By now, we all knows the risk of Michigan v. Bay Mills Indian Community being decided by the U.S. Supreme Court this winter. The Indian gaming sky is literally falling. What began as a fight over whether Bay Mills could open an off-reservation casino on Indian lands-claims property, has devolved into a direct attack on (1) tribal sovereign immunity and (2) tribal sovereignty over gaming. NCAI has wisely urged the NIGC to moot this case by issuing a closure order for the off-reservation casino. But before the issue came to a head, a few years ago, a lawyer within the NIGC opined that the agency lacked jurisdiction over – incredibly – this Indian gaming operation because it is not on Indian lands. This 2010 letter has apparently given the NIGC all the cover it needs to completely punt the issue. In doing so, the NIGC is failing to achieve its core mission of protecting Indian gaming as a means of tribal economic development.
Ideally, the Bay Mills Tribal Gaming Commission will exercise Indian sovereignty as the primary regulator of the casino and issue its own closure order, mooting this issue. But if its lacks that foresight or resolve, the NIGC should close the casino. And it can. Plainly, the NIGC is authorized to temporarily close “an Indian game” when a tribe violates IGRA, its own laws, a compact, or its gaming ordinance. 25 USC § 2713. Indian game is not defined in IGRA. Whatever it means, it does not appear to be limited to games on Indian land. Historically, the NIGC has been either too paternal (CRIT) or too afraid (Bay Mills) when it needs to act in the best interests of governmental gaming. Abdicating the agency’s core responsibility as to Bay Mills is no longer an option. Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, firstname.lastname@example.org, or via www.galandabroadman.com.