920 198 FEDERAL SUPPLEMENT, 2d SERIES - Turtle Talk · 920 198 FEDERAL SUPPLEMENT, 2d SERIES N.W.2d 820, 824 (1992). Assault and bat-tery is the willful touching of the person of

920 198 FEDERAL SUPPLEMENT, 2d SERIES

N.W.2d 820, 824 (1992). Assault and bat-tery is the willful touching of the person ofanother by the aggressor. Tinkler v.Richter, 295 Mich. 396, 295 N.W. 201(1940). A police officer may use reason-able force when making an arrest.Anderson v. Antal, 191 F.3d 451 (6th Cir.1999). The measure of necessary force isthat which an ordinary prudent and intelli-gent person with the knowledge and in thesituation of the arresting officer wouldhave deemed necessary. Id. Michigancourts have recognized that ‘‘[w]hether of-ficers hypothetically could have used lesspainful, less injurious, or more effectiveforce is executing an arrest is simply notthe issue.’’ People v. Hanna, 223 Mich.App. 466, 567 N.W.2d 12, 16 (1997).

[34] For the same reasons that theOfficers’ actions were objectively reason-able for the purposes of the governmentalimmunity analysis above, the actions arereasonable for the purposes of a state lawclaim for assault and battery. Anderson,191 F.3d 451. Defendants are entitled togovernmental immunity as to Plaintiffs’state law tort claim of assault and battery.

IV. MOTION TO STRIKE PLAIN-TIFFS’ EXPERT WITNESS

This motion is moot given that the Courthas granted Defendants’ Motion for Sum-mary Judgment.

V. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendants’ Mo-tion for Summary Judgment (Docket No.28, filed April 6, 2001) is GRANTED.

IT IS FURTHER ORDERED that De-fendants’ Motion to Strike Witness List(Docket No. 29, filed April 11, 2001) isMOOT.

IT IS FURTHER ORDERED that thismatter is DISMISSED with prejudice.

,

GRAND TRAVERSE BAND OF OTTA-WA AND CHIPPEWA INDIANS,

Plaintiff/Counter–Defendant,

v.

UNITED STATES ATTORNEY FORTHE WESTERN DISTRICT OFMICHIGAN, Defendant/Counter–Plaintiff,

and

State of Michigan, Intervenor.

Case No. 1:96–CV–466.

United States District Court,W.D. Michigan,

Southern Division.

April 22, 2002.

Indian band sought declaratory judg-ment as to legality of gambling operation.The District Court, Hillman, Senior Dis-trict Judge, held that casino site fell withinrestored-lands exception to Indian GamingRegulatory Act (IGRA).

Judgment for plaintiff.

See also 46 F.Supp.2d 689.

1. Statutes O219(1)

The well reasoned views of the agen-cies implementing a statute constitute abody of experience and informed judgmentto which courts and litigants may properlyresort for guidance.

921GRAND TRAVERSE BAND OF OTTAWA v. U.S. ATTY.Cite as 198 F.Supp.2d 920 (W.D.Mich. 2002)

2. Statutes O188In interpreting a statute, court must

give the words of the statute their ordi-nary, contemporary, common meaning, ab-sent an indication Congress intended themto bear some different import.

3. Statutes O207An exception to the maxim that words

be given their ordinary meaning, wheninterpreting a statute, exists where wordsconflict with each other, where the differ-ent clauses of an instrument bear uponeach other, and would be inconsistent un-less the natural and common import ofwords be varied.

4. Statutes O205, 206A court is required to interpret stat-

utes as a whole and avoid constructionsthat would render words or provisions su-perfluous or meaningless.

5. Statutes O185, 192In the absence of actual conflict with

surrounding terms, courts are reluctant,when interpreting a statute, to infer alegislative intent to use a secondary defini-tion over the primary definition, much lessone that has an extraordinary and techni-cal meaning as a term of art.

6. Indians O32(12)Indian band was a restored tribe, for

purposes of Indian Gaming Regulatory Act(IGRA); band, which had been recognizedby the United States for purposes of seriesof treaties before federal trust relationshipwas improperly terminated, was acknowl-edged in formal administrative procedure,and acknowledgement procedure was notmutually exclusive of ‘‘restored’’ status.Indian Gaming Regulatory Act,§ 20(b)(1)(B)(iii), 25 U.S.C.A.§ 2719(b)(1)(B)(iii); 25 C.F.R. 83.7.

7. Indians O3(3)In a court’s dealing with ambiguities

in statutes regarding Indians, the exis-tence of a plausible construction more

favorable to the tribe must be givenpreference, under principles of statutoryconstruction as applied to statutes ad-dressing Indians and the historic trustposition of the United States.

8. Indians O32(12)

Land acquired by Indian band waspart of a ‘‘restoration of lands,’’ eventhough it was acquired subsequent to ef-fective date of Indian Gaming RegulatoryAct (IGRA), and therefore was subject torestored-lands exception to IGRA’s gener-al prohibition of gaming on lands acquiredafter effective date; land was located in anarea of historical and cultural significanceto the band, that was previously ceded tothe United States, band intended to ac-quire properties prior to IGRA, and prop-erty was part of band’s first systematiceffort to restore tribal lands. Indian Gam-ing Regulatory Act, § 20(b)(1)(B)(iii), 25U.S.C.A. § 2719(b)(1)(B)(iii).

9. Contracts O147(1)

Under Michigan law, the primary goalin the construction of interpretation of anycontract is to honor the intent of the par-ties.


In interpreting a contract under Mich-igan law, court looks for the intent of theparties in the words used in the instru-ment.


Where the terms of a contract areclear and unambiguous, those terms aredispositive of the parties’ intent, underMichigan law.

12. Evidence O448

Under Michigan law, where terms of acontract are ambiguous, court may look toextrinsic evidence in determining the par-ties’ intent.


13. Contracts O167Statutes relating to the subject matter

of a contract and existing at the time ofthe execution of such contract become apart thereof and must be read into thecontract, except when a contrary intentionappears.

14. Indians O32(12)Governor possessed no concurrence

power, under compact between Indianband and State of Michigan, with respectto restored-lands exception to Indian Gam-ing Regulatory Act (IGRA), and thereforegaming on property restored to band wasnot barred by lack of Governor’s concur-rence; tribal-State compact did not expandGovernor’s power beyond terms of IGRA.Indian Gaming Regulatory Act,§ 20(b)(1)(B)(iii), 25 U.S.C.A.§ 2719(b)(1)(B)(iii).

Riyaz A. Kanji, William Rastetter, Olson& Bzdok, PC, Traverse City, MI, Kanji &Katzen, PLLC, Ann Arbor, MI, Daniel P.Rogan, Vernie C. Durocher, Dorsey &Whitney, Minneapolis, MN, John F. Petos-key, Suttons Bay, MI, for plaintiff.

Charles R. Gross, Assist. U.S. Atty.,Grand Rapids, MI, for Office of Atty.,Western Dist. of Michigan, defendant.

Keith D. Roberts, Assist. Atty. Gen.,Lottery & Racing Com’n, Lansing, MI, forState of Michigan.

OPINIONHILLMAN, Senior District Judge.

This is an action originally filed by theGrand Traverse Band of Ottawa and Chip-pewa Indians (‘‘Grand Traverse Band’’ or‘‘the Band’’) against the United States.The complaint seeks a declaratory judg-ment concerning the legality of the ClassIII gaming being conducted at TurtleCreek Casino, in Whitewater Township, by

the Grand Traverse Band. The UnitedStates originally filed a counterclaim seek-ing to declare the Turtle Creek facilityillegal, to enjoin further gaming at thefacility, and to remove and confiscate gam-bling devices. That claim was subsequent-ly withdrawn and a stipulation and orderof dismissal entered dismissing all claimsinvolving the United States. The State ofMichigan also was allowed to intervene asparty defendant and to file a complaintseeking to declare the operations illegalunder the tribal-state compact and to en-join gaming at Turtle Creek.

Following a bench trial and the filing ofpost-trial briefs, this matter is before thecourt for findings of fact and conclusions oflaw. For the reasons that follow, the courtfinds that the Turtle Creek site falls withinthe restored-lands exception of the IndianGaming Regulatory Act (‘‘IGRA’’), 25U.S.C. § 2719(b)(1)(B)(iii), and is thereforelegal. The court further finds that theState’s claim under the tribal-state com-pact is without merit. Accordingly, judg-ment is granted to the plaintiff Band andagainst the State of Michigan.

I. PROCEDURAL HISTORY

The Turtle Creek casino is located onland that is not part of or contiguous tolands held in trust for the Band on Octo-ber 17, 1988. From the inception of thislawsuit, the United States and the interve-nor State of Michigan contended that Tur-tle Creek is operating unlawfully becausethe IGRA, 25 U.S.C. § 2719, bars ClassIII gaming on lands taken into trust afterOctober 17, 1988, unless that land meetsone of the express exceptions of § 2719(a)or (b), all of which the governments con-tended are inapplicable here. As a result,the United States and the State of Michi-gan have asserted that, pursuant to IGRA,Class III gaming at Turtle Creek is barredabsent compliance with the provisions of


§ 2719(b)(1)(A) requiring a determinationby the Secretary, together with concur-rence by the Governor of the State ofMichigan, that the facility would be in thebest interests of the tribe and its membersand not be detrimental to the surroundingcommunity. No such approvals were ob-tained by the Band.

At the time this action initially was filed,the complaint sought declaratory judgmenton the basis of reasoning contained in adecision by Judge McKeague in KeweenawBay Indian Community v. United States,914 F.Supp. 1496 (W.D.Mich.1996), rev’d,136 F.3d 469 (6th Cir.1998), cert. denied,525 U.S. 929, 119 S.Ct. 335, 142 L.Ed.2d277 (1998), which reviewed the applicabili-ty of § 2719(b)(1) in parallel circumstancesand determined that the requirements of§ 2719 did not apply to situations in whicha valid tribal-state compact had beenreached pursuant to § 2710. The govern-ment promptly moved for summary judg-ment on the applicability of § 2719, con-tending that the Keweenaw Bay decisionwas wrongly decided. The Band movedfor a stay of proceedings pending the out-come of the appeal in the Keweenaw Baydecision.

Upon review, this court stayed proceed-ings pending appeal of the Keweenaw Baydecision, which was subsequently reversedby the Sixth Circuit in 136 F.3d 469 (6thCir.1998). The Keweenaw Bay tribe’s pe-tition for writ of certiorari was denied onOctober 13, 1998.

At the time the court granted the stay in1996, the Grand Traverse Band advisedthe court that, if the Sixth Circuit reversedJudge McKeague, the Band intended toamend its complaint to include a claim thatthe Turtle Creek property was within oneor more exceptions to § 2719, because theproperty was within the Band’s 1836 trea-ty lands. The Band indicated, however,that unless the Keweenaw Bay issue wasoverturned on appeal, it preferred not to

invest the resources that would be re-quired to prove the historical claim inas-much as the legal issue would be moot.Following the Sixth Circuit’s reversal ofJudge McKeague’s decision in KeweenawBay, this court held a status conference.The Band again expressed its intent to filean amended complaint, which the courtallowed.

In its first amended complaint, the Bandasserted that the land on which TurtleCreek is situated is part of the Band’shistorical reservation, and thus outside theproscriptions of § 2719 because the land is‘‘within or contiguous to the boundaries ofthe reservation of the Indian tribe on Oc-tober 17, 1988,’’ as provided in§ 2719(a)(1).

This matter previously was before thecourt on a motion for preliminary injunc-tion filed by the United States and a mo-tion to continue a stay of proceedings filedby the Band. In response to the motion forpreliminary injunction, the Band assertedthat the land on which Turtle Creek lieswas taken into trust as part of ‘‘the initialreservation of an Indian tribe acknowl-edged by the Secretary under the Federalacknowledgment process TTT,’’ as providedin § 2719(b)(1)(B)(ii), and that the TurtleCreek land was taken into trust as part of‘‘the restoration of lands for an Indiantribe that is restored to Federal recogni-tion TTT,’’ as provided in§ 2719(a)(2)(B)(iii) (the ‘‘restored-lands ex-ception’’).

The court denied the government’s mo-tion for preliminary injunction finding thatthe government had failed to demonstratelikelihood of success on at least the re-stored-land exception. The court grantedthe Band’s motion for further stay in orderto permit the National Indian GamingCommission (‘‘NIGC’’) to first considerwhether the Turtle Creek Casino fell with-in one of the exceptions of the IGRA.


During the pendency of the NIGC pro-ceedings, plaintiff’s expert joined the ex-pert of the United States in concludingthat the land was not contiguous to orwithin the last recognized reservation ofthe Band, and therefore not within theexception under § 2719(a)(1).

On August 31, 2001, the NIGC reached adetermination that the Turtle Creek sitefell within the restored-lands exception tothe IGRA. (P–23.) The NIGC informedthis court of its decision, in which theDepartment of the Interior concurred.(P–23.)

Following issuance of the NIGC deter-mination, the stay in this case was liftedand, following discovery, the case proceed-ed to a bench trial held in January 2002.Shortly before trial, the United Stateswithdrew from the litigation and droppedits counterclaim, joining its agencies, theNIGC and the Department of the Interior,in the interpretation of the restored-landsexception. At the same time, the courtpermitted the Band to amend its complaintfor the second time, so as to conform thepleadings with those issues which wereactually litigated between the parties since1998 and remained for trial, specifically,the restored-lands exception and theState’s compact claim.

II. FINDINGS OF FACTThe Grand Traverse Band is a federally

recognized Indian tribe presently main-taining a government-to-government rela-tionship with the United States. (Uncont.Fact N. 1.) The Band previously main-tained a government-to-government rela-tionship with the United States from 1795until 1872, and is a successor to a series oftreaties with the United States in 1795,1815, 1836 and 1855. (Uncont. Fact. No.2; P–1; P–2; P–3; P–5.)

In 1872, then-Secretary of the Interior,Columbus Delano, improperly severed thegovernment-to-government relationship

between the Band and the United States,ceasing to treat the Band as a federallyrecognized tribe. (Uncont. Fact N. 4; P–7; P–25 at 7–8; Tr. I McClurcken 41–43.)Following termination of the relationship,the Band experienced increasing poverty,loss of land base and depletion of theresources of its community. (Tr. I Cham-bers 71–72, 77–78; Tr. I Burtt 94–98; Tr.I Kewaygoshkum 121–22; Tr. III Petos-key 105–106; Tr. I Connolly 117–118.)

Between 1872 and 1980, the Band con-tinually sought to regain its status as afederally recognized tribe. The Band’s ef-forts succeeded in 1980 when it became thefirst tribe acknowledged by the Secretaryof the Interior pursuant to the federalacknowledgment process, 25 C.F.R. Part54 (now 25 C.F.R. Part 83). (Uncont.Fact No. 5; P–25 at 8–10; P–8; P–17through P–19; Tr. I Chambers 72–83.)On January 17, 1984, the Department ofthe Interior declared a single 12.5 acreparcel as the initial reservation of theBand. 49 Fed.Reg.2025 (Jan. 17, 1984).

The Band has a six-county service areain the Western District of Michigan, en-compassing Antrim, Benzie, Charlevoix,Grand Traverse, Leelanau and ManisteeCounties. (Uncont.Fact. No. 6.)

The history of the Band’s original recog-nition, executive termination and later re-recognition is essentially parallel to that ofthe Pokogon Band of Potawatomi Indians,the Little Traverse Bay Bands of OdawaIndians, and the Little River Band of Otta-wa Indians. All three tribes were partiesto the same series of treaties and the sametermination by Secretary Delano in 1872.(P–20; P–21; P–22.)

Between 1980 and 1988, the Band en-gaged in a protracted dispute with theDepartment of the Interior over the termsof its constitution. During this period, theSecretary of the Interior refused to takefurther land into trust for the Band. (Tr. I


Burtt 108–112.) In March 1988, after thedispute was resolved, the Secretary rati-fied the Band’s Constitution. (P–24.)

Thereafter, between March 1988 andJuly 1990, the Band engaged in significantefforts to acquire land. The United Statestook into trust multiple parcels of propertythat continue to constitute the majority ofits trust lands. (Tr. II Kewaygoshkum 8–9; Dkt # 64: Rastetter aff. ¶ 9.)

On April 20, 1989, the Band acquiredtitle to a parcel of land in WhitewaterTownship, Grand Traverse County, Michi-gan, that is commonly referred to as the‘‘Turtle Creek’’ site. (Uncont. Fact No.8.) The site is legally described as follows:

That part of the West 1/2 of the Southeast1/4 lying South of the Railroad Right ofWay, Section 32, Town 28 North, Range9 West.

The site was placed into trust on August 8,1989. (Uncont. Fact No. 9; P–24.) Thetrust application for the Turtle Creek sitedid not indicate that it was being acquiredfor gaming purposes, though it did specifythat it may be used for future economicdevelopment. (Tr. II Kewaygoshkum 19–20; Tr. II Petoskey 27–30; P–24.)

The Turtle Creek site is located withinthe lands ceded by the Band to the UnitedStates by the Treaty of 1836, and from1861 until its purchase by the Band onApril 20, 1989, it was privately owned.(Uncont. Fact No. 8; P–24; P–25 at 45–46.) Although 1.5 miles outside the 1836treaty reservation, evidence suggests thatthe site was located within the contemplat-ed reservation, which was not designatedfor four years after the treaty was signed.(P–25 30–31, 34–39; P–42; P–43; P–44;Tr. I McClurken 63–65.)

The land, located on the east shore ofGrand Traverse Bay, is at the heart of theregion that comprised the core of theBand’s aboriginal territory and was histor-ically important to the economy and cul-ture of the Band. (P–25 at 10–11, 66–67;

Tr. I McClurcken 48, 60.) According toarchaeological investigations, the eastshore of Grand Traverse Bay has beenoccupied by indigenous peoples for thou-sands of years. (P–25 at 16–17.) TheBand itself has occupied the region contin-uously from at least 100 years before trea-ty times until the present. (P–25 at 2.)The site is at the heart of a region provid-ing a range of important natural resourcesfor food, shelter, tools and medicine. (P–25 at 3, 14–15, 22–25; Tr. I McClurken 50–52.) The region also was traversed by anetwork of trails extending along the shoreof Grand Traverse Bay and connecting tomajor routes to Saginaw and Cadillac thatin turn connected with trails spreadingacross the continent. (P–31; P–32; P–33;P–25 at 17–18; Tr. I McClurken 56–57.)In the late nineteenth century, Band mem-bers continued to reside on the east shoreof Grand Traverse Bay and sought title toland in order to remain in the region. (P–59; P–25 at 49–56, 67; Tr. I McClurken62–63.)

Similarly, in the twentieth century, Bandmembers continued to live on the eastshore and maintained an economic, spiritu-al and cultural connection to the area. (P–25 at 57–62, 67; Tr. II Petoskey 22–24;Tr. I Chambers 74–75; Tr. I McClurken62–63.) Acquisition of the Turtle Creeksite was important for the Band to main-tain a connection to the east shore regionand to provide services and economic de-velopment to its members located on theeast shore. (Tr. II Petoskey 30.)

In August 1993, the Grand TraverseBand entered into a tribal-state gamingcompact with the State of Michigan pursu-ant to the IGRA, 25 U.S.C. § 2710, forClass III (casino-style) gambling on reser-vation lands. The compact is virtuallyidentical to those signed between the Stateand six other Indian tribes on the sameday. (Uncont. Fact No. 10; J–5; P–87;


Tr. III Gadola 45.) The compact was ap-proved under the procedures of the IGRAby the United States Department of theInterior. The Michigan House of Repre-sentatives and the Michigan Senate ap-proved the compacts by concurrent resolu-tion on September 21, 1993 and September30, 1993, respectively. (Uncont. Fact No.11.) The compacts became effective onNovember 30, 1993, when the Secretary ofthe Interior published his approval of thecompacts in the Federal Register. (Un-cont. Fact No. 12; 58 Fed.Reg. 63,262(1993).)

Section 2(C) of the compact providesthat, ‘‘[n]otwithstanding subsection 2(B)above, any lands which the Tribe proposesto be taken into trust by the United Statesfor purposes of locating a gaming estab-lishment thereon shall be subject to theGovernor’s concurrence power, pursuant to25 U.S.C. § 2719 or any successor provi-sion of law.’’ (J–5 § 2(C).) It was undis-puted at trial that, at the time of negotia-tions, the parties understood that under§ 2719 of IGRA, the Governor’s concur-rence is required for gaming by tribes onnewly acquired lands in some circum-stances, see 25 U.S.C. § 2719(b)(1)(A), butnot under other circumstances, see, e.g., 25U.S.C. §§ 2719(a)(1) and 2719(b)(1)(B).(Tr. III Gadola 29–30; Tr. III Peebles 70–71; Greene Dep. at 21–22.) It was furtherundisputed at trial that the parties addedsection 2(C) to the compact in order tomake clear that the Governor retained hispowers under § 2719, but that no partyintended to enlarge those powers. (Tr. IIIGadola 33–34, 43–44, 46; Greene dep. at31–32, 110, 116; Tr. III Peebles 71, 73, 79;Tr. III Petoskey 100; P–87; P–88; P–90;P–91; P–93; P–95; P–96.)

At the time the tribal-state compact wasnegotiated, the Band derived importantrevenues and employment opportunitiesfrom its gaming operations at the Leela-nau Sands Casino in Peshawbestown.

(Uncont. Fact Nos. 7, 17.) The Band,however, continued to have significant un-met economic and noneconomic needs.(Tr. III Petoskey 83–86.)

On June 13, 1994, the National IndianGaming Commission approved the Band’sGaming Code pursuant to 25 C.F.R.§§ 522.6 and 522.8. (Uncont. Fact No.13.) In accordance with the Band’s Gam-ing Code, the Grand Traverse Band Gam-ing Commission issued a license authoriz-ing casino-style gaming at the TurtleCreek site. (P–81.) The Band opened itsTurtle Creek Casino on June 14, 1996.(Uncont. Fact No. 20; P–81.)

In fiscal year 2001, Turtle Creek provid-ed approximately 89% of the Band’s gam-ing revenue. (Tr. II Kewaygoshkum 10.)The casino now employs approximately500 persons, approximately half of whomare tribal members. (Tr. II Kewaygosh-kum 15.) Revenues from the Turtle CreekCasino also fund approximately 270 addi-tional tribal government positions, whichadminister a variety of governmental pro-grams, including health care, elder care,child care, youth services, education, hous-ing, economic development and law en-forcement. (Uncont. Fact No. 19; Tr. IIKewaygoshkum 10, 15.) The casino alsoprovides some of the best employment op-portunities in the region, and all of its em-ployees are eligible for health insurancebenefits, disability benefits and 401(k) ben-efit plans. (Tr. II Kewaygoshkum 16.)The casino also provides revenues to re-gional governmental entities and providessignificant side benefits to the local touristeconomy. (Tr. II Kewaygoshkum 17.)

III. CONCLUSIONS OF LAW

A. Restored Lands Exception

Sections 2719(a) and (b)(1) state in rele-vant part as follows:


(a) Prohibition on lands acquired intrust by Secretary

Except as provided in subsection (b)of this section, gaming regulated by thischapter shall not be conducted on landsacquired by the Secretary in trust forthe benefit of the Indian tribe after Oc-tober 17, 1988, unless—

(1) such lands are located within orcontiguous to the boundaries of thereservation of the Indian tribe on Oc-tober 17, 1988;

* * * * * *(b) Exceptions

(1) Subsection (a) of this section willnot apply when—

(A) the Secretary, after consulta-tion with the Indian tribe and appro-priate State, and local officials, includ-ing officials of other nearby Indiantribes, determines that a gaming es-tablishment on newly acquired landswould be in the best interest of theIndian tribe and its members, andwould not be detrimental to the sur-rounding community, but only if theGovernor of the State in which thegaming activity is to be conductedconcurs in the Secretary’s determina-tion; or

(B) land are taken in to trust aspart of—

(i) a settlement of a land claim,

(ii) the initial reservation of an In-dian tribe acknowledged by the Sec-retary under the Federal acknowl-edgment process, or

(iii) the restoration of lands for anIndian tribe that is restored to Fed-eral recognition.

25 U.S.C. §§ 2719(a)(1), (b)(1).

Under the quoted terms of 25 U.S.C.§ 2719(a), gaming is prohibited on landsacquired by the Secretary in trust for thebenefit of an Indian tribe after October 17,1988, unless the land in question falls with-

in one of the exceptions of § 2719. TheTurtle Creek site was taken into trust onAugust 8, 1989, after the effective date ofthe IGRA. The question before the court iswhether gaming at the Turtle Creek prop-erty is nevertheless legal because the landwas ‘‘taken into trust as part of TTT therestoration of lands for an Indian tribethat is restored to federal recognition.’’ 25U.S.C. § 2719(b)(1)(B)(iii).

The court previously addressed thisquestion in its 1999 opinion, in which itdenied the motion of the United States forpreliminary injunction. Since that opinionwas issued, the court’s general reasoninghas been applied by at least three otherdistrict courts and has been adopted bythe NIGC and the Department of the Inte-rior. See Confederated Tribes of Coos,Lower Umpqua & Siuslaw Indians v.Babbitt, 116 F.Supp.2d 155, 163–64 (D.D.C.2000); Sault Ste. Marie Tribe of LakeSuperior v. United States, 78 F.Supp.2d699, 706 (W.D.Mich.1999); TOMAC v.Norton, 193 F.Supp.2d 182, 193–94 (D.D.C.2002); (P–23: Letter from General Coun-sel of NIGC to Hillman, J.) No contraryauthority exists.

[1] As NIGC noted in its letter opinionto this court, and as the parties agree,because the NIGC did not employ formaladjudicatory procedures, the NIGC’s de-termination is not entitled to the level ofdeference set forth in Chevron U.S.A., Inc.v. Natural Resources Defense Council,Inc., 467 U.S. 837, 104 S.Ct. 2778, 81L.Ed.2d 694 (1984) (in appropriate circum-stances, agency determination is bindingunless procedurally defective, arbitrary orcapricious in substance, or manifestly con-trary to statute). Nevertheless, ‘‘ ‘the wellreasoned views of the agencies implement-ing a statute ‘‘constitute a body of experi-ence and informed judgment to whichcourts and litigants may properly resortfor guidance.’’ ’ ’’ United States v. Mead


Corp., 533 U.S. 218, 227, 121 S.Ct. 2164,150 L.Ed.2d 292 (2001) (quoting Bragdonv, Abbott, 524 U.S. 624, 642, 118 S.Ct. 2196,141 L.Ed.2d 540 (1998) (quoting Skidmorev. Swift & Co., 323 U.S. 134, 139–40, 65S.Ct. 161, 89 L.Ed. 124 (1944))). As aconsequence, this court must give suchdeference to the NIGC as is appropriate inlight of the thoroughness, reasoning andconsistency of its determination. Id. at2172, 2175.

Applying this standard, the court is per-suaded that the determination of theNIGC regarding the restored-lands excep-tion is entitled to substantial weight. Inlight of the weight of court authority andthe agency determination, the court findsno reasonable basis for altering its conclu-sion that the Band is a restored tribewithin the meaning of the IGRA.

1. Whether the Band is a ‘‘restored’’tribe.

As the court reasoned in 1999, in orderto determine whether the Band meets therestoration exception under§ 2719(b)(1)(B)(iii), the court must first de-termine whether the Band is a ‘‘restored’’tribe within the meaning of the provision,and second, whether the land was takeninto trust as part of a ‘‘restoration’’ oflands to such restored tribe. Neither ‘‘re-stored’’ nor ‘‘restoration’’ is defined under§ 2719(b)(1)(B)(iii). See Sault Ste. Marie,78 F.Supp.2d at 706; Grand TraverseBand, 46 F.Supp.2d at 696. As a result,this court must apply ordinary principlesof statutory construction to determine themeaning of the words. Williams v. Tay-lor, 529 U.S. 420, 431–32, 120 S.Ct. 1479,146 L.Ed.2d 435 (2000). See also Ameri-can Tobacco Co. v. Patterson, 456 U.S. 63,68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982).

[2] Interpretation of a statute beginswith the plain meaning of the languageitself. See Nixon v. Kent County, 76 F.3d1381, 1386 (6th Cir.1996). The court must

‘‘give the words of a statute their ordinary,contemporary, common meaning, absentan indication Congress intended them tobear some different import.’’ Williams,529 U.S. at 431–32, 120 S.Ct. 1479 (refer-ring to dictionary definitions to determinemeaning of statutory term); see also Pat-terson, 456 U.S. at 68, 102 S.Ct. 1534(‘‘[W]e assume that the legislative purposeis expressed by the ordinary meaning ofthe words used. Thus absent a clearlyexpressed legislative intention to the con-trary, that language must ordinarily beregarded as conclusive.’’). See also Hart-ford Underwriters Ins. Co. v. UnionPlanters Bank, N.A., 530 U.S. 1, 6, 120S.Ct. 1942, 147 L.Ed.2d 1 (2000) (‘‘[W]ebegin with the understanding that Con-gress says in a statute what it means andmeans what it says there TTT [W]hen thestatute’s language is plain, the sole func-tion of the courts—at least where the dis-position required by the text is not ab-surd—is to enforce it according to itsterms.’’) (internal quotations and citationsomitted).

The dictionary provides the followingprincipal definitions of ‘‘restore’’:

1: to give back (as something lost ortaken away): make restitution of: re-turn TTTT 2: to put or bring back (asinto existence or use). TTTT 3: to bringback or put back into a former or origi-nal stateTTTT

WEBSTER’S THIRD NEW INTERNATIONAL DIC-

TIONARY, p.1936 (G. & C. Merriam Co.1976).Similarly, the entry for ‘‘restoration’’ con-tains the following principal definition:

1: an act of restoring or the condition orfact of being restored: as a: bringingback to or putting back into a formerposition or condition: reinstatement, re-newal, reestablishmentTTTT

Id.

It is undisputed that the Band was rec-ognized by the United States for the pur-


pose of signing a series of treaties be-tween 1795 and 1855. These treatiesgranted the Band reservation lands andother compensation, and the Band contin-ued to have government-to-government re-lationship with the United States until1876. At that time, the Secretary of theInterior improperly terminated the federaltrust relationship by administrative action.The Band unsuccessfully attempted forover a century to re-obtain federal recog-nition. Finally, in 1980, a formal adminis-trative acknowledgment procedure was im-plemented, and the Band was the firsttribe to exercise that procedure.

The State of Michigan does not disputethe chronology of historical treatment ofthe Band. It contends, however, that theterms ‘‘restored’’ and ‘‘restoration’’ havean explicit meaning under the structureof the statute, even if that meaning is notset forth in a dictionary definition or ex-press statutory definition. The State rea-sons that the statute contains a separateexception in § 2719(b)(1)(B)(ii) for landsobtained by a tribe when it is ‘‘acknowl-edged’’ by the Secretary of the Interiorthrough the federal acknowledgment pro-cess under 25 C.F.R. Part 83. The Statetherefore argues that by the ‘‘plain mean-ing’’ of the statute construed as a whole,an ‘‘acknowledged’’ tribe under§ 2719(b)(1)(B)(ii) may never be consid-ered ‘‘restored’’ under § 2719(b)(1)(B)(iii).The State argues that in order to giveseparate meaning to the two exceptionsfor ‘‘acknowledged’’ and ‘‘restored’’ tribes,the concept of ‘‘restoration’’ of an Indiantribe under § 2719(b)(1)(B)(iii) must apply

only to a process of restoration by way ofCongressional action, not by agency ac-knowledgment. Because the Band uncon-testedly was acknowledged by the Secre-tary under subsection (B)(ii), the Stateargues that it may not be considered re-stored under subsection (B)(iii).

Alternatively, the State argues for thefirst time in its post trial brief that a tribemay only be considered to be restoredwhen its recognition was legislatively,rather than administratively, terminated.In support of this argument, the Statedoes no more than point to a number oftribes whose recognition was legislativelyterminated and subsequently legislativelyrestored.1

Thus, the State does not dispute theordinary meaning of the words ‘‘restore’’and ‘‘restoration.’’ Instead, it asserts thatthe structure of the statute requires thatthe dictionary definition be narrowed toinclude only situations in which ‘‘termi-nation’’ and later ‘‘restoration’’ have beenperformed by Congress.

[3] An exception to the maxim thatwords be given their ordinary meaningexists ‘‘[w]here words conflict with eachother, where the different clauses of aninstrument bear upon each other, andwould be inconsistent unless the naturaland common import of words be var-iedTTTT’’ Sturges v. Crowninshield, 17 U.S.122, 202, 4 Wheat. 122, 4 L.Ed. 529 (1819),quoted in Lyons v. Ohio Adult ParoleAuth., 105 F.3d 1063, 1069 (6th Cir.1997).The State contends that unless the term isgiven a specialized meaning, the restored

1. The court notes that the State’s argumentconcerning the requirement of legislative ter-mination is even more tenuous, inasmuch asthe IGRA does not itself use the word ‘‘termi-nation’’ to describe the exception. Instead,the State suggests that congressional use ofthe word ‘‘restore’’ and ‘‘restoration’’ dependson not only a proprietary meaning of thoseterms, but also suggests that Congress intend-

ed to incorporate a proprietary way in whichthe later-restored recognition was takenaway. The State has not even attempted tooffer evidence supporting such a labyrinthinecongressional intent. See TOMAC, 2002 WL500868, at * 8 (rejecting argument that onlytribes that had been legislatively terminatedcould be considered ‘‘restored’’ under theIGRA).


lands exception will swallow and rendersuperfluous the acknowledged tribe excep-tion under § 2719(b)(2)(B)(i). As a result,the State contends that the plain meaningof the restored lands exception precludesthe exception being applied to a tribe thatwas acknowledged through the defined ac-knowledgment process.

[4] A court is required to interpretstatutes as a whole and avoid constructionsthat would render words or provisions su-perfluous or meaningless. See Lyons, 105F.3d at 1069 (discussing need to givemeaning to all terms) (implicit overrulingon other grounds recognized in Arredondov. United States, 120 F.3d 639 (6th Cir.1997)). See also NORMAN J. SINGER, 2ASUTHERLAND STATUTES AND STATUTORY CON-

STRUCTION § 46.06 (5th ed.1992). ‘‘[I]t is a‘fundamental principle of statutory con-struction (and, indeed, of language itself)that the meaning of a word cannot bedetermined in isolation, but must be drawnfrom the context in which it is used.’ ’’Textron Lycoming Reciprocating EngineDivision, Avco Corp. v. United Automo-bile, Aerospace, Agricultural ImplementWorkers of America, 523 U.S. 653, 657, 118S.Ct. 1626, 140 L.Ed.2d 863 (1998) (quot-ing Deal v. United States, 508 U.S. 129,132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993)).Accord Cohen v. de la Cruz, 523 U.S. 213,220–21, 118 S.Ct. 1212, 140 L.Ed.2d 341(1998).

[5] In the instant case, the State seeksnot only to urge a secondary meaning overa primary one but also to impose a proce-dural limitation on all dictionary definitionsof the word. However, in the absence ofactual conflict with surrounding terms,courts are reluctant to infer a legislativeintent to use a secondary definition overthe primary definition, much less one thathas an extraordinary and technical mean-ing as a term of art. See Muscarello v.United States, 524 U.S. 125, 128–32, 118S.Ct. 1911, 141 L.Ed.2d 111 (1998) (declin-

ing to use secondary definition of ‘‘carry’’over primary definition in absence of clearlegislative intent to do so).

Departure from the language of the leg-islature and resort to judicially createdrules of statutory construction is appro-priate only in the ‘‘rare cases [in which]the literal application of a statute willproduce a result demonstrably at oddswith the intentions of its drafters TTT orwhen the statutory language is ambigu-ous.’’ The plain meaning of the statutecontrols the court’s interpretation in allother instances.

Nixon, 76 F.3d at 1386 (quoting Kelley v.E.I DuPont de Nemours & Co., 17 F.3d836, 842 (6th Cir.1994)). The State hasfailed to demonstrate that Congress in-tended to limit the restored-lands excep-tion in the manner it suggests.

First, the State has failed to demon-strate that Congress consistently and ex-clusively used only the word ‘‘restore’’when restoring Indian tribes through leg-islative action. Instead, Congress hasused the words ‘‘restore’’ and ‘‘restoration’’interchangeably with ‘‘reaffirm’’ and ‘‘rec-ognize’’ in the course of its actions to re-store recognition to previously recognizedtribes. See, e.g., Paiute Indian Tribe ofUtah Restoration Act, Pub.L. No. 96–277,94 Stat. 317 (1980) (codified at 25 U.S.C.§§ 761–768); Siletz Indian Tribe Restora-tion Act, Pub.L. No. 95–195, 91 Stat. 1415(1977) (codified at 25 U.S.C. § 711). (Seealso P–20: Letter Opinion from Office ofthe Solicitor to Secretary of the Interior rePokogon Band of Potowanami Indians at3–7 (Sept. 19, 1997) (discussing inter-changeable Congressional use of ‘‘restore,’’‘‘reaffirm,’’ ‘‘affirm’’ and ‘‘recognize’’); P–21: Letter Opinion of Associate Solicitor toSecretary of Interior re Little TraverseBay Band of Odawa Indians at 4–7 (Nov.12, 1997) (same).) While in its post-trialbrief the State has selectively pointed to


statutory titles containing the word ‘‘resto-ration,’’ the State has failed to analyze thewords used in any acts themselves or todispute the references cited by plaintiff orthe Secretary. As a result, the State hasfailed to demonstrate a standard, acceptedand exclusive Congressional use of thewords ‘‘restore’’ and ‘‘restoration.’’

Congressional use of the words appearsto have occurred in a descriptive senseonly, in conjunction with action taken byCongress to accomplish a purpose consis-tent with the ordinary meaning of thewords. In no sense has a proprietary useof ‘‘restore’’ or ‘‘restoration’’ been shown tohave occurred. Id.; see also TOMAC, 193F.Supp.2d at 193–94; Confederated Tribes,116 F.Supp.2d at 163–64; Sault Ste. MarieTribe, 78 F.Supp.2d at 705–07; GrandTraverse Band, 46 F.Supp.2d at 696–99.Moreover, even had Congress always usedthe terms ‘‘restore’’ and ‘‘restoration’’when enacting legislation to accomplish thepurpose of restoring a tribe, such evidencewould not demonstrate that Congress in-tended to create a proprietary use of theword. The State has failed to identify anybasis for concluding that Congress intend-ed that the word ‘‘restore’’ as used in theIGRA should be limited by the words usedby Congress in enacting statutes of resto-ration or that Congress intended to pro-hibit the use of the word ‘‘restore’’ whentribes used the acknowledgment process.See Sault Ste Marie Tribe, 78 F. Supp 2dat 706.

The court agrees with the State that theprovision excepting lands acquired for res-toration of lands for a restored tribe undersubsection (b)(1)(B)(iii) must be distin-guished in some fashion from the provisionexcepting lands acquired by way of ac-knowledgment of a tribe under subsection(b)(1)(B)(ii). However, no evidence existsthat a distinction between the provisionsmay be recognized only by inferring aCongressional intent to create mutually ex-

clusive categories by way of an extraordi-nary but unspecified definition of theterms.

Instead, applying the common defini-tions of the terms ‘‘restore’’ and ‘‘restora-tion’’ to the statute, subsection (b)(1)(B)(iii)does not swallow the interpretation of sub-section (b)(1)(B)(ii). Both of the excep-tions appear to be intended to place tribesthat are belatedly acknowledged or re-stored in the same or similar position astribes recognized by the United Statesearlier in their history. The statute ex-pressly provides that lands located withinor contiguous to the tribe’s reservation onthe effective date of the IGRA are exemptfrom the procedures of § 2719(b). See 25U.S.C. § 2719(a)(1). Tribes which are be-latedly recognized or acknowledged, how-ever, have not had the ability to have landsplaced in trust by the Secretary for thepurpose of establishing or preserving areservation. As a result, the statute ap-pears to allow belatedly recognized tribesto have lands exempted by way of certainother exceptions.

Use of the federal acknowledgment pro-cess referenced under subsection(b)(1)(B)(ii) is not limited to those tribeswhich previously had been recognized bythe administrative agency and whose rec-ognition was later taken away. Instead,the Secretary has authority to recognizetribes by virtue of a complex set of histori-cal facts, which may or may not includeprior express recognition by the UnitedStates and the Secretary. See 25 C.F.R.§ 83.7 (setting forth criteria for federalacknowledgment).

When seeking acknowledgment, theBand required a land base, in accordancewith 25 C.F.R. Part 54 (now codified at 25C.F.R. Part 83). (Dkt # 64: RastetterAff. ¶ 5.) The non-profit corporation then-acting as the Band’s governing body hadobtained a 99–year lease from Leelanau


County, with option to renew, on 147.4acres which the county held in trust forthe benefit of the tribe. Following ac-knowledgment on May 27, 1980, the tribewas required to pursue a lawsuit againstthe prior trustee, the non-profit corpora-tion that had moved for acknowledgment,in order to obtain control over these leasedlands. That control was finally obtainedby court order on January 30, 1985. (Id.at ¶¶ 6–7.) In the meantime, the Bandacquired fee simple title to 12.5 acres,which was the total property acknowl-edged as the initial reservation of thetribe.

At the time the acknowledgment processwas used by the Band in the instant case,however, the size and location of the initialreservation land had no extra-acknowledg-ment consequences. Fully eight years af-ter the Band was acknowledged under theprocess, the IGRA created an exemptionfor lands initially acknowledged by theSecretary. The State’s proposed interpre-tation of exclusivity would impose an addi-tional, unanticipated consequence of havingused the acknowledgment process ratherthan Congressional action for obtainingrecognition—that the tribe would be limit-ed under the IGRA to the first land takeninto trust following acknowledgment.

Such a post facto consequence is unrea-sonable if Congress has not clearly ex-pressed such an intent. I conclude that nosuch intent is apparent here. Instead, it isperfectly sensible that ‘‘acknowledged’’ and‘‘restored’’ tribes may on occasion overlap.Acknowledgment is a specifically definedterm under the IGRA, because the statuteexpressly references a federal administra-tive process, 25 C.F.R. Part 83, by whichthe agency acknowledges the historical ex-istence of a tribe. In contrast, a tribe is‘‘restored’’ when its prior recognition hasbeen taken away and later restored.Those processes may overlap where, as inthis case, the tribe was Congressionally

recognized, but later lost such recognitionin some fashion. But not all tribes ac-knowledged under the federal acknowledg-ment process could also be described asrestored. It is readily apparent that atribe may be acknowledged which had nev-er previously been recognized. See Aroos-took Band of Micmacs, 137 CONG. REC.

H9653 (1991); see also 25 C.F.R.§§ 83.7(a) and 83.8. Similarly, a tribe maybe restored by way of legislative actionrather than administrative action. Thosetribes restored by way of legislative actionare not eligible to exercise the initial ac-knowledgment provision. The fact that asubset of tribes like the Band might con-duct gaming under both the initial-reserva-tion and on restored-lands clauses does notrender one provision or another superflu-ous.

Further, I note that the State’s sugges-tion that the exceptions are mutually ex-clusive is at odds with the previously un-mentioned third exception of§ 2719(b)(1)(B). Subsection (b)(1)(B)(i)excepts from § 2719 those lands taken intotrust as part of ‘‘a settlement of a landclaim.’’ If, as the State asserts, the excep-tions were intended by Congress to bemutually exclusive, a tribe acknowledgedby the Secretary which subsequently set-tled a land claim implicitly would bebarred from asserting the exception ofsubsection (b)(1)(B)(i), despite the unequiv-ocal and unrestricted language of the sub-section excepting lands taken into trust aspart of ‘‘a settlement of a land claim.’’

In sum, I conclude that the words ‘‘ac-knowledged’’ and ‘‘restored’’ are separateand have spheres of independent meaning,but may nonetheless overlap in some in-stances. Giving ordinary meaning to thewords used by Congress does not renderany portion of the statute mere surplus-age. See Bailey v. United States, 516 U.S.137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472


(1995) (reiterating that statutes should beconstrued so as to avoid rendering lan-guage mere surplusage); Platt v. UnionPacific Railroad Co., 99 U.S. 48, 58, 9 Otto48, 25 L.Ed. 424 (1878) (same). Absolutelynothing in the statute suggests that Con-gress prohibited such a result and thestatute is perfectly harmonious withoutthis court imposing a specialized meaningon any term. See Hartford, 530 U.S. at 6,120 S.Ct. 1942 (unless result is absurd orother intent is clearly expressed, ordinarymeaning is conclusive).2

The State next argues that the intent ofthe IGRA was to limit the proliferation ofcasinos. As a result, it asserts, all excep-tions to the statute should be read narrow-ly.

The State cites no authority to supportits claimed purpose for the IGRA. Indeed,Congress’ stated purposes do not even in-clude the State’s suggested purpose:

The purpose of this chapter is—(1) to provide a statutory basis for the

operation of gaming by Indian tribes asa means of promoting tribal economicdevelopment, self-sufficiency, and strongtribal governments;

(2) to provide a statutory basis for theregulation of gaming by an Indian tribeadequate to shield it from organizedcrime and other corrupting influences, toensure that the Indian tribe is the pri-mary beneficiary of the gaming opera-tion, and to assure that gaming is con-

ducted fairly and honestly by both theoperator and players; and

(3) to declare that the establishmentof independent Federal regulatory au-thority for gaming on Indian lands, theestablishment of Federal standards forgaming on Indian lands, and the estab-lishment of a National Indian GamingCommission are necessary to meet con-gressional concerns regarding gamingand to protect such gaming as a meansof generating tribal revenue.

25 U.S.C. § 2702. As Congress clearlystated, the purpose of the IGRA was not tolimit the proliferation of Indian gamingfacilities. Instead, it was to provide ex-press statutory authority for the operationof such tribal gaming facilities as a meansof promoting tribal economic development,and to provide regulatory protections fortribal interests in the conduct of such gam-ing. See, e.g., Diamond Game Enter., Inc.v. Reno, 230 F.3d 365, 366–67 (D.C.Cir.2000); United States v. 103 ElectronicGambling Devices, 223 F.3d 1091, 1094(9th Cir.2000); United States v. Cook, 922F.2d 1026, 1033 (2d Cir.1991). The clearlydefined purpose of the statute creates nobasis for presuming that Congress intend-ed to narrow the right to game exceptwhere that intent is clearly stated. SeeCalifornia v. Cabazon Band of MissionIndians, 480 U.S. 202, 218–19, 107 S.Ct.1083, 94 L.Ed.2d 244 (1987) (recognizingtribal authority to game without state reg-

2. I therefore disagree with the NIGC’s appli-cation of the rules of statutory construction tofind that the restored-lands clause is ambigu-ous. The NIGC determined that the fact thatCongress had often used the words ‘‘restore’’and ‘‘restoration’’ when enacting legislationto restore recognition to previously recog-nized tribes provided ‘‘some evidence’’ thatthe words used in the IGRA constituted aterm of art. As a result, the NIGC concludedthat the restored-lands clause should be con-sidered ambiguous. However, Congress ispresumed to intend that words used in a

statute will have their ordinary meaning.‘‘[A]bsent a clearly demonstrated legislativeintention to the contrary, that language mustordinarily be regarded as conclusive.’’ Patter-son, 456 U.S. at 68, 102 S.Ct. 1534. Here, nosuch contrary intent is demonstrated and theNIGC made no finding of a clearly demon-strated legislative intent to use a term-of-art.As a result, the statute cannot be consideredambiguous and the plain meaning must beapplied. The court therefore rejects theNIGC’s finding of ambiguity.


ulation). As a result, the chronologicallimitation on the ability of tribes to gamemust itself be deemed an exception to thegrant of general authority to game and thestated purpose to authorize gaming as amethod of promoting tribal economic de-velopment and self-sufficiency. See Me-nominee Tribe of Indians v. UnitedStates, 391 U.S. 404, 413, 88 S.Ct. 1705, 20L.Ed.2d 697 (1968) (requiring clear evi-dence of congressional intent to limit tribalrights).

[6] In sum, the undisputed history ofthe Band’s treaties with the United Statesand its prior relationship to the Secretaryand the BIA demonstrates that the Bandwas recognized and treated with by theUnited States. Both prior to and aftersuch treaties, until 1872, the Band wasdealt with by the Secretary as a recog-nized tribe. Only in 1872 was that relation-ship administratively terminated by theBIA. This history—of recognition by Con-gress through treaties (and historical ad-ministration by the Secretary), subsequentwithdrawal of recognition, and yet later re-acknowledgment by the Secretary—fitssquarely within the dictionary definitionsof ‘‘restore’’ and is reasonably construed asa process of restoration of tribal recogni-tion. The plain language of subsection(b)(1)(B)(iii) therefore suggests that thisBand is restored.

I find no evidence of Congressional in-tent to establish mutually exclusive catego-ries of exceptions under § 2719(b)(1)(B). Ifurther find no basis for giving the terms‘‘restored’’ and ‘‘restoration,’’ as used in§ 2719, anything other than their ordinarymeanings. As a result, I find no basis in

the language of § 2719 for adopting theState’s specialized definition of the terms.

[7] Moreover, even if the State’s defi-nition could be considered plausible, aconclusion I reject, the Band’s construc-tion of the statute is more plausible. Theexistence of a plausible construction morefavorable to the Band must be given pref-erence under principles of statutory con-struction as applied to statutes addressingIndians and the historic trust position ofthe United States. See Bryan v. ItascaCounty, 426 U.S. 373, 96 S.Ct. 2102, 48L.Ed.2d 710 (1976) (stating canon of con-struction that ambiguities in statutes deal-ing with Indians should be construed in amanner that benefits the Indians).3

2. Whether the acquisition of TurtleCreek is part of a ‘‘restoration oflands.’’

Having concluded that the Band may beconsidered a restored tribe under the stat-ute, the question remains whether the landat issue was ‘‘taken into trust as part ofTTT the restoration of lands for an Indiantribe that is restored to Federal recogni-tion.’’ The State contends that in order tobe ‘‘part of TTT the restoration of lands’’ toa restored tribe, some limitation is re-quired beyond the simple language of theexception. Otherwise, the State asserts,restored tribes will be placed in a compar-atively advantaged position vis-a-vis tribeswhich were not restored, because all acqui-sitions of property subsequent to restora-tion will be excepted from the statute.The State argues that the proper and onlyway to limit the clause is to require thatCongress have taken action to restore theland.

3. The State asserts the unexceptional proposi-tion that ‘‘a canon of construction is not alicense to disregard clear expressions of TTT

congressional intentTTTT’’ DeCoteau v. DistrictCounty Court, 420 U.S. 425, 447, 95 S.Ct.1082, 43 L.Ed.2d 300 (1975). This court,

however, does not rely on the canon to over-ride clearly expressed congressional intent.Instead, the court merely notes that the canonis consistent with the expressed congressionalintent contained in the plain meaning of theterms.


However, accepting the State’s positionthat some limitation is required, nothing inthe record supports the requirement ofCongressional action. Neither the statutenor the statutory history suggests such alimitation. Given the plain meaning of thelanguage, the term ‘‘restoration’’ may beread in numerous ways to place belatedlyrestored tribes in a comparable position toearlier recognized tribes while simulta-neously limiting after-acquired property insome fashion. For example, land thatcould be considered part of such restora-tion might appropriately be limited by thefactual circumstances of the acquisition,the location of the acquisition, or the tem-poral relationship of the acquisition to thetribal restoration.

Upon review of each of these factors, theNIGC determined that the Turtle Creeksite was acquired as part of a restorationof lands to a restored tribe. (P–23.) TheNIGC concluded that the historical evi-dence demonstrated that the Band ac-quired the property as part of its ‘‘earliestattempts to build a reservation.’’ (Id. at16.) The NIGC further found that theBand viewed the site as part of its coreland area. (Id.)

Further, opinions from the Office of theSolicitor to the Secretary of the Interiorsupport a conclusion that the Grand Tra-

verse Band’s acquisition of the TurtleCreek site amounts to a restoration ofland. In two opinions, the Solicitor consid-ered lands taken into trust following thereaffirmation of the Pokogon Band of Po-tawanami Indians and the Little TraverseBay Band of Odawa Indians. (P–20; P–21.) Both bands had an essentially identicalhistory to the Grand Traverse Band, andthe Solicitor found that after-acquiredlands were restored lands within themeaning of § 2719. Having concludedthat the tribes were restored, the Solicitortook a broad view of what constitutedlands taken into trust as part of a restora-tion of lands within the meaning of§ 2719(b)(1)(B)(iii). The Solicitor concludedthat the lands at issue were part of arestoration simply on the basis that thelands at issue were within the twenty-county area ceded by the tribe to theUnited States.4

By the reasoning contained in the Solici-tor’s opinions, if a tribe is a restored tribeunder the statute, any lands taken intotrust that are located within the areashistorically occupied by the tribes areproperly considered to be lands taken intotrust as part of the restoration of landsunder § 2719. In other words, the solici-tor’s opinions reject the State’s assertionthat it is improper to adopt a chronologi-cally open-ended interpretation of what

4. As I previously have discussed, the Statecontends that these tribes are distinguishablefrom the Grand Traverse Band on the basisthat they were ‘‘restored’’ by Congress ratherthan by the Secretary in the acknowledgmentprocess. I previously have concluded that thegovernment’s asserted distinction is not sup-portable on the language of the statute. Inote in passing that the Solicitor’s opinionsregarding the Pokogon Band of PotawanamiIndians and the Little Traverse Bay Band ofOdawa Indians analyze whether a tribe isrestored not by the specific language used byCongress, but by what historically occurred.The common thread among all these cases isthat, before their enactment, the tribe was not

included on the list of Federally RecognizedTribes published annually in the Federal Reg-ister. Inclusion on the list is a prerequisite toacknowledgment that the tribe has ‘‘the im-munities and privileges available to other fed-erally acknowledged Indian tribes by virtue oftheir government-to-government relationshipto the United States as well as the responsibil-ities, powers, limitations and obligations ofsuch tribes.’’ 61 Fed.Reg. 58,211 (Nov.1996).The NIGC also has accepted this analysis.(P–23 at 18 n. 14.) The Solicitor’s analysis,therefore, is consistent with my own regard-ing the meaning of what constitutes a ‘‘re-stored tribe.’’


constitutes a restoration of lands under§ 2719. Further, in light of the virtuallyidentical history of these tribes with theGrand Traverse Band, reliance on the So-licitor’s analysis is particularly appropri-ate. Treating similarly situated tribes in asimilar manner is consistent with federallegislation that counsels against interpreta-tions that distinguish among tribes in am-biguous circumstances. See 25 U.S.C.§ 476(f) (‘‘Departments of agencies of theUnited States shall not promulgate anyregulation or make any decision or deter-mination pursuant to the Act of June 18,1934 (25 U.S.C. 461 et seq., 48 Stat, 984) asamended, or any other Act of Congress,with respect to a federally recognized Indi-an tribe that classifies, enhances, or dimin-ishes the privileges and immunities avail-able to the Indian tribe relative to otherfederally recognized tribes by virtue oftheir status as Indian tribes.’’) See alsoP–23 at 14.

In addition, I note that the language ofsubsection (b)(1)(B)(iii) does not containthe same limiting language of subsection(b)(1)(B)(ii), which restricts the (B)(ii) ex-ception to only those lands forming part ofthe ‘‘initial’’ reservation. Instead, the(B)(iii) exception requires only that thelands in issue to be part of ‘‘the restorationof lands for an Indian tribe that is restoredto Federal recognition.’’ That languagesimplies a process rather than a specifictransaction, and most assuredly does notlimit restoration to a single event.

The Band does not claim that any landswhich are taken into trust for a restoredtribe necessarily amount to a restorationof lands under § 2719(b)(1)(B)(iii). It con-tends instead that in order to meet therequirements of the exception, the landmust in some sense be said to be ‘‘re-stored.’’

Here, it is undisputed that the TurtleCreek site lies within the counties previ-ously ceded by the Band to the United

States. Indeed, the site is only 1.5 milesfrom the edge of the 1836 reservation as-signed to the Band. Further, the Band’sevidence clearly established that the parcelwas of historic, economic and cultural sig-nificance to the Band. The State providedno contrary evidence. Instead, State ex-perts merely opined that other locationsalso were of historical significance and ar-guably were more important to the Band.That fact, however, even if true, does notundermine the evidence of historical signif-icance. The site therefore may be reason-ably considered to be part of a restorationof lands in an historic, archeologic andgeographic sense.

Second, the evidence supports the con-clusion that at the time of its acquisition,the parcel was intended to be part of arestoration of tribal lands. (Tr. II Keway-goshkum 9; Tr. II Petoskey 30; P–25 at10–11, 66–67; Dkt # 64: Supp. Aff. ofWilliam Rastetter at ¶¶ 8–11.) The TurtleCreek property was part of the very earli-est attempts to build a reservation by thenewly acknowledged Band following ratifi-cation of its constitution. Id.

Finally, the land may be considered partof a restoration of lands on the basis oftiming alone. Other than the leased land,which came to the Band’s use in 1985, andtitle to the 12.5 acres, which was taken intotrust in 1984, the Band did not acquire anyadditional lands in trust until 1988. (P–23at 16.) The Secretary would not take landinto trust on behalf of the Band until itsconstitution had been approved. TheBand’s constitution was not approved bythe Secretary until March 1988. BetweenMarch 1988 and July 1990, the Band tookinto trust all of the multiple parcels ofproperty currently held in the reservation.The subject property was taken into truston August 8, 1989. As a matter of timing,the acquisition of the Turtle Creek sitewas part of the first systematic effort torestore tribal lands.


[8] For all these reasons, I concludethat the Turtle Creek site was acquired aspart of a restoration of lands to a restoredtribe. The Band has introduced substan-tial and uncontradicted evidence that theparcel is located in an area of historicaland cultural significance to the Band thatwas previously ceded to the United States.The Band also has introduced uncontra-dicted evidence of the intent of the Band inacquiring properties between 1988 and1990. Finally, it has introduced evidencesupporting the temporal proximity of res-toration of all reservation holdings to thetime of acknowledgment and approval ofthe tribal constitution, together with theabsence of any substantial restoration oflands preceding the property at issue.

I therefore determine that the land issubject to the restored-lands exception tothe general prohibition of gaming on landsacquired after October 1988.

B. Tribal–State Compact

In its cross-complaint, the State assertsthat gaming on the Turtle Creek site isbarred by section 2(C) of the tribal-statecompact between the Band and the State.Section 2(C) provides:

Notwithstanding subsection 2(B) above,any lands which the Tribe proposes tobe taken into trust by the United Statesfor purposes of locating a gaming estab-lishment thereon shall be subject to theGovernor’s concurrence power, pursuant

to 25 U.S.C. § 2719 or any successorprovision of law.

(J–5 at 3.)

[9–12] Under Michigan law, ‘‘ ‘[t]heprimary goal in the construction of inter-pretation of any contract is to honor theintent of the parties.’ ’’ Sault Ste. MarieTribe of Chippewa Indians v. Engler(‘‘Engler II’’), 271 F.3d 235, 237–38 (6thCir.2001). See also Sault Ste. Marie Tribeof Chippewa Indians v. Engler (‘‘EnglerI’’), 146 F.3d 367, 372 (6th Cir.1998). Thecourt ‘‘ ‘look[s] for the intent of the partiesin the words used in the instrumentTTTT’ ’’Engler II, 271 F.3d at 238 (quoting Michi-gan Chandelier Co. v. Morse, 297 Mich. 41,297 N.W. 64, 67 (1941)). Where the termsof the contract are clear and unambiguous,those terms are dispositive of the parties’intent. Engler I, 146 F.3d at 373; Michi-gan Chandelier, 297 N.W. at 67; UAW–GM Human Resource Center v. KSL Re-creation Corp., 228 Mich.App. 486, 579N.W.2d 411, 414 (Mich.App.1998). Whereterms are ambiguous, however, the courtmay look to extrinsic evidence in determin-ing the parties’ intent. Engler I, 146 F.3dat 373.

The State argues that the plain languageof the compact term requires the Governorto concur before gaming is permitted onany land taken into trust by the UnitedStates after 1988. The State asserts thatthe language is unambiguous and providesno exceptions. The State therefore con-tends that the court should decline to lookat extrinsic evidence of the parties’ intent.5

5. The court notes that the State took a schizo-phrenic position on extrinsic evidence at trial.The State called Michael Gadola, the Gover-nor’s chief negotiator, as a witness in its casein chief. The State questioned Mr. Gadolaextensively regarding the Governor’s intent inconducting compact negotiations and in add-ing section 2(C). The State, however, contend-ed that the Band should be barred from intro-ducing responsive evidence to the effect thatthe parties never intended the concurrencepower to extend to the restored-lands excep-

tion. Specifically, the State contended thatbecause the parties agreed that neither partyhad discussed the restored-lands exception,evidence of the parties intent regarding thatprovision was inadmissible.

The court admitted all evidence of intent soas to compile a full record for decision. Aspreviously stated, the court finds the languageunambiguous, and therefore does not rely onparol evidence to reach a determination. Thecourt nevertheless rejects the State’s narrow


The Band also asserts that the compactterm is unambiguous. The Band contends,however, that the term does no more thanmake it clear that the parties intended topreserve the Governor’s power as it existsunder the IGRA. In the alternative, theBand argues that if the court should findthe provision ambiguous, the parties clear-ly intended only to preserve the Gover-nor’s power as set forth in the IGRA.

I agree that the provision is unambigu-ous. The language of 2(C) specifically andexpressly invokes and incorporates theGovernor’s concurrence power under theIGRA. The term states that the Governorretains his concurrence power ‘‘pursuant to25 U.S.C. § 2719.’’

The term ‘‘pursuant to’’ has a well-estab-lished meaning, and is defined as:

in the course of carrying out: in con-formance to or agreement with: accord-ing to.

WEBSTER’S THIRD NEW INT’L DICTIONARY

1848 (G. & C. Merriam Co.1976). Apply-ing that definition to section 2(C) of thecompact, the provision may be read asstating that gaming on after-acquiredlands is ‘‘subject to the Governor’s concur-rence power, [‘according to’] 25 U.S.C.§ 2719.’’ No other concurrence power isintimated in the compact language otherthan that provided under § 2719 or itssuccessor provision under law.

In turn, § 2719 provides the Governorpower to concur with a best interest de-termination made by the Secretary onlyunder § 2719(b)(1)(A). No best interestdetermination is required and no concur-rence power is granted to the Governorfor the remaining exceptions to the prohi-bition on gaming on lands acquired after

1988:(1) § 2719(a)(1) (exception for landswithin or contiguous to tribe’s reservationboundaries); (2) § 2719(a)(2)(B) (last-rec-ognized-reservation exception); (3)§ 2719(b)(1)(B)(i) (exception for settlementof a land claim); (4) § 2719(b)(1)(B)(ii)(exception for initial reservation of ac-knowledged tribe); or (5)§ 2719(b)(1)(B)(iii) (restored-lands excep-tion). As a result, the language section2(C) of the compact does not grant theGovernor concurrence power with respectto any exception under § 2719 other than§ 2719(b)(1)(A).

Indeed, the State makes no serious ar-gument to support its assertion that theagreement grants absolute concurrencepower. The State includes no discussionof the language except to say that ‘‘[t]hegubernatorial concurrence called for bythis language is unequivocal and unquali-fied.’’ The State fails entirely to discussthe meaning of the phrase ‘‘pursuant to 25U.S.C. § 2719 or any successor provisionof law.’’ Instead, the State implicitlyreads out of existence this defining lan-guage.

The State suggests, however, that toview the compact term as merely reiterat-ing the Governor’s rights under 25 U.S.C.§ 2719 renders the provision redundant, inviolation of a cardinal rule of constructionrequiring that each ‘‘word, clause andparagraph of a contract TTT be givenmeaning and effect if possible.’’ Roy An-nett, Inc. v. Killin, 365 Mich. 389, 393, 112N.W.2d 497 (1961). However, section 2(C)of the compact does not render any otherprovision of the compact surplusage and isnot itself superfluous vis-a-vis any othercontractual provision.

construction of the parol evidence rule. Werethe language ambiguous, parol evidence thatneither party affirmatively contemplated orintended to expand the Governor’s veto pow-er to cover lands within the restored-landsprovision of the IGRA clearly would be rele-

vant to a determination of the parties’ intentin drafting the provision. In other words,under the circumstances, the lack of suchintent is equally relevant as would be thepresence of such intent.


[13] Instead, the provision is arguablyunnecessary only because it reiterates andexpressly incorporates a statute. Becausethe statutory right exists, it is doubtfulthat the compact could be construed tocircumvent 25 U.S.C. § 2719. In fact,courts routinely have recognized ‘‘the gen-eral rule that statutes relating to the sub-ject matter of a contract and existing atthe time of the execution of such contractbecome a part thereof and must be readinto the contract, except when a contraryintention appears.’’ Brotherhood of Ry. &S.S. Clerks, Freight Handlers, Exp. & Sta-tion Emp. v. Railway Express Agency,Inc., 238 F.2d 181, 184 (6th Cir.1956). Seealso Norfolk & Western Ry. Co. v. Ameri-can Train Dispatchers Ass’n, 499 U.S. 117,129–30, 111 S.Ct. 1156, 113 L.Ed.2d 95(1991) (‘‘Laws which subsist at the timeand place of the making of a contract, andwhere it is to be performed, enter into andform a part of it, as fully as if they hadbeen expressly referred to or incorporatedinto its terms.’’).

Here, because the Governor was con-cerned the compact might be construed toundermine his statutory authority, section2(C) was added to expressly preserve thatauthority. The fact that a contract termmay, through an excess of caution, be re-dundant of statutory rights does not vio-late any principle of statutory construction.Indeed, as the courts have recognized, con-tracting parties routinely reference appli-cable law. See, e.g., Railway Express, 238F.2d at 184 (holding that the contractingparties’ use of the phrase ‘‘pursuant to’’not only failed to evince an intent contraryto the general rule of incorporation, butalso demonstrated that the parties intend-ed the workers’ powers to be read ‘‘inconformity to’’ the cited statute). TheState provides no authority for the propo-sition that contracts must be construed soas not to incorporate statutory rights.

[14] I therefore conclude that, on itsface, section 2(C) of the tribal-state com-pact does not require the concurrence ofthe Governor in gaming on ‘‘lands takeninto trust as part of TTT the restoration oflands for an Indian tribe that is restored toFederal recognition.’’

While the court’s conclusion that theprovision is unambiguous precludes consid-eration of extrinsic evidence of a contraryintent, Michigan law has consistently rec-ognized that extrinsic evidence which isconsistent with the language of the agree-ment is always admissible. See Union OilCo. v. Newton, 397 Mich. 486, 245 N.W.2d11 (1976).

In the instant case, the plain meaning ofthe language is fully consistent with all ofthe trial evidence. Indeed, the State pre-sented no evidence that either the Gover-nor or the negotiating tribes intended sec-tion 2(C) of the compact to expand theGovernor’s powers under § 2719. All ofthe lead negotiators for the parties, includ-ing the deputy legal counsel to the Gover-nor, Michael Gadola, testified that section2(C) was not intended to expand the Gov-ernor’s rights. (Tr. II Gadola 60–61; Tr.III Peebles 67; Greene dep. at 15.) Inaddition, then vice chairperson of theBand, Eva Petoskey, testified concerningthe Band’s understanding of the compact.(Tr. III Petoskey 83.) Further, MichaelGadola testified that he understood at thetime of contracting that § 2719 containedexceptions over which the Governor had noconcurrence power, such as the contiguouslands provision, § 2719(a)(1), and the ex-ception for settlement of a land claim,§ 2719(b)(1)(B)(i). Gadola specifically tes-tified that section 2(C) was added to makeit clear that the compact was not takingaway from the Governor’s powers under§ 2719. (Tr. III Gadola 33–34, 37 (‘‘WhatI recall is the Governor, again, being veryjealous of his veto power under Section


2719 and not wanting to suggest any dimi-nution in that veto authority.’’).) 6

In sum, both the plain meaning of thecompact language and the extrinsic evi-dence of the parties’ intent support a con-clusion that the Governor’s concurrencepower under the compact is identical to hispower under § 2719. Under § 2719, theGovernor possesses no concurrence powerwith respect to the restored-lands excep-tion. Accordingly, the Band is entitled tojudgment on the State’s compact claim.

IV. CONCLUSION

For the foregoing reasons, I concludethat gaming is permissible at the TurtleCreek site pursuant to 25 U.S.C.§ 2719(b)(1)(B)(iii). Accordingly, theBand is entitled to judgment in its favor onits complaint. Further, the Band is enti-tled to judgment in its favor on the State’scross-complaint.

ORDER AND JUDGMENT

This action having come on for trialbefore this court, and the issues havingbeen tried, and in accordance with theopinion filed this date,

IT IS ORDERED that judgment is en-tered in favor of Grand Traverse Band ofOttawa and Chippewa Indians and againstthe State of Michigan.

IT IS FURTHER ORDERED that thewithin case is hereby dismissed with preju-dice. Costs may be taxed as provided bylaw.

,

Lora J. FERRAR, Plaintiff,

v.

FEDERAL KEMPER LIFEASSURANCE COMPANY,

Defendant.

Case No. C–3–00–127.

United States District Court,S.D. Ohio,

Western Division.

March 18, 2002.

Beneficiary of life insurance policybrought state court action against insurer,alleging breach of contract after it deniedbenefits under policy. Action was removed.On insurer’s motion for summary judg-ment, the District Court, Rice, ChiefJudge, held that: (1) fact questions as towhether counseling that insured received

6. The State suggests that at the time of con-tracting, it considered the Band to be anacknowledged tribe and therefore did not be-lieve that the Band would be able to make aclaim under the restored-lands exception.Regardless of the truth of this claim, theState’s misunderstanding is irrelevant to theinterpretation of the compact provisions.First, such evidence, to the extent it reflectsthe State’s intent in compacting, is not admis-sible to prove an intent inconsistent with theplain language of the compact. Second, theState’s misunderstanding of the meaning of afederal statute is a risk all parties undertookin compacting under the backdrop of federallaw. The State may not disavow a contract

simply because it reached a legal conclusionabout the state of the law that ultimately wasunfounded. Finally, it is not at all apparentthat the Governor could have refused to enterinto a compact with the Band because itrefused to abandon its rights under the IGRA.See 25 U.S.C. §§ 2710(3)(A) and (C) (requir-ing states to negotiate in good faith and set-ting forth the possible topics of negotiation)and § 2710(7)(B)(iii) (providing consider-ations for determining State’s good faith innegotiation). Expansion of the Governor’sveto powers under the IGRA is simply not apermissible topic of compact negotiation un-der the IGRA. See 25 U.S.C. § 2710(3)(C).

Documents

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