Opinion

Taxpayers of Michigan Against Casinos v. State

471 Mich. 306
685 N.W.2d 221

Court: Michigan Supreme Court
Filed: Jul 30, 2004
Status: Published
On the bench: Weaver, Taylor, Young, Corrigan, Cavanagh, Markman, Kelly
Cited by: 120 cases
Authority: More cited than 26.0%

concluding that the plaintiffs damages could be reduced by comparative negligence that long preceded the claims of malpractice in the case because “[t]he proximate cause of an injury is not necessarily the immediate cause; not necessarily the cause nearest in time, distance, or space”

How later courts described this case

concluding that the plaintiffs damages could be reduced by comparative negligence that long preceded the claims of malpractice in the case because “[t]he proximate cause of an injury is not necessarily the immediate cause; not necessarily the cause nearest in time, distance, or space”
holding that § 600.1483 does not require that a plaintiff who has suffered a qualifying injury still must be alive at the time judgment is entered in the plaintiff’s favor
holding that a legal cause is “a foreseeable, natural, and probable cause.”
saying that Michigan law is unclear on this point and that “[f]ederal secondary authority suggests that a suit must be ripe when it is instituted[]”

Written by the judges who cited it.

The opinion

Michigan Supreme Court

Lansing, Michigan

Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

FILED JULY 30, 2004

TAXPAYERS OF MICHIGAN AGAINST CASINOS,

AND LAURA BAIRD,

Plaintiffs-Appellants,

v No. 122830

THE STATE OF MICHIGAN,

Defendant-Appellee,

and

NORTH AMERICAN SPORTS MANAGEMENT

COMPANY, INC, IV, and GAMING

ENTERTAINMENT, LLC.,

Intervening Defendants-Appellees,

_______________________________

BEFORE THE ENTIRE BENCH

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

Const 1963, art 4, § 22; (2) whether the compacts’

amendatory provision providing that the Governor may amend

the compacts without legislative approval violates the

separation of powers doctrine found in Const 1963, art 3, §

2; and (3) whether HCR 115 is a local act in violation of

Const 1963, art 4, § 29.

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 federal law. Compacts

establishing the terms of class III gaming on tribal lands

modified only federal law. Therefore, our Constitution

does not require that our Legislature express its approval

of these compacts through bill rather than resolution.

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 Const 1963, art 3, § 2. Finally, we hold that HCR

115 is not a “local act” and therefore does not violate

Const 1963, art 4, § 29. Accordingly, we remand the

amendment provision issue to the Court of Appeals for

consideration, but otherwise affirm the decision of the

Court of Appeals.

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), 25 USC 2701 et seq., which

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.” 25 USC 2703(6). Class

II gaming includes bingo and card games (but not banking

card games) that are played in conformance with state laws

and regulations regarding hours of operation and

limitations on wagers or pot sizes. 25 USC 2703(7). Class

III gaming includes all other forms of gambling, including

casino gaming. 25 USC 2703(8).

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. 25 USC 2710(d) provides, in relevant

part:

(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

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]

* * *

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.

In Seminole Tribe of Florida v Florida, 517 US 44;

116 S Ct 1114; 134 L Ed 2d 252 (1996), the United States

Supreme Court held that 25 USC 2710(d)(7), which permits

Indian tribes to sue a state in federal court when that

state has refused to negotiate in good faith for a tribal-

state compact, was an unconstitutional violation of state

sovereign immunity as preserved by the Eleventh Amendment

of the United States Constitution.

* * *

(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 § 2710(d), Congress expressly provided for tribal-

state negotiations regarding class III gaming. Through

this compacting process, the tribes and the states may

agree to the terms governing such gaming.

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-

These tribes are the Little Traverse Bay Band of

Odawa Indians, the Pokagon Band of Ottawa Indians, the

Little River Band of Ottawa Indians, and the Nottawaseppi

Huron Potawatomi. The Little Traverse Bay Band and the

Little River Band currently operate casinos.

See § 11 of the compacts.

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 argue that

the compacts amount to legislation and, therefore, pursuant

to Const 1963, art 4, § 22 the Legislature was required to

adopt them by bill rather than approve them by resolution.

The circuit court held that the compacts should have been

approved by bill. The Court of Appeals reversed the

circuit court decision, concluding that the compacts do not

Although a bill must be passed by a majority of

elected and serving members of the Legislature, a

resolution may be passed by a majority vote of those

legislators present at the time, provided a quorum is

present. The House of Representatives approved the

7compacts by a resolution vote of 48 to 47, and the Senate

followed suit by a resolution vote of 21 to 17.

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 the

Secretary of Interior of Michigan’s 1998 compacts, but that

suit was also dismissed on standing grounds by the United

States Court of Appeals for the Sixth Circuit. Baird v

Norton, 266 F3d 408 (CA 6, 2001).

constitute legislation because they contain no enforcement

provision that would ensure that their terms are satisfied

and because the power of the state to legislate in this

area is preempted by federal law. The Court of Appeals

opined that the compacts constitute mere contracts and,

therefore, approval by resolution was not constitutionally

infirm.

Plaintiffs also contend that the provision in the

compacts that purports to empower the Governor to amend

them without legislative approval violates Const 1963, art

3, § 2, the “separation of powers” doctrine. The circuit

court agreed with plaintiffs. The Court of Appeals,

however, reversed the decision of the circuit court on the

basis that the amendatory provision issue was not ripe for

review because the Governor had not yet attempted to amend

the compacts.

Plaintiffs further argue that the compacts violate

Const 1963, art 4, § 29, the “local acts” clause. The

circuit court disagreed, holding that art 4, § 29 is not

implicated. The Court of Appeals agreed and affirmed the

circuit court on this issue.

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

constitutionality of a legislative act is a question of law

that is reviewed de novo. DeRose v DeRose, 469 Mich 320,

326; 666 NW2d 636 (2003).

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

sovereigns: the Legislature could not have unilaterally

exerted its will over the tribes involved. Because the

tribes’ consent is required by federal law, the compacts

can only be described as contracts, not legislation.

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.

Although 25 USC 2710(d)(1)(C) provides that class III

gaming activities are only lawful if conducted in

conformance with a tribal-state compact, that does not mean

the states have any authority to regulate class III gaming

activities in the absence of a compact. States may not

enforce the terms of IGRA; rather, the only enforcement

provided for in the IGRA is through the federal government.

The IGRA provides that civil enforcement lies only with the

tribes themselves or with the National Indian Gaming

Commission, which was created by IGRA. 25 USC 2713.

Judicial review of the Commission’s decision may only be

obtained in federal court. 25 USC 2714. Similarly,

criminal enforcement is left solely to the federal

government under 18 USC 1166(d). See also Gaming Corp of

America v Dorsey & Whitney, 88 F3d 536, 545 (CA 8, 1996)

(“Every reference to court action in IGRA specifies federal

court jurisdiction. . . . State courts are never

mentioned.”). In other words, although it may be

“unlawful” for the tribes to engage in class III gaming

absent a compact, the Legislature is powerless to regulate

or prohibit such gaming. State legislatures have no

regulatory role under IGRA aside from that negotiated

between the tribes and the states.

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. MCL 432.203(5) provides that state regulation of

tribal casinos can only occur “[i]f a federal court or

agency rules or federal legislation is enacted that allows

a state to regulate gambling on Native American land.”

Absent such federal authorization, MCL 432.203(2)(d)

acknowledges that the state’s gambling regulatory

requirements do not apply to “[g]ambling on Native American

land and land held in trust by the United States for a

federally recognized Indian tribe on which gaming may be

conducted under [IGRA].”

Further, contrary to plaintiffs’ contentions, 18 USC

1166 does not change this analysis. Section 1166 provides:

(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.

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 apply only as

federal law. It follows that when the Legislature approves

a tribal-state compact, it approves a change in federal law

rather than its own.

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 18 USC 1166(d) effectively “borrows” Michigan

law for purposes of federal law, it does not delegate any

regulatory power to the states. Section 1116(d) is not a

way to extend the state’s power to regulate tribes through

the federal government. Rather, the federal government may

conclude at any time that it will no longer apply state law

and so amend the IGRA. In other words, the fact that, for

purposes of expediency, the federal government has

currently chosen to apply Michigan law for purposes of

federal law does not mean that it will always choose to do

so. Therefore, § 1166(d) cannot be viewed as a delegation

of regulatory power to the states.

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 agreement.6 As

IGRA even prohibits the state from frustrating the

tribe’s desire to enter into class III gaming by refusing

to negotiate. In the event that a state will not negotiate

or an agreement cannot be reached, although under Seminole

(continued…)

further noted above, the hallmark of legislation is

unilateral imposition of legislative will. Such a

unilateral imposition of legislative will is completely

absent in the Legislature’s approval of tribal-state gaming

compacts under IGRA. Here, the Legislature’s approval of

the compacts follows the assent of the parties governed by

those compacts. Thus, the Legislature’s role here requires

mutual assent by the parties—a characteristic that is not

only the hallmark of a contractual agreement but is also

absolutely foreign to the concept of legislating. Rood v

Gen Dynamics Corp, 444 Mich 107, 118; 507 NW2d 591 (1993).

See Confederated Tribes of the Chehalis Reservation v

Johnson, 135 Wash2d 734, 750; 958 P2d 260 (1998) (“Tribal-

state gaming compacts are agreements, not legislation, and

are interpreted as contracts.”)

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

(…continued)

Tribe the state may not be sued, it appears that the tribe

may approach the Secretary of the Interior, who can approve

a compact under 25 USC 2710(d)(8).

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 terms of the compacts, the tribes

themselves, not the state, regulate the conduct of class

III gaming on tribal lands. The Legislature has no

obligations regarding the regulation of gaming whatsoever,

nor can the state unilaterally rectify a violation of the

compacts.

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.” MCL 600.1405(1). Here, the tribes have promised

to give 2% of their net earnings to local communities,

provided those communities create the revenue sharing

boards to receive and disburse the payments. If the local

governments choose not to create the sharing boards, they

simply can no longer receive the benefit of the funds. But

they are under no obligation to create the revenue sharing

boards and receive the benefit granted by the tribes.

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 are restrictions only on the tribes.

The compacts provide the minimum requirements that the

tribes agree to use in hiring and admitting guests to the

casinos. The state has no power to regulate the casinos or

enforce violations of the compact, but must use the dispute

resolution procedure provided in the compacts if a

violation occurs.

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 P2d

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

The court did not specify what form that legislative

approval would have to take.

agencies and were presented to the Legislature for

approval.

Similarly, in New Mexico v Johnson, 120 NM 562; 904

P2d 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 held that the governor

could not enter into the compacts and thereby create new

forms of gaming without “any action on the part of the

legislature.” Id. at 574. Unlike the compacts in Johnson,

the compacts here do not create new forms of gaming and

were presented to the Legislature for approval. Thus, the

compacts do not impose new obligations on the citizens of

the state subject to the Legislature’s power; they simply

reflect the contractual terms agreed to by two sovereign

entities.

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]

See also Thompson v Auditor General, 261 Mich 624,

642; 247 NW 360 (1933), in which the Court stated:

(continued…)

Regarding any limitations in our constitution, art 4, § 22

only requires the approval of legislation by bill, but is

silent regarding the approval of contracts.

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

(…continued)

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.

In fact, action by concurrent resolution is common

when the Constitution is silent regarding the appropriate

procedure. Various constitutional provisions require

legislative action but fail to specify its form: Const

1963, art 4, § 53 (appointment of auditor general); Const

1963, art 11, § 5 (approval of certain civil service pay

increases); Const 1963, art 4, § 17 (establishing special

legislative committees); and Const 1963, art 10, § 5

(designation of land as part of state land reserve). In

such situations, the Legislature has historically acted by

concurrent resolution.

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. Const 1963,

art 4, § 37 allowed temporary legislative vetoes of agency

regulations between legislative sessions. In 1984, the

people rejected a proposal to amend § 37 and permit the

type of permanent legislative veto at issue in Blank. The

fact that the legislative veto at issue in Blank was not

permitted by the Constitution and had been rejected by the

people further illuminates the Blank decision.

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/Chada analysis should be applied here.

In response to the 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

relations of anyone subject to the Legislature’s authority.

Rather, the compacts only set forth the parameters the

tribes agree will apply to their operation of gaming

facilities. The Legislature has no regulatory duty under

the compacts, nor do the compacts confer any “rights” upon

the state other than contractual rights. For example,

although the state may inspect tribal facilities and

records, it has no power to enforce those provisions. Any

contractual disputes under the compacts must be submitted

to the dispute resolution procedure outlined in the

compacts. All duties and restrictions in the compacts fall

on the tribes themselves, who are sovereign entities and

have consented to the restrictions and additional duties.

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 the

form of legislation. See Blank, supra at 170 (Cavanagh,

J.). As the United States Supreme Court explained in Yakus

v United States, 321 US 414, 424; 64 S Ct 660; 88 L Ed 834

(1944), “[t]he essentials of the legislative function are

the determination of legislative policy and its formulation

and promulgation as a defined and binding rule of conduct

. . . .” (Emphasis added.) Here, HCR 115 neither

promulgated a legislative policy as a defined and binding

rule of conduct nor applied it to the general community.

Instead, HCR 115 simply assented to the negotiated contract

between two sovereign entities, recognizing that the

compacts created no new legal rights or duties for the

state or its citizens. Indeed, HCR 115 could never be

considered a “promulgation of a legislative policy as a

defined and binding rule of conduct” because the

Legislature lacks the authority to bind the tribes at all.

Without the tribes’ approval, the compacts have no force.

Through IGRA, Congress has determined that states may not

unilaterally impose their will on the tribes regarding

gaming; rather, the states may only negotiate with the

tribes through the compacting process.

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 Appealsto 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 Const

1963, art 3, § 2. The Court of Appeals should remand to

the trial court if it determines that further fact-finding

is necessary to resolve the issue.

VI. HCR 115 DOES NOT VIOLATE CONST 1963, ART 4, § 29

The “local act” provision of art 4, § 29 of Michigan’s

Constitution provides:

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 Const 1963, art 4, § 29. We held that the

provision did not constitute a “local act” because a

recorder’s court performs state functions and the funding

of such a court is a state function. Id. at 272. In

Attorney General ex rel Eaves v State Bridge Comm, 277 Mich

373; 269 NW 388 (1936), this Court considered whether state

legislation authorizing a bridge to Canada located at Port

Huron constituted a local act. We held again that it did

not, stating: “The bridge in question is international in

character and will be used by those from all parts of both

nations who desire to enter or leave the United States

through Port Huron.” Id. at 378.

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 the state

as well as by members of various Indian tribes. Therefore,

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 interests. Thus, we hold that the compacts are not

“local acts.”

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

The mere fact that Indian land is located in a

specific county does not give that county jurisdiction over

that land, just as Michigan does not have absolute

jurisdiction over all tribal lands located within its

borders. As already noted, absent express congressional

consent, neither the state nor a local unit of government

may regulate tribal affairs. Thus, the compacts are not

“local acts” because the tribal lands that they regulate

are not subject to local jurisdiction as contemplated by

Const 1963, art 4, § 29.

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 Const 1963, art 4,

§ 29, albeit for the reasons expressed above.

VII. CONCLUSION

We hold that HCR 115 was a valid method of approving

the compacts. The compacts, and hence the Legislature’s

approval of those compacts, do not alter the legal rights

or duties of the state or its citizens, nor do they create

any state agencies. Therefore, no legislation is required

to approve them. Rather, the compacts are simply contracts

between two sovereign entities. Without the compacts, the

state is prohibited under IGRA from unilaterally regulating

tribal gaming in any manner. Further, our Constitution

does not limit the Legislature’s discretion regarding the

proper approval method for tribal-state gaming compacts.

Absent a constitutional limitation, the Legislature has

discretion to determine the appropriate method for

approving a contract. Moreover, we hold that HCR 115 is

not a “local act” and so does not violate Const 1963, art

4, § 29. Finally, because no lower courts have had the

opportunity to consider the issue of the amendment

provision in the compacts since the issue became ripe for

review, we remand that issue to the Court of Appeals for

consideration. In all other respects, we affirm the

decision of the Court of Appeals.

Maura D. Corrigan

Clifford W. Taylor

Robert P. Young, Jr.

CAVANAGH, J.

I concur only with respect to part IV.

Michael F. Cavanagh

MARKMAN, J.

I concur only with respect to part VI.

Stephen J. Markman

S T A T E O F M I C H I G A N

SUPREME COURT

TAXPAYERS OF MICHIGAN AGAINST

CASINOS and LAURA BAIRD,

Plaintiffs-Appellants,

v No. 122830

THE STATE OF MICHIGAN,

Defendant-Appellee,

and

NORTH AMERICAN SPORTS MANAGEMENT

COMPANY, INC, IV, and GAMING

ENTERTAINMENT, LLC.,

Intervening Defendants-Appellees,

_______________________________

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:

(A) Endorsement by the tribal chairperson

and concurrence in that endorsement by resolution

of the Tribal Council;

(B) Endorsement by the Governor of the State

and concurrence in that endorsement by resolution

of the Michigan Legislature;

Interior of the United States; and

(D) 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. Const 1963, art 4, § 22. At issue in this

appeal is whether the approval process used by the Michigan

Legislature was constitutional.

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

defendants with the exception of the issue regarding the

governor's recent compact amendment. On that issue, a

majority agrees to remand the case to the Court of Appeals

for consideration of the plaintiffs' argument.

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).

Blank v Dep't of Corrections, 462 Mich 103; 611 NW2d

530 (2000). The Blank plurality adopted the United States

Supreme Court's test regarding legislative veto enunciated

in Immigration & Naturalization Service v Chadha, 462 US

919; 103 S Ct 2764; 77 L Ed 2d 317 (1983). 462 Mich at

115.

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. US Const,

art I, § 8, cl 3. The clause gives Congress the power "[t]o

regulate commerce with foreign nations, and among the

several States, and with the Indian Tribes.” Id. The so-

called Indian Commerce Clause places relations with Indian

tribes within “the exclusive province of federal law.”

Oneida Co v Oneida Indian Nation of New York, 470 US 226,

234; 105 S Ct 1245; 84 L Ed 2d 169 (1985). Given the

existence of the Indian Commerce Clause, state law

generally is not applicable to Indians on tribal

reservations unless Congress has specifically made it

applicable. McClanahan v Arizona State Tax Comm, 411 US

164, 170-171; 93 S Ct 1257; 36 L Ed 2d 129 (1973).

In recognition of this principle, the United States

Supreme Court has held that, if state gambling policy is

regulatory rather than prohibitory, then state law is

inapplicable to Indian gaming on Indian lands. California

v Cabazon Band of Indians, 480 US 202, 209; 107 S Ct 1083;

94 L Ed 2d 244 (1987). If state law allows gaming but

seeks to regulate it, the state is not authorized to

enforce that law on Indian reservations. The Cabazon Court

made clear that regulation of Indian gaming is

fundamentally the province of federal law. Tribes retain

the exclusive right to regulate gaming on their lands in

states where all gaming activity is not prohibited. Id. at

207.

In response to the Cabazon decision, Congress passed

the Indian Gaming Regulatory Act (IGRA), 25 USC 2701 et

seq. With this act, Congress has provided a comprehensive

federal regulation of tribal gaming. This framework allows

state regulation only to the extent that it is negotiated

into the terms of a tribal-state compact. Such a compact

must set forth the parameters under which an Indian tribe

will establish and operate casino-style gaming facilities.

25 USC 2710(d)(3).

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 . . . .” 25 USC 2710(d)(1)(C). Because it is not

classified as class I or class II style gaming, the casino-

style gambling at issue in this case involves class III

gaming. 25 USC 2703(8).

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. Rather, it

provides them an opportunity to oversee tribal gaming. The

role of the state is limited to the terms the state is able

to negotiate with a tribe.

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. 25 USC 2710(d)(3)(A). While Seminole

held that Eleventh Amendment immunity protects states from

suit by Indian tribes, it did not eliminate a state's duty

to negotiate in good faith.

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

I note that 25 USC 2710(d)(8) does not, as Justice

Corrigan suggests, allow the tribe to go directly to the

Secretary of Interior who can then approve the compact. The

section simply gives the secretary the authority to approve

a gaming compact entered into between an Indian tribe and a

state. It does not authorize the secretary to approve a

compact to which either side has not manifested its assent.

After the Seminole case, the remedy for a tribe is unclear.

Before Seminole, it was clear that the remedy was that each

side would submit a proposed compact to a mediator, who

would choose one of the two. 25 USC 2710(d)(7)(B)(iii).

This remedy was available only after issuance of a federal

district court order. Id. Because Seminole affirmed a

state's immunity from federal suit, it is unclear if this

remedy is still available.

MCL 431.301 et seq.

MCL 432.9.

See MCL 432.201 et seq.

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 Indian gaming is by mutually

agreeing to a compact. Were this untrue, the Legislature

could simply amend the gaming control act to unilaterally

regulate gaming on tribal land.

Plaintiffs argue that 18 USC 1166 gives the state a

regulatory role in tribal gaming without the need for a

negotiated compact in which the tribe has ceded

MCL 432.201 et seq.

jurisdiction. Plaintiffs misconstrue 18 USC 1166. This

federal statute provides that state laws with respect to

gambling apply in Indian country in the same manner in

which they apply throughout the rest of the state. 18 USC

1166(a). At 18 USC 1166(d), it provides 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, 18 USC 1166 does nothing more than

adopt state law as the governing federal law for purposes

of Indian gaming. United Keetoowah Band of Cherokee Indians

v Oklahoma, 927 F2d 1170, 1177 (CA 10, 1991). Plaintiffs'

arguments to the contrary are misguided.

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 in good

faith. While IGRA provides for the negotiation of tribal-

state compacts, it does not specify the manner in which a

state must approve a compact. Therefore, one must consult

state law to make this determination.

III. The Role of State Law

The Michigan Constitution requires that “All

legislation shall be by bill and may originate in either

house.” Const 1963, art 4, § 22. It further provides that,

"No bill shall become a law without the concurrence of a

majority of the members elected to and serving in each

house." Const 1963, art 4, § 26. According to the

Legislature's internal rules, concurrent resolutions need

be approved only by a majority of those present at the time

they are voted on. See Mason's Manual of Legislative

Procedure, § 510(1) p 338.

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."

Id.

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 the future." "Law" is further defined as

"[t]hat which must be obeyed and followed by citizens

subject to sanctions or legal consequences . . . ." Id.

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

Westervelt v Natural Resources Comm, 402 Mich 412,

440; 263 NW2d 564 (1978) (opinion by Williams, J.).

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 8. 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 Tesque, 132

NM 207, 218; 46 P3d 668 (2002).

As explained previously, the state does not possess

the power to apply its law unilaterally to gaming on tribal

land. The state and a tribe must negotiate a mutual

agreement describing the regulations that may be applied to

class III gaming on Indian lands.

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

Justice Markman's position,8 our state constitution is

unlike the federal constitution in this respect: whereas

the power of the federal government is provided for and

limited by the United States Constitution, the power of

state government is inherent in the state. This

distinction is well-recognized:

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

Opinion of Markman, J., post at 38.

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.

To establish that an act is facially unconstitutional,

the challenging party must show that "no set of

circumstances exists under which the [a]ct would be valid."

Straus v Governor, 459 Mich 526, 543; 592 NW2d 53 (1999),

quoting United States v Salerno, 481 US 739, 745; 107 S Ct

2095; 95 L Ed 2d 697 (1987). Plaintiffs cannot meet this

burden.

The amendment provision of the compacts survives a

facial challenge to the Separation of Powers Clause of the

Michigan Constitution. Const 1963, art 3, § 2. There are

many conceivable amendments that a governor might make to

these compacts. For example, a governor could amend the

provision relating to dispute resolution or the provision

about the timing of payments.

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.

Clearly, during the pendency of this litigation,

Governor Granholm made amendments to the gaming compacts at

issue. It is argued that these render the issue ripe for

this Court's review. However, the amendments were made

after the opinions from the lower courts were released.

This Court has consistently declined to entertain

constitutional questions where it lacks the benefit of a

fully developed lower court record. In re CAW, 469 Mich.

192; 665 NW2d 475 (2003); Jenkins v Patel, 471 Mich ___;

___ NW2d ___ (2004).

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 of 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. Const 1963, art 4, § 29. We

disagree with Chief Justice Corrigan's local acts analysis.

The local acts provision reads:

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.]

An act is legislation. Black's Law Dictionary defines a

legislative act as: "[a]n alternative name for statutory

law. A bill which has been enacted by the legislature into

law." Black's Law Dictionary (6th ed). Since tribal-state

gaming compacts are not legislation, as discussed supra,

the local acts provision of our Constitution is not

applicable to them.

V. 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 853 (1934).

Becker is inapplicable to this case. It dealt with a

legislative resolution that purported to convey to the

courts the Legislature's intent in passing a certain law.

The Court held that, while the resolution was entitled to

"respectful consideration," it was not the law. Id. at

436. Becker concluded that the courts are bound to apply

the law as written. Id.

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.

VI. 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.

Marilyn Kelly

Michael F. Cavanagh

S T A T E O F M I C H I G A N

SUPREME COURT

TAXPAYERS OF MICHIGAN AGAINST CASINOS,

AND LAURA BAIRD,

Plaintiffs-Appellants,

v No. 122830

THE STATE OF MICHIGAN,

Defendant-Appellee,

and

NORTH AMERICAN SPORTS MANAGEMENT

COMPANY, INC, IV, and GAMING

ENTERTAINMENT, LLC,

Intervening Defendants-Appellees,

_______________________________

WEAVER, J. (concurring in part and dissenting in part).

I concur with the majority’s holding that the compacts

do not violate Const 1963, art 4, § 29, the “local acts”

clause.1 But I dissent from the majority’s decision that

the tribal-state gaming compacts at issue, entered into and

signed by various Indian tribes and Governor Engler on

The majority correctly holds that the “local act”

provision of Michigan’s constitution, art 4, § 29, is not

implicated by the compacts; I concur in the majority’s

decision to affirm the decision of the Court of Appeals on

this issue.

behalf of the state pursuant to the federal Indian Gaming

Regulatory Act (IGRA), 25 USC 2701 et seq., were validly

approved by a joint resolution of the Legislature.

Accordingly, I would hold that the compacts are void

because they are legislation that is required to be enacted

by bill, not passed by issuing a joint resolution, and I

therefore would reverse the Court of Appeals decision on

this issue.

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. Art 4, § 22

of the Michigan Constitution requires that “[a]ll

legislation shall be by bill . . . .” A resolution is not

a constitutional method of expressing the legislative will

where that expression is to have the force of law and bind

people other than the members of the house or houses

adopting it. Becker v Detroit Savings Bank, 269 Mich 432,

434-435; 257 NW 855 (1934). The tribal-state compacts

have the force of law and bind people other than the

legislative members who adopted them. Therefore, the

Legislature must exercise its power to bind the state to a

compact with an Indian tribe by enacting a bill, not by

passing a joint resolution. I would reverse the Court of

Appeals on this issue and hold that the compacts at issue

are void.

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 Const 1963, art 3, § 2, the separation of powers

doctrine. Such an issue is moot in light of my conclusion

that the compacts are void.

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 Michigan

See House Concurrent Resolution (HCR) 115 (1998).

While a bill must be passed by a majority of elected and

serving members of the Legislature, a resolution may be

passed by a majority vote of those legislators present at

the time, as long as a quorum is present.

Constitution, art 4, § 22 requires that “[a]ll legislation

shall be by bill.”

Underlying the issue of 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 manner in which the

Legislature approved the compact would not be governed by

the Constitution. See Panzer v Doyle, __ Wis 2d __, __;

680 NW2d 666 (2004). But if the authority to approve a

compact is vested in Michigan’s Legislature, then it is

necessary to determine whether approval by resolution was a

valid exercise of the Legislature’s power under Michigan’s

Constitution.

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

The IGRA provides, in pertinent part: “Any Indian

tribe having jurisdiction over the Indian lands upon which

(continued…)

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.” Const 1963, art

3, § 2. The executive power is vested in the Governor,

Const 1963, art 5, § 1, and the legislative power is vested

in a senate and a house of representatives. Const 1963,

art 4 § 1. The executive power is, first and foremost, the

power to enforce the laws or to put the laws enacted by the

Legislature into effect. The People ex rel Sutherland v

(…continued)

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.” 25 USC 2710(d)(3)(A).

Governor, 29 Mich 320, 324-325 (1874), People ex rel

Attorney General v Holschuh, 235 Mich 272, 274-275; 209 NW

158 (1926); 16A Am Jur 2d, Constitutional Law § 258, p 165

and § 275, p 193. The legislative power is the power to

determine the interests of the public, to formulate

legislative policy, and to create, alter, and repeal laws.

Id. The Governor has no power to make laws. People v

Dettenthaler, 118 Mich 595; 77 NW 450 (1898). “[T]he

executive branch may only apply the policy so fixed and

determined [by the legislative branch], and may not itself

determine matters of public policy or change the policy

laid down by the legislature. 16 CJS Constitutional Law §

216, p 686.

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.” 25 USC 2710

(d)(3)(C)(i)-(vii).

The Little River Band compact contains examples of

policy decisions made for each of the seven issues

recognized in 25 USC 2710(d)(3)(C)(i-vii). (i) Tribal law

and regulations, not state law, are applied to regulate

gambling.4 But the compact applies state law, as amended,

to the sale and regulation of alcoholic beverages

encompassing certain areas. (section 10 [a], p 13). (ii)

The tribe, not the state, is given responsibility to

administer and enforce the regulatory requirements.

The compact states, “Any limitations on the number of

games operated or played, their location within eligible

Indian lands as defined under this Compact, hour or period

of operation, limits on wages or potsize, or other

limitations shall be determined by duly enacted tribal law

or regulation. Any state law restrictions, limitations or

regulation of such gaming shall not apply to Class III

games conducted by the tribe pursuant to this compact.”

(section 3[a][8], p 5 of the Little River Band compact).

(section 4[m][1], p 9). (iii) To allow state assessments

to defray the costs of regulating gaming, the compact

states that the tribe shall reimburse the state for the

costs up to $50,000 it incurs in carrying out functions

that are authorized within the compact. (section 4[m][5],

p 10). Also, the compact states that the tribe must pay 2%

of the net win at each casino derived from certain games to

the county treasurer.5 (section 18(a)(i), p 18). (iv)

Under IGRA the tribe could tax the gaming activity, but the

compact does not allow such taxation. (v) The compact

provides for dispute resolution procedures in the event

there is a breach of contract. (p 11). (vi) The compact

includes standards for whom a tribe can license and hire in

connection with gaming, (section 4[d], p 6), sets

accounting standards the gaming operation must follow, (p

7), and stipulates that gaming equipment purchased by the

tribe must meet the technical standards of the state of

Nevada or the state of New Jersey. (section 6[a], p 11).

The compact states that it is the “States intent, in

this and its other compacts with federally recognized

tribes, that the payments to local governments provided for

in this section provide financial resources to those

political subdivisions of the State which actually

experience increased operating costs associated with the

operation of the class III gaming facility.” (section

18[a][ii], p 18).

(vii) The compact addresses the “other subjects that are

directly related to the operation of gaming facilities”

throughout the document. For example, it allows for

additional class III games to be conducted through the

agreement of tribe and the state. (section 3[b], p 5).

Also, the compact states that the tribe must purchase the

spirits it sells at the gaming establishments from the

Michigan Liquor Control Commission and that it must

purchase beer and wine from distributors licensed by the

Michigan Liquor Control Commission. (section 10[b], p 13).

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 (1995); Pataki, supra; Panzer, supra.6 These

cases concluded that entering into a tribal-state compact

under IGRA, and thereby committing the state to a

particular position with respect to Indian gaming, involves

subtle and important decisions regarding state policy that

are at the heart of legislative power. Panzer, supra at

62. Further, the cases have relied on the fact that their

state constitutions, like Michigan’s, provide for

separation of powers, vesting the legislative power in the

legislature and vesting the executive power in the

governor. Finney, supra at 577; Clark, supra at 573;

Narragansett Indian Tribe, supra at 280; Pataki, supra at

821-822; Panzer, supra at ___. The cases recognized that

A federal district court held that the governor of

Mississippi did have the authority to bind the state to a

compact with the Indian tribes, based on a Mississippi

statute which authorizes the governor to transact business

with other sovereigns, such as other states, territories,

or the United States Government. Willis v Fordice, 850 F

Supp 523 (1994). Unlike Mississippi, Michigan has no

statutory or constitutional provision giving the Governor

authority to bind the state in a compact with an Indian

tribe.

the legislature creates the law, that the governor executes

the laws, and that a compact with an Indian tribe did not

execute existing law, but was, instead, an attempt to

create new law. Finney, supra at 573, and Clark, supra at

573. The courts also focused on the balance that the

compact struck on matters of policy such as the regulation

of class III gaming activities, the licensing of its

operators, and the respective civil and criminal

jurisdictions of the state and the tribe necessary for the

enforcement of state or tribal laws or regulations. Clark,

supra at 574; Pataki, supra at 822; Panzer, supra at __.

The approval of a compact with an Indian tribe

involves numerous policy decisions. The executive branch

does not have the power to make those determinations of

public interest and policy, but may only apply the policy

as fixed and determined by the legislature. I would agree

with the other state courts that have examined this issue,

and hold that committing the state to the myriad policy

choices inherent in negotiating a gaming compact

constitutes a legislative function. Thus, the Governor

does not have the authority to bind the state to a compact

with an Indian tribe; only the Legislature does.

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 . . . .” Const 1963, art 4, §

22. This Court has previously recognized that “[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.” Becker v Detroit

Savings Bank, 269 Mich 432, 434-435; 257 NW 855 (1934).

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 69]; prescribing the

legislative schedule [HCR 74 & HCR 113]; and renaming the

Michigan Civilian Conservation Corps’ Camp Vanderbild in

the honor of State Representative Tom Mathieu [HCR 117].

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, 973 (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 art 4, § 22

requires that legislation be by bill.

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 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.

Elizabeth A. Weaver

S T A T E O F M I C H I G A N

SUPREME COURT

TAXPAYERS OF MICHIGAN AGAINST CASINOS,

AND LAURA BAIRD,

Plaintiffs-Appellants,

v No. 122830

THE STATE OF MICHIGAN,

Defendant-Appellee,

and

NORTH AMERICAN SPORTS MANAGEMENT

COMPANY, INC, IV, and GAMING

ENTERTAINMENT, LLC.,

Intervening Defendants-Appellees,

_______________________________

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 Governor Engler on

behalf of the state pursuant to the federal Indian Gaming

Regulatory Act, 25 USC 2701 et seq., constitute

“legislation” such that Michigan’s Legislature violated

Const 1963, art 4, § 22 when it approved them by resolution

rather than by bill; (2) whether the provision in the

compacts that purports to empower the Governor to amend

them without legislative approval violates Const 1963, art

3, § 2, the separation of powers doctrine; and (3) whether

the compacts violate Const 1963, art 4, § 29, the “local

acts” clause.

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 art 4,

§ 22 when it adopted them by a resolution vote.

Accordingly, I dissent from the lead opinion, and I would

reverse the decision of the Court of Appeals on this issue

and reinstate the decision of the circuit court.

Regarding the second issue, the circuit court

concluded that the compacts violate art 3, § 2. The Court

of Appeals reversed the decision of the circuit court on

the basis that this issue was not ripe for review because

the Governor had not yet attempted to amend the compacts.

However, Governor Granholm recently sought to amend one of

the four compacts and, therefore, in my judgment, this

issue is ripe. I conclude that the amendatory provision

violates art 3, § 2 and, therefore, I dissent from the lead

opinion on this issue.

Regarding the third issue, the circuit court concluded

that art 4, § 29 is not implicated. The Court of Appeals

agreed and affirmed the decision of the circuit court. I

concur with the analysis set forth in part VI of the lead

opinion finding that art 4, § 29 is not implicated and,

accordingly, I would affirm the decisions of the lower

courts on this issue.

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

If the state prohibited class III gaming within its

borders, Cabazon held that California could enforce its

criminal laws relating to that prohibition on Indian lands

through 18 USC 1162.

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 Indian Gaming Regulatory Act, 25 USC 2701 et seq.

(IGRA). The United States District Court for the District

of South Dakota in Cheyenne River Sioux Tribe v South

Dakota, 830 F Supp 523, 526 (D SD, 1993), aff’d 3 F3d 273

(CA 8, 1993), stated:

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.

Additionally, the Court in Cabazon held that “[under]

. . . exceptional circumstances a State may assert

jurisdiction over the on-reservation activities of tribal

members” even absent express Congressional consent.

Cabazon, supra at 215. However, the Court resolved that

tribal gambling was not an area encompassing such

“exceptional circumstances” so as to “escape the preemptive

force of federal and tribal interests . . . .” Id. at 221.

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.” 25 USC 2703(6).

Class II gaming includes bingo and card games—other than

banking card games—that are played in conformance with

state laws and regulations regarding hours of operation and

limitations on wagers or pot sizes. 25 USC 2703(7). Class

III gaming includes all other forms of gambling. 25 USC

See also United States v Santa Ynez Band of Chumash

Mission Indians, 983 F Supp 1317, 1323 (CD Cal, 1997) (“In

[Cabazon], the Supreme Court sharply limited the power of

states to apply their gambling laws to Indian gaming. An

essential element of its decision was that Congress had not

acted specifically to make state gambling laws applicable

in Indian country. This decision made clear that it would

require a new act of Congress for states to have any

effective ability to prevent or regulate Indian gaming.

IGRA was enacted in direct response to Cabazon. . . .

Subsection (a) of § 1166 expressly makes state gambling

laws applicable in Indian country. . . .”) See also

Confederated Tribes of Siletz Indians of Oregon v United

States, 110 F3d 688, 692 (CA 9, 1997); Pueblo of Santa Ana

v Kelly, 104 F3d 1546, 1548 n 3 (CA 10, 1997); Cheyenne

River Sioux Tribe v South Dakota, 830 F Supp 523, 525-526

(D SD, 1993), aff’d 3 F3d 273 (CA 8, 1993).

2703(8).

At issue in this case is class III gaming, referred to

throughout the remainder of this opinion as “gambling” or

“casino gambling.” 18 USC 1166 provides a starting point

to IGRA as it relates to gambling. It states:

(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.

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.4

It appears that states have some enforcement powers

under § 1166(a)—civil enforcement powers. See Santa Ynez

Band, supra at 1322:

Consideration of the structure of § 1166

suggests strongly that Congress intended to

distinguish civil enforcement to prevent future

acts of non-conforming gaming from criminal

enforcement efforts to punish past acts. As to

the latter, § 1166(b) and (d) leave no doubt that

criminal enforcement is the exclusive province of

the United States. The United States contends

that Congress also intended for it to have the

same exclusive power to bring civil enforcement

actions under § 1166(a). The statute says nothing

at all to suggest this. On the contrary, the more

natural inference to be drawn from Congress’

decision to make state law applicable, as such,

in § 1166(a), rather than to convert it to

federal law as in § 1166(b), is that Congress

intended to divide the enforcement of the two

subsections between the states and the United

States.

If Congress had not intended § 1166(a) to be

used by the states for civil enforcement of the

state laws made applicable by it, there was no

need first to make all state gambling laws

applicable, as such, and then to carve out only

(continued…)

If a tribe wishes to “opt-out” of the default federal

law rule of § 1166 and to lawfully engage in casino

gambling on its Indian land, it may do so in accordance

with 25 USC 2710(d) of IGRA. That section provides, in

relevant parts:

(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

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]

(…continued)

those acts which would be punishable under state

law and redefine them as identical, independent

federal offenses [under § 1166(b)].

In 1996, the United States Supreme Court somewhat

limited the reach of IGRA in Seminole Tribe of Florida v

Florida, 517 US 44; 116 S Ct 1114; 134 L Ed 2d 252 (1996).

(continued…)

* * *

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.

(…continued)

In Seminole Tribe, the Court considered 25 USC 2710(d)(7)

of IGRA, a provision that permits Indian tribes to sue a

state in federal court when that state has refused to

negotiate in good faith for a tribal-state compact. The

Court ruled that this provision violates state sovereign

immunity as preserved by the Eleventh Amendment of the

United States Constitution and is therefore

unconstitutional.

* * *

(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 § 2710(d), a state and a tribe are

encouraged to negotiate with one another with the ultimate

goal of entering into a mutually agreeable tribal-state

compact that makes gambling on that tribe’s lands lawful

and that may alter the general gambling laws and

regulations and enforcement procedures that otherwise apply

to that tribe through § 1166.

In essence, by providing under § 1166 that, in the

absence of a compact, state gambling laws and regulations

apply on Indian land, the Congress provided the consent to

the states that was found lacking in Cabazon to regulate

tribal gambling in the same manner and to the same extent

that states regulate gambling elsewhere within their

borders.6 However, to maintain the proper balance between

For example, if state law provides that casino

gambling anywhere in the state is prohibited and punishment

for illegal casino gambling is imprisonment of five years

and a fine of $10,000, that is the law that applies to

(continued…)

Indian and state affairs, the Congress further provided

under § 1166 that the federal government is charged with

enforcing state criminal gambling laws and regulations on

Indian land.

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, 18 USC 1166, insofar as that

provision grants states the power to generally regulate

gambling on Indian land. The court stated:

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

(…continued)

tribal lands under § 1166 in the absence of a compact. If

the state decides at some later point, perhaps because of a

large illegal gambling problem specifically on tribal

lands, to amend its laws to hold that gambling is still

entirely prohibited, but that the punishment is now

imprisonment of twenty-five years and a $200,000 fine, that

amended law becomes the law that is applicable to tribal

lands under § 1166 in the absence of a compact. Thus, by

making state gambling laws—whatever those laws are at a

given time—applicable to Indian land in the absence of a

compact, IGRA gives states meaningful regulatory authority

over casino gambling on Indian land. Therefore, Chief

Justice Corrigan is incorrect when she states that “states

have no authority to regulate tribal gaming under IGRA

unless the tribe explicitly consents to the regulation in a

compact.” Ante at 11.

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 § 2710(d), the Congress provided the

states with a direct means of “escap[ing] the preemptive

See also Sycuan Band of Mission Indians v Roache, 788

F Supp 1498, 1506 (SD Cal, 1992), aff’d 54 F3d 535 (CA 9,

1994) (“The balance struck by Congress under the IGRA

appears to be that the state laws governing gaming apply,

for the most part, with the same force and effect the laws

would have elsewhere in the state. Thus, by federalizing

state law, the states could generally define the boundary

between legal and illegal gaming, and could be assured that

activities that would be illegal if performed outside the

reservation boundaries would also be illegal within the

reservation boundaries.”)

force of federal and tribal interests”8 regarding class III

gaming on Indian land by granting states the power to

specifically make lawful and regulate casino gambling on

particular Indian land, as long as such actions arise from

the negotiation process and are otherwise in accordance

with IGRA.

In 1993, Governor Engler, pursuant to § 2710(d) of

IGRA, entered into tribal-state compacts with seven

Michigan tribes that were already conducting class III

gambling before the Congress’s passage of IGRA.9 As

required by the terms of a consent judgment that resolved a

federal lawsuit filed by the tribes against the Governor to

compel negotiations, the compacts were approved by the

Legislature by resolution and became effective.10

Cabazon, supra at 221.

These tribes were the Sault Ste. Marie Tribe of

Chippewa Indians, the Grand Traverse Band of Ottawa and

Chippewa Indians, the Keweenaw Bay Indian Community, the

Hannahville Indian Community, the Bay Mills Indian

Community, the Lac Vieux Desert Band of Lake Superior

Chippewa Indians, and the Saginaw Chippewa Indian Tribe.

All these tribes are currently operating casinos.

After IGRA was passed, the tribes that were already

engaged in casino gambling in Michigan requested that the

Governor negotiate gaming compacts. The negotiations

stalled and the tribes filed suit in federal court to

compel negotiations. See Sault Ste Marie Tribe v Engler,

93 F Supp 2d 850 (WD Mich, 2000). During this litigation,

the parties reached a settlement and the Court entered a

(continued…)

Additional state court litigation followed in which the

Michigan Court of Appeals twice confirmed that the Governor

did not violate the separation of powers clause by binding

the state to tribal-state compacts where the Legislature

had approved those compacts by resolution. Thus, the Court

of Appeals implied that mere resolution approval by the

Legislature of tribal-state compacts was proper. See

(…continued)

consent judgment. Essentially, the consent judgment is

constituted of the seven 1993 compacts entered into by

Governor Engler and the tribes in accord with the

settlement. This consent judgment should not be

interpreted as a federal court determination that a

resolution vote is a proper adoption because the court did

not address this question; it merely incorporated into the

consent judgment the terms of the settlement as agreed to

by Governor Engler and the tribes. Moreover, the United

States Court of Appeals for the Sixth Circuit, in Keweenaw

Bay Indian Community v United States, 136 F3d 469, 477

(1998), in which the court addressed an issue pertaining to

one of the 1993 consent judgment compacts (but not the

issue implicated in this case), stated:

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, 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.

McCartney v Attorney General, 231 Mich App 722, 728; 587

NW2d 824 (1998); Tiger Stadium Fan Club v Governor, 217

Mich App 439; 553 NW2d 7 (1996).

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 effect,

according to a compact provision, after “[e]ndorsement by

the Governor of the State and concurrence in that

endorsement by resolution of the Michigan Legislature.”12

The compacts were modified and re-executed in December

1998, and the Legislature proceeded to consider them by

resolution. See HCR 115 (1998). Unlike a bill, which must

be passed by a majority of elected and serving members of

the Legislature, a resolution may be passed by a majority

vote of those legislators present at the time, as long as a

quorum is present. The House of Representatives approved

the compacts by a resolution vote of 48 to 47, and the

Senate followed suit by a resolution vote of 21 to 17.

These tribes are the Little Traverse Bay Band of

Odawa Indians, the Pokagon Band of Ottawa Indians, the

Little River Band of Ottawa Indians, and the Nottawaseppi

Huron Potawatomi. Of these tribes, the Little Traverse Bay

Band and the Little River Band are currently operating

casinos.

See § 11 of the compacts.

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 standing grounds by the

United States Court of Appeals for the Sixth Circuit.

Baird v Norton, 266 F3d 408 (CA 6, 2001).

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 Const 1963, art 4, § 22 the Legislature was required to

adopt them by bill rather than approve them by resolution.

The circuit court held that the compacts should have been

approved by bill. The Court of Appeals reversed the

circuit court decision, concluding that the compacts do not

constitute legislation because they contain no enforcement

provision that would ensure that their terms are satisfied

and because the power of the state to legislate in this

area is preempted by federal law. The Court of Appeals

opined that the compacts constitute mere contracts and,

therefore, approval by resolution was not constitutionally

infirm. Plaintiffs also contend that the provision in the

compacts that purports to empower the Governor to amend

them without legislative approval violates Const 1963, art

3, § 2, the “separation of powers” doctrine. The circuit

court agreed with plaintiffs. The Court of Appeals,

however, reversed the decision of the circuit court on the

basis that the amendatory provision issue was not ripe for

review because the Governor had not yet attempted to amend

the compacts. Plaintiffs additionally contend that the

compacts violate Const 1963, art 4, § 29, the “local acts”

clause. The circuit court disagreed, holding that art 4, §

29 is not implicated. The Court of Appeals agreed and

affirmed the circuit court on this issue.

II. STANDARD OF REVIEW

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 . . . .”

Const 1963, art 4, § 22. In addition, “[n]o bill shall

become a law without the concurrence of a majority of the

members elected to and serving in each house.” Const 1963,

art 4, § 26. Plaintiffs contend that the compacts

constitute legislation and, therefore, the Legislature was

required to approve them by bill—by a majority vote of the

members elected to and serving in each house. Defendants

contend that the compacts do not constitute legislation and

instead are contracts of a unique nature that the state may

validly enter into pursuant to federal law as provided in

IGRA and, therefore, the compacts are not subject to Const

1963, art 4, §§ 22 and 26.

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.” Const 1963, art 4, § 1. Thus, the

branch of government “constituted to perform [the

lawmaking] process” is the Legislature, and the “formal

procedure” by which this process is to occur is

constitutionally defined—lawmaking is to be “by bill” and

is subject to a majority vote of those elected to each

house of the Legislature. Const 1963, art 4, §§ 22 and 26.

Accordingly, the definition of “legislation” in Black’s Law

Dictionary requires that we consider whether the compacts

amount to “positive lawmaking.”

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, MCL 24.201 et seq.,

that required administrative agencies to obtain the

approval of a joint committee of the Legislature or the

Legislature itself before enacting new administrative rules

violated the enactment and presentment requirements of

Michigan’s Constitution, Const 1963, art 4, §§ 26 and 33.13

In analyzing the question presented in Blank, we

addressed whether the challenged action—a vote of the joint

committee or the Legislature itself on an administrative

rule—was “legislative” in nature, so that it was subject,

under the enactment and presentment requirements of

The differences between the two concurring opinions

in Blank and the majority opinion are not pertinent to the

analysis of Blank as set forth in this opinion.

Michigan’s Constitution, to a majority vote of the full

Legislature and gubernatorial approval.14

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.

In this case, the presentment requirement embodied

in Michigan’s Constitution, Const 1963, art 4, § 33,

requiring that laws enacted by the Legislature be approved

by the Governor before taking effect, is not at issue

because the Governor signed the compacts. Thus, the issue,

as noted, is whether the compacts violate the enactment

requirements of Const 1963, art 4, § 26 because they

constitute legislation.

[Blank, supra at 114, quoting Chadha, supra at

952-956 (citations omitted).]

Applying Chadha’s framework in Blank, this Court held

that the challenged action was “legislative” in nature and,

therefore, it was subject to the enactment and presentment

requirements of Michigan’s Constitution.

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

Chief Justice Corrigan determines that the

Chadha/Blank framework is not applicable to this case,

despite the fact that the issue in this case is whether a

certain deliberate act undertaken by a branch of our

government violates the Constitution because the substance

of the act constitutes “legislation,” and this is

specifically the issue that was addressed in Chadha and

Blank. She contends that the Chadha/Blank framework is

inapplicable because this case concerns IGRA compacts and

not a legislative veto power and “our Constitution is

silent regarding the proper form of legislative approval of

tribal-state gaming compacts under IGRA. . . .” Ante at

25. However, the point of invoking Chadha/Blank is only to

determine whether the compacts amount to legislation. If

they do, Const 1963, art 4, § 22 and § 26 require that they

be subject to bill-making approval. She tautologically

surmises that the Chadha/Blank framework is not relevant

because the compacts do not constitute legislation, but the

very point of utilizing the Chadha/Blank framework is to

determine whether the compacts constitute legislation. If

so, then our Constitution is not silent on this issue.

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.”

i. LEGAL RIGHTS, DUTIES AND RELATIONS

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 18 USC 1166,

which, as noted above, provides that, in the absence of a

tribal-state compact, state laws regulating or prohibiting

gambling “shall apply in Indian country in the same manner

and to the same extent as such laws apply elsewhere in the

State,” albeit, at least for criminal laws, through federal

enforcement. 18 USC 1166(a). Casino gambling in Michigan

is generally unlawful. MCL 750.301. The only casino

gambling that is authorized in Michigan is that gambling

conducted in accordance with the Michigan Gaming Control

and Revenue Act (MGCRA), MCL 432.201 et seq. However, by

its express terms, the MGCRA does not apply to “gambling on

Native American land.” MCL 432.203(2)(d),(5). Thus,

casino gambling on Indian land cannot be authorized and

conducted pursuant to the MGCRA, which leads to the

inescapable conclusion that casino gambling on Indian lands

located in Michigan is, pursuant to § 1166, subject to

Michigan’s general prohibition against such gambling.16

Moreover, I find to be of significance the fact that

MCL 432.203 not only expressly provides that the MGCRA is

inapplicable to casino gambling on Indian lands, but it

also provides:

If 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

(continued…)

Accordingly, under § 1166, in the absence of a tribal-state

compact, casino gambling on Indian land within Michigan’s

borders is unlawful, and that general unlawfulness is to be

enforced by the federal government.17

(…continued)

for a federally recognized Indian tribe, the

legislature shall enact legislation creating a

new act consistent

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