive right to
regulate gaming activity on Indian lands if the
gaming activity is not specifically prohibited by
Federal law and is conducted within a State which
does not, as a matter of criminal law and public
policy, prohibit such gaming activity.
[25 USC
2701(5).]
Michigan
allows
various
forms
of
gambling.
They
include horse racing,3 a state lottery,4 and voter-approved
casino
gambling
in
the
city
of
Detroit.5
It
cannot
reasonably be argued that Michigan prohibits, rather than
regulates, gambling.
Therefore, Michigan’s direct power
2
I note that 25 USC 2710(d)(8) does not, as Justice
Corrigan suggests, allow the tribe to go directly to the
Secretary of Interior who can then approve the compact. The
section simply gives the secretary the authority to approve
a gaming compact entered into between an Indian tribe and a
state. It does not authorize the secretary to approve a
compact to which either side has not manifested its assent.
After the Seminole case, the remedy for a tribe is unclear.
Before Seminole, it was clear that the remedy was that each
side would submit a proposed compact to a mediator, who
would choose one of the two.
25 USC 2710(d)(7)(B)(iii).
This remedy was available only after issuance of a federal
district court order. Id. Because Seminole affirmed a
state's immunity from federal suit, it is unclear if this
remedy is still available.
3
MCL 431.301 et seq.
4
MCL 432.9.
5
See MCL 432.201 et seq.
7
with
respect
bargaining
to
power
gambling
given
to
in
it
Indian
by
the
country
federal
is
the
government
through IGRA.
Relying
on
Blank,
Justice
Markman
argues
that
the
subject of the compacts, state oversight of tribal gaming,
can be achieved only through legislation. This misconstrues
the state's ability to pass laws applicable to Indians.
is
a
unique
situation.
"State
law
is
generally
It
not
applicable to Indian affairs within the territory of an
Indian
tribe,
absent
the
consent
of
Congress."
Cohen's
Handbook of Federal Indian Law, § 5.A.
The Michigan Gaming Control and Revenue Act6 recognized
this principle and provided that, in the future, Congress
could delegate to the state jurisdiction over Indian gaming
on Indian lands.
But until or unless that occurs, the only
way the parties can authorize Indian gaming is by mutually
agreeing to a compact.
Were this untrue, the Legislature
could simply amend the gaming control act to unilaterally
regulate gaming on tribal land.
Plaintiffs argue that 18 USC 1166 gives the state a
regulatory role in tribal gaming without the need for a
negotiated
6
compact
in
which
MCL 432.201 et seq.
8
the
tribe
has
ceded
jurisdiction.
Plaintiffs
misconstrue
18
USC
1166.
This
federal statute provides that state laws with respect to
gambling apply in Indian country in the same manner in
which they apply throughout the rest of the state. 18 USC
1166(a).
At 18 USC 1166(d), it provides that
[t]he
United
States
shall
have
exclusive
jurisdiction
over
criminal
prosecutions
of
violations of State gambling laws that are made
applicable under this section to Indian country,
unless an Indian tribe pursuant to a Tribal-State
compact approved by the Secretary of the Interior
. . . has consented to the transfer to the State
of criminal jurisdiction with respect to gambling
on the lands of the Indian tribe.
Section
d
retains
federal
jurisdiction
over
Indian
gaming unless a tribe negotiates it away in a compact.
Without a compact, a state has no jurisdiction over gaming
on Indian land.
Hence, 18 USC 1166 does nothing more than
adopt state law as the governing federal law for purposes
of Indian gaming. United Keetoowah Band of Cherokee Indians
v Oklahoma, 927 F2d 1170, 1177 (CA 10, 1991). Plaintiffs'
arguments to the contrary are misguided.
IGRA
allows
tribes
to
engage
in
some
forms
of
gambling. However, in recognition of the state's interest
in the issue, IGRA requires a tribe to have a valid tribalstate gaming compact in place before it can engage in class
III gambling. In exchange for giving states this power,
IGRA requires the states to negotiate with tribes in good
9
faith. While IGRA provides for the negotiation of tribalstate compacts, it does not specify the manner in which a
state must approve a compact.
Therefore, one must consult
state law to make this determination.
III. The Role of State Law
The
Michigan
Constitution
requires
that
“All
legislation shall be by bill and may originate in either
house.” Const 1963, art 4, § 22.
It further provides that,
"No bill shall become a law without the concurrence of a
majority of the members elected to and serving in each
house."
Const
1963,
art
4,
§
26.
According
to
the
Legislature's internal rules, concurrent resolutions need
be approved only by a majority of those present at the time
they
are
voted
on.
See
Mason's
Manual
of
Legislative
Procedure, § 510(1) p 338.
If
only
a
concurrent
resolution
is
required,
the
tribal-state gaming compacts were properly approved and are
valid. However, if the compacts are legislation, they were
not
properly
approved
by
the
Legislature,
because
a
majority of those elected and serving did not approve them.
While
legislation
the
be
Michigan
passed
Constitution
by
bill,
it
requires
does
that
not
all
define
legislation. The dictionary defines "legislation" as "the
act of making or enacting laws." Random House Webster's
10
College
Dictionary
(2000).
"Law"
is
defined
as
"the
principles and regulations established by a government or
other
authority
and
applicable
to
a
people,
whether
by
legislation or by custom enforced by judicial decision."
Id.
A
similar
Dictionary
definition
(6th
ed),
is
which
found
describes
in
Black's
"legislation"
"[t]he act of giving or enacting laws. . . .
of rule for the future."
"[t]hat
which
must
be
Law
as
Formulation
"Law" is further defined as
obeyed
and
followed
by
citizens
subject to sanctions or legal consequences . . . ." Id.
These
definitions
suggest
that
legislation
involves
the Legislature's power to formulate rules applicable to
its people. The central characteristic of legislation is
the
ability
of
the
Legislature
to
act
unilaterally
in
creating rules applicable to those subject to its power. In
Westervelt,7
a
plurality
of
this
Court
stated,
“[T]he
concept of ‘legislation’, in its essential sense, is the
power
to
speak
on
any
subject
without
any
specified
limitations.” (Emphasis in original). Where Indian gaming
is concerned, the Legislature has no such power. According
7
Westervelt v Natural Resources Comm, 402 Mich 412,
440; 263 NW2d 564 (1978) (opinion by Williams, J.).
11
to IGRA, the Legislature must obtain tribal consent before
the tribe will be bound by state law.
The
compacts
restrictions
Michigan.
or
are
duties
not
on
legislation.
the
people
They
of
place
no
the
state
of
They create no duty to enforce state laws on
tribal lands.
Sale of liquor to Indian casinos is subject
to
requirements
the
same
as
sales
to
other
Michigan
businesses.
The compacts do not impose duties, responsibilities,
and costs on the state.
assume
the
unemployment
obligation
and
They do not force the state to
to
worker's
oversee
and
compensation
implement
statutes.
the
The
compacts merely obligate the tribes to provide the same
benefits to their employees as those employees would be
entitled to if they worked for an off-reservation business.
A representative provision reads:
The tribe shall provide to any employee who
is employed in conjunction with the operation of
any gaming establishment at which Class III
gaming activities are operated pursuant to this
Compact, such benefits to which the employee
would be entitled by virtue of the Michigan
Employment
Security
Act,
and
the
Worker's
Disability Compensation Act of 1969, if his or
her employment services were provided to an
employer engaged in a business enterprise which
is subject to, and covered by, the respective
Public Acts. [Compact with Little Traverse Band
Bands of Odawa Indians, § 5. (internal citations
omitted)].
12
There
is
no
requirement
in
that
representative
provision that the tribe fulfill this obligation through
state agencies. It is entirely possible that the tribe has
its own system for providing such benefits.
Justice
Weaver
claims
that
the
tribes
have
authority to tax gaming activity under the IGRA.
of Weaver, J., post at 8.
consequence
in
this
relinquished
certain
the
Opinion
We find the claim to be of no
case.
rights
That
as
part
tribes
of
the
may
have
bargaining
process has no effect on the proper characterization of the
compacts during review of the Legislature's actions.
A higher tax is not placed on Indian gaming proceeds.
There is no restriction on advertising related to Indian
casinos.
The
compacts
do
not
give
special
treatment
to
Indian casino suppliers. No burden is placed on the people
of the state of Michigan through the negotiated compacts.
Plaintiffs
argue
that
the
compacts
mandate
the
creation of local revenue sharing boards. However, local
governments are not obliged to create these boards unless
they wish to take advantage of the monetary contribution
the
tribes
have
voluntarily
agreed
to
provide.
The
compacts essentially assign third-party beneficiary status
to local governments. In order to accept the benefits of a
compact, a local government must comply with the conditions
13
set out in the compact.
The compact, however, does not
force a local government either to share in the benefits of
the compact or to create a local board.
The
compacts
essentially
advise
local
governments
that, to exercise local control over the payments that the
compacts obligate the tribes to disburse to them, they must
establish a board.
The board must be given the authority
to accept the payments.
The fact that local governments
may exhibit rational self-interest and proceed to set up
such boards does not render the compacts legislation. Nor
does
the
fact
that
new
businesses
will
be
located
on
reservations near these communities render the subject of
the compacts legislative.
a
branch
near
a
small
Any large business that locates
community
might
increase
local
governmental expenses due to the enhanced economic activity
that the branch occasions.
The compacts are applicable only to the tribes. The
tribes are generally not subject to the legislative power
of the state. To the extent that the compacts delineate
rules of conduct applicable to tribal gaming, they do not
do it through the use of the Legislature’s unrestricted
power. They do it through the affirmative choice of the
tribes.
The
compacts
are
14
government-to-government
agreements.
Black's,
supra
at
6.
Each
explicitly
acknowledges that it is between two sovereigns.
Accordingly, the compacts are not legislation. They
are more closely analogous to contracts and have been so
treated by other states. The Washington Supreme Court has
held that "Tribal-state gaming compacts are agreements, not
legislation,
and
are
interpreted
as
contracts."
See
Confederated Tribes of the Chehalis Reservation v Johnson,
135
Wash
2d
734,
750;
958
P2d
260
(1998).
See
also
Confederated Tribes of Siletz Indians of Oregon v Oregon,
143 F3d 481 (CA 9, 1998); Gallegos v Pueblo of Tesque, 132
NM 207, 218; 46 P3d 668 (2002).
As explained previously, the state does not possess
the power to apply its law unilaterally to gaming on tribal
land.
The
state
and
a
tribe
must
negotiate
a
mutual
agreement describing the regulations that may be applied to
class III gaming on Indian lands.
The power to legislate is distinct from the power to
contract. Whereas, normally, legislation requires only the
agreement of a majority of the lawmakers, a contract must
have the agreement of all its parties to all its terms.
Boerth v Detroit City Gas Co, 152 Mich 654, 659; 116 NW 628
(1908). The compacts explicitly provide that they do not
take effect unless all parties, the state and the tribes,
15
agree
to
them.
The
compacts
are
not
a
product
of
the
unilateral action or unrestricted power of the Legislature,
but, instead, result from negotiations between sovereign
entities, the state and the tribes.
Because
the
compacts
are
not
legislation,
the
Legislature was not required to approve them by bill. In
Michigan, the "legislative authority of the State can do
anything
which
it
is
not
prohibited
from
doing
by
the
people through the Constitution of the State or of the
United
States."
Huron-Clinton
Metro
Auth
v
Bds
of
Supervisors of Five Cos, 300 Mich 1, 12; 1 NW2d 430 (1942),
quoting Attorney General v Montgomery, 275 Mich 504, 538;
267 NW 550 (1936).
Nothing
in
the
federal
or
state
constitutions
prohibits the Legislature from approving intergovernmental
agreements
by
concurrent
resolution.
The
Legislature's
internal rules allow for this form of approval. Negotiated
compacts might involve legislation, for example, where they
require the state to create a new agency or extend state
jurisdictional
authority
to
tribal
land.
However,
the
compacts at issue do not involve these concerns.
The
Legislature
was
not
restricted
in
its
approval
process by IGRA or by the state constitution. Contrary to
16
Justice
position,8
Markman's
our
state
constitution
unlike the federal constitution in this respect:
is
whereas
the power of the federal government is provided for and
limited by the United States Constitution, the power of
state
government
is
inherent
in
the
state.
This
distinction is well-recognized:
The government of the United States is one
of enumerated powers; the national Constitution
being the instrument which specifies them, and in
which authority should be found to the exercise
of any power which the national government
assumes to possess. In this respect, it differs
from the constitutions of the several States,
which are not grants of powers to the States, but
which apportion and impose restrictions upon the
powers which the States inherently possess.
[Cooley, Constitutional Limitations, vol I, p
12.]
There
is
no
provision
in
the
state
constitution
indicating how the Legislature should address an executive
agreement negotiated by the Governor and presented to the
Legislature
for
its
approval.
Because
there
was
no
restriction on its ability to act, the Legislature followed
its internal procedure, one that it used when approving
compacts that the Governor negotiated in 1993. We conclude
that,
given
8
the
unique
nature
of
tribal-state
Opinion of Markman, J., post at 38.
17
gaming
compacts
and
the
content
of
the
particular
compacts
at
issue, this form of legislative approval was appropriate.
IV. Separation of Powers
At the time that plaintiffs filed suit, no amendment
of the compacts had been made.
For that reason, it is
arguable that plaintiffs' separation of powers claim is not
ripe for review. If that is the case, plaintiffs' challenge
is a facial challenge only.
To establish that an act is facially unconstitutional,
the
challenging
party
must
show
that
"no
set
of
circumstances exists under which the [a]ct would be valid."
Straus v Governor, 459 Mich 526, 543; 592 NW2d 53 (1999),
quoting United States v Salerno, 481 US 739, 745; 107 S Ct
2095; 95 L Ed 2d 697 (1987). Plaintiffs cannot meet this
burden.
The
amendment
provision
of
the
compacts
survives
a
facial challenge to the Separation of Powers Clause of the
Michigan Constitution.
Const 1963, art 3, § 2. There are
many conceivable amendments that a governor might make to
these compacts. For example, a governor could amend the
provision relating to dispute resolution or the provision
about the timing of payments.
Because there was no amendment to challenge at the
time plaintiffs brought suit, arguably the issue is not
18
ripe for review.
Admittedly, the jurisprudence in this
area is unclear.
No controlling state precedent exists
regarding when a court is to analyze the ripeness issue.
Federal secondary authority suggests that a suit must be
ripe when it is instituted:
"[t]he doctrines of standing
and ripeness focus on aspects of justiciability at the time
the action is commenced." Moore's Federal Practice, vol 15,
§101.05.
In addition:
The burden is on the plaintiff to allege in
the complaint sufficient facts to establish the
court's jurisdiction. The court will review the
issue for ripeness as of the time the litigation
is commenced. The matter must have been ripe for
review at that time; subsequent ripening . . . is
not
sufficient
to
confer
the
court
with
jurisdiction that did not originally exist when
the action was initiated." [Id. at § 101.74.]
Unfortunately,
Moore's
offers
no
authority
for
this
proposition.
Clearly,
during
the
pendency
of
this
litigation,
Governor Granholm made amendments to the gaming compacts at
issue.
this
It is argued that these render the issue ripe for
Court's
review.
However,
the
amendments
were
made
after the opinions from the lower courts were released.
This
Court
has
consistently
declined
to
entertain
constitutional questions where it lacks the benefit of a
fully developed lower court record.
19
In re CAW, 469 Mich.
192; 665 NW2d 475 (2003); Jenkins v Patel, 471 Mich ___;
___ NW2d ___ (2004).
We
may
possess
jurisdiction
to
decide
the
issue.
However, the parties addressed the issue only in a cursory
fashion,
each
characterization
premising
of
the
legislation or contract.
not address the issue.
its
argument
original
compacts
on
as
its
either
Also, the Court of Appeals did
Absent a more developed record, in
the exercise of judicial restraint, we decline to decide
it.
Consistent with our practices, a majority of the Court
agrees
that
the
issue
of
whether
the
Governor's
recent
amendments violate the Separation of Powers Clause should
be remanded for Court of Appeals consideration.
V. Local Acts Provision
Finally,
because
the
compacts
at
issue
are
not
legislation, they do not violate the local acts provision
of the Michigan Constitution.
Const 1963, art 4, § 29.
We
disagree with Chief Justice Corrigan's local acts analysis.
The local acts provision reads:
The legislature shall pass no local or
special act in any case where a general act can
be made applicable, and whether a general act can
be made applicable shall be a judicial question.
[Const 1963, art 4, § 29.]
20
An act is legislation. Black's Law Dictionary defines a
legislative act as: "[a]n alternative name for statutory
law. A bill which has been enacted by the legislature into
law."
Black's Law Dictionary (6th ed).
Since tribal-state
gaming compacts are not legislation, as discussed supra,
the
local
acts
provision
of
our
Constitution
is
not
applicable to them.
V. A response to the dissents
We are unpersuaded by Justice Markman's argument which
has as its premise that Blank is applicable to the facts of
this
case.
Blank
involved
a
case
where
the
Legislature
delegated power to an administrative agency but attempted
to
retain
a
legislative
veto.
462
Mich
at
113.
In
contrast, the present case involves two separate branches
of government approving agreements with sovereign Indian
tribes. The question presented is whether the Legislature's
ratification of the agreements by concurrent resolution was
the appropriate manner in which to manifest its assent.
The extra-jurisdictional cases that the dissents rely
on are distinguishable from the present case.
In each, the
governor of the state acted unilaterally to bind the state
to the compact.
While those cases hold that legislative
approval is required, no case suggests the form that such
approval must take. See State of Kansas ex rel Stephan v
21
Finney,
251
Kan
559;
836
P2d
1169
(1992);
Narragansett
Indian Tribe of Rhode Island v Rhode Island, 667 A2d 280
(1995).
In
expressed
the
its
present
approval
case,
of
the
the
Michigan
compacts.
Legislature
The
unique
question before us is whether that Legislature's approval
was
sufficient
under
the
Michigan
Constitution.
We
hold
that it was.
Both Justice Markman and Justice Weaver rely on Becker
v Detroit Savings Bank, 269 Mich 432, 257 NW 853 (1934).
Becker
is
legislative
inapplicable
resolution
to
this
that
case.
purported
It
to
dealt
convey
with
to
a
the
courts the Legislature's intent in passing a certain law.
The Court held that, while the resolution was entitled to
"respectful consideration," it was not the law.
436.
Id. at
Becker concluded that the courts are bound to apply
the law as written. Id.
The question here is not whether the compacts must be
followed in light of conflicting statutory authority.
is
whether
the
Legislature
was
required
to
voice
It
its
approval in the form of a bill that is passed into law.
Becker notes that "[j]oint resolutions *** are often used
to express the legislative will in cases not requiring a
general law." Id. at 435, quoting Hoyt v Sprague, 103 US
613,
636;
26
L
Ed
585
(1880).
22
Becker
does
not
aid
in
determining whether the compacts at issue require a general
law.
VI. Conclusion
A majority of Justices, myself included, hold that the
tribal-state gaming compacts at issue are not legislation.
They
are
appropriately
sovereign
restrict
entities.
the
viewed
They
people
of
do
the
as
not
agreements
impose
state.
between
duties
Instead,
on
they
or
are
contractual in nature, conveying the rights and obligations
of
the
parties,
the
state,
and
the
various
tribes.
Therefore, a concurrent resolution of the Legislature was
appropriate to validate them.
For these reasons, a majority affirms the Court of
Appeals decision in favor of defendants, except as to the
recent amendments made by Governor Granholm. On that issue,
a
majority
Appeals
agrees
for
to
remand
consideration
of
the
case
to
plaintiffs'
the
Court
of
separation
of
powers claim.
Marilyn Kelly
Michael F. Cavanagh
23
S T A T E
O F
M I C H I G A N
SUPREME COURT
TAXPAYERS OF MICHIGAN AGAINST CASINOS,
AND LAURA BAIRD,
Plaintiffs-Appellants,
v
No. 122830
THE STATE OF MICHIGAN,
Defendant-Appellee,
and
NORTH AMERICAN SPORTS MANAGEMENT
COMPANY, INC, IV, and GAMING
ENTERTAINMENT, LLC,
Intervening Defendants-Appellees,
_______________________________
WEAVER, J. (concurring in part and dissenting in part).
I concur with the majority’s holding that the compacts
do not violate Const 1963, art 4, § 29, the “local acts”
clause.1
But I dissent from the majority’s decision that
the tribal-state gaming compacts at issue, entered into and
signed
1
by
various
Indian
tribes
and
Governor
Engler
on
The majority correctly holds that the “local act”
provision of Michigan’s constitution, art 4, § 29, is not
implicated by the compacts; I concur in the majority’s
decision to affirm the decision of the Court of Appeals on
this issue.
behalf of the state pursuant to the federal Indian Gaming
Regulatory Act (IGRA), 25 USC 2701 et seq., were validly
approved
by
Accordingly,
a
I
joint
would
resolution
hold
that
of
the
the
Legislature.
compacts
are
void
because they are legislation that is required to be enacted
by bill, not passed by issuing a joint resolution, and I
therefore would reverse the Court of Appeals decision on
this issue.
I would also hold that the power to bind the state to
a
compact
with
an
Indian
tribe
is
an
exercise
of
the
legislative power, and that the Governor does not have the
authority to bind the state to such a compact.
of
the
Michigan
Constitution
requires
legislation shall be by bill . . . .”
Art 4, § 22
that
“[a]ll
A resolution is not
a constitutional method of expressing the legislative will
where that expression is to have the force of law and bind
people
other
adopting it.
than
the
members
the
force
legislative
the
house
or
houses
Becker v Detroit Savings Bank, 269 Mich 432,
434-435; 257 NW 855 (1934).
have
of
of
members
law
who
and
The tribal-state compacts
bind
adopted
people
them.
other
than
the
Therefore,
the
Legislature must exercise its power to bind the state to a
compact with an Indian tribe by enacting a bill, not by
passing a joint resolution.
I would reverse the Court of
2
Appeals on this issue and hold that the compacts at issue
are void.
Because I would hold that the compacts are void, it is
unnecessary to remand to the trial court for consideration
of whether the provision in the compacts that permits the
Governor to amend the compacts without legislative approval
violates Const 1963, art 3, § 2, the separation of powers
doctrine.
Such an issue is moot in light of my conclusion
that the compacts are void.
I
The compacts at issue were signed by Governor Engler
and
the
various
Indian
tribes,
and
approved
Legislature pursuant to a joint resolution.2
by
the
Appellants
argue that the Legislature’s approval by joint resolution
was
not
valid.
Appellants
assert
that
the
policy
determinations in deciding whether and how to allow Indian
tribes to operate casinos in Michigan are legislative in
nature,
bill,
and
not
therefore
joint
the
compacts
resolution,
2
must
because
be
approved
the
by
Michigan
See House Concurrent Resolution (HCR) 115 (1998).
While a bill must be passed by a majority of elected and
serving members of the Legislature, a resolution may be
passed by a majority vote of those legislators present at
the time, as long as a quorum is present.
3
Constitution, art 4, § 22 requires that “[a]ll legislation
shall be by bill.”
Underlying
the
issue
of
whether
the
compacts
were
validly approved is a more fundamental question: who, under
Michigan
law,
Michigan
to
a
has
the
compact
authority
to
negotiated
bind
under
the
state
of
If
the
IGRA.
authority is vested in Michigan’s Governor, the Governor’s
approval alone would be sufficient to render the compacts
valid, there would be no requirement that the Legislature
approve the compacts at all, and the manner in which the
Legislature approved the compact would not be governed by
the Constitution.
See Panzer v Doyle, __ Wis 2d __, __;
680 NW2d 666 (2004).
But if the authority to approve a
compact is vested in Michigan’s Legislature, then it is
necessary to determine whether approval by resolution was a
valid exercise of the Legislature’s power under Michigan’s
Constitution.
II
IGRA
does
not
specify
which
branch
of
a
state
government should bind the state to a compact with Indian
tribes.3
Rather, the determination whether a state has
3
The IGRA provides, in pertinent part: “Any Indian
tribe having jurisdiction over the Indian lands upon which
(continued…)
4
validly bound itself to a compact is a matter of state
sovereignty and left to state law.
Saratoga Co Chamber of
Commerce Inc v Pataki, 100 NY2d 801, 822; 798 NE2d 1047
(2003).
For the reasons set forth below, I would hold that
it is the Legislature that has the authority to bind the
state to a compact under IGRA and that the Governor does
not have the authority to bind Michigan to a compact under
IGRA.
Michigan’s
government:
Constitution
“The
powers
of
separates
government
the
are
powers
divided
of
into
three branches: legislative, executive and judicial.
person
exercising
powers
properly
powers
belonging
of
to
one
branch
another
expressly provided in this constitution.”
3, § 2.
shall
branch
No
exercise
except
as
Const 1963, art
The executive power is vested in the Governor,
Const 1963, art 5, § 1, and the legislative power is vested
in a senate and a house of representatives.
art 4 § 1.
Const 1963,
The executive power is, first and foremost, the
power to enforce the laws or to put the laws enacted by the
Legislature into effect.
The People ex rel Sutherland v
(…continued)
a class III gaming activity is being conducted, or is to be
conducted, shall request the State in which such lands are
located to enter into negotiations for the purpose of
entering into a Tribal-State compact governing the conduct
of gaming activities.” 25 USC 2710(d)(3)(A).
5
Governor,
29
Mich
320,
324-325
(1874),
People
ex
rel
Attorney General v Holschuh, 235 Mich 272, 274-275; 209 NW
158 (1926); 16A Am Jur 2d, Constitutional Law § 258, p 165
and § 275, p 193.
determine
the
The legislative power is the power to
interests
of
the
public,
to
formulate
legislative policy, and to create, alter, and repeal laws.
Id.
The Governor has no power to make laws.
Dettenthaler,
118
Mich
595;
77
NW
450
People v
(1898).
“[T]he
executive branch may only apply the policy so fixed and
determined [by the legislative branch], and may not itself
determine matters of public policy or change the policy
laid down by the legislature.
16 CJS Constitutional Law §
216, p 686.
As explained below, I conclude that binding the state
to a compact with an Indian tribe involves determinations
of public policy and the exercise of powers that are within
the exclusive purview of the Legislature.
IGRA
several
itself
policy
compacts.
contemplates
choices
when
that
states
negotiating
will
tribal
confront
gaming
Saratoga Co Chamber of Commerce Inc v Pataki,
supra at 822.
Under IGRA, a compact may include provisions
relating
(i)
to:
the
application
of
directly
related
criminal and civil laws and regulations of the Tribe or the
State;
(ii)
the
allocation
of
6
jurisdiction
between
the
State and the Tribe to permit enforcement of such laws;
(iii) State assessments to defray the costs of regulating
gaming; (iv) taxation by the Tribe of such activity; (v)
remedies
for
breach
of
contract;
(vi)
standards
of
operation for gaming and maintenance of gaming facilities;
and (vii) “any other subjects that are directly related to
the
operation
of
gaming
activities.”
25
USC
2710
(d)(3)(C)(i)-(vii).
The
policy
Little
River
decisions
Band
made
compact
for
each
contains
of
the
recognized in 25 USC 2710(d)(3)(C)(i-vii).
examples
seven
of
issues
(i) Tribal law
and regulations, not state law, are applied to regulate
gambling.4
to
the
But the compact applies state law, as amended,
sale
and
regulation
encompassing certain areas.
The
tribe,
administer
not
and
the
alcoholic
beverages
(section 10 [a], p 13).
state,
enforce
of
is
the
4
given
(ii)
responsibility
regulatory
to
requirements.
The compact states, “Any limitations on the number of
games operated or played, their location within eligible
Indian lands as defined under this Compact, hour or period
of operation, limits on wages or potsize, or other
limitations shall be determined by duly enacted tribal law
or regulation. Any state law restrictions, limitations or
regulation of such gaming shall not apply to Class III
games conducted by the tribe pursuant to this compact.”
(section 3[a][8], p 5 of the Little River Band compact).
7
(section 4[m][1], p 9).
to
defray
the
costs
of
(iii) To allow state assessments
regulating
gaming,
the
compact
states that the tribe shall reimburse the state for the
costs up to $50,000 it incurs in carrying out functions
that are authorized within the compact.
p 10).
(section 4[m][5],
Also, the compact states that the tribe must pay 2%
of the net win at each casino derived from certain games to
the county treasurer.5
(section 18(a)(i), p 18).
(iv)
Under IGRA the tribe could tax the gaming activity, but the
compact does not allow such taxation.
provides
for
dispute
resolution
there is a breach of contract.
(v) The compact
procedures
(p 11).
in
(vi)
the
event
The compact
includes standards for whom a tribe can license and hire in
connection
with
gaming,
(section
4[d],
p
6),
accounting standards the gaming operation must follow,
sets
(p
7), and stipulates that gaming equipment purchased by the
tribe must meet the technical standards of the state of
Nevada or the state of New Jersey. (section 6[a], p 11).
5
The compact states that it is the “States intent, in
this and its other compacts with federally recognized
tribes, that the payments to local governments provided for
in this section provide financial resources to those
political
subdivisions
of
the
State
which
actually
experience increased operating costs associated with the
operation of the class III gaming facility.”
(section
18[a][ii], p 18).
8
(vii) The compact addresses the “other subjects that are
directly
related
throughout
the
additional
to
class
the
operation
document.
III
For
games
to
of
gaming
example,
facilities”
allows
for
conducted
be
it
through
the
agreement of tribe and the state. (section 3[b], p 5).
Also, the compact states that the tribe must purchase the
spirits
it
Michigan
sells
Liquor
at
the
gaming
Control
establishments
Commission
and
that
from
the
it
must
purchase beer and wine from distributors licensed by the
Michigan Liquor Control Commission.
These
compact
fundamental
policy
(section 10[b], p 13).
provisions
choices
necessarily
that
epitomize
require
"legislative
power." Decisions involving licensing, taxation, criminal
and
civil
jurisdiction,
and
standards
of
operation
and
maintenance require a balancing of differing interests, a
task
the
multi-member,
representative
Legislature
is
entrusted to perform under the constitutional separation of
powers.
See Saratoga Co Chamber of Commerce v Pataki, 100
NY2d 801, 822-823; 798 NE2d 1047; 766 NYS2d 654 (2003).
To
date,
addressed
every
whether
other
the
state
governor
supreme
or
the
court
that
legislature
has
of
a
state has the authority to bind the state to a compact with
an Indian tribe under IGRA has concluded that the state’s
governor lacks the power unilaterally to bind the state to
9
tribal
gaming
compacts
under
IGRA.
See
State
ex
rel
Stephan v Finney, 251 Kan 559; 836 P2d 1169 (1992); State
ex rel Clark v Johnson, 120 NM 562; 904 P2d 11 (1995);
Narragansett Indian Tribe of Rhode Island v Rhode Island,
667 A2d 280 (1995); Pataki, supra;
Panzer, supra.6
These
cases concluded that entering into a tribal-state compact
under
IGRA,
and
thereby
committing
the
state
to
a
particular position with respect to Indian gaming, involves
subtle and important decisions regarding state policy that
are at the heart of legislative power.
62.
Panzer, supra at
Further, the cases have relied on the fact that their
state
constitutions,
like
Michigan’s,
provide
for
separation of powers, vesting the legislative power in the
legislature
governor.
and
vesting
Finney,
supra
the
at
executive
577;
Clark,
power
in
the
supra
at
573;
Narragansett Indian Tribe, supra at 280; Pataki, supra at
821-822; Panzer, supra at ___.
6
The cases recognized that
A federal district court held that the governor of
Mississippi did have the authority to bind the state to a
compact with the Indian tribes, based on a Mississippi
statute which authorizes the governor to transact business
with other sovereigns, such as other states, territories,
or the United States Government.
Willis v Fordice, 850 F
Supp 523 (1994).
Unlike Mississippi, Michigan has no
statutory or constitutional provision giving the Governor
authority to bind the state in a compact with an Indian
tribe.
10
the legislature creates the law, that the governor executes
the laws, and that a compact with an Indian tribe did not
execute
existing
create new law.
573.
The
law,
but
was,
instead,
an
attempt
to
Finney, supra at 573, and Clark, supra at
courts
also
focused
on
the
balance
that
the
compact struck on matters of policy such as the regulation
of
class
III
operators,
gaming
and
the
activities,
the
respective
licensing
civil
and
of
its
criminal
jurisdictions of the state and the tribe necessary for the
enforcement of state or tribal laws or regulations.
Clark,
supra at 574; Pataki, supra at 822; Panzer, supra at __.
The
approval
of
a
compact
with
involves numerous policy decisions.
an
Indian
tribe
The executive branch
does not have the power to make those determinations of
public interest and policy, but may only apply the policy
as fixed and determined by the legislature.
I would agree
with the other state courts that have examined this issue,
and hold that committing the state to the myriad policy
choices
inherent
constitutes
a
in
negotiating
legislative
function.
a
gaming
Thus,
the
compact
Governor
does not have the authority to bind the state to a compact
with an Indian tribe; only the Legislature does.
11
III
Having determined that binding the state to a compact
is
a
legislative
function,
the
question
then
becomes
whether the Legislature may do so by a joint resolution.
I
would conclude that it may not because under the Michigan
Constitution a resolution is not a valid exercise of the
legislative power.
The
Michigan
Constitution
requires
legislation shall be by bill . . . .”
22.
that
“[a]ll
Const 1963, art 4, §
This Court has previously recognized that “[a] mere
resolution,
therefore,
is
not
a
competent
method
of
expressing the legislative will, where that expression is
to have the force of law, and bind others than the members
of the house or houses adopting it.”
Becker v Detroit
Savings Bank, 269 Mich 432, 434-435; 257 NW 855 (1934).
In
the
resolutions
1997-1998
introduced
Approximately
23
term
in
the
concurrent
there
House
were
of
117
concurrent
Representatives.
resolutions
were
adopted,
including HCR 115, which approved the compacts at issue.
The
other
resolutions
22
concurrent
commemorating
resolutions
the
150th
adopted
anniversary
included
of
the
selection of the city of Lansing as the permanent capital
of the state of Michigan [HCR 24]; urging the President of
the United States to designate the Detroit River as an
12
American
Heritage
River
[HCR
69];
prescribing
the
legislative schedule [HCR 74 & HCR 113]; and renaming the
Michigan Civilian Conservation Corps’ Camp Vanderbild in
the honor of State Representative Tom Mathieu [HCR 117].
A joint resolution is not an act of legislation, and
it
cannot
exercise
be
of
effective
for
legislative
any
power
purpose
is
for
which
necessary.
an
Cleveland
Terminal & Valley RR Co v State, 85 Ohio St 251, 293; 97 NE
967, 973 (1912).
of
the
In issuing the joint resolution approving
compacts
in
the
instant
case,
the
Legislature
purported to bind the entire state to the policy decisions
of and the terms set forth in the compacts, which would be
in place for at least twenty years.
This was not a valid
exercise of the legislative power, because art 4, § 22
requires that legislation be by bill.
Conclusion
I would hold that the power to bind the state to a
compact
with
legislative
an
Indian
power,
and
tribe
an
that
that
is
the
exercise
of
Legislature
the
must
exercise its power to bind the state by enacting a bill,
not by passing a joint resolution.
Accordingly, I would
conclude that the compacts are void, and I would reverse
the
decision
of
the
Court
of
Appeals
on
that
issue.
Because I would hold that the compacts are void, it is
13
unnecessary to address whether the provision that permits
the Governor to amend the compacts is unconstitutional.
Elizabeth A. Weaver
14
S T A T E
O F
M I C H I G A N
SUPREME COURT
TAXPAYERS OF MICHIGAN AGAINST CASINOS,
AND LAURA BAIRD,
Plaintiffs-Appellants,
v
No. 122830
THE STATE OF MICHIGAN,
Defendant-Appellee,
and
NORTH AMERICAN SPORTS MANAGEMENT
COMPANY, INC, IV, and GAMING
ENTERTAINMENT, LLC.,
Intervening Defendants-Appellees,
_______________________________
MARKMAN, J. (concurring in part and dissenting in part).
I respectfully dissent from the lead opinion, except
as to part VI thereof, in this declaratory action in which
we granted leave to appeal to consider: (1) whether the
tribal-state
signed
by
gaming
various
compacts
Indian
at
tribes
issue,
and
entered
Governor
into
and
Engler
on
behalf of the state pursuant to the federal Indian Gaming
Regulatory
Act,
“legislation”
such
25
USC
that
2701
Michigan’s
et
seq.,
Legislature
constitute
violated
Const 1963, art 4, § 22 when it approved them by resolution
rather
than
by
bill;
(2)
whether
the
provision
in
the
compacts that purports to empower the Governor to amend
them without legislative approval violates Const 1963, art
3, § 2, the separation of powers doctrine; and (3) whether
the compacts violate Const 1963, art 4, § 29, the “local
acts” clause.
Regarding the first issue, the circuit court concluded
that the compacts constitute legislation and, therefore,
the Legislature was required to adopt them by bill.
The
Court of Appeals disagreed and reversed the decision of the
circuit court.
In my judgment, the compacts constitute
legislation and, therefore, the Legislature violated art 4,
§
22
when
it
adopted
them
by
a
resolution
vote.
Accordingly, I dissent from the lead opinion, and I would
reverse the decision of the Court of Appeals on this issue
and reinstate the decision of the circuit court.
Regarding
the
second
issue,
the
circuit
concluded that the compacts violate art 3, § 2.
court
The Court
of Appeals reversed the decision of the circuit court on
the basis that this issue was not ripe for review because
the Governor had not yet attempted to amend the compacts.
However, Governor Granholm recently sought to amend one of
the
four
compacts
issue is ripe.
and,
therefore,
in
my
judgment,
this
I conclude that the amendatory provision
2
violates art 3, § 2 and, therefore, I dissent from the lead
opinion on this issue.
Regarding the third issue, the circuit court concluded
that art 4, § 29 is not implicated.
The Court of Appeals
agreed and affirmed the decision of the circuit court.
I
concur with the analysis set forth in part VI of the lead
opinion finding that art 4, § 29 is not implicated and,
accordingly,
I
would
affirm
the
decisions
of
the
lower
courts on this issue.
I.
BACKGROUND
In California v Cabazon, 480 US 202; 107 S Ct 1083, 94;
L
Ed
2d
244
(1987),
considered
whether
regulatory
gambling
the
United
California
laws
on
could
Indian
States
Supreme
legally
Court
enforce
reservations
state did not completely prohibit such gambling.1
if
its
the
While the
Court affirmed that it “has consistently recognized that
Indian tribes retain ‘attributes of sovereignty over both
their members and their territory,’ . . . and that ‘tribal
sovereignty is dependent on, and subordinate to, only the
Federal Government, not the States,’” it also acknowledged
1
If the state prohibited class III gaming within its
borders, Cabazon held that California could enforce its
criminal laws relating to that prohibition on Indian lands
through 18 USC 1162.
3
that “[i]t is clear . . . that state laws may be applied to
tribal
Indians
on
their
expressly so provided.”
reservations
Id. at 207.2
if
Congress
has
Thus, the question to
resolve in Cabazon was whether the Congress had expressly
provided
that
state
laws
that
regulate,
but
do
not
prohibit, gambling may be applied on Indian reservations.
The
Court
answered
that
question
in
the
negative
and,
accordingly, held that California had no legal right to
enforce those laws on reservations.
In response to Cabazon, the Congress, in 1988, passed
the
Indian
(IGRA).
of
South
Gaming
Regulatory
Act,
25
USC
2701
et
seq.
The United States District Court for the District
Dakota
in
Cheyenne
River
Sioux
Tribe
v
South
Dakota, 830 F Supp 523, 526 (D SD, 1993), aff’d 3 F3d 273
(CA 8, 1993), stated:
The IGRA was enacted in response to the
Supreme Court's decision in Cabazon. Congress
wished to give states a certain amount of input
into gambling on Indian reservations. S. Rep. No.
446, 100th Cong., 2d Sess. (1988), reprinted in
1988 U.S.C.C.A.N. 3071.
2
Additionally, the Court in Cabazon held that “[under]
. . . exceptional circumstances a State may assert
jurisdiction over the on-reservation activities of tribal
members”
even
absent
express
Congressional
consent.
Cabazon, supra at 215.
However, the Court resolved that
tribal
gambling
was
not
an
area
encompassing
such
“exceptional circumstances” so as to “escape the preemptive
force of federal and tribal interests . . . .” Id. at 221.
4
The IGRA gives states the right to get
involved in negotiating a gaming compact because
of the obvious state interest in gaming casino
operations within the state boundaries . . . .[3]
IGRA
divides
gaming
activities
into
three
classes.
Class I gaming consists of “social games solely for prizes
of
minimal
value
or
traditional
forms
of
Indian
gaming
engaged in by individuals as a part of, or in connection
with, tribal ceremonies or celebrations.”
25 USC 2703(6).
Class II gaming includes bingo and card games—other than
banking
card
games—that
are
played
in
conformance
with
state laws and regulations regarding hours of operation and
limitations on wagers or pot sizes.
25 USC 2703(7).
III gaming includes all other forms of gambling.
3
Class
25 USC
See also United States v Santa Ynez Band of Chumash
Mission Indians, 983 F Supp 1317, 1323 (CD Cal, 1997) (“In
[Cabazon], the Supreme Court sharply limited the power of
states to apply their gambling laws to Indian gaming. An
essential element of its decision was that Congress had not
acted specifically to make state gambling laws applicable
in Indian country. This decision made clear that it would
require a new act of Congress for states to have any
effective ability to prevent or regulate Indian gaming.
IGRA was enacted in direct response to Cabazon. . . .
Subsection (a) of § 1166 expressly makes state gambling
laws applicable in Indian country. . . .”)
See also
Confederated Tribes of Siletz Indians of Oregon v United
States, 110 F3d 688, 692 (CA 9, 1997); Pueblo of Santa Ana
v Kelly, 104 F3d 1546, 1548 n 3 (CA 10, 1997); Cheyenne
River Sioux Tribe v South Dakota, 830 F Supp 523, 525-526
(D SD, 1993), aff’d 3 F3d 273 (CA 8, 1993).
5
2703(8).
At issue in this case is class III gaming, referred to
throughout the remainder of this opinion as “gambling” or
“casino gambling.”
18 USC 1166 provides a starting point
to IGRA as it relates to gambling.
It states:
(a) Subject to subsection (c), for purposes
of Federal law, all State laws pertaining to the
licensing,
regulation,
or
prohibition
of
gambling, including but not limited to criminal
sanctions applicable thereto, shall apply in
Indian country in the same manner and to the same
extent as such laws apply elsewhere in the State.
(b) Whoever in Indian country is guilty of
any act or omission involving gambling, whether
or not conducted or sanctioned by an Indian
tribe, which, although not made punishable by any
enactment of Congress, would be punishable if
committed or omitted within the jurisdiction of
the State in which the act or omission occurred,
under
the
laws
governing
the
licensing,
regulation, or prohibition of gambling in force
at the time of such act or omission, shall be
guilty of a like offense and subject to a like
punishment.
(c) For the purpose of this
term "gambling" does not include—
section,
the
(1) class I gaming or class II gaming
regulated by the Indian Gaming Regulatory Act, or
(2) class III gaming conducted under a
Tribal-State compact approved by the Secretary of
the Interior under [25 USC 2710(d)(8)] of the
Indian Gaming Regulatory Act that is in effect.
(d) The United States shall have exclusive
jurisdiction
over
criminal
prosecutions
of
violations of State gambling laws that are made
applicable under this section to Indian country
. . . .
6
Thus, IGRA generally provides that in the absence of a
tribal-state
state
compact,
gambling
laws,
for
purposes
including
of
federal
regulatory,
as
law,
well
all
as
prohibitory, laws and regulations and any relevant criminal
punishments,
elsewhere
in
apply
the
on
Indian
state,
land
albeit
just
with
as
the
they
apply
proviso
that
criminal prosecutions are within the jurisdiction of the
federal government.4
4
It appears that states have some enforcement powers
under § 1166(a)—civil enforcement powers.
See Santa Ynez
Band, supra at 1322:
Consideration of the structure of § 1166
suggests strongly that Congress intended to
distinguish civil enforcement to prevent future
acts of non-conforming gaming from criminal
enforcement efforts to punish past acts.
As to
the latter, § 1166(b) and (d) leave no doubt that
criminal enforcement is the exclusive province of
the United States. The United States contends
that Congress also intended for it to have the
same exclusive power to bring civil enforcement
actions under § 1166(a). The statute says nothing
at all to suggest this. On the contrary, the more
natural inference to be drawn from Congress’
decision to make state law applicable, as such,
in § 1166(a), rather than to convert it to
federal law as in § 1166(b), is that Congress
intended to divide the enforcement of the two
subsections between the states and the United
States.
If Congress had not intended § 1166(a) to be
used by the states for civil enforcement of the
state laws made applicable by it, there was no
need first to make all state gambling laws
applicable, as such, and then to carve out only
(continued…)
7
If a tribe wishes to “opt-out” of the default federal
law
rule
of
§
1166
and
to
lawfully
engage
in
casino
gambling on its Indian land, it may do so in accordance
with 25 USC 2710(d) of IGRA.
That section provides, in
relevant parts:
(1) Class III gaming activities shall be
lawful on Indian lands only if such activities
are—
* * *
(B) located in a State
gaming
for
any
purpose
organization, or entity, and
that permits such
by
any
person,
(C) conducted in conformance with a TribalState compact entered into by the Indian tribe
and the State under paragraph (3) that is in
effect.
* * *
(3)(A) Any Indian tribe having jurisdiction
over the Indian lands upon which a class III
gaming activity is being conducted, or is to be
conducted, shall request the State in which such
lands are located to enter into negotiations for
the purpose of entering into a Tribal-State
compact
governing
the
conduct
of
gaming
activities. Upon receiving such a request, the
State shall negotiate with the Indian tribe in
good faith to enter into such a compact.[5]
(…continued)
those acts which would be punishable under state
law and redefine them as identical, independent
federal offenses [under § 1166(b)].
5
In 1996, the United States Supreme Court somewhat
limited the reach of IGRA in Seminole Tribe of Florida v
Florida, 517 US 44; 116 S Ct 1114; 134 L Ed 2d 252 (1996).
(continued…)
8
* * *
(C) Any Tribal-State compact
under subparagraph (A) may include
relating to—
negotiated
provisions
(i) the application of the criminal and
civil laws and regulations of the Indian tribe or
the State that are directly related to, and
necessary for, the licensing and regulation of
such activity;
(ii) the allocation of criminal and civil
jurisdiction between the State and the Indian
tribe necessary for the enforcement of such laws
and regulations;
(iii) the assessment by the State of such
activities in such amounts as are necessary to
defray the costs of regulating such activity;
(iv) taxation by the Indian tribe of such
activity
in
amounts
comparable
to
amounts
assessed by the State for comparable activities;
(v) remedies for breach of contract;
(vi) standards for the operation of such
activity and maintenance of the gaming facility,
including licensing; and
(vii) any other subjects that are directly
related to the operation of gaming activities.
(…continued)
In Seminole Tribe, the Court considered 25 USC 2710(d)(7)
of IGRA, a provision that permits Indian tribes to sue a
state in federal court when that state has refused to
negotiate in good faith for a tribal-state compact.
The
Court ruled that this provision violates state sovereign
immunity as preserved by the Eleventh Amendment of the
United
States
Constitution
and
is
therefore
unconstitutional.
9
* * *
(5) Nothing in this subsection shall impair
the right of an Indian tribe to regulate class
III gaming on its Indian lands concurrently with
the State, except to the extent that such
regulation
is
inconsistent
with,
or
less
stringent than, the State laws and regulations
made applicable by any Tribal—State compact
entered into by the Indian tribe under paragraph
(3) that is in effect.
Thus,
under
§
2710(d),
a
state
and
a
tribe
are
encouraged to negotiate with one another with the ultimate
goal
of
entering
into
a
mutually
agreeable
tribal-state
compact that makes gambling on that tribe’s lands lawful
and
that
may
alter
the
general
gambling
laws
and
regulations and enforcement procedures that otherwise apply
to that tribe through § 1166.
In essence, by providing under § 1166 that, in the
absence of a compact, state gambling laws and regulations
apply on Indian land, the Congress provided the consent to
the states that was found lacking in Cabazon to regulate
tribal gambling in the same manner and to the same extent
that
states
borders.6
regulate
gambling
elsewhere
within
their
However, to maintain the proper balance between
6
For example, if state law provides that casino
gambling anywhere in the state is prohibited and punishment
for illegal casino gambling is imprisonment of five years
and a fine of $10,000, that is the law that applies to
(continued…)
10
Indian
and
state
affairs,
the
Congress
further
provided
under § 1166 that the federal government is charged with
enforcing state criminal gambling laws and regulations on
Indian land.
This point was succinctly made by the United States
Court of Appeals for the Ninth Circuit in Artichoke Joe’s
California Grand Casino v Norton, 353 F3d 712, 721-722 (CA
9, 2003).
of
There, the court addressed the role of IGRA and,
particular
provision
relevance,
grants
states
gambling on Indian land.
18
the
USC
1166,
power
to
insofar
generally
as
that
regulate
The court stated:
IGRA changed the landscape . . . .
[I]t
devised a method to give back some of the
regulatory [italics in original] authority that
the Supreme Court had held inapplicable to Indian
lands in Cabazon. One of the bases of the holding
(…continued)
tribal lands under § 1166 in the absence of a compact. If
the state decides at some later point, perhaps because of a
large illegal gambling problem specifically on tribal
lands, to amend its laws to hold that gambling is still
entirely prohibited, but that the punishment is now
imprisonment of twenty-five years and a $200,000 fine, that
amended law becomes the law that is applicable to tribal
lands under § 1166 in the absence of a compact. Thus, by
making state gambling laws—whatever those laws are at a
given time—applicable to Indian land in the absence of a
compact, IGRA gives states meaningful regulatory authority
over casino gambling on Indian land.
Therefore, Chief
Justice Corrigan is incorrect when she states that “states
have no authority to regulate tribal gaming under IGRA
unless the tribe explicitly consents to the regulation in a
compact.” Ante at 11.
11
in Cabazon was that Congress had not explicitly
ceded regulatory authority for gaming to the
states in Public Law No. 280 or otherwise. IGRA
responded by creating a statutory basis for
gaming regulation that introduced the compacting
process as a means of sharing with the states the
federal government’s regulatory authority over
class III gaming. Simultaneously, IGRA put into
effect 18 USC 1166, which provides that “all
State
laws
pertaining
to
the
licensing,
regulation, or prohibition of gambling, including
but not limited to criminal sanctions applicable
thereto, shall apply in Indian country in the
same manner and to the same extent as such laws
apply elsewhere in the State.”
18 USC 1166(a).
The federal government retained the power to
prosecute violations of state gambling laws in
Indian country, so as to preserve the delicate
balance of power between the States and the
tribes.
However, the fact that the federal
government retained that power does not change
the fact that California may enact laws and
regulations concerning gambling that have an
effect on Indian lands via § 1166.
[Artichoke
Joe’s, supra at 721-722 (citations omitted;
emphasis added).][7]
Moreover, through § 2710(d), the Congress provided the
states with a direct means of “escap[ing] the preemptive
7
See also Sycuan Band of Mission Indians v Roache, 788
F Supp 1498, 1506 (SD Cal, 1992), aff’d 54 F3d 535 (CA 9,
1994) (“The balance struck by Congress under the IGRA
appears to be that the state laws governing gaming apply,
for the most part, with the same force and effect the laws
would have elsewhere in the state. Thus, by federalizing
state law, the states could generally define the boundary
between legal and illegal gaming, and could be assured that
activities that would be illegal if performed outside the
reservation boundaries would also be illegal within the
reservation boundaries.”)
12
force of federal and tribal interests”8 regarding class III
gaming
on
Indian
land
by
granting
states
the
power
to
specifically make lawful and regulate casino gambling on
particular Indian land, as long as such actions arise from
the
negotiation
process
and
are
otherwise
in
accordance
with IGRA.
In 1993, Governor Engler, pursuant to § 2710(d) of
IGRA,
entered
into
tribal-state
compacts
conducting
Michigan
tribes
that
were
already
gambling
before
the
Congress’s
passage
of
with
seven
class
IGRA.9
III
As
required by the terms of a consent judgment that resolved a
federal lawsuit filed by the tribes against the Governor to
compel
negotiations,
Legislature
8
by
the
compacts
resolution
and
were
approved
became
by
the
effective.10
Cabazon, supra at 221.
9
These tribes were the Sault Ste. Marie Tribe of
Chippewa Indians, the Grand Traverse Band of Ottawa and
Chippewa Indians, the Keweenaw Bay Indian Community, the
Hannahville
Indian
Community,
the
Bay
Mills
Indian
Community, the Lac Vieux Desert Band of Lake Superior
Chippewa Indians, and the Saginaw Chippewa Indian Tribe.
All these tribes are currently operating casinos.
10
After IGRA was passed, the tribes that were already
engaged in casino gambling in Michigan requested that the
Governor negotiate gaming compacts.
The negotiations
stalled and the tribes filed suit in federal court to
compel negotiations.
See Sault Ste Marie Tribe v Engler,
93 F Supp 2d 850 (WD Mich, 2000). During this litigation,
the parties reached a settlement and the Court entered a
(continued…)
13
Additional
state
court
litigation
followed
in
which
the
Michigan Court of Appeals twice confirmed that the Governor
did not violate the separation of powers clause by binding
the state to tribal-state compacts where the Legislature
had approved those compacts by resolution.
Thus, the Court
of Appeals implied that mere resolution approval by the
Legislature
of
tribal-state
compacts
was
proper.
See
(…continued)
consent judgment.
Essentially, the consent judgment is
constituted of the seven 1993 compacts entered into by
Governor Engler and the tribes in accord with the
settlement.
This
consent
judgment
should
not
be
interpreted as a federal court determination that a
resolution vote is a proper adoption because the court did
not address this question; it merely incorporated into the
consent judgment the terms of the settlement as agreed to
by Governor Engler and the tribes.
Moreover, the United
States Court of Appeals for the Sixth Circuit, in Keweenaw
Bay Indian Community v United States, 136 F3d 469, 477
(1998), in which the court addressed an issue pertaining to
one of the 1993 consent judgment compacts (but not the
issue implicated in this case), stated:
Regarding obtaining the Michigan Governor's
“approval” twice, we point out that a governor's
endorsement of a compact as required by the terms
of
a
compact
is
coincidental,
varied
and
dependent on the relevant state laws. See, e.g.,
[Pueblo of Santa Ana v Kelly, 104 F3d 1559 (CA
10, 1997)], cert den 522 US 807 [118
S Ct 45;
139
L Ed 2d 11] (1997) (deciding that Governor
of New Mexico lacked authority, under New Mexico
Constitution or state statute, to bind state to
tribal-state compacts).
Thus, the Sixth Circuit expressly recognized that a
governor might not have the power to bind the state to an
IGRA compact and that the question is a matter of state
law.
14
McCartney v Attorney General, 231 Mich App 722, 728; 587
NW2d 824 (1998); Tiger Stadium Fan Club v Governor, 217
Mich App 439; 553 NW2d 7 (1996).
The compacts at issue in this case were first signed
by Governor Engler and each of four different Indian tribes
in January of 1997.11
Each compact was to take effect,
according to a compact provision, after “[e]ndorsement by
the
Governor
of
the
State
and
concurrence
in
that
endorsement by resolution of the Michigan Legislature.”12
The
compacts
were
modified
and
re-executed
in
December
1998, and the Legislature proceeded to consider them by
resolution.
See HCR 115 (1998).
Unlike a bill, which must
be passed by a majority of elected and serving members of
the Legislature, a resolution may be passed by a majority
vote of those legislators present at the time, as long as a
quorum is present.
The House of Representatives approved
the compacts by a resolution vote of 48 to 47, and the
Senate followed suit by a resolution vote of 21 to 17.
11
These tribes are the Little Traverse Bay Band of
Odawa Indians, the Pokagon Band of Ottawa Indians, the
Little River Band of Ottawa Indians, and the Nottawaseppi
Huron Potawatomi. Of these tribes, the Little Traverse Bay
Band and the Little River Band are currently operating
casinos.
12
See § 11 of the compacts.
15
Following is a list of the essential compact terms:
•
The compacts permit a variety of gambling
activities.
•
The compacts provide that the tribe and the
Governor may subsequently agree to expand the list of
class III gaming activities permitted by the compacts.
•
The compacts provide that the tribe shall
“enact a comprehensive gaming regulatory ordinance”
but if any regulation imposed by the tribe is less
stringent than that imposed by the compact, the
compact governs.
•
The compacts provide that the tribe shall
have
responsibility
to
administer
and
enforce
applicable regulatory requirements.
•
The compacts provide limitations on the
tribe’s hiring practices, for example, the tribe may
hire no one under age 18 (whereas non-Indian casinos
in Michigan may employ only those who are 21 or
older).
•
The compacts allow persons aged 18 and over
to gamble (whereas the age requirement in the rest of
Michigan is 21).
•
The compacts incorporate the protections of
the Michigan Employment Security Act, MCL 421.1 et
seq.; and the Worker’s Disability Compensation Act of
1969, MCL 418.101 et seq.
•
Any disputes between the tribe and the state
are to be resolved through binding arbitration.
•
The tribe must post a sign in the gaming
facility noting that the facility “is not regulated by
the State of Michigan.”
•
The compact is binding for
twenty years after it becomes effective.
•
a
period
of
The tribe must make semi-annual payments of
16
8% of the net
Strategic Fund.
win
at
the
casino
to
the
Michigan
•
The tribe must make semi-annual payments of
2% of the net win to the treasurer of the relevant
county to be held by the treasurer on behalf of the
Local Revenue Sharing Board. To this end, counties in
the vicinity of the class III gaming facilities shall
create a Local Revenue Sharing Board.
•
The
compacts
contain
a
provision
that
purports to empower the Governor to amend them without
legislative approval.
Various lawsuits were filed questioning the validity
of the 1998 compacts.
The Sault Ste. Marie Tribe of Lake
Superior sued in federal court to enjoin the operation of
the new casinos, but the United States Court of Appeals for
the Sixth Circuit dismissed this suit on standing grounds.
Sault Ste. Marie Tribe v United States, 288 F3d 910 (CA 6,
2002).
Two state legislators also challenged the approval
of Michigan’s 1998 compacts by the Secretary of Interior,
which suit was also dismissed on standing grounds by the
United
States
Court
of
Appeals
for
the
Sixth
Circuit.
Baird v Norton, 266 F3d 408 (CA 6, 2001).
Plaintiffs-appellants,
the
Taxpayers
of
Michigan
Against Casinos and Laura Baird, filed this suit against
Michigan in the Ingham Circuit Court seeking a declaratory
judgment
that
the
compacts
constitutional provisions.
do
not
comport
with
various
Plaintiffs contend first that
the compacts amount to legislation and, therefore, pursuant
17
to Const 1963, art 4, § 22 the Legislature was required to
adopt them by bill rather than approve them by resolution.
The circuit court held that the compacts should have been
approved
by
bill.
The
Court
of
Appeals
reversed
the
circuit court decision, concluding that the compacts do not
constitute legislation because they contain no enforcement
provision that would ensure that their terms are satisfied
and because the power of the state to legislate in this
area is preempted by federal law.
opined
that
the
compacts
The Court of Appeals
constitute
mere
contracts
and,
therefore, approval by resolution was not constitutionally
infirm.
Plaintiffs also contend that the provision in the
compacts that purports to empower the Governor to amend
them without legislative approval violates Const 1963, art
3, § 2, the “separation of powers” doctrine.
court
agreed
with
plaintiffs.
The
Court
The circuit
of
Appeals,
however, reversed the decision of the circuit court on the
basis that the amendatory provision issue was not ripe for
review because the Governor had not yet attempted to amend
the
compacts.
Plaintiffs
additionally
contend
that
the
compacts violate Const 1963, art 4, § 29, the “local acts”
clause. The circuit court disagreed, holding that art 4, §
29 is not implicated.
The Court of Appeals agreed and
affirmed the circuit court on this issue.
18
II.
STANDARD
OF
REVIEW
Matters of constitutional and statutory interpretation
are reviewed de novo by this Court.
Harvey v Michigan, 469
Mich 1, 6; 664 NW2d 767 (2003); Roberts v Mecosta Co Gen
Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002).
III.
ANALYSIS
This Court has been called upon to consider, in this
action seeking declaratory judgment, matters of significant
constitutional concern.
We are asked to consider whether
the challenged tribal-state compacts and various actions
undertaken
by
our
legislative
and
executive
branches
of
government pertinent to those compacts are consistent with
the
enactment
doctrine,
requirement,
and
the
local
Michigan’s Constitution.
in
any
measure
been
the
separation
acts
provision
of
powers
embodied
in
“[D]eciding whether a matter has
committed
by
the
Constitution
to
another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is
itself
a
delicate
exercise
in
constitutional
interpretation, and is a responsibility of this Court as
ultimate interpreter of the Constitution.”
House Speaker v
Governor, 443 Mich 560, 575; 506 NW2d 190 (1993).
A. DO
COMPACTS CONSTITUTE
“LEGISLATION”?
The first question presented on review requires that
19
we
consider
constitute
whether
the
tribal-state
“legislation.”
The
compacts
Michigan
at
issue
Constitution
requires that “[a]ll legislation shall be by bill . . . .”
Const 1963, art 4, § 22.
In addition, “[n]o bill shall
become a law without the concurrence of a majority of the
members elected to and serving in each house.”
art
4,
§
26.
Plaintiffs
contend
that
Const 1963,
the
compacts
constitute legislation and, therefore, the Legislature was
required to approve them by bill—by a majority vote of the
members elected to and serving in each house.
Defendants
contend that the compacts do not constitute legislation and
instead are contracts of a unique nature that the state may
validly enter into pursuant to federal law as provided in
IGRA and, therefore, the compacts are not subject to Const
1963, art 4, §§ 22 and 26.
Black’s Law Dictionary (7th ed) defines “legislation”
as “[t]he process of making or enacting a positive law in
written form, according to some type of formal procedure,
by
a
branch
process-Also
of
government
termed
constituted
lawmaking
.
.
to
.
perform
.”
this
Michigan’s
Constitution provides that “[t]he legislative power of the
State of Michigan is vested in a senate and a house of
representatives.”
branch
of
Const
government
1963,
art
4,
“constituted
20
§
to
1.
Thus,
perform
the
[the
lawmaking]
process”
procedure”
by
is
which
the
Legislature,
this
process
and
is
to
the
“formal
occur
is
constitutionally defined—lawmaking is to be “by bill” and
is subject to a majority vote of those elected to each
house of the Legislature.
Const 1963, art 4, §§ 22 and 26.
Accordingly, the definition of “legislation” in Black’s Law
Dictionary requires that we consider whether the compacts
amount to “positive lawmaking.”
In Blank v Dep’t of Corrections, 462 Mich 103; 611
NW2d 530 (2000), this Court considered whether a provision
in the Administrative Procedures Act, MCL 24.201 et seq.,
that
required
administrative
agencies
to
obtain
the
approval of a joint committee of the Legislature or the
Legislature itself before enacting new administrative rules
violated
the
enactment
and
presentment
requirements
of
Michigan’s Constitution, Const 1963, art 4, §§ 26 and 33.13
In
analyzing
the
question
presented
in
Blank,
we
addressed whether the challenged action—a vote of the joint
committee or the Legislature itself on an administrative
rule—was “legislative” in nature, so that it was subject,
under
the
enactment
and
presentment
13
requirements
of
The differences between the two concurring opinions
in Blank and the majority opinion are not pertinent to the
analysis of Blank as set forth in this opinion.
21
Michigan’s Constitution, to a majority vote of the full
Legislature and gubernatorial approval.14
In resolving that question, we employed the analytical
framework laid out by the United States Supreme Court in
Immigration & Naturalization Service v Chadha, 462 US 919;
103 S Ct 2764; 77 L Ed 2d 317 (1983).
As we noted in
Blank, the United States Supreme Court in Chadha made four
observations in determining that the action challenged in
that case was inherently legislative and was subject to the
enactment and presentment requirements of the United States
Constitution:
First, the action "had the purpose and
effect of altering ... legal rights, duties and
relations of persons ... outside the legislative
branch."
Second,
the
action
supplanted
legislative action. The only way the House could
have obtained the same result would have been by
enacting legislation. Third, the House's action
involved determinations of policy. Fourth, the
constitution explicitly authorizes only four
instances where one house of Congress can act
alone. It does not include the authority for one
house to exercise a legislative veto over duly
authorized actions of the executive branch.
14
In this case, the presentment requirement embodied
in Michigan’s Constitution, Const 1963, art 4, § 33,
requiring that laws enacted by the Legislature be approved
by the Governor before taking effect, is not at issue
because the Governor signed the compacts. Thus, the issue,
as noted, is whether the compacts violate the enactment
requirements of Const 1963, art 4, § 26 because they
constitute legislation.
22
[Blank, supra at 114, quoting Chadha, supra at
952-956 (citations omitted).]
Applying Chadha’s framework in Blank, this Court held
that the challenged action was “legislative” in nature and,
therefore, it was subject to the enactment and presentment
requirements of Michigan’s Constitution.
Because the Chadha/Blank framework provides necessary
guidance
in
constitutes
determining
whether
a
“legislation”
subject
to
challenged
the
action
constitutional
enactment requirements, I employ it in the context of this
case.15
Accordingly, in my judgment, we must consider: (1)
whether the compacts at issue “‘had the purpose and effect
15
Chief
Justice
Corrigan
determines
that
the
Chadha/Blank framework is not applicable to this case,
despite the fact that the issue in this case is whether a
certain deliberate act undertaken by a branch of our
government violates the Constitution because the substance
of
the
act
constitutes
“legislation,”
and
this
is
specifically the issue that was addressed in Chadha and
Blank.
She contends that the Chadha/Blank framework is
inapplicable because this case concerns IGRA compacts and
not a legislative veto power and “our Constitution is
silent regarding the proper form of legislative approval of
tribal-state gaming compacts under IGRA. . . .”
Ante at
25. However, the point of invoking Chadha/Blank is only to
determine whether the compacts amount to legislation.
If
they do, Const 1963, art 4, § 22 and § 26 require that they
be subject to bill-making approval.
She tautologically
surmises that the Chadha/Blank framework is not relevant
because the compacts do not constitute legislation, but the
very point of utilizing the Chadha/Blank framework is to
determine whether the compacts constitute legislation.
If
so, then our Constitution is not silent on this issue.
23
of altering . . . legal rights, duties and relations of
persons
supra
.
at
.
.
outside
114;
(2)
the
legislative
whether
the
branch,’”
Governor’s
Blank,
action
in
negotiating the compacts and the Legislature’s resolution
vote
on
the
compacts
supplanted
legislative
action;
(3)
whether the compacts involved determinations of policy; and
(4) whether Michigan’s Constitution explicitly authorizes
the Legislature to approve these compacts by a resolution
vote even if they otherwise constitute “legislation.”
i.
LEGAL RIGHTS, DUTIES AND RELATIONS
The first factor, whether the compacts had the purpose
and effect of altering legal rights, duties, and relations
of persons outside the legislative branch, i.e., whether
they have a general effect upon the citizens of Michigan,
addresses
essentially
the
same
question
as
does
the
definition of “legislation” in Black’s Law Dictionary. That
is, Black’s primarily defines “legislation” as the making
of positive law, and when an action has the purpose and
effect of altering legal rights, duties, and relations of
persons
outside
the
legislative
branch,
that
action
is
typically an exercise in positive lawmaking.
What
is
important
to
understand
is
that,
in
the
absence of the challenged tribal-state compacts, gambling
on the subject Indian land was unlawful.
24
Gambling in the
absence of a compact was unlawful pursuant to 18 USC 1166,
which, as noted above, provides that, in the absence of a
tribal-state compact, state laws regulating or prohibiting
gambling “shall apply in Indian country in the same manner
and to the same extent as such laws apply elsewhere in the
State,” albeit, at least for criminal laws, through federal
enforcement.
18 USC
is
unlawful.
generally
1166(a).
Casino gambling in Michigan
MCL
750.301.
The
only
casino
gambling that is authorized in Michigan is that gambling
conducted in accordance with the Michigan Gaming Control
and Revenue Act (MGCRA), MCL 432.201 et seq.
However, by
its express terms, the MGCRA does not apply to “gambling on
Native
American
land.”
MCL
432.203(2)(d),(5).
Thus,
casino gambling on Indian land cannot be authorized and
conducted
pursuant
to
the
MGCRA,
which
leads
to
the
inescapable conclusion that casino gambling on Indian lands
located in Michigan is, pursuant to § 1166, subject to
Michigan’s
general
prohibition
against
such
gambling.16
16
Moreover, I find to be of significance the fact that
MCL 432.203 not only expressly provides that the MGCRA is
inapplicable to casino gambling on Indian lands, but it
also provides:
If a federal court or agency rules or
federal legislation is enacted that allows a
state to regulate gambling on Native American
land or land held in trust by the United States
(continued…)
25
Accordingly, under § 1166, in the absence of a tribal-state
compact, casino gambling on Indian land within Michigan’s
borders is unlawful, and that general unlawfulness is to be
enforced by the federal government.17
(…continued)
for a federally recognized Indian tribe, the
legislature shall enact legislation creating a
new act consistent with this act to regulate
casinos that are operated on Native American land
or land held in trust by the United States for a
federally
recognized
Indian
tribe.
The
legislation shall be passed by a simple majority
of members elected to and serving in each house.
[MCL 432.203(5).]
Thus, within the framework of the MGCRA, the Legislature
apparently recognized that if Michigan is granted the right
to regulate gambling on Indian lands within Michigan’s
borders, such ensuing regulation would be “legislative” in
nature and would require legislative action in accordance
with the enactment requirement of Const 1963, art 4, § 26.
In fact, the MGCRA requires that the Legislature pass
legislation regulating gambling on Indian lands if federal
law so permits.
It is clear, in my judgment, that IGRA
grants states, through both § 1166 and the compacting
process of § 2710(d), a means of regulating gambling on
Indian lands.
Accordingly, pursuant not only to Const
1963, art 4, §§ 22 and 26, but also pursuant to the
Legislature’s own self-imposed mandate in MCL 432.203(5),
the compacts, because they represent federally permitted
state regulation of gambling on Indian lands, should have
been passed by a majority of those elected to and serving
in each house.
17
My colleagues in the majority, in my judgment,
simply ignore the relevance of § 1166 in determining the
lawfulness, in the absence of a compact, of casino gambling
on Indian land.
They do this by summarily noting and
relying on the fact that it is the federal government that
is charged under § 1166 with enforcing the applicable state
law regulations. Opinion of Corrigan, C.J., ante at 14-16;
opinion of Kelly, J., ante at 9-10. As already indicated,
(continued…)
26
Moreover, gambling on the subject Indian lands absent
the challenged compacts was unlawful pursuant to 25 USC
2710(d)(1)(C).
provides
that
This
“[c]lass
is
because,
III
as
gaming
noted,
§
activities
2710(d)
shall
be
lawful on Indian lands only if such activities are . . .
conducted
in
conformance
with
a
Tribal-State
compact
entered into by the Indian tribe and the State . . . .”
Therefore,
before
these
challenged
compacts
existed,
gambling on the subject Indian lands was unlawful.
(…continued)
I agree with the United States Court of Appeals for the
Ninth Circuit in Artichoke Joe’s, supra at 722, that, “the
fact that the federal government retained [the enforcement]
power does not change the fact that [states] may enact laws
and regulations concerning gambling that have an effect [in
the absence of a compact] on Indian lands.”
That is, the
states retain substantive authority over gambling law on
Indian lands.
See n 6.
Chief Justice Corrigan further
states that § 1166 does not truly give the states
regulatory power because “the federal government may
conclude at any time that it will no longer apply state law
and so amend IGRA.” Ante at 16. While it is true that it
is within Congress’s power to amend IGRA, this fact is
irrelevant because we are called upon to decide this case
under the law as it is today, and not under the law as it
could conceivably one day be.
Moreover, Chief Justice
Corrigan opines that Congress chose to make state casino
gambling laws applicable to Indian land “for expediency.”
Id.
She provides no support for this finding.
The
relevant legislative history indicates that Congress chose
to make state gambling laws applicable to tribes not for
reasons of “expediency,” but to specifically give states
some regulatory power over casino gambling on Indian land.
See Cheyenne River Sioux Tribe, supra at 526.
27
Thus,
it
becomes
clear
that,
before
the
challenged
compacts existed, the tribes would have been engaging in an
unlawful
activity
respective
compacts
had
casinos.
had
the
they
It
endeavored
necessarily
intended
purpose,
to
operate
follows
and
their
the
effect,
the
that
of
altering legal rights and relations of Michigan citizens
generally.
lawfully
The compacts purport to allow Indian tribes to
engage
in
activities
that
would
otherwise
specific
duties
be
unlawful.
Moreover,
the
compacts
impose
upon
both the members of the tribes and upon non-Indian peoples
and entities.
By way of example, the compacts impose a
duty on the tribes to administer and enforce on the casinos
the
regulatory
Further,
the
government
to
requirements
compacts
create
embodied
impose
a
local
a
duty
revenue
in
on
the
compacts.
local
units
of
sharing
board
to
receive and distribute a percentage of casino profits that
the tribes are required under the compacts to disburse.
Alternately, if the local units of government do not create
a local revenue sharing board, it may be said that the
compacts impose a duty on local units of government to
expend their own government funds to cover the inevitable
costs for public services, police, etc., that they will
incur as a result of having a casino in their area.
28
Under
either scenario, the compacts impose duties on local units
of government.18
Accordingly, it is clear that the compacts
18
Defendants argue, and the majority concludes, that
the compacts do not actually require the creation of local
revenue sharing boards, but rather permit local units of
government to voluntarily create such boards if they wish
to enjoy the benefits of the annual percentage payment that
the tribes are to make to those local units of government
pursuant to the compacts. Opinion of Corrigan, C.J., ante
at 18-19; opinion of Kelly, J., ante at 13-14.
This
argument is both flawed and disingenuous.
First, as is
expressly stated in the compacts themselves, the annual
payment of funds by the tribe to the local revenue sharing
boards is meant to “provide financial resources to those
political
subdivisions
of
the
State
which
actually
experience increased operating costs associated with the
operation of the Class III gaming facility[ies].”
See §
18(A)(ii) of the compacts.
Thus, it is evident that the
“choice” the local units of government have is either: (1)
to create a local revenue sharing board or (2) to simply
assume the actual costs incurred by the unit of government
in the operation of the casinos.
Either choice, as noted
above, imposes a duty on local units of government.
Moreover, I note that the compacts purport to mandate the
creation of the local revenue sharing boards, as evidenced
by the term “shall.” That is, the compacts provide that “a
Local Revenue Sharing Board shall be created by those local
units of government . . . .” Thus, the compacts themselves
do not purport to provide any “choice” on this matter.
My
colleagues
espouse
a
third-party
beneficiary
analysis in reaching their conclusion that the compacts
impose no duties on local units of government. Opinion of
Corrigan, C.J., ante at 18-19; opinion of Kelly, J., ante
at 14. It may be that under contract law, the local units
are indeed third-party beneficiaries.
However, that is
simply not dispositive, nor particularly relevant, in this
case. The fact remains that local units of government must
either create the revenue sharing boards or assume the
actual costs incurred by the units of government in the
operation of the casinos.
29
had the intended purpose and the effect of altering the
legal duties generally of Michigan citizens.
Further,
the
tribal-state
compacts
alter
legal
relationships because the compacts remove from the federal
government the jurisdiction to enforce the applicable state
gambling laws and regulations that apply, pursuant to §
1166,
on
Indian
land
in
the
absence
of
a
tribal-state
compact and place that jurisdiction in the hands of the
tribes
themselves.
This
change
in
jurisdiction
affects
Michigan citizens generally because citizens engaging in
gambling in tribal casinos were formerly subject to federal
jurisdiction, but are now subject to tribal jurisdiction.
Additionally, the compacts alter the legal relationships of
Michigan citizens generally because they may allow anyone
over
the
age
of
eighteen
to
gamble
in
tribal
casinos,
whereas the legal gambling age that applies to Michigan
casinos subject to the MCGRA is twenty-one.
Thus, the first factor of the Chadha/Blank framework
leads
to
the
legislation.
conclusion
that
the
compacts
constitute
That is, the compacts “had the [intended]
purpose and effect of altering . . . legal rights, duties
and relations of persons . . . outside the legislative
branch.”
Blank, supra at 114.
30
ii. Supplanting legislative action
The
second
Chadha/Blank
factor
requires
that
we
consider whether the Governor’s action in negotiating the
compacts
and
the
Legislature’s
resolution
compacts “supplanted legislative action.”
vote
on
the
In Blank, supra
at 114, we further elaborated on this point, as did the
United
States
Supreme
Court
in
Chadha,
by
considering
whether “[t]he only way the House could have [properly]
obtained
the
same
legislation.”
of
the
result
would
have
been
by
enacting
Thus, we must consider how, in the absence
challenged
compacts,
the
Legislature
could
alternatively have achieved the same result, i.e., how the
Legislature
Indian
could
land
alternatively
lawful.
If
no
have
IGRA
made
gambling
tribal-state
on
compact
exists, general state laws pertaining to the regulation or
prohibition of gambling apply on any particular Indian land
as
they
apply
elsewhere
in
the
state.
18
USC
1166.
Therefore, in the absence of a compact, if the Legislature
wanted to make gambling on Indian land lawful, the only way
it could do that would be by either changing the gambling
laws that are generally applicable within the state or by
changing
would,
the
it
“legislation.”
reach
cannot
of
the
MGCRA.
seriously
be
Changing
those
disputed,
laws
require
Thus, it becomes clear that the compacts
31
effectively supplanted legislative action and, therefore,
they themselves constitute “legislation.”19
iii.
The
third
DETERMINATIONS
Chadha/Blank
OF POLICY
factor
requires
that
we
consider whether the compacts “involved determinations of
policy.”
process
Blank, supra at 114.
required
the
Governor
The compact negotiation
to
undertake
and
resolve
multiple policy-making decisions of great consequence to
this state, the most significant of which was the initial
decision to make lawful what was otherwise unlawful—casino
gambling on the subject Indian lands.
gambling
engenders
considerable
The fact that casino
controversy
and
passion
throughout our society at large, as evidenced by the very
existence of this lawsuit, underscores the significance of
the policy decision that these compacts represent.
Moreover, the compacts represent a host of additional
policy decisions that sprang from the initial decision to
make gambling lawful on the subject Indian lands.
19
These
Furthermore, the compacts “supplant legislative
action,” Blank, supra at 114, because they attempt to bind
the state to their terms for a period of twenty years, and
during those twenty years, the Legislature may not, even by
appropriate legislative action, amend or repeal the
compacts.
Thus, the compacts not only supplant current
legislative actions, but in effect, they likewise supplant
any future proper legislative action that the Legislature
might otherwise undertake regarding this issue.
32
include,
but
certainly
are
not
limited
to,
decisions
regarding the number of compacts to sign and the number of
casinos to allow, the minimum gambling age that would be
enforced in the relevant casinos, the percentage of profits
that the tribes would be required to submit to the state
and the subsequent use of those funds by the state, the
decision to incorporate into the compacts the protections
of the Michigan Employment Security Act, MCL 421.1 et seq.,
and the Worker’s Disability Compensation Act, MCL 418.101
et
seq.,
compact
rather
and
the
decision
rules
and
regulations
than
delegating
to
that
leave
to
duty
the
to
enforcement
tribes
the
of
the
themselves
relevant
state
agencies as the state clearly could have done pursuant to
25 USC 2710(d)(3)(C).20
20
It appears that that Court of Appeals considered
significant the fact that the compacts do not give the
state the power to enforce them other than by arbitration
or mediation.
The Court of Appeals stated, “While states
may have the ability [under IGRA] to negotiate and include
regulatory terms in the compacts, there is no mechanism for
enforcement.
Rather,
any
dispute
is
submitted
to
arbitration or a mediator. Consequently, the challenge to
the method of approval by resolution is without merit.”
Slip op at 13. Likewise, defendants emphasize, as did the
Court of Appeals, id., that the compacts confer no
regulatory power on the state because the responsibility to
ensure that the compacts' "regulatory requirements" are
being enforced within the casinos lies solely within the
tribes’
hands;
and
therefore
the
compacts
are
not
“legislation.”
However, IGRA provides that compacts may
include provisions relating to “the allocation of criminal
(continued…)
33
In my judgment, these policy decisions are exactly the
sorts of decisions that properly belong within the province
of the Legislature.21
This point was well made by the
(…continued)
and civil jurisdiction between the State and the Indian
tribe necessary for the enforcement of such laws and
regulations . . . .”
25 USC 2710(d)(3)(C)(2).
Thus, the
compacts could have granted the state the jurisdiction to
enforce the relevant laws and regulations.
Justice Kelly
concedes
that
if
the
compacts
“extend[ed]
state
jurisdictional authority to tribal land,” they would
constitute legislation.
Ante at 16.
In my judgment, the
decision to place the enforcement jurisdiction entirely
within the tribes’ hands, as well as the decision to
resolve compact disputes through mediation and arbitration,
were, in fact, policy decisions made by the Governor that
may not now be used to insulate the compacts from a finding
that they constitute legislation.
Chief Justice Corrigan
likewise refers to many of the compact terms in order to
support her contention that the compacts do not constitute
legislation. Ante at 17-21. As an example, she notes that
“[u]nder the terms of the compacts, the tribes themselves,
not the State, regulate the conduct of Class III gaming on
tribal lands. The Legislature has no obligations regarding
the regulation of gaming whatsoever, nor can the State
unilaterally enforce a violation of the compacts.” Ante at
17-18. This term, and the other compact terms discussed in
the Chief Justice's opinion, were the direct result of
policy choices made on behalf of the state by the Governor
and should not now be used circularly to insulate the
compacts from being characterized as legislation.
It is,
in part, precisely because the compacts resolve such
fundamental
policy
choices
that
they
constitute
legislation.
21
As noted in n 16, MCL 432.203 indicates that the
Legislature itself recognized this when it provided in the
MGCRA that the Legislature must, if permitted by federal
law, enact an act similar to and consistent with the MGCRA
that would govern casino gambling in Indian territory, just
as the MGCRA governs other casino gambling that is
authorized in Michigan.
34
highest
court
for
the
state
of
New
York,
the
Court
of
Appeals of New York, in a decision in which that Court held
that IGRA tribal-state compacts represent legislation.
In
Saratoga Co Chamber of Commerce v Pataki, 100 NY2d 801,
822-823; 798 NE2d 1047; 766 NYS2d 654 (2003), the Court
stated:
IGRA itself contemplates that states will
confront several policy choices when negotiating
gaming
compacts.
Congress
provided
that
potential conflicts may be resolved in the
compact
itself,
explicitly
noting
the
many
policies affected by tribal gaming compacts.
Indeed, gaming compacts are laden with policy
choices, as Congress well recognized.
“Any Tribal-State compact negotiated under
subparagraph (A) may include provisions relating
to—
“(i) the application of the criminal and
civil laws and regulations of the Indian tribe or
the State that are directly related to, and
necessary for, the licensing and regulation of
such activity;
“(ii) the allocation of criminal and civil
jurisdiction between the State and the Indian
tribe necessary for the enforcement of such laws
and regulations;
“(iii) the assessment by the State of such
activities in such amounts as are necessary to
defray the costs of regulating such activity;
“(iv) taxation by the Indian tribe of such
activity
in
amounts
comparable
to
amounts
assessed by the State for comparable activities;
35
“(v) remedies for breach of contract;
“(vi) standards for the operation of such
activity and maintenance of the gaming facility,
including licensing; and
“(vii) any other subjects that are directly
related to the operation of gaming activities.”
[25 USC 2710(d)(3)(C).]
Compacts addressing these issues necessarily
make fundamental policy choices that epitomize
"legislative
power."
Decisions
involving
licensing,
taxation
and
criminal
and
civil
jurisdiction require a balancing of differing
interests,
a
task
the
multi-member,
representative
Legislature
is
entrusted
to
perform
under
our
constitutional
structure.
[Emphasis added.]
I agree with the court’s decision on this issue in
Saratoga Co and with the other state supreme courts that
have
considered
conclusion.
See
this
issue
and
reached
a
similar
State ex rel Clark v Johnson, 120 NM 562;
904 P2d 11 (1995); State ex rel Stephan v Finney, 251 Kan
559; 836 P2d 1169 (1992); Panzer v Doyle, __ Wis 2d __; 680
NW2d 666 (2004); Narragansett Indian Tribe of Rhode Island
v Rhode Island, 667 A2d 280 (RI, 1995).22
22
It is evident
My research revealed that every state supreme court
that has directly considered this issue has held that
tribal-state gaming contracts constitute legislation.
The
majority cites to Confederated Tribes of the Chehalis
(continued…)
36
that
the
compacts
“involved
determinations
of
policy,”
Blank, supra at 114, such that they themselves constitute
“legislation.”
iv.
The
fourth
Chadha/Blank
consider
whether
authorizes
the
resolution
Michigan Constitution
Michigan’s
Legislature
even
if
the
to
factor
requires
Constitution
approve
compacts
these
otherwise
that
we
explicitly
compacts
by
constitute
legislation.
Before
1908,
the
Michigan
Constitution
allowed
Legislature to make laws by the resolution process.
Const 1850, art 4, § 19.
1908
and
1963
Constitution
leave
now
out
makes
the
See
However, the constitutions of
that
it
earlier
entirely
proviso,
clear,
as
and
our
already
(…continued)
Reservation v Johnson, 135 Wash 2d 734, 750; 958 P2d 260
(1998), for an opposite conclusion. Opinion of Corrigan,
C.J., ante at 17; opinion of Kelly, J., ante at 15.
In
that case, the Supreme Court of Washington stated that
tribal-state compacts are “agreements” and not legislation.
However, the issue in that case was whether the compacts
were subject to Washington’s public records disclosure act,
and the court’s statement regarding the legislative nature
of a compact, which was made with no analysis whatever, was
therefore not in response to a direct consideration of that
question. Justice Kelly likewise string cites Confederated
Tribes of Siletz Indians of Oregon v Oregon, 143 F3d 481
(CA 9, 1998), and Gallegos v Pueblo of Tesque, 132 NM 207,
218; 46 P3d 668 (2002).
Both those cases are equally
irrelevant to the instant issue.
37
explained,
that
requirement.
lawmaking
is
subject
to
the
enactment
See Const 1963, art 4, §§ 1, 22, and 26.
In Becker v Detroit Savings Bank, 269 Mich 432, 434436; 257 NW 855 (1934), this Court considered whether a
legislative
accordance
resolution
with
our
can
create
Constitution,
binding
the
Becker
law.
Court
In
held
that it could not, stating:
The language of the constitution is in
itself a complete answer to the proposition. It
provides in express terms that there shall be but
one mode of enacting a “law” thereunder, and that
mode is the exclusive measure of the power of the
legislature in that regard. A mere resolution,
therefore,
is
not
a
competent
method
of
expressing the legislative will, where that
expression is to have the force of law, and bind
others than the members of the house or houses
adopting it. . . . The requirements of the
Constitution are not met by that method of
legislation. “Nothing becomes law simply and
solely because men who possess the legislative
power will that it shall be, unless they express
their determination to that effect in the mode
pointed out by the instrument which invests them
with the power, and under all the forms which
that instrument has rendered essential.” Cooley,
[Const Lim at 155, ch 6.] . . .
* * *
[W]hile the resolution of the Legislature is
entitled to respectful consideration, it is not
law and courts are bound by the law.
[Id. at
434-436 (emphasis added).]
Moreover, Michigan’s Constitution provides a number of
specific instances in which the Legislature is explicitly
authorized to act by way of resolution.
38
See Const 1963,
art 4, §§ 12, 13, 37; art 5, § 2; art 6, § 25.
However,
none of these provisions is applicable to this issue and
none provides a basis for concluding that our Constitution
explicitly grants the Legislature the authority to approve
the instant compacts by way of resolution even though they
otherwise
legislation.23
constitute
Therefore,
the
Legislature’s approval of the challenged compacts is not
constitutionally
exempted
from
the
procedures embodied in our Constitution.
general
lawmaking
Thus, the fourth
Chadha/Blank factor likewise leads to a finding that the
Legislature was required to adopt the compacts consistently
with the enactment requirements of Michigan’s Constitution.
Accordingly, in my judgment, the tribal-state compacts
at
issue
purpose
constitute
and
effect
legislation.
of
generally
23
The
compacts
altering
legal
had
the
rights,
The majority concludes that legislative approval by
resolution was appropriate because the Constitution is a
limit on our Legislature’s power rather than a grant of
power and, therefore, the Legislature may do anything that
it is not specifically prohibited by the Constitution from
doing.
Opinion of Corrigan, C.J., ante at 21-22; opinion
of Kelly, J., ante at 17.
It may well be true that the
Constitution is a limit on legislative power, but one of
those limits is embodied in Const 1963, art 4, § 22 and §
26, and these require that legislation be by bill.
The
majority essentially engages in a faulty, circular argument
to support the conclusion that the compacts are not
legislation.
39
duties, and relations of Michigan citizens; they supplanted
legislative action; they represent determinations of policy
issues of fundamental importance to the social and economic
environment of the state of Michigan; and our Constitution
does not authorize the Legislature to approve the compacts
by a resolution vote.
B. IS
Having
framework
constitute
A RESOLUTION NONETHELESS CONSTITUTIONAL?
determined
leads
to
that
the
the
Chadha/Blank
conclusion
“legislation”
subject
that
to
analytical
the
the
compacts
enactment
requirement of Michigan’s Constitution, I will now consider
the significant issues raised by defendants and upon which
the majority opinions are primarily based.
i. FEDERAL
PREEMPTION
First, Justice Kelly concludes that the compacts are
not
“legislation”
because
federal
law
preempts
Indian
gambling regulation unless the state prohibits gambling.
Thus,
because
Michigan
permits
limited
casino
gambling,
Justice Kelly reasons that Michigan may not legislate with
respect to gambling on Indian land.
Ante at 5-8.
In
support of this proposition, the opinion refers to 25 USC
2701 of IGRA, which provides:
40
The Congress finds that
(5) Indian tribes have the exclusive right
to regulate gaming activity on Indian lands if
the
gaming
activity
is
not
specifically
prohibited by Federal law and is conducted within
a State which does not, as a matter of criminal
law and public policy, prohibit such gaming
activity.
Justice
2701(5).
Kelly
has
misconstrued
the
relevance
of
§
This provision is simply a part of the Congress’s
legislative “findings” and does not constitute substantive
law.24
That is, the Congress found, before enacting IGRA,
that Indian tribes had the "exclusive right to regulate
gaming
activity
on
Indian
lands
if
the
gaming
activity
[was] not specifically prohibited by Federal law and [was]
conducted within a State which did not . . . prohibit such
gaming activity."25
Id.
Having so found, the Congress
24
A “findings” statement in a federal act is a part of
what is commonly referred to as the “preamble.”
As long
ago as 1889, the United States Supreme Court, in Yazoo & M
V R Co v Thomas, 132 US 174; 10 S Ct 68; 33 L Ed 302
(1889), stated: “[A]s the preamble is no part of the act,
and cannot enlarge or confer powers, nor control the words
of the act, unless they are doubtful or ambiguous, the
necessity or resorting to it to assist in ascertaining the
true intent and meaning of the legislature is in itself
fatal to the claim set up.”
See also Singer, 1A
Sutherland Statutory Construction (6th ed), § 20:3, p 123:
“The function of the preamble is to supply reasons and
explanations and not to confer power or determine rights.
Hence it cannot be given the effect of enlarging the scope
or effect of a statute.”
25
This congressional finding comports with the preIGRA opinion of the United States Supreme Court in Cabazon
(continued…)
41
subsequently enacted IGRA in order to “provide a statutory
basis
for
2702(2).
the
regulation
of
gaming
.
.
.
.”
25
USC
Because 25 USC 2701(5) is not substantive law,
Justice Kelly errs in invoking it as such and using it to
effectively shield Indian tribes from state regulation of
gambling otherwise consistent with the text of IGRA.
ii. STATE
Second,
defendants
AUTHORITY TO LEGISLATE
argue
that
the
compacts
cannot
constitute legislation because the state has no authority
to
legislate
casino
gambling
on
Indian
lands,
and,
therefore, the compacts merely constitute an “agreement”
between the tribe and the state that has nothing to do with
“legislation.”
However, pursuant to the express terms of
IGRA itself, the Congress recognized that a tribal-state
compact may result in state legislation.
Therefore, it
cannot be disputed that IGRA permits states to legislate
pursuant
to
a
compact.
Section
2710(d)(5)
of
IGRA
(…continued)
in which the Court acknowledged that if California
prohibited casino gambling within its borders, California
could
enforce
its
criminal
laws
relating
to
that
prohibition on Indian lands through 18 USC 1162; but absent
express Congressional permission, California could not
enforce its purely regulatory gambling laws on Indian
lands.
Thus, under Cabazon, Indian tribes indeed had the
exclusive right to regulate casino gambling on Indian lands
if the gambling was not specifically prohibited by federal
law and was conducted within a state that did not prohibit
such gambling.
42
provides:
Nothing in this subsection shall impair the
right of an Indian tribe to regulate class III
gaming on its Indian lands concurrently with the
State, except to the extent that such regulation
is inconsistent with, or less stringent than, the
State laws and regulations made applicable by any
tribal-state compact entered into by the Indian
tribe under paragraph (3) that is in effect.
This section both affirms that an Indian tribe’s right
to regulate gambling on its lands is not exclusive and that
the state does, indeed, have authority to regulate gambling
on Indian lands through lawmaking.
The compact provisions
in IGRA merely ensure that any state regulation over tribal
gambling arises out of the negotiation process; they do
not, however, prohibit such regulation.
The majority concludes, however, that the fact that
the
compacts
means
must
arise
out
of
that
they
do
not
legislation
must
be
the
constitute
“unilateral.”
negotiation
process
“legislation”
because
Opinion
of
Corrigan,
C.J., ante at 9-10; opinion of Kelly, J., ante at 11-12.
That is, if a tribal-state compact, and thus any state
regulation over tribal gambling, can only result through a
federally mandated negotiation process, it cannot be said
that the state enjoys a right to “unilaterally” legislate
gambling on Indian land.
unless
a
state
may
In support of this theory—that
“unilaterally”
43
regulate,
it
may
not
“legislate”—Justice Kelly refers to this Court’s opinion in
Westervelt v Natural Resources Comm, 402 Mich 412, 440; 263
NW2d 564 (1978).
Westervelt
Ante at 11-12.
considered
whether
an
executive
agency
“legislates” when it engages in rulemaking pursuant to a
legislative
delegation
of
power.
If
so,
the
executive
agency would be violating the separation of powers doctrine
embodied in Const 1963, art 3, § 2 because, pursuant to
Const 1963, art 4, § 1, “[t]he legislative power of the
State
of
Michigan
is
vested
in
[the
Legislature].”26
Westervelt, in concluding that an executive agency does not
legislate
when
it
engages
in
rulemaking,
stated,
“the
concept of ‘legislation,’ in its essential sense, is the
power
to
speak
limitations.”
on
any
Westervelt,
deleted).
The
Westervelt
were
legislative
delegation
branch.
exercise
subject
supra
“specified
those
without
at
of
authority
specified
440.
limitations”
limitations
any
(Emphasis
referred
inherent
to
the
to
in
in
the
executive
Because an executive agency is confined in its
of
authority
to
26
the
relevant
legislative
Compare the United States Constitution, art I, § 1,
in which "All legislative Powers herein granted shall be
vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives.”
(Emphasis added.)
44
delegation, including any specific limitations upon such
delegation set by the Legislature, the power to engage in
rulemaking is not a power to “legislate.”
It could not be
such a power under the Constitution if the delegation is
valid because the Constitution does not allow any entity to
exercise “legislative power” other than the Legislature.27
Justice Kelly argues that the power to speak “without
any
specified
limitations”
“unilaterally” legislate.
means
the
power
to
In this case, she argues, the
Legislature may not speak “without specified limitations”
because it is limited by the mandate that the state must
negotiate in good faith with the tribes and, therefore, it
may
not
legislate.
Ante
at
11-12.
In
my
judgment,
Westervelt must be interpreted within the different context
of that case.
holding
to
I see no reason to expand its specific
mean
that
any
time
the
Legislature
is
constricted in any sense by “any specified limitation,” it
may not “legislate.”
A legislature is always subject to
27
Westervelt, considered in its totality, actually
supports plaintiffs’ position in this case.
This is
because the compacts constitute legislation, yet the
legislative power is exclusively vested in the Legislature.
Const 1963, art 4, § 1. Thus, when the Governor negotiated
and signed the compacts without having first received a
proper delegation of power from the Legislature, he
effectively
exercised
the
Legislature’s
functions
in
contravention of Const 1963, art 3, § 2.
45
“specified limitations,” such as those posed by the federal
and state constitutions, or, in this case, by federal law.
Indeed, the very premise of our constitutional system is
that all governmental institutions operate under "specified
limitations."
The
fact
that
federal
law
imposes
some
limits on the state’s power to regulate in a specific area
simply
cannot
mean
that
any
legislative
action
touching
upon such an area is not actually “legislation.”
Chief Justice Corrigan, in support of her contention
that the state has no power to “unilaterally” regulate, and
therefore legislate, tribal gambling under § 2710(d), cites
Boerth v Detroit City Gas Co, 152 Mich 654; 116 NW 628
(1908), and Detroit v Michigan Pub Utilities Comm (MPUC),
288 Mich 267; 286 NW 368 (1939), for the proposition that
the
power
to
legislate
does
those subject to its powers.
not
require
“consent”
Ante at 9-10.
from
Because §
2710(d) provides for a process of negotiation, the Chief
Justice opines that it gives tribes a power to “consent”
that
negates
legislation.
absent
a
a
finding
that
a
compact
constitutes
In Boerth and MPUC, this Court held that,
legislative
delegation
of
power
to
Detroit,
Detroit possessed no legislative power to set gas rates
because such power was within the exclusive jurisdiction of
the Legislature.
However, Detroit was found to possess a
46
power to contract for reasonable gas rates under its power
to control its streets.
In this case, the state possesses
regulatory power over tribal casino gambling even in the
absence of a compact, see § 1166, including the outright
power to prohibit such gambling.
Moreover, the “consent”
that the Chief Justice argues that the tribes may exercise
in
this
“consent”
case,
by
referred
virtue
to
in
of
§
2710(d),
Boerth
and
is
the
MPUC.
type
of
Although
§
2710(d) provides for a negotiation process, the tribes are
not
wholly
Legislature
free
to
to
withhold
enter
into
their
contracts
“consent”
from
regulating
the
casino
gambling on their lands and to, instead, engage in such
gambling without compacts.
This is because in the absence
of a compact, casino gambling is unlawful.
28
§ 2710(d)(1).28
I do not accept the premise of the Chief Justice
that, when a state exercises its regulatory authority over
casino gambling within its borders, expressly granted to it
by Congress, and makes that which was unlawful into that
which is lawful, and in doing so binds itself to specific
terms and conditions under which that which was unlawful is
now lawful, the state is not “legislating” merely because
IGRA provides a mechanism by which the tribes may
participate in the negotiation process.
The pertinent
consideration in determining whether a compact constitutes
legislation is not whether IGRA purports to compel a state
to negotiate in good faith with a tribe, but rather whether
the compact bears the larger hallmarks of “legislation.”
These
hallmarks
are
sufficiently
expounded
upon
in
Chadha/Blank, and, as already discussed, I believe they
(continued…)
47
iii.
CONTRACTUAL NATURE OF COMPACTS
Third, the majority concludes that the tribal-state
compacts are not legislation because they merely constitute
contracts between two sovereign entities that the Governor,
pursuant to IGRA, may enter into on behalf of the state and
that the Legislature may approve of by resolution vote.29
Opinion of Corrigan, C.J., ante at 9-10; opinion of Kelly,
J., ante at 15.
akin
to
explained
I do not dispute that the compacts are
contracts
above,
of
these
a
unique
nature.
“contracts”
However,
create
new
law
as
and
constitute legislation and they purport to bind the state
of
Michigan
to
that
legislation.
consideration in this case.
(…continued)
lead to the conclusion
constitute legislation.
That
is
the
pivotal
A “contract” may, in effect,
that
these
sorts
of
compacts
29
If the majority were correct, but for the term in
the compacts themselves stipulating that they become
effective only upon resolution approval by the Legislature,
the Legislature would not be required to approve them.
This is because the Legislature’s power is the power to
legislate. Const 1963, art 4, § 1. Therefore, unless the
compacts constitute legislation, neither the Constitution
nor any other source of law would require that they be
approved by the Legislature by any method. Thus, under the
majority’s faulty analysis, there is no reason that the
Governor, in the future, cannot simply bind the state to
casino compacts without even seeking resolution approval
from the Legislature.
Thus, the compacts would have been effective between
the state and the tribe once they had been signed by the
Governor.
48
create new law and such a legislative contract should not
be
exempt
from
the
constitutional
applicable to legislation.30
provisions
otherwise
Neither the executive nor the
legislative branch of our state government may circumvent
the
constitutionally
mandated
processes
for
enacting
legislation by entering into a contractual relationship.
However, I will consider whether there is some source of
law that does allow the Governor to enter into a compact
without
legislative
approval
consistently
with
the
enactment requirement of Michigan’s Constitution.
First, it should be considered whether IGRA itself,
regardless
of
state
constitutional
procedures,
provides
that a Governor may enter into a tribal-state compact with
only a resolution vote of the Legislature.
that IGRA does not so provide.
It is clear
The court in Saratoga Co,
supra at 822, stated:
30
See Flint & F Plank-Road Co v Woodhull, 25 Mich 99,
(1872), in which Justice Cooley acknowledged that a
charter-compact is both a “law” and a contract. “It is not
disputed . . . that the charter of a private corporation is
to be regarded as a contract, whose provisions are binding
upon the State . . . . Such a charter is a law, [and] it .
. . also . . . contains stipulations which are terms of
compact between the State as the one party, and the
corporators as the other . . . .” Id. at 101. (Emphasis
added.)
Thus, a “contract” may clearly be a vehicle for
creating both legislation and contractual terms that are
binding on the state.
49
IGRA imposes on “the State” an obligation to
negotiate in good faith (25 USC 2710[d][3][a]),
but identifies no particular state actor who
shall negotiate the compacts; that question is
left up to state law . . . . As the Supreme Court
noted, the duty to negotiate imposed by IGRA “is
not of the sort likely to be performed by an
individual state executive officer or even a
group of officers.” [Quoting Seminole Tribe of
Florida v Florida, 517 US 44, 75 n 17; 116 S Ct
1114; 134 L Ed 2d 252 (1996), citing State ex rel
Stephen Finney, supra.]
Likewise, in Clark, supra at 577, the Supreme Court of
New Mexico stated:
We entertain no doubts that Congress could,
if it so desired, enact legislation legalizing
all forms of gambling on all Indian lands in
whatever state they may occur. . . .
That is,
however, not the course that Congress chose.
Rather, Congress sought to give the states a role
in the process . . . . It did so by permitting
Class III gaming only on those Indian lands where
a negotiated compact is in effect between the
state and the tribe. [25 USC 2710(d)(1)(C).] To
this end, the language of the IGRA provides that
“Any State . . . may enter into a Tribal-State
compact governing gaming activities on the Indian
lands of the Indian Tribe.” Id. § 2710(d)(3)(B).
The
only
reasonable
interpretation
of
this
language is that it authorizes state officials,
acting pursuant to their authority held under
state law, to enter into gaming compacts on
behalf of the state. [Emphasis added.]
Accordingly, IGRA does not provide or require that the
Governor shall have the power to bind the state to tribalstate
compacts
Legislature.
with
only
a
resolution
vote
of
the
The pertinent consideration is which state
actor has the power to bind the state to a legislative
50
compact and according to which procedures under state law.31
Second, it is therefore necessary to consider whether
state law grants the Governor the authority to bind the
state to a tribal-state compact with only a resolution vote
of
the
Legislature
regardless
whether
that
compact
31
Because IGRA does not purport to require or allow
the Governor to negotiate a tribal-state compact subject
only to a resolution vote, we need not consider whether
such a provision in the IGRA would be lawful.
However, I
note the following statement made by the court in Clark,
supra at 577:
[The governor] . . . argues that he
possesses the authority, as a matter of federal
law, to bind the State to the terms of the
compact . . . . We find the Governor’s argument
on these points to be inconsistent with core
principles of federalism. The Governor has only
such authority as is given to him by our state
Constitution and statutes enacted pursuant to it.
. . . We do not agree that Congress, in enacting
the IGRA, sought to invest state governors with
powers in excess of those that the governors
possess under state law. Moreover, we are
confident that the United States Supreme Court
would reject any such attempt by Congress to
enlarge state gubernatorial power. Cf. Gregory [v
Ashcroft, 501 US 452, 460; 111 S Ct 2395; 119 L
ED 2d 410 (1991)] (recognizing that “[t]hrough
the structure of its government . . . a State
defines itself as a sovereign”); New York v.
United States, [505 US 144, 176; 112 S Ct 2408;
120 L. Ed. 2d 120 (1992)] (striking down an act
of Congress on the ground that principles of
federalism
will
not
permit
Congress
to
“‘commandeer[] the legislative processes of the
States’” by directly compelling the states to
act) (quoting Hodel v. Virginia Surface Mining &
Reclamation Ass’n, [452 US 264, 288; 101 S Ct
2352; 69 L Ed 2d 1 (1981)] . . . .
51
constitutes
provides
legislation.
that
governor.”
“[t]he
Const
The
executive
1963,
art
Michigan
power
5,
§
is
Constitution
vested
1.
The
in
the
majority
essentially argues that the executive power includes the
power to bind the states to contractual agreements with
sovereign entities and, therefore, whether those agreements
otherwise
constitute
“executive
enforce.
power”
is,
“legislation”
first
and
is
irrelevant.
foremost,
the
The
power
to
This observation was concisely summed up by this
Court in People ex rel Attorney General v Holschuh, 235
Mich 272, 274-275; 209 NW 158 (1926), in which we stated,
“Consideration of some fundamental principles relative to
the powers of government will aid greatly in determining
the issues before us. . . .
The law . . . must observe
constitutional limitations; but within such limitations the
legislative
enforce,
added.)32
power
and
the
While
may
command,
judicial
our
state
the
power
executive
respond.”
Constitution
32
power
grants
must
(Emphasis
specific
See Const 1963, art 5, § 8: “The governor shall take
care that the laws be faithfully executed.”
See also The
People ex rel Sutherland v Governor, 29 Mich 320, 324-325
(1874), in which Justice Cooley stated: “And that there is
such a broad general principle seems to us very plain. Our
government is one whose powers have been carefully
apportioned between three distinct departments, which
emanate alike from the people, have their powers alike
(continued…)
52
additional
powers
to
our
executive
branch
of
government
beyond the “enforcement” of legislative enactments, I find
no provision in our Constitution that supports a finding
that the Governor possesses broad powers to bind the state
to legislative compacts with foreign sovereignties absent
legislative
action
requirement.
Nor
consistent
have
my
with
the
colleagues
pointed
enactment
to
any
language of that sort.
In
consider
addressing
what
our
this
issue,
Constitution
it
is
does
also
say
necessary
regarding
to
the
Governor’s right to bind the state to an “intergovernmental
agreement.”
Const 1963, art 3, § 5 provides:
Subject to provisions of general law, this
state or any political subdivision thereof, any
governmental authority or any combination thereof
may enter into agreements for the performance,
financing
or
execution
of
their
respective
functions, with any one or more of the other
states, the United States, the Dominion of
Canada, or any political subdivision thereof
unless otherwise provided in this constitution.
. . .
(…continued)
limited and defined by the constitution, are of equal
dignity, and within their respective spheres of action
equally independent. One makes the laws, another applies
the laws in contested cases, while the third must see that
the laws are executed. This division is accepted as a
necessity
in
all
free
governments,
and
the
very
apportionment of power to one department is understood to
be a prohibition of its exercise by either of the others.”
(Emphasis added.)
53
Thus, pursuant to this constitutional provision, the
Governor
of
this
agreements
state
without
may
the
enter
advice
into
or
intergovernmental
consent
of
the
Legislature—whether by resolution vote or consistently with
the enactment requirements of our Constitution.
this power is not unlimited.
However,
First, it is specifically
limited to agreements with “the other states, the United
States,
the
subdivision
Dominion
of
thereof.”
intergovernmental
Canada,
The
power
agreement
conspicuously absent.
or
with
to
an
any
enter
Indian
political
into
an
tribe
is
Second, the power is specifically
limited to those agreements necessary “for the performance,
financing or execution of [its] functions.”
Neither IGRA
nor any other law places the duty or the power to determine
the
scope
and
parameters
of
gambling
within
Michigan’s
borders, on or off Indian lands, within the “functions” of
the executive branch.
Accordingly, unless the Legislature
properly
the
delegates
to
executive
branch
a
rulemaking
power to set the parameters for gambling on Indian lands
within
Michigan’s
judgment,
borders,
reasonably
within
that
the
power
scope
is
of
not,
the
in
my
executive
branch’s “functions.”
It
may
be
said
that
because
the
intergovernmental
agreement provision of the Michigan Constitution does not
54
refer to agreements with Indian tribes that provision is
inapplicable to this case.
that
the
powers
of
However, in light of the fact
the
executive
branch
are
constitutionally defined, I read additionally a negative
implication
Constitution
in
Const
contains
1963,
an
art
3,
express
§
5.
Because
provision
our
regarding
intergovernmental agreements that may validly be entered
into by governmental authorities, I conclude that, subject
to provisions of general law, intergovernmental agreements
beyond the scope of Const 1963, art 3, § 5 are invalid.33
Moreover, even were I to decline to read a negative
implication into Const 1963, art 3, § 5, this provision is,
nonetheless, significant insofar as it expressly provides
that,
in
the
realm
of
applicable
intergovernmental
agreements, no branch of the government may contract in
33
Const 1963, art 3, § 5 provides that it is “subject
to general law.”
Therefore, a governmental authority may
enter into an intergovernmental agreement with an Indian
tribe despite the fact that tribes are not specifically
mentioned in art 3, § 5 provided the agreement is
consistent with provisions of general law.
Federal law,
under IGRA, permits a state to enter into a tribal-state
gambling compact.
However, because the compacts at issue
constitute legislation, state law, particularly Const 1963,
art 4, §§ 22 and 26, requires that they be approved by the
Legislature by bill.
Therefore, consistently with these
provisions of general law, the Legislature may bind the
state to tribal-state gambling compacts despite the fact
that “Indian tribes” are not specifically referenced in art
3, § 5.
55
such a way that is inconsistent with its own powers or that
usurps the powers of another branch.
That rule, which is
consistent with the separation of powers doctrine of Const
1963, art 3, § 2, should apply equally to intergovernmental
agreements that are expressly subject to Const 1963, art 3,
§ 5, as well as those that are not.
governmental
authority
may
only
Thus, in any case, a
bind
the
state
to
an
intergovernmental agreement that is “for the performance,
financing
. . . .”
or
execution
Id.
As
of
their
already
respective
noted,
absent
functions
a
proper
legislative delegation of power to the executive branch,
the
duty
and
power
to
set
the
parameters
for
casino
gambling on land within Michigan’s borders is not in any
comprehensible sense a “function” of the executive branch.
The United States Constitution expressly provides that
the President “shall have Power, by and with the Advice and
Consent
of
the
Senate,
to
make
Treaties,
provided
thirds of the Senators present concur . . . .”
art II, § 2, cl 2.34
two
US Const,
The Michigan Constitution notably
34
It is noteworthy that federal case law acknowledges
that treaties are both agreements with other sovereignties,
and they create “law.” See El Al Israel Airlines, Ltd v
Tsui Yuan Tseng, 525 US 155, 167; 119 S Ct 662; 142 L Ed 2d
576 (1999), in which the United States Supreme Court
stated: “‘Because a treaty ratified by the United States is
not only the law of this land, see U.S. Const., Art. II, §
(continued…)
56
contains
enter
no
into
explicit
treaties
authorization
with
for
sovereign
the
nations
majority approval of the entire Legislature.
Governor
to
without
the
I have found
no case law, nor have my colleagues identified such a law,
that
would
support
a
determination
that,
despite
our
Constitution’s silence on the issue, such a right exists.35
(…continued)
2, but also an agreement among sovereign powers, we have
traditionally considered as aids to its interpretation the
negotiating and drafting history (travaux préparatoires)
[italics
in
original]
and
the
post-ratification
understanding of the contracting parties.’”
(Citation
omitted; emphasis added.)
The point is that, pursuant to
US Const, art II, § 2, treaties are binding even though
they amount to lawmaking because the federal Constitution
expressly so provides.
Thus, that the tribal-state
compacts at issue here are akin to contracts with a
sovereign power does not, by that fact alone, mean that the
compacts do not constitute “lawmaking.”
I believe the
majority's conclusion that the compacts are not legislation
simply because they are “contracts” with sovereign nations
to be without merit. See also n 30.
35
Does
the
Governor
possesses
some
"inherent"
authority to bind the state to a legislative compact with
only a resolution vote of the Legislature, or indeed
unilaterally?
While the Governor has the power to issue
executive orders on his own accord that have the status of
enacted law, the permissible scope of such orders is
limited
by
the
express
powers
constitutionally
or
legislatively delegated to the Governor.
See, generally,
House Speaker v Governor, supra at 578-579; see also Straus
v Governor, 230 Mich App 222, 228-230; 583 NW2d 520 (1998).
Further, the separation of powers doctrine embodied in
Michigan’s
Constitution
provides
that
“[n]o
person
exercising powers of one branch shall exercise powers
properly belonging to another branch except as expressly
provided in this constitution.”
Const 1963, art 3, § 2.
Tribal-state compacts constitute legislation, and all
(continued…)
57
I believe that no source of law, federal or state,
exists that would permit the Governor to bind the state to
these
legislative
compacts
without
the
approval
of
the
Legislature consistent with the enactment requirements of
Michigan’s Constitution.
Because the compacts constitute
legislation, they were subject to Const 1963, art 4, §§ 22
and 26.
Therefore, I would reverse the judgment of the
Court of Appeals on this issue and hold that the approval
of HCR 115 by resolution, rather than by bill, did not
comport
with
the
enactment
requirement
of
our
Constitution.36
C. DO
AMENDATORY PROVISIONS VIOLATE THE
CONSTITUTION?
Each of the challenged tribal-state compacts contains
(…continued)
legislative power is constitutionally vested in the
Legislature.
Const 1963, art 4, § 1.
Therefore, the
Governor may not bind the state to such a compact under
some “inherent” power because the Governor may exercise
legislative powers only “as expressly provided in this
constitution.”
Const 1963, art 3, § 2.
Nowhere does our
Constitution expressly, or otherwise, grant the Governor a
power to bind the state to a legislative agreement with
another sovereignty.
36
The pertinent question in this case is whether the
compacts constitute legislation.
Because they do, the
Legislature should have approved HCR 15 by bill.
If the
compacts
did
not
constitute
legislation,
then
no
legislative approval, by either bill or resolution, would
have been constitutionally required.
In that case, the
Legislature would have been required to approve the
compacts only because the compacts themselves expressly
required it in § 11, and either resolution or bill approval
of HCR 115 would have been sufficient.
58
a provision that purports to empower the Governor to amend
it
on
behalf
approval
of
plaintiffs
of
any
the
state
specific
contend,
without
seeking
amendment.37
violates
the
legislative
This
provision,
separation
of
powers
doctrine embodied in art 3, § 2 of Michigan’s Constitution
because it grants broad authority to the Governor to usurp
a legislative power.
the
original
“legislation”
requirement
That is, plaintiffs argue that, like
compacts,
that
of
is
Const
any
subject
1963,
art
amendment
anew
to
4,
§
constitutes
the
enactment
26.
Plaintiffs
essentially argue that even had the Legislature properly
adopted
the
compacts,
the
specific
amendatory
provision
would nonetheless violate the separation of powers doctrine
because the Legislature may not, even by properly enacted
legislation, grant the Governor a general power to amend
that legislation.
that
the
Defendants contend, on the other hand,
amendments
themselves,
in
therefore,
the
no
to
the
way
Governor
compacts,
implicate
does
not
like
the
compacts
“legislation,”
usurp
and,
legislative
functions in exercising his power to amend them.
The Court of Appeals ruled that this issue was not
ripe for review because the Governor had not yet attempted
37
See § 16 of the compacts.
59
to amend the compacts.
However, during the pendency of
this suit, Governor Granholm purported to amend the compact
with the Odawa Tribe by (1) extending the terms of the
compact from twenty to twenty-five years, (2) requiring the
eight percent semiannual payment that the tribes must make
to the Michigan Strategic Fund to instead be made “to the
State . . . as the governor so directs,” (3) increasing the
semiannual payment from eight percent of profits to either
eight, ten, or twelve percent depending on the profits of
the casino, and (4) providing less restrictive limitations
on gaming by requiring the tribe to make the semiannual
payments to the state only as long as the state does not
authorize new gaming in ten specified counties rather than
statewide
as
under
the
original
compact
terms.
Accordingly, this issue is at present ripe for review.38
As
long
ago
as
1874,
this
Court
recognized
the
importance of respecting the proper lines of demarcation
38
The majority concludes that the issue may now be
ripe for review, but that this Court should nonetheless
decline to review it because the lower courts did not
assess this issue. Opinion of Corrigan, C.J., ante at 30;
opinion of Kelly, J., ante at 19.
It is true that the
Court of Appeals declined to address the issue.
However,
the circuit court considered it and found a constitutional
violation. Further, the parties briefed this issue and, in
my judgment, the record is sufficiently developed that we
may consider this question without having to first remand
it to the lower courts.
60
between the practices of our three branches of government.
In Sutherland, supra at 324-325, Justice Cooley stated:
And that there is such a broad general
principle seems to us very plain. Our government
is
one
whose
powers
have
been
carefully
apportioned between three distinct departments,
which emanate alike from the people, have their
powers
alike
limited
and
defined
by
the
constitution, are of equal dignity, and within
their
respective
spheres
of
action
equally
independent. . . . This division is accepted as
a necessity in all free governments, and the very
apportionment of power to one department is
understood to be a prohibition of its exercise by
either of the others. [Emphasis added.]
This “broad general principle” elaborated upon by Justice
Cooley
in
Sutherland
is
what
is
now
embodied
in
the
separation of powers doctrine of Michigan’s Constitution.
Art 3, § 2 of our Constitution provides, “The powers of
government are divided into three branches; legislative,
executive and judicial.
No person exercising powers of one
branch shall exercise powers properly belonging to another
branch except as expressly provided in this constitution.”
“The legislative power of the State of Michigan is
vested in a senate and a house of representatives.”
1963, art 4, § 1.
legislative
power
Constitution.
Const
Thus, the Governor may not exercise
unless
expressly
provided
for
in
the
Yet, the amendatory provision of the tribal-
state compacts purports to grant the Governor a broad and
undefined legislative power—the power to amend legislation.
61
The Legislature may not, either by resolution or by bill,
delegate
to
the
executive
branch
power to amend legislation.
a
broad
and
undefined
Thus, I would reverse the
judgment of the Court of Appeals on this issue and hold
that
the
amendatory
provision
contained
in
each
compact
violates the separation of powers doctrine and is, thus,
void
insofar
as
it
may
be
regarded
as
granting
sole
amendatory power over legislation to the Governor.39
D. DO
COMPACTS CONSTITUTE LOCAL ACTS?
For the reasons set forth in part VI of Chief Justice
Corrigan’s lead opinion, I do not believe that the compacts
violate Const 1963, art 4, § 29.
39
Accordingly, on this
Justice Kelly concludes that plaintiffs’ challenge
to the amendatory provision fails because plaintiffs cannot
show that “no set of circumstances exists under which the
[a]ct would be valid.”
Ante at 18.
She explains that
“[t]here are many conceivable amendments that a governor
might make to these compacts. For example, a governor could
amend the provision relating to dispute resolution or the
provision about the timing of payments.”
Id. at 18.
For
reasons already explained in part III (A) of this opinion,
Justice Kelly's examples represent legislative decisions
that are properly within the province of the Legislature.
That is, such amendment would constitute important policy
decisions undertaken in the process of lawmaking and they
would supplant legislative action.
Therefore, such
amendments, undertaken by the Governor and not approved by
the Legislature pursuant to Const 1963, art 4, §§ 22 and 26
would offend the separation of powers doctrine.
Justice
Kelly has not demonstrated that there are, in fact,
“conceivable amendments that a governor might make to these
compacts,” id., so as to not offend this doctrine.
62
issue, I concur in the lead opinion that the decisions of
the lower courts should be affirmed.
E. CONCLUSION &
CONSEQUENCES
We have been asked to consider, in an action seeking
declaratory relief, whether the four tribal-state compacts
at
issue
doctrines
are
inconsistent
embodied
in
with
various
Michigan’s
procedures
Constitution.
and
Having
considered the questions presented, I strongly dissent from
the
majority
judgment
that
these
compacts
effected consistently with our Constitution.
have
been
I would hold
that these compacts constitute legislation and, thus, were
subject
to
lawmaking
legislative
procedures
Constitution.
of
approval
art
4,
consistent
§§
22
and
with
26
of
the
our
Accordingly, I would reverse the judgment of
the Court of Appeals and reinstate the judgment of the
circuit court on this issue.
Further, in my judgment, the provision in the compacts
that purports to empower the Governor with sole amendatory
power
over
their
covenants
violates
the
separation
of
powers doctrine of art 3, § 2 of our Constitution.
I
therefore would hold that this provision is void insofar as
it grants sole amendatory power over legislation to the
Governor.
Absent
executive
branch,
a
proper
delegation
amendments
63
of
the
of
power
compacts
to
the
must
themselves
procedures
comport
of
our
with
the
bill-making
Constitution.
enactment
Accordingly,
I
would
reverse the judgment of the Court of Appeals and reinstate
the judgment of the circuit court on this issue as well.
Finally, I believe that the compacts do not violate
the
local
acts
Constitution.
provision
of
art
4,
§
29
of
our
Accordingly, on this issue, I concur with
the analysis as set forth in part VI of the lead opinion,
and would affirm the decisions of the lower courts.
Concerning the consequences of this opinion for the
casinos operated by defendants, I would afford plaintiffs
no
more
relief
than
that
requested.
That
is,
in
this
action for declaratory judgment, I have sought only to say
what the Constitution requires of the compact process.
In
order to assess the consequences of this requirement for
the
compacts
at
issue,
other
considerations
must
necessarily come into play, including the standards to be
applied by the Secretary of the Interior, pursuant to 25
USC 2710(d)(8), in approving a compact, in particular, a
compact approved through procedures apparently acquiesced
in by the executive and legislative branches of a state;40
40
branches
Generally, deliberate acts of any of the three
of government are presumed constitutional and,
(continued…)
64
the standards by which the Secretary of the Interior will
revisit prior approval of a compact;41 and various equitable
considerations pertinent to casinos that have already been
built and are presently operating.
The analyses of the majority are deeply flawed and
circular.
As is typical in cases of this sort, the long-
term consequences of the majority judgment cannot be fully
predicted, but what is predictable is that there will be
consequences
in
terms
branches
of
government.
analyses
in
this
case
of
relationships
The
is
the
result
that
a
of
matter
between
the
the
majority's
of
fundamental
policy concern to the people of this state—casino gambling
and its social and economic impact—a realm in which the
federal government has unequivocally authorized Michigan to
(…continued)
moreover, “state officials and those with whom they deal
are entitled to rely on a presumptively valid state [act],
[performed] in good faith and by no means plainly
unlawful.” See Lemon v Kurtzman, 411 US 192, 209; 93 S Ct
1463; 36 L Ed 2d 151 (1973).
See also Thompson v
Washington, 179 US App DC 357; 551 F2d 1316 (1977), Bd of
Comm’rs of Wood Dale Pub Library Dist v Co of Du Page, 103
Ill 2d 422; 469 NE2d 1370 (1984), and, of significant
interest, Lac Vieux Desert Band of Lake Superior Chippewa
Indians v Michigan Gaming Control Bd, 2002 WL 1592596 (WD
Mich, 2002).
41
The compacts at issue have already been approved by
the Secretary of the Interior, and any declaratory judgment
along the lines of this dissenting opinion would not,
without further action by the Secretary, render such
approval null and void.
65
exercise
regulatory
authority,
has
now
been
transformed
into the exclusive province of a single public official,
the
Governor.42
By
concluding
that
tribal-state
casino
gambling compacts do not constitute legislation, and are
not
required
forth
in
the
to
conform
Michigan
to
the
legislative
Constitution,
the
process
set
majority
has
effectively ensured that in future cases the Legislature's
role in approving such compacts will exist merely at the
sufferance of the Governor.
That is, according to the
understanding of the majority, unless the Governor agrees
in future compacts to affirmatively grant a role for the
Legislature, it will have no role.
executive
and
legislative
branches
42
Rather than both the
being
required
to
Moreover, I fear that the majority’s "contractual"
approach to Michigan constitutional law in this case cannot
be cabined to apply only to tribal-state casino gambling
compacts, and do not understand why it would not be equally
applicable to any compact between Michigan and an Indian
tribe, a sister state, or a sovereign nation to which the
Governor may be inclined to unilaterally bind the state.
The majority appears to grant the Governor a broad power,
not
even
implicitly
recognized
in
the
Michigan
Constitution, to bind the state as the Governor sees fit,
as long as the Governor does so within the framework of the
majority's “contractual" approach to compacts, i.e., an
approach in which state compacts can be fully understood
through resort to the four corners of the compact itself
and without consideration to surrounding constitutional
circumstances, including the Constitution's separation of
powers doctrine, its legislative processes, and the
specific limitations it places upon the individual branches
of government.
66
approve
the
expansion
of
casinos
within
Michigan,
the
approval of a single branch, the executive branch, will be
sufficient.
The lead decision represents the first state supreme
court decision in the United States to conclude that a
tribal-state casino gambling compact does not constitute
"legislation" and, therefore, does not require the approval
of
the
branch
of
government
that
is
most
representative of the people.
Stephen J. Markman
67
directly
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
