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April 24, 2002Judge rules in favor of GT Band's Turtle Creek- Combined with Leelanau Sands in Peshawbestown, tribal gaming is a $100 million-plus annual operationBy BILL O'BRIENRecord-Eagle staff writer TRAVERSE CITY - A legal cloud that has been hanging over the Grand Traverse Band's Turtle Creek casino for more than five years evaporated in a sweeping opinion by a federal judge this week. In a 33-page decision issued Monday, U.S. District Judge Douglas W. Hillman ruled that the tribe's popular casino along M-72 in Whitewater Township is operating legally under both federal and state law. The band has been battling both the federal and state governments over the legality of Turtle Creek since the tribal casino opened in the summer of 1996. The court ruled that the casino is operating legally because it's on property deemed as "restored lands" of the tribe - property not within any specific reservation boundary but within an area that was traditionally settled on and traveled by the forefathers of current-day band members. "Judge Hillman's decision is a great victory not only for our tribe, but for all people in this region," said tribal Chairman Robert Kewaygoshkum. He was among tribal officials who testified at the January bench trial before Hillman, emphasizing the importance of Turtle Creek to tribal operations. The casino generates nearly 90 percent of the tribe's total gaming revenue, officials said, and funds some 270 tribal government positions ranging from health care to law enforcement. Combined with the operations at the Leelanau Sands Casino in Peshawbestown, tribal gaming is a $100 million-plus annual operation. Attorneys for Gov. John Engler, however, criticized the decision and said an appeal in the case is "very likely." "It's not exactly unexpected ... it's basically a cut-and-paste from his previous decisions," Lance Boldery, Gov. Engler's deputy legal counsel, said of Hillman's ruling. "We're obviously disappointed and we're very likely to appeal, but we have not had the opportunity to review (the decision) yet." The case began back in 1996 when the Grand Traverse Band opened Turtle Creek and sought a declaratory judgment from the federal court on the legality of the operation. The U.S. Justice Department, under then-assistant U.S. Attorney Michael Dettmer of Traverse City, filed a counter-claim in 1998 seeking to have the operation deemed illegal and closed down. The state later joined the case as a co-defendant. The federal government pulled out of the case late last year after the National Indian Gaming Commission sided with the tribe's "restored lands" claims. That left the state as the lone defendant when the case went to trial in January. There, the state contested the restored lands argument and claimed the Turtle Creek operation violated the band's 1993 gaming compact with the state. The tribe conceded that the Turtle Creek property was about 1½ miles outside of its reservation boundary identified in an 1836 treaty, and even further outside of the boundaries of an 1855 treaty. But tribal attorneys - along with expert witnesses who have done years of research on the band's origins - argued that the "restored" lands designation goes beyond specific reservation boundaries to lands traditionally used by the predecessors of today's band members. "I think the judge found the Turtle Creek site was very important historically for the tribe," said Riyaz Kanji, an Ann Arbor lawyer who was the tribe's lead trial attorney in the case. "The tribe has used that land for centuries ... that's the relevant test under the federal gaming act." State attorneys, however, felt the court's ruling on the restored lands issue was "overly broad." "There's no criteria established for what 'restored lands' include," Boldery said. The state also took issue with the court's finding that the casino did not violate the terms of the 1993 gaming compact between the band and the state. State attorneys argued that the compact gave Engler what amounted to veto power over off-reservation gaming sites. Judge Hillman, however, ruled that the compact gives the governor's office no "concurrence power" with respect to the restored-lands status of the Turtle Creek property. "We believe the compact narrows the eligible properties for gaming," Boldery said. "But obviously the court wasn't a party to the compact." The tribe has been planning major improvements to the Turtle Creek property ever since the National Indian Gaming Regulatory Commission issued its decision in the dispute last fall. They include a significant casino expansion and a new hotel.
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