Introduction - SOM - State of Michigan



Michigan Gaming Control Board Tribal Consultation PolicyAs of October 2020IntroductionGeneral The State of Michigan is home to twelve Native American communities that have been acknowledged by the Secretary of the United States Department of Interior to exist as Indian tribes pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 USC 479a. All states have a unique legal relationship with each sovereign American Indian Tribal Government.Federally recognized Indian tribes are sovereign governmental entities that possess the right to self-governance and self-determination and the authority to exercise jurisdiction over their respective lands and citizens.Federally recognized Indian tribes enjoy a unique trust relationship with the United States as set forth in the United States Constitution, treaties, statutes, executive orders, court decisions, and the general course of dealings of the United States with the Indian nations.The State of Michigan is bound under federal law to respect the sovereignty and rights of the federally recognized Indian tribes within the borders of the state.Section 1 of Article V of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the Governor.Under Section 8 of Article V of the Michigan Constitution of 1963, each principal department of state government is under the supervision of the Governor unless otherwise provided by the Constitution.Under Section 8 of Article V of the Michigan Constitution of 1963, the Governor is responsible to take care that the laws be faithfully executed.The respective governments of the State of Michigan and of the federally recognized Indian tribes share a responsibility to provide for and protect the health, safety, and welfare of our common constituents and can benefit greatly from increased cooperation in addressing these concerns.The state and the tribes have far more in common than they have differences. However, they may face occasional disagreements or misunderstandings over specific issues.Mutually beneficial cooperation and the appropriate resolution of occasional disagreements or misunderstandings can best be achieved if there is a commitment to regular consultation on issues of mutual concern.On October 28, 2002, the State of Michigan entered into a Government-to-Government Accord with the federally recognized Indian tribes in Michigan and on May 12, 2004, the Governor of the State of Michigan issued Executive Directive 2004-5 which affirmed its commitment to that Accord and to its full implementation. Government-to-government relations involve respectful and cooperative communication and dealings that are designed to achieve a consensus, to the extent possible, before a decision is made or an action is taken, and to implement programs in a collaborative manner. The Michigan Gaming Control Board (MGCB) is committed to such government-to-government relations with the federally recognized tribal governments of Michigan. On October 31, 2019, State of Michigan Governor Gretchen Whitmer signed Executive Directive 2019-17. The Directive reaffirms and extends Michigan's commitment to recognize the sovereignty and right of self-governance of Michigan's federally recognized Indian tribes.Tribal Gaming The federal government passed the Indian Gaming Regulatory Act of 1988 (IGRA), which authorizes Indian tribes to operate casino gaming on their Indian lands. The justification was that IGRA would create economic development and self-sufficiency on Indian tribal lands, meet tribal requests for authorized casino gaming, and ensure that state governments would be involved in the oversight of Class III gaming operations. Under IGRA, Class III gaming activities are lawful on Indian lands only if such activities are conducted in conformance with a Tribal-State Class III Gaming Compact (Compact). Before a Compact becomes effective, IGRA requires the Office of the Secretary, United States Department of the Interior, to approve the Compact and publish its approval in the Federal Register.The State of Michigan has entered into Tribal-State Class III Gaming Compacts with 12 Native American tribes as follows: Bay Mills Indian CommunityGrand Traverse Band of Ottawa and Chippewa IndiansHannahville Indian CommunityKeweenaw Bay Indian CommunityLac Vieux Desert Band of Lake Superior Chippewa IndiansSaginaw Chippewa Indian TribeSault Ste. Marie Tribe of Chippewa IndiansLittle River Band of Ottawa IndiansLittle Traverse Bay Bands of Odawa IndiansNottawaseppi Huron Band of Potawatomi IndiansPokagon Band of Potawatomi IndiansMatch-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as Gun Lake TribeThe Compacts provide that the regulation of Indian casino gaming is the responsibility of the tribes, and therefore Michigan has no regulatory authority over Class III gaming conducted on Indian lands. Although the State of Michigan does not regulate Indian casino gaming, the State does have oversight authority over compliance with the provisions of the Compacts and related consent judgments. The Governor has assigned the (MGCB) to conduct the state’s authorized inspections of tribal Class III gaming facilities and records pursuant to and in accordance with the provisions of the various tribal/state Class III gaming compacts. The Lawful Internet Gaming Act, Fantasy Contests Consumer Protection Act, and Lawful Sports Betting Act were enacted into law in Michigan in December 2019. Tribal operators are eligible to obtain an operator’s license under these acts. The Lawful Internet Gaming Act and Lawful Sports Betting Act particularly involve a unique interplay between federal and state law. The acts place the responsibility for promulgating rules necessary and proper to govern each act with the MGCB. Fundamental principalsThe State of Michigan recognizes the following fundamental principles concerning Indian tribes, bands, and communities that the Secretary of the United States Department of Interior has acknowledged as Indian tribes pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 USC 479a:Federally recognized Indian tribes are sovereign governmental entities.Federally recognized Indian tribes possess inherent authority to exercise jurisdiction over their respective lands and citizens.Federally recognized Indian tribes possess the right to self-governance and self-determination.The United States has a unique trust relationship with federally recognized Indian tribal governments as set forth in the United States Constitution, treaties, statutes, executive orders, court decisions, and the general course of dealings of the United States with the Indian nations.The State of Michigan has a unique government-to-government relationship with each of Michigan’s federally recognized Indian tribes, and that relationship is shaped by accords, compacts, statutes, court opinions, and a multitude of intergovernmental interactions. Purpose and objectives The MGCB will diligently seek to maintain an ongoing and meaningful process for consultation of high-level matters of mutual concern that relate to Class III gaming, internet sports betting, internet gaming, or fantasy contests that have implications to tribal governments. The objectives of this policy are:To create mutually beneficial communication and collaboration between Michigan tribes and the MGCB on all matters of shared concern as they relate to tribal gaming and fantasy contest operations. To formalize the process and expectations for MGCB staff to implement a government-to-government relationship and to seek consultation with and participation of representatives of Tribal governments in relevant policy development and MGCB’s activities that potentially affect tribal gaming and fantasy contest operations. To promote and develop methods of obtaining consultation on issues from tribal governments and to involve their representatives in the MGCB’s decision-making process.Consultation with Tribes The MGCB has substantial interaction with tribal governments and hereby designates the Deputy Director of Indian Gaming and Legal Affairs as its tribal liaison responsible for the MGCB’s interactions with the governments of Michigan’s federally recognized Indian tribes. This is intended to supplement, not supplant, existing effective relationships with tribal governments and ongoing cooperative efforts and lines of communication between the MGCB and Michigan’s federally recognized Indian tribes. MGCB’s tribal liaison, or his/her designee, shall annually report on the MGCB’s interactions with tribal governments to the Governor’s Advisor on Tribal-State Affairs, or any subsequent designee with similar responsibilities. MGCB’s tribal liaison, or his/her designee, shall meet on a regular and rotational basis with each tribal government leader to obtain feedback on topics that require consultation, explore ways to improve the consultation process, and obtain feedback on MGCB interactions with tribal government representatives. MGCB’s tribal liaison, or his/her designee, shall be responsible for scheduling meetings at a time and location that is mutually agreeable between the MGCB and the tribe(s). MGCB’s tribal liaison, or his/her designee, shall perform timely consultation with the tribes in a manner that ensures meaningful and mutually beneficial communication and collaboration occurs between the tribes and the MGCB on a government-to-government basis when MGCB is proposing legislation, promulgating regulations, or formulating policies that have direct tribal implications on Class III gaming, internet sports betting, internet gaming, or fantasy contests operations as follows: MGCB’s tribal liaison, or his/her designee, shall identify those activities (actions or decisions) that have direct implications on Class III gaming, internet sports betting, internet gaming, or fantasy contests operations conducted by tribes and therefore appropriate for consultation. During the identification process, the word “activity” shall be interpreted broadly. MGCB’s tribal liaison, or his/her designee, shall promptly notify the tribe(s) potentially affected of any identified activity that may be appropriate for consultation. The notification shall include information that is sufficient to allow each potentially affected tribe to make an informed decision as to if and how the tribe shall proceed with consultation. MGCB’s tribal liaison will contact each affected tribe to ascertain the preferred method of notice and the identity and contact information for all positions or person to whom the notice must be sent. The MGCB shall provide each tribal government with adequate time (60 calendar days recommended unless circumstances dictate a shorter response time is warranted) to respond in a meaningful manner to the notification. MGCB’s tribal liaison, or his/her designee, shall carefully review and consider each tribe’s input before taking any action on an activity that requires tribal consultation. MGCB’s tribal liaison, or his/her designee, shall provide written feedback to each tribe involved in the consultation to explain how their input was considered in the final decision or action taken by the MGCB. Where practicable, MGCB shall provide preliminary feedback to tribes before making the agency final decision. The MGCB may aggregate all feedback and explanations provided in order to satisfy this requirement The MGCB shall adhere to the fundamental principles outlined above when formulating and implementing laws, regulations, or policies that have tribal implications related to Class III gaming, internet sports betting, internet gaming, or fantasy contests operations. The MGCB’s staff shall consider the following criteria: Respect for Indian tribal self-government, sovereignty, and treaty rights.The obligation of the state to meet the responsibilities that arise from its unique government-to-government relationship with federally recognized Indian tribes and to assure that its laws and regulations are applied in a manner that does not conflict with federal laws and regulations designed to protect and assist tribal governments and tribal members.For the purposes of this policy and related Executive Directives referenced above, the term “tribal implications” shall mean an express reference to Indians, Indian tribes, bands or groups, or Indian organizations, or a direct effect on their collective or individual treaty rights, natural resources or environmental interests, economic or commercial interests, civil jurisdiction, or other rights or benefits secured under Michigan or federal law by virtue of their status as Indians.Training MGCB staff who have direct interactions with Michigan’s federally recognized Indian tribes or work on matters that have direct implications for Michigan’s federally recognized Indian tribes shall be provided regular training on tribal-state relations. The training will provide a general overview of the fundamentals of tribal sovereignty, tribal treaty rights, and tribal self-governance, and a historical overview of Indian tribes in Michigan with lessons on indigenous dispossession and Indian boarding schools. The training materials will be provided by the Governor’s Advisor on Tribal-State Affairs. ................
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