The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN
FRANK J. KELLEY, ATTORNEY GENERAL
Necessity and extent of legislative approval of tribal-state gaming compacts
Under Const 1963, art 4, legislative approval is necessary in order for the State of Michigan to validly bind itself to a tribal-state gaming compact under the Indian Gaming Regulatory Act.
Under Const 1963, art 4, legislative approval of a tribal-state gaming compact under the Indian Gaming Regulatory Act requires a statutory enactment by the Michigan Legislature.
Opinion No. 6960
October 21, 1997
Honorable John D. Cherry, Jr.
Honorable Kirk A. Profit
You have asked whether legislative approval is necessary under Const 1963, art 4, in order for the State of Michigan to validly bind itself to a tribal-state compact under the Indian Gaming Regulatory Act and, if so, whether such approval requires a statutory enactment by the Michigan Legislature.
Your inquiry was prompted by a series of proposed Indian gaming compacts recently negotiated by the Governor with several Michigan Indian tribes. Each of the proposed compacts contains a provision making its effectiveness contingent upon "[e]ndorsement by the Governor of the State and concurrence in that endorsement by resolution of the Michigan Legislature." (Emphasis added.) Your inquiry expresses concern as to whether a legislative joint resolution is sufficient for the state to validly bind itself to the proposed compacts.
The Indian Gaming Regulatory Act, 25 USC 2701 et seq (IGRA), provides, inter alia, that if an Indian tribe wishes to conduct casino or similar gaming operations on Indian land, it must first attempt to negotiate a gaming compact with the state in which that land is located. Section 2710(d)(3)(A). If a compact is successfully negotiated with the state, it is then submitted to the United States Secretary of Interior for review and approval, and if approved, it is published in the Federal Register, and thereby "take[s] effect." Section 2710(d)(3)(B).
Although the IGRA is quite specific in mandating that, upon receipt of a tribal request to negotiate a gaming compact "the State shall negotiate with the Indian tribe in good faith to enter into such a compact," section 2710(d)(3)(A), the Act is silent on the question of what process must be followed by a state in order to effectively bind itself to such a compact. (Emphasis added.) In Pueblo of Santa Ana v Kelly, 104 F3d 1546 (CA 10, 1997), cert den ___ US ___; ___ S Ct ___; ___ L Ed 2d
___; 1997 US LEXIS 4578 (October 6, 1997), the court addressed this omission by Congress and concluded that it was deliberate.
IGRA says nothing specific about how we determine whether a state and tribe have entered into a valid compact. State law must determine whether a state has validly bound itself to a compact. See Washington v Confederated Bands and Tribes of the Yakima Indian Nation, 439 US 463, 493 & n. 39, 58 L Ed 2d 740, 99 S Ct 740 (1979) . . . We agree with the district court that IGRA's very silence on this point supports the view that "Congress intended that state law determine the procedure for executing valid gaming compacts." Pueblo of Santa Ana, 932 F Supp at 1294.
104 F3d at 1557-1558 (emphasis added) (footnote omitted).
Therefore, the court concluded, one must look to state law to determine what process is necessary to effectively bind the state to the terms of a proposed gaming compact.
The same conclusion has been reached, either explicitly or implicitly, by the various state courts that have examined the issue of the validity of such compacts. See, e.g., Kansas, ex rel Attorney General v Governor, 251 Kan 559, 583; 836 P2d 1169 (1992); Narragansett Indian Tribe of Rhode Island v Rhode Island, 667 A2d 280, 282 (RI, 1995); New Mexico ex rel Clark v Governor, 120 NM 562, 571; 904 P2d 11 (1995). Each of these state cases, moreover, has concluded, as a matter of state constitutional law, that the approval by a state of a tribal-state gaming compact under the IGRA is legislative in character, thereby requiring the exercise by the state legislature of its formal law-making power.
An examination of the terms of the proposed compacts at issue compels a similar conclusion under Michigan law. A major purpose of the proposed compacts is to authorize the Indian tribes to conduct specific casino gaming activities which would, absent the compacts, be in clear violation of several Michigan statutes. The proposed compacts further establish numerous requirements to be met in the management and operation of Indian gaming facilities, regulate the types and sources of gaming equipment that may be used, provide for arbitration of disputes that may arise under the compacts, subject the gaming operations to state liquor licensing and control laws, and commit the tribes to make semi-annual payments to the state and to local units of government. These provisions, purporting to be binding upon the state, are clearly legislative in character.
Pursuant to Const 1963, art 4, § 1, "[t]he legislative power of the State of Michigan is vested in a senate and a house of representatives." In order to protect the integrity of the legislative process, the People have, through the Constitution, imposed specific requirements upon the exercise of this power. Const 1963, art 4, § 22, requires that "[a]ll legislation shall be by bill and may originate in either house." Const 1963, art 4, § 26, requires that no bill shall become law without concurrence of a majority of the members of each house.
No bill shall be passed or become a law at any regular session of the legislature until it has been printed or reproduced and in the possession of each house for at least five days. Every bill shall be read three times in each house before the final passage thereof. No bill shall become a law without the concurrence of a majority of the members elected to and serving in each house.
Finally, Const 1963, art 4, § 33, provides that "[e]very bill passed by the legislature shall be presented to the governor before it becomes law," and the governor must be afforded the opportunity to either approve or veto the bill.
In light of these provisions contained in Michigan's present Constitution, as well as in its predecessors, it has long been established law in Michigan that a mere legislative resolution "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 853 (1934), quoting with approval from Mullan v State, 114 Cal 578; 46 P 670 (1896). See also, Boyer-Campbell Co v Fry, 271 Mich 282, 296; 260 NW 165 (1935), and United Ins Co v Attorney General, 300 Mich 200, 205-206; 1 NW2d 510 (1942). This point was recently reiterated by the Michigan Court of Appeals in Blank v Dep't of Corrections, 222 Mich App 385, 396-397; 564 NW2d 130 (1997), where the court stated:
In Michigan, Const 1963, art 4, § 1 provides that "the legislative power of the Sate of Michigan is vested in a senate and a house of representatives." Const 1963, art 4 §22 provides that "all legislation shall be by bill and may originate in either house." According to Const 1963, art 4, § 26, "no bill shall become a law without the concurrence of a majority of the members elected to and serving in each house." Then, pursuant to Const 1963, art 4, § 33, "every bill passed by the legislature shall be presented to the governor before it becomes a law. . . ." Even when the Legislature acts by concurrent resolution, it is not making "law". Such resolutions are not "bills," and are not presented to the Governor for approval as required by article 4 of our constitution.
It is my opinion, therefore, that under Const 1963, art 4, legislative approval is necessary in order for the State of Michigan to validly bind itself to a tribal-state gaming compact under the Indian Gaming Regulatory Act.
It is my further opinion that under Const 1963, art 4, legislative approval of a tribal-state gaming compact under the Indian Gaming Regulatory Act requires a statutory enactment by the Michigan Legislature.
FRANK J. KELLEY
STATE OF MICHIGAN