TAXPAYERS OF MICHIGAN AGAINST CASINOS v. STATE OF MICHIGAN
Docket No. 122830
Supreme Court of Michigan
Argued March 11, 2004. Decided July 30, 2004.
471 MICH 306
Docket No. 122830. Argued March 11, 2004 (Calendar No. 6). Decided July 30, 2004.
Taxpayers of Michigan Against Casinos and State Representative Laura Baird brought an action in the Ingham Circuit Court against the state of Michigan, seeking to have declared unconstitutional compacts between the state and Indian tribes concerning class III casino gaming on tribal lands in Michigan. The compacts were negotiated by the Governor on behalf of the state, were concluded pursuant to the Indian Gaming Regulatory Act (IGRA),
In separate opinions, the Supreme Court held:
The Court of Appeals judgment holding that the compacts are constitutional is affirmed. Given the terms of the compacts involved, the Legislature was not required to approve the compacts through legislation; therefore, approval by resolution did not violate the Michigan Constitution. Further, the joint resolution that approved the compacts is not a local act and so does not
Chief Justice CORRIGAN, joined in full by Justices TAYLOR and YOUNG, joined by Justice CAVANAGH only with respect to part IV (Blank/Chadha factors), and joined by Justice MARKMAN only with respect to part VI (local acts issue), stated that 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.
Legislation is unilateral regulation: the Legislature is never required to obtain consent from those who are subject to its legislative power. This unilateral action distinguishes legislation from contract. The Legislature could not have unilaterally extended its will over the tribes involved because IGRA only grants the states bargaining power, not regulatory power, over tribal gaming. In this case, the compacts therefore can only be described as contracts, not legislation. Each compact provided that it would take effect after endorsement by the Governor and concurrence in that endorsement by resolution of the Legislature. Thus, legislative approval of the compacts was required only as the result of negotiations between sovereigns. The compacts have no application to those subject to legislative power; rather, they only set forth the parameters within which the tribes, as sovereign nations, have agreed to operate their gaming facilities. The Legislature has no obligation regarding the regulation of tribal gaming. Further, in approving the compacts, the Legislature had not dictated the rights or duties of those other than the contracting parties. The compacts do not obligate local units of government to create local revenue sharing boards. The Legislature‘s approval of the compacts has not affected the rights of state citizens by setting age limitations for gaming or employment in the tribal casinos, nor did it create any affirmative state obligations.
The Michigan Constitution 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, the Legislature has the discretion to approve the compacts by resolution. This Court should not interfere with the Legislature‘s discretionary decision to approve the compacts by resolution.
The analysis from Blank v Dep‘t of Corrections, 462 Mich 103 (2000), as adopted from Immigration & Naturalization Service v Chadha, 462 US 919 (1983), which concerned the Legislature‘s power to alter or amend a statute delegating rule-making authority without doing so by statute, does not apply to this case. The Constitution is silent regarding the proper form of legislative approval of tribal-state gaming compacts under IGRA and the people have not expressed a view on this question.
The recent amendment of the compacts by the Governor makes the separation of powers issue ripe for review. This case must be remanded to the Court of Appeals so that it may consider whether the provisions in the compacts empowering the Governor to amend the compacts without legislative approval violate the separation of powers doctrine.
The approval of state compacts regarding 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 interest. The compacts are not local acts within the meaning of
Justice KELLY, joined by Justice CAVANAGH, concurring, stated that the tribal-state gaming compacts at issue are not legislation. They are appropriately viewed as agreements between sovereign entities. They do not impose duties on or restrict the people of the state. They create no duty to enforce state laws on tribal lands. They do not mandate the creation of local revenue sharing boards. They are applicable only to the tribes, who are generally not subject to the legislative power of the state. Instead, the compacts are contractual in nature, conveying the rights and obligations of the parties, the state, and the various tribes. Because the compacts are not legislation, the Legislature was not required to approve them by bill. Nothing in the state or federal constitutions prohibits the Legislature from approving intergovernmental agreements by concurrent resolution. Therefore, a concurrent resolution of the Legislature was appropriate to validate them.
Because the compacts at issue are not legislation, the local acts provision of the Michigan Constitution,
Justice WEAVER, concurring in part and dissenting in part, would hold that the compacts are void, because the state can be bound to a tribal-state compact under the federal Indian Gaming Regulatory Act only when the Legislature has enacted a bill adopting the compacts.
The first question in this case is who, under Michigan law, has the authority to bind the state of Michigan to a compact negotiated under IGRA. Binding the state to a compact with an Indian tribe requires determinations of public policy and the exercise of law-making powers that are within the exclusive purview of the Legislature. Therefore, under Michigan‘s constitutional separation of powers, the Governor does not have the authority to bind the state to a compact with an Indian tribe; only the Legislature has that authority.
The Legislature attempted to approve the compacts by a joint resolution. But
Because Justice WEAVER would hold that the compacts are void, she would hold moot the issue whether the compact provisions permitting the Governor to amend the compacts without legislative approval violate the separation of powers doctrine and would not remand on this issue.
Justice WEAVER concurred in the determination that the compacts at issue do not violate
Justice MARKMAN, dissenting except as to part VI of the lead opinion, states that this Court has been asked to determine what the constitutional procedures are by which the state of Michigan properly ratifies tribal-state casino gambling compacts. He concludes that the compacts at issue here constitute legislation and, thus, are subject to legislative approval consistent with the law-making procedures of
The tribal-state compacts in this case constitute legislation. In reaching this conclusion, Justice MARKMAN states that this Court should consider the language of the Constitution, whether the compacts had the purpose and effect of generally altering the legal rights and duties of the people of Michigan, whether the Governor‘s action in negotiating the compacts and the Legislature‘s action in conducting a resolution vote effectively substituted for legislative action, and whether the compacts constituted formulations of public policy. Because the Constitution requires that all legislation be done by bill, and that no bill may become law without the concurrence of a majority of the elected members in each house, the compacts here were not properly adopted by the Legislature by only a resolution vote.
The majority, by concluding that the compacts do not constitute legislation, alters the constitutional relationship in Michigan between the branches of government. As a result of the majority‘s holding, in the future, the Legislature‘s role in approving not only tribal-state compacts, but compacts of all kinds, will exist essentially at the sufferance of the Governor.
The provision in the tribal-state compacts that purports to grant the Governor sole amendatory power over their covenants violates the separation of powers doctrine of
For the reasons set forth in part VI of the lead opinion, the tribal-state compacts do not violate the local acts provision of
Affirmed; remanded to the Court of Appeals.
INDIANS - CASINOS - TRIBAL-STATE GAMING COMPACTS - CONSTITUTIONAL LAW.
Given the terms of the compacts involved, the approval by joint resolution of the Michigan House of Representatives and Senate of the tribal-state gaming compacts at issue does not constitute legislation, is not a local act, and therefore does not violate state constitutional provisions requiring legislation by bill and prohibiting local or special acts where a general act can be made applicable (
Barris, Sott, Denn & Driker, P.L.L.C. (by Eugene Driker and Thomas F. Cavalier), for the state of Michigan.
Dykema Gossett PLLC (by Richard D. McLellan, Bruce G. Davis, R. Lance Boldrey, and Kristine N. Tuma) for intervening defendant Gaming Entertainment, LLC.
Amici Curiae:
Rhoades McKee (by Bruce W. Neckers and Bruce A. Courtade) for the Grand Rapids Area Chamber of Commerce.
Senate Majority Counsel (by Alfred H. Hall, Michael G. O‘Brien, Phillip A. Hendges, and Pamela S. Haynes) for Senate Majority Leader Ken Sikkema and Senator Shirley Johnson.
Miller, Canfield, Paddock and Stone, P.L.C. (by Kevin J. Moody and Jaclyn Shoshana Levine), for the Sault Ste. Marie Tribe of Chippewa Indians.
Kanji & Katzen, PLLC (by Riyaz A. Kanji), and Drummond, Woodsum & MacMahon (by Kaighn Smith and Robert Gips) for the Little River Band of Ottawa Indians, the Little Traverse Bay Bands of Odawa Indians, and the Pokagon Band of Potawatomi Indians of Michigan.
James A. Bransky, General Counsel, for the Little Traverse Bay Bands of Odawa Indians.
Wheeler Upham, P.C. (by Geoffrey L. Gillis), and Sonosky, Chambers, Sachse, Endreson & Perry, LLP (by William R. Perry and Mary P. Pavel), for the Nottawaseppi Huron Band of Potawatatomi.
William Brooks for the Little River Band of Ottawa Indians.
Schuitmaker, Cooper & Schuitmaker, P.C. (by Harold Schuitmaker), for the city of New Buffalo.
Dewane, Peterson, McMahon & Cullitan, P.L.C. (by David M. Peterson), for the New Buffalo Township.
OPINION OF THE COURT
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
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 simply expressed its approval of valid contracts between two independent, sovereign 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
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 compacts, as now invoked by Governor Granholm, violates the separation of powers provisions found in
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.” The Court held that because Congress had not provided 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),
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.
(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 Tribal-State 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.1
* * *
(C) 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;
(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.
* * *
(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
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 by the Governor of the State and concurrence in that endorsement by resolution of the Michigan Legislature.”3 The compacts were modified and re-executed in December 1998, and the Legislature then approved the compacts by resolution through HCR 115.4
The validity of the 1998 compacts was challenged through several lawsuits.5 Plaintiffs filed this suit against defendant in the Ingham Circuit Court, seeking a declaratory judgment that the compacts do not comport with various constitutional provisions. Plaintiffs
Plaintiffs also contend that the provision in the compacts that purports to empower the Governor to amend them without legislative approval violates
Plaintiffs further argue that the compacts violate
This Court granted leave to appeal.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court‘s decision regarding a motion for summary disposition. Van v Zahorik, 460 Mich 320, 326; 597 NW2d 15 (1999). The
III. THE LEGISLATURE‘S APPROVAL OF THE COMPACTS WAS NOT LEGISLATION
Resolution of whether HCR 115 constituted legislation necessarily turns on the definition of “legislation.” Plaintiffs argue that the Legislature‘s approval of the compacts must be legislation because HCR 115 had the effect of altering legal rights and responsibilities. We find this definition of “legislation” overly 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 and responsibilities may also be altered through contracts. Therefore, the fact that the legal rights or responsibilities of the parties involved may have been altered in some way is not dispositive.
We hold that a more accurate definition of “legislation” is one of unilateral regulation. The Legislature is never required to obtain consent from those 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. One requires the consent only of the one body, the other the consent of two.” Detroit v Michigan Pub Utilities Comm, 288 Mich 267, 288; 286 NW 368 (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
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. Since at least 1832, the United States Supreme Court has recognized tribal sovereignty. In Worcester v Georgia, 31 US 515, 557; 8 L Ed 483 (1832), the United States Supreme Court noted that the tribes were “distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States.” This tribal sovereignty is limited only by Congress: “The 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.
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 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, our Legislature has recognized that the state‘s regulatory authority cannot extend to tribal gambling.
Further, contrary to plaintiffs’ contentions,
(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 section, the term “gambling” does not include—
(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.(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 tribal-state compact, they
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. AT&T Corp v Coeur D‘Alene Tribe, 295 F3d 899, 909 (CA 9, 2002).
Although
B. THE CONTRACTUAL NATURE OF COMPACTS
As explained above, IGRA only 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 must negotiate with the tribes to reach a mutual
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 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 the parameters within which the tribes, as sovereign nations, have agreed to operate their gaming facilities. Under the
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 to impose any obligations on the local governments. Third parties cannot be bound by the terms of the compacts. Instead, the compacts make local units of government third-party beneficiaries of the compacts, with the creation of the revenue sharing boards simply a condition precedent to receiving those benefits. A party is a third-party beneficiary if the promisor “has undertaken to give or do or refrain from doing something directly to or for said person.”
Further, we reject plaintiffs’ argument that the Legislature‘s approval by resolution has affected the rights of state citizens by setting age limitations for gaming or employment in the tribal casinos. These restrictions are not restrictions on the citizens of Michigan; rather, they
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 also has no responsibility to enforce the compacts’ requirements—that responsibility falls on the tribes alone. In this way, the compacts here can be distinguished from those at issue in the cases relied upon by plaintiffs. In Kansas v. Finney, 251 Kan. 559; 836 P.2d 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 the compacts could not bind the state to the increased obligations. Unlike the compact in Finney, however, the compacts at issue here do not create any state agencies and were presented to the Legislature for approval.
Similarly, in New Mexico v. Johnson, 120 NM 562; 904 P.2d 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
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 method of legislative approval of the compacts. We therefore turn to our Constitution. Our Constitution does not prohibit the Legislature from approving contracts, such as the compacts at issue here, by concurrent resolution. Unlike the federal constitution, our Constitution “is not a grant of power to the legislature, but is a limitation upon its powers.” 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 241, 243; 255 NW 579 (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
Regarding any limitations in our constitution,
We have held that our Legislature has the general power to contract unless there is a constitutional limitation. Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311; 254 NW2d 544 (1977). It is acknowledged by all that our Constitution 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
This understanding of legislative power is well-established. Our Legislature has in the past used the resolution process to ratify amendments of the federal constitution. This Court has declared the resolution process proper in such a circumstance because the Legislature did not engage in a legislative act that enacted a law, but merely expressed its assent to the proposed amendment. Decher v Secretary of State, 209 Mich 565, 571; 177 NW 388 (1920). In the same way, the Legislature here is merely expressing its “assent” to the compacts through HCR 115.
More importantly, because our Legislature had the discretion to approve the compacts by resolution rather than by bill, the courts cannot interfere with that legitimate exercise of legislative discretion. 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....
Therefore, this Court should not interfere with the Legislature‘s discretionary decision to approve the compacts by resolution.
IV. THE BLANK/CHADHA FACTORS
For the above reasons, we 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. Blank and Chadha involved the Legislature‘s power to alter or amend the statute delegating rule-making authority without doing so by statute. 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.
No such environment exists here, however, as our Constitution is silent regarding the proper form of legislative approval of tribal-state gaming compacts under IGRA and the people have not expressed a view on this question. Therefore, we do not believe that the Blank/Chadha analysis should be applied here.
In response to Justice MARKMAN‘s dissent, however, we note that even were the Blank/Chadha analysis to be applied, the factors do not demonstrate that the Legislature‘s approval of the compacts was an act of legislation.
A. THE COMPACTS DO NOT ALTER THE LEGAL RIGHTS, DUTIES, AND RELATIONS OF PERSONS OUTSIDE THE LEGISLATIVE BRANCH
To make sense, this factor must apply to persons outside the legislative branch who are subject to the Legislature‘s authority. Here, the compacts do not give the state the power to alter the rights, duties, or
B. THE RESOLUTION DID NOT SUPPLANT LEGISLATIVE ACTION
Unlike the actions taken in Blank, HCR 115 did not have the effect of amending or repealing existing legislation when it approved the compacts. As noted above, given the Constitution‘s silence 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. Therefore, legislation is not required and this Court should not interfere with the Legislature‘s discretion in approving the compacts by concurrent resolution.
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
D. CHADHA‘S CONSTITUTIONAL FACTOR IS NOT APPLICABLE GIVEN THE NATURE OF OUR STATE CONSTITUTION
As noted above, our Constitution differs from the federal constitution: the federal constitution grants Congress its power, while our Constitution limits the plenary power of our Legislature. As this 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 not lead to the conclusion that the Legislature is prohibited from approving the compacts by 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 BE REMANDED
Although we agree with plaintiffs 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. It is not proper for us to do so now. Therefore, we remand this issue to the Court of Appeals to consider whether the provision in the compacts purporting to empower the Governor to amend the compacts without legislative approval violates the separation of powers doctrine found in
The “local act” provision of
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 the electors voting thereon in the district affected.
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
Hart and Eaves, applied to the facts of this case, lead to the same conclusion: tribal-state compacts are not “local acts.” In the absence of express congressional consent, the Legislature has no authority to regulate casino gambling on Indian lands. Like the bridge in Eaves, Indian casinos, located as they are on tribal lands, are “international in character” and are likely to be frequented by Michigan citizens from throughout
Further, tribal lands subject to compact negotiations are declared as such not by the state or even by the tribes, but by the Department of the Interior. The Department of the Interior has thus far granted to the tribes lands located in the counties specified in the compacts.10 If, however, the department were to grant to a tribe lands located outside such counties, IGRA would direct the state to negotiate in good faith with the tribe to reach a compact applicable to that land as well. For this additional reason, we are not persuaded that the compacts are “local acts” merely because they 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
VII. CONCLUSION
We hold that HCR 115 was a valid method of approving the compacts. The compacts, and hence the Legis-
TAYLOR and YOUNG, JJ., concurred with CORRIGAN, C.J.
CAVANAGH, J., concurred only with respect to part IV.
MARKMAN, J., concurred only with respect to part VI.
KELLY, J. (concurring). In 1997 and 1998, Governor John Engler negotiated tribal-state gaming compacts with four west Michigan tribes. Under their terms, the compacts would become effective only when all of the following occurred:
- Endorsement by the tribal chairperson and concurrence in that endorsement by resolution of the Tribal Council;
Endorsement by the Governor of the State and concurrence in that endorsement by resolution of the Michigan Legislature; - Approval by the Secretary of the Interior of the United States; and
- Publication in the Federal Register. [Compact with Little Traverse Bands of Odawa Indians, § 11.]
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.
A majority of justices, myself included, hold that the tribal-state gaming compacts at issue are not legislation. They are more appropriately viewed as a communication between sovereign entities. The compacts 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.
We find unpersuasive Justice MARKMAN‘s reliance on this Court‘s decision in Blank1 to reach a contrary conclusion. Blank is inapplicable to this case. Because the tribal-state gaming compacts are valid, a majority affirms the decision of the Court of Appeals in favor of
I. STANDARD OF REVIEW
The circuit court ruled for plaintiffs on cross-motions for summary disposition. Decisions on motions for summary disposition are reviewed de novo. American Federation of State, Co and Muni Employees v Detroit, 468 Mich 388, 398; 662 NW2d 695 (2003). The question presented is whether the legislative action was constitutional. Similarly, issues of constitutionality are reviewed de novo. Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003).
II. THE ROLE OF FEDERAL LAW
Through the Commerce Clause, the United States Constitution grants the federal government exclusive jurisdiction over relations with Indian tribes.
In response to the Cabazon decision, Congress passed the Indian Gaming Regulatory Act (IGRA),
IGRA provides that Indian tribes may engage in class III gaming only if “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State ....”
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.” 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 with the ability to unilaterally regulate tribal gaming.
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 to negotiate or by demanding unreasonable conditions. They must negotiate in good faith upon a request by the tribe for such negotiation.
If a state refuses to engage in good-faith negotiations, it can lose its ability to influence the regulation of casino gaming on tribal land. The Seminole Court expressly refused to comment on substitute remedies 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 with respect to gambling in Indian country is the bargaining power given to it by the federal 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. It is a unique situation. “State law is generally 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
Plaintiffs argue 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,
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 tribal-state 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
III. THE ROLE OF STATE LAW
The Michigan Constitution requires that “All legislation shall be by bill and may originate in either house.”
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 the Michigan Constitution requires that all legislation be passed by bill, it does not define legislation. The dictionary defines “legislation” as “the act of making or enacting laws.” Random House Webster‘s 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.”
A similar definition is found in Black‘s Law Dictionary (6th ed), which describes “legislation” as “[t]he act of giving or enacting laws. . . . Formulation of rule for
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 to IGRA, the Legislature must obtain tribal consent before the tribe will be bound by state law.
The compacts are not legislation. They place no restrictions or duties on the people of the state of Michigan. They create no duty to enforce state laws on tribal lands. Sale of liquor to Indian casinos is subject to the same requirements as sales to other Michigan businesses.
The compacts do not impose duties, responsibilities, and costs on the state. They do not force the state to assume the obligation to oversee and implement the unemployment and worker‘s compensation statutes. 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.).]
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 the authority to tax gaming activity under the IGRA. Opinion of WEAVER, J., post at 357. We find the claim to be of no consequence in this case. That tribes may have relinquished certain rights as part of the 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 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. Any large business that locates a branch near a small 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 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 Tesuque, 132 NM 207, 218; 46 P3d 668 (2002).
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, 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
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 the unique nature of tribal-state 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.
The amendment provision of the compacts survives a facial challenge to the Separation of Powers Clause of the Michigan Constitution.
Because there was no amendment to challenge at the time plaintiffs brought suit, arguably the issue is not 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.
We may possess jurisdiction to decide the issue. However, the parties addressed the issue only in a cursory fashion, each premising its argument on its characterization of the original compacts as either legislation or contract. Also, the Court of Appeals did not address the issue. 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 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.
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 .]
VI. 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 Finney, 251 Kan 559; 836 P2d 1169 (1992); Narragansett Indian Tribe of Rhode Island v Rhode Island, 667 A2d 280 (1995). In the present case, the Michigan Legislature expressed its approval of the compacts. 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
The question here is not whether the compacts must be followed in light of conflicting statutory authority. It is whether the Legislature was required to voice 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). Becker does not aid in determining whether the compacts at issue require a general law.
VII. CONCLUSION
A majority of justices, myself included, hold that the tribal-state gaming compacts at issue are not legislation. They are appropriately viewed as agreements between sovereign entities. They 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, 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 agrees to remand the case to the Court of Appeals for consideration of plaintiffs’ separation of powers claim.
WEAVER, J. (concurring in part and dissenting in part). I concur with the majority‘s holding that the compacts do not violate
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.
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
I
The compacts at issue were signed by Governor Engler and the various Indian tribes, and approved by the Legislature pursuant to a joint resolution.2 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, and therefore the compacts must be approved by bill, not joint resolution, because the
Underlying the issue whether the compacts were validly approved is a more fundamental question: who, under Michigan law, has the authority to bind the state of Michigan to a compact negotiated under IGRA. If the 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 man-
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 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 Constitution separates the powers of government: “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.”
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 itself contemplates that states will confront several policy choices when negotiating tribal gaming compacts. Saratoga Co Chamber of Commerce Inc v Pataki, supra at 822. Under IGRA, a compact may include provisions relating to: (i) the application of directly related criminal and civil laws and regulations of the tribe or the state; (ii) the allocation of 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.”
These compact provisions necessarily require fundamental policy choices that epitomize “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, every other state supreme court that has addressed whether the governor or the legislature 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 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 (RI, 1995); Pataki,
The approval of a compact with an Indian tribe involves numerous policy decisions. The executive branch does not have the power to make those deter-
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 that “[a]ll legislation shall be by bill. . . .”
In the 1997-1998 term there were 117 concurrent resolutions introduced in the House of Representatives. Approximately 23 concurrent resolutions were adopted, including HCR 115, which approved the compacts at issue. The other 22 concurrent resolutions adopted included resolutions commemorating the 150th anniversary 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 American Heritage River [HCR
A joint resolution is not an act of legislation, and it cannot be effective for any purpose for which an exercise of legislative power is necessary. Cleveland Terminal & Valley RR Co v State, 85 Ohio St 251, 293; 97 NE 967 (1912). In issuing the joint resolution approving of the 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
CONCLUSION
I would 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 Legislature 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 unnecessary to address whether the provision that permits the Governor to amend the compacts is unconstitutional.
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 gaming compacts at issue, entered into and signed by various Indian tribes and
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
Regarding the second issue, the circuit court concluded that the compacts violate
Regarding the third issue, the circuit court concluded that
I. BACKGROUND
In California v Cabazon, 480 US 202; 107 S Ct 1083; 94 L Ed 2d 244 (1987), the United States Supreme Court considered whether California could legally enforce its regulatory gambling laws on Indian reservations if the state did not completely prohibit such gambling.1 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 that “[i]t is clear . . . that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided.” Id. at 207.2 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
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.
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.”
(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 section, the term “gambling” does not include-
(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. . . .
Thus, IGRA generally provides that in the absence of a tribal-state compact, for purposes of federal law, all state gambling laws, including regulatory, as well as prohibitory, laws and regulations and any relevant criminal punishments, apply on Indian land just as they
apply elsewhere in the state, albeit with the proviso that criminal prosecutions are within the jurisdiction of the federal government.4If a tribe wishes to “opt-out” of the default federal law rule of
(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 Tribal-State 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
* * *
(C) 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;
(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.
* * *
(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
In essence, by providing under
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). There, the court addressed the role of IGRA and, of particular relevance,
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 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
In 1993, Governor Engler, pursuant to
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
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 a period of twenty years after it becomes effective.
- The tribe must make semi-annual payments of 8% of the net win at the casino to the Michigan Strategic Fund.
- 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
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 do not comport with various constitutional provisions. Plaintiffs contend first that the compacts amount to legislation and, therefore, pursuant to
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 requirement, the separation of powers doctrine, and the local acts provision embodied in Michigan‘s Constitution. “[D]eciding whether a matter has in any measure been 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 we consider whether the tribal-state compacts at issue constitute “legislation.” The Michigan Constitution requires that “[a]ll legislation shall be by bill....”
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 of government constituted to perform this process—Also termed lawmaking ....” Michigan‘s Constitution provides that “[t]he legislative power of the State of Michigan is vested in a senate and a house of representatives.”
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,
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. [Blank, supra at 114, quoting Chadha, supra at 952-956 (citations omitted).]
Because the Chadha/Blank framework provides necessary guidance in determining whether a challenged action constitutes “legislation” subject to the 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 of altering ... legal rights, duties and relations of persons ... outside the legislative branch,‘” Blank, supra at 114; (2) whether the Governor‘s 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.”
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. Gambling in the absence of a compact was unlawful pursuant to
Moreover, gambling on the subject Indian lands absent the challenged compacts was unlawful pursuant to
Thus, it becomes clear that, before the challenged compacts existed, the tribes would have been engaging in an unlawful activity had they endeavored to operate their respective casinos. It necessarily follows that the compacts had the intended purpose, and the effect, of altering legal rights and relations of Michigan citizens generally. The compacts purport to allow Indian tribes to lawfully engage in activities that would otherwise be unlawful.
Moreover, the compacts impose specific duties upon both the members of the tribes and upon non-Indian
Thus, the first factor of the Chadha/Blank framework leads to the conclusion that the compacts constitute legislation. 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.
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 vote on
III. DETERMINATIONS OF POLICY
The third Chadha/Blank factor requires that we consider whether the compacts “involved determina-
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. These 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,
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;
“(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.]
iv. MICHIGAN CONSTITUTION
The fourth Chadha/Blank factor requires that we consider whether Michigan‘s Constitution explicitly authorizes the Legislature to approve these compacts by resolution even if the compacts otherwise constitute legislation.
Before 1908, the Michigan Constitution allowed the Legislature to make laws by the resolution process. See
In Becker v Detroit Savings Bank, 269 Mich 432, 434-436; 257 NW 855 (1934), this Court considered whether a legislative resolution can create binding law. In accordance with our Constitution, the Becker Court 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. See
Accordingly, in my judgment, the tribal-state compacts at issue constitute legislation. The compacts had the purpose and effect of generally altering legal rights, 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 A RESOLUTION NONETHELESS CONSTITUTIONAL?
Having determined that the Chadha/Blank analytical framework leads to the conclusion that the compacts constitute “legislation” subject to the enactment requirement of Michigan‘s Constitution, I will now con
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 339-342. In support of this proposition, the opinion refers to
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 KELLY has misconstrued the relevance of
ii. STATE AUTHORITY TO LEGISLATE
Second, defendants 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
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
The majority concludes, however, that the fact that the compacts must arise out of the negotiation process means that they do not constitute “legislation” because legislation must be “unilateral.” Opinion of CORRIGAN, C.J., ante at 318; opinion of KELLY, J., ante at 344. 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. In support of this theory—that unless a state may “unilaterally” 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). Ante at 344.
Westervelt 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
Justice KELLY argues that the power to speak “without any specified limitations” means the power to “unilaterally” legislate. 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 344. In my judgment, Westervelt must be interpreted within the different context of that case. I see no reason to expand
Chief Justice CORRIGAN, in support of her contention that the state has no power to “unilaterally” regulate, and therefore legislate, tribal gambling under
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
First, it should be considered whether
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 theIGRA 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,
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 constitutes legislation. The Michigan Constitution provides that “[t]he executive power is vested in the governor.”
In addressing this issue, it is also necessary to consider what our Constitution does say regarding the Governor‘s right to bind the state to an “intergovernmental agreement.”
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.
Thus, pursuant to this constitutional provision, the Governor of this state may enter into intergovernmental agreements without the advice or consent of the Legislature—whether by resolution vote or consistently with the enactment requirements of our Constitution. However, this power is not unlimited. First, it is specifically limited to agreements with “the other states, the United States, the Dominion of Canada, or any political subdivision thereof.” The power to enter into an intergovernmental agreement with an Indian tribe is conspicuously absent. Second, the power is specifically limited to those agreements necessary “for the performance, financing or execution of [its] functions.” Neither
It may be said that because the intergovernmental agreement provision of the Michigan Constitution does not refer to agreements with Indian tribes that provision is inapplicable to this case. However, in light of the fact that the powers of the executive branch are constitutionally defined, I read additionally a negative implication in
Moreover, even were I to decline to read a negative implication into
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,
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
C. DO AMENDATORY PROVISIONS VIOLATE THE CONSTITUTION?
Each of the challenged tribal-state compacts contains a provision that purports to empower the Governor to amend it on behalf of the state without seeking legislative approval of any specific amendment.37 This provision, plaintiffs contend, violates the separation of powers doctrine embodied in
The Court of Appeals ruled that this issue was not ripe for review because the Governor had not yet attempted 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
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.
“The legislative power of the State of Michigan is vested in a senate and a house of representatives.”
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
IV. CONCLUSION & CONSEQUENCES
We have been asked to consider, in an action seeking declaratory relief, whether the four tribal-state compacts at issue are inconsistent with various procedures
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
Finally, I believe that the compacts do not violate the local acts provision of
Concerning the consequences of this opinion for the casinos operated by the tribes, 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 consider
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 of the relationships between the branches of government. The result of the majority‘s analyses in this case is that a matter 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 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 to conform to the legislative process set forth in the Michigan Constitution, the 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. Rather than both the executive and legislative branches being required to 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 directly representative of the people.
Notes
Consideration of the structure of
If Congress had not intended
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.
Opinion of MARKMAN, J., post at 389. Cabazon, supra at 221.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.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, 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 ofIf 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 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) .]
[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)] . . . .