APPENDIX to TITLE 18 Grand Traverse Band Code ("Gaming")
Appendix 1 - Compact Between the Grand Traverse Band of
Ottawa and Chippewa Indians and the State of Michigan, Providing for
the Conduct of Tribal Class III Gaming by the Grand Traverse Band
of Ottawa and Chippewa Indians.
THIS COMPACT is made and entered into this 20th day of August,
1993, by and between the GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA
INDIANS (hereinafter referred to as "Tribe") and the STATE OF MICHIGAN
(hereinafter referred to as "State").
RECITALS
WHEREAS, the State of Michigan is a sovereign State of the United
States of America, having been admitted to the Union pursuant to the
Act of January 26, ch. 6 1837, 5 Stat. 144 and is authorized by its
constitution to enter into contracts and agreements, including this
agreement with the Tribe; and
WHEREAS, the Tribe is a federally recognized Indian Tribe (reorganized
under Section 16 of the Indian Reorganization Act of June 18, 1934,
48 Stat. 984; 25 U.S.C. § 476) and its governing body, the
Tribal Council, is authorized by the tribal constitution to enter
into contracts and agreements of every description, including this
agreement with the State; and
WHEREAS, the Congress of the United States has enacted the Indian
Gaming Regulatory Act of 1988 (25 U.S.C. § 2701 et seq.)
(hereinafter "IGRA"), which permits Indian tribes to operate Class
III gaming activities on Indian reservations pursuant to a tribal-state
compact entered into for that purpose; and
WHEREAS, the Tribe presently operates gaming establishments
on Indian lands in the State of Michigan, and by Tribal Council Resolution
and Tribal Ordinance has adopted rules and regulations governing the
games played and related activities at said establishments; and
WHEREAS, the State presently permits and regulates various types
of gaming within the State (but outside Indian lands), including casino
style charitable gaming such as craps, roulette, and banking card
games, as well as a lottery operating instant scratch games, and "pick
number" games, most of which would be Class III games if conducted
by the Tribe; and
WHEREAS, the Michigan Supreme Court in Automatic
Music & Vending Corp. v. Liquor Control Comm., 426
Mich. 452, 396 N.W. 2d 204 (1986), appeal dismissed, 481 U.S. 1009 (1987), and the Michigan Court of Appeals in Primages Int'l of Michigan v. Michigan, No. 136017,
slip op., 1993 WL 99733 (Mich. Ap. Apr. 6, 1993), appeal
denied, No. 96368 (Mich. May 25, 1993), have held that
the statutory exception found at MCL 750.303(2) allows for the play
of electronic gaming devices, which includes computerized or electronic
games of chance, albeit subject to specified restrictions regarding
the mode of play; and
WHEREAS, said casino style table games and electronic gaming
devices are, therefore, permitted "for any purpose by any person,
organization or entity," within the meaning of IGRA, 25 U.S.C. § 2710(d)(1)(B);
and
WHEREAS, a compact between the Tribe and the State for the conduct
of Class III gaming satisfies the prerequisite, imposed by the United
States Congress by enactment of IGRA, for the operation of lawful
Class III gaming by the Tribe on Indian lands in Michigan; and
WHEREAS, the State and the Tribe, in recognition of the sovereign
rights of each party and in a spirit of cooperation in the interests
of the citizens of the State and the members of the Tribe, have engaged
in good faith negotiations recognizing and respecting the interests
of each party and have agreed to this Compact.
NOW, THEREFORE, the Tribe and the State agree as follows:
The purpose and objectives of the Tribe and State in making
this Compact are as follows:
(A)
To evidence the good will and cooperative spirit between the State
and the Tribe;
(B)
To continue the development of effective working relationships between
the State and tribal governments;
(C)
To compact for Class III gaming on Indian lands of the Tribe in Michigan
as authorized by IGRA;
(D)
To fulfill the purpose and intent of IGRA by providing for tribal
gaming as a means of generating tribal revenues, thereby promoting
tribal economic development, tribal self-sufficiency and strong tribal
government;
(E)
To provide tribal revenues to fund tribal government operations or
programs, to provide for the general welfare of the Tribe and its
members and for other purposes allowed under IGRA;
(F)
To provide for the operation of Class III gaming in which, except
as provided in 25 U.S.C. §§ 2710(b)(4) and (d)(2)(A)
of IGRA, the Tribe shall have the sole proprietary interest and be
the primary beneficiary of the Tribe's gaming enterprise;
(G)
To recognize the State's interest in the establishment by the
Tribe of rules for the regulation of Class III gaming operated by
the Tribe on Indian lands;
(H)
To recognize the State's interest in the establishment by the
Tribe of rules and procedures for ensuring that Class III gaming is
conducted fairly and honestly by the owners, operators, and employees
and by the patrons of any Class III gaming enterprise of the Tribe;
and
(I)
To establish procedures to notify the patrons of the Tribe's
Class III gaming establishment(s) that the establishment(s) are not
regulated by the State of Michigan and that patrons must look to the
tribal government or to the federal government to resolve any issues
or disputes with respect to the operations of the establishment(s).
For purposes of this Compact, the following definitions pertain:
(A)
"Class III gaming" means all forms of gaming authorized by this Compact,
which are neither Class I nor Class II gaming, as such terms are defined
in §§ 2703(6) and (7) of IGRA. Only those Class III
games authorized by this Compact may be played by the Tribe.
(B)
"Indian lands" means:
(1)
All lands currently within the limits of the Tribe's Reservation;
(2)
Any lands contiguous to the boundaries of the reservation of the
Indian tribe on October 17, 1988; and
(3)
Any lands title to which is either held in trust by the United States
for the benefit of the Tribe or individual or held by the Tribe or
individual subject to restriction by the United States against alienation
and over which the Tribe exercises governmental power.
(C)
Notwithstanding subsection 2(B) above, any lands which the Tribe
proposes to be taken into trust by the United States for purposes
of locating a gaming establishment thereon shall be subject to the
Governor's concurrence power, pursuant to 25 U.S.C. § 2719
or any successor provision of law.
(D)
"Tribal Chairperson" means the duly elected Chairperson of the Board
of Directors or Tribal Council of the Tribe.
(A)
The Tribe may lawfully conduct the following Class III games on Indian
lands:
(1)
Craps and related dice games;
(2)
Wheel games, including "Big Wheel" and related games;
(3)
Roulette;
(4)
Banking card games that are not otherwise treated as Class II gaming
in Michigan pursuant to 25 U.S.C. § 2703(7)(C), and non-banking
card games played by any Michigan tribe on or before May 1, 1988;
(5)
Electronic games of chance featuring coin drop and payout as well
as printed tabulations, whereby the software of the device predetermines
the presence or lack of a winning combination and payout. Electronic
games of chance are defined as a microprocessor-controlled electronic
device which allows a player to play games of chance, which may be
affected by an element of skill, activated by the insertion of a coin
or currency, or by the use of a credit, and awards game credits, cash,
tokens, or replays, or a written statement of the player's accumulated
credits, which written statements are redeemable for cash; and
(6)
Keno.
This Compact shall apply to card games that are considered to
be Class II games pursuant to 25 U.S.C. § 2703(7)(C) only
if those games are expanded beyond their "nature and scope" as it
existed before May 1, 1988, and only to the extent of such expansion.
The term "nature and scope" shall be interpreted consistent with IGRA,
the legislative history of IGRA, any applicable decisions of the courts
of the United States and any applicable regulations of the National
Indian Gaming Commission.
Any limitations on the number of games operated or played, their
location within Indian lands as defined under this Compact, hours
or period of operation, limits on wagers or pot size, or other such
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.
(B)
Additional Class III games may be lawfully conducted by mutual agreement
of the Tribe and the State as follows:
(1)
The Tribe shall request additional games by letter from the tribal
Chairperson on behalf of the Tribe to the Governor on behalf of the
State. The request shall identify the additional proposed gaming activities
with specificity and any proposed amendments to the Tribe's regulatory
ordinance.
(2)
The State acting through the Governor shall take action on the Tribe's
request within 90 days after receipt. The Governor's action shall
be based on:
(A)
The Tribe has enacted a comprehensive gaming regulatory ordinance
governing all aspects of the Tribe's gaming enterprise. This
Section 4 is intended to supplement, rather than conflict with the
provisions of the Tribe's ordinance. To the extent any regulatory
requirement of this Compact is more stringent or restrictive than
a parallel provision of the Tribe's ordinance, as now or hereafter
amended, this Compact shall control.
(B)
The regulatory requirements of this Section 4 shall apply to the
conduct of all Class III gaming authorized by the Compact. At all
times in which it conducts any Class III gaming under this Compact,
the Tribe shall maintain, as part of its lawfully enacted ordinances,
requirements at least as restrictive as those set forth herein.
(C)
The Tribe shall license, operate, and regulate all Class III gaming
activities pursuant to this Compact, tribal law, IGRA, and all other
applicable federal law. This shall include but not be limited to the
licensing of consultants (except legal counsel with a contract approved
under 25 U.S.C. §§ 81 and/or 476), primary management
officials, and key officials of each Class III gaming activity or
operation. Any violation of this Compact, tribal law, IGRA, or other
applicable federal law shall be corrected immediately by the Tribe.
(D)
The Tribe may not license, hire, or employ as a key employee or primary
management official as those terms are defined at 25 C.F.R. 502.14
and 502.19, in connection with Class III gaming, any person who:
(1)
Is under the age of 18; or
(2)
Has been convicted of or entered a plea of guilty or no contest to
a gambling-related offense, fraud or misrepresentation; or
(3)
Has been convicted of or entered a plea of guilty or no contest to
any offense not specified in subparagraph (2) within the immediately
preceding five years; this provision shall not apply if that person
has been pardoned by the Governor of the State where the conviction
occurred or, if a tribal member, has been determined by the Tribe
to be a person who is not likely again to engage in any offensive
or criminal course of conduct and the public good does not require
that the applicant be denied a license as a key employee or primary
management official; or
(4)
Is determined by the Tribe to have participated in organized crime
or unlawful gambling or whose prior activities, criminal record, reputation,
habits, and/or associations pose a threat to the public interest or
to the effective regulation and control of gaming, or create or enhance
the dangers of unsuitable, unfair, or illegal practices, methods and
activities in the conduct of gaming or to the carrying on of the business
and financial arrangements incidental to the conduct of gaming.
(E)
All management contracts entered into by the Tribe regarding its
gaming enterprise operated pursuant to this Compact shall conform
to all the requirements of IGRA, including 25 U.S.C. § 2711,
and tribal law. If the Tribe enters into a management contract for
the operation of any Class III gaming or component thereof, the State
shall be given 14 days' prior written notice of such contract.
(F)
All accounting records shall be kept on a double entry system of
accounting, maintaining detailed, supporting, subsidiary records.
The Tribe shall maintain the following records for not less than three
years:
(1)
Revenues, expenses, assets, liabilities and equity for each location
at which Class III gaming is conducted;
(2)
Daily cash transactions for each Class III game at each location
at which gaming is conducted, including but not limited to transactions
relating to each gaming table bank, game drop box and gaming room
bank;
(3)
All markers, IOUs, returned checks, hold checks or other similar
credit instruments;
(4)
Individual and statistical game records (except card games) to reflect
statistical drop and statistical win; for electronic, computer, or
other technologically assisted games, analytic reports which show
the total amount of cash wagered and the total amount of prizes won;
(5)
Contracts, correspondence and other transaction documents relating
to all vendors and contractors;
(6)
Records of all tribal gaming enforcement activities;
(7)
Audits prepared by or on behalf of the Tribe; and
(8)
Personnel information on all Class III gaming employees or agents,
including rotation sheets, hours worked, employee profiles and background
checks.
(G)
No person under the age of 18 may participate in any Class III game.
(H)
The Tribe shall not conduct any Class III gaming outside of Indian
lands.
(I)
The rules of each Class III card game shall be posted in a prominent
place in each card room and must designate:
(J)
Upon written request by the State, the Tribe will provide information
on all consultants (except legal counsel with a contract approved
under 25 U.S.C. §§ 81 and/or 476), management personnel,
suppliers and employees sufficient to allow the State to conduct its
own background investigation as it may deem necessary and to make
an independent determination as to suitability of these individuals,
consistent with the standards set forth in § 4(D) herein.
(K)
The regulatory requirements set forth in this section of this Compact
shall be administered and enforced as follows:
(1)
The Tribe shall have responsibility to administer and enforce the
regulatory requirements.
(2)
A representative authorized in writing by the Governor of the State
shall have the following right to inspect all tribal Class III gaming
facilities and all tribal records related to Class III gaming, including
those records set forth in § 4(F) herein, subject to the
following conditions:
(a)
With respect to public areas, at any time without prior notice;
(b)
With respect to private areas not accessible to the public, at any
time during normal business hours, with 12 hours' prior written
notice; and
(c)
With respect to inspection and copying of all tribal records relating
to Class III gaming, with 48 hours' prior written notice, not
including weekends.
(3)
Except as otherwise provided by law or as also allowed by the exceptions
defined below, the State agrees to maintain in confidence and never
to disclose to any third party any financial information, proprietary
ideas, plans, methods, data, development, inventions or other proprietary
information regarding the gambling enterprise of the Tribe, games
conducted by the Tribe, or the operation thereof which is provided
to the State by the Tribe without the prior written approval of a
duly authorized representative of the Tribe, provided that the information
is marked as confidential information when received by the State.
Nothing contained in this § 4(K)(3) shall be construed to
prohibit:
(a)
The furnishing of any information to a law enforcement or regulatory
agency of the United States government;
(b)
The State from making known the names of persons, firms or corporations
conducting Class III gaming activities pursuant to the terms of this
Compact, locations at which such activities are conducted or the dates
on which such activities are conducted;
(c)
Publishing the terms of this Compact;
(d)
Disclosing information as necessary to audit, investigate, prosecute,
or arbitrate violations of this Compact or other applicable laws or
to defend suits against the State;
(e)
Complying with any law, subpoena or court order.
(4)
The Tribe shall have the right to inspect State records concerning
all Class III gaming conducted by the Tribe consistent with Michigan's
Freedom of Information Act.
(5)
The Tribe shall reimburse the State for the actual costs the State
incurs in carrying out any functions authorized by the terms of this
Compact, in an amount not to exceed $25,000 per annum. All calculations
of amounts due shall be based upon a fiscal year beginning October
1, and ending September 30, unless the parties select a different
fiscal year. Payments due the State shall be made no later than 60
days after the beginning of each fiscal year. Payments due the State
during any partial fiscal year this Compact is in effect shall be
adjusted to reflect only that portion of the fiscal year. Within 60
days after each fiscal year in which this Compact is in effect, the
State shall submit to the Tribe an accounting of actual costs incurred
in carrying out any functions authorized by the terms of this Compact.
Any amount of said $25,000 not expended by the State on said actual
costs shall be returned to the Tribe by the State within 60 days after
the fiscal year or treated as a pre-payment of the Tribe's obligation
during the subsequent fiscal year.
(6)
In the event the State believes that the Tribe is not administering
and enforcing the regulatory requirements set forth herein, it may
invoke the procedures set forth in Section 7 of this Compact.
(L)
The Tribe shall comply with all applicable provisions of the Bank
Secrecy Act, P.L. 91-508, October 26, 1970, 31 U.S.C. §§ 5311
— 5314.
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 Michigan Public
Act No. 1 of 1936, as amended (being MCL 421.1 et seq.), and Michigan
Public Act No. 317 of 1969, as amended (being MCL 481.101 et seq.)
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.
(A)
No Class III games of chance, gaming equipment or supplies may be
purchased, leased or otherwise acquired by the Tribe unless the Class
III equipment or supplies meet the technical equipment standards of
either the State of Nevada or the State of New Jersey.
(B)
Prior to entering into any lease or purchase agreement, the Tribe
shall obtain sufficient information and identification from the proposed
seller or lessor and all persons holding any direct or indirect financial
interest in the lessor or the lease/purchase agreement to permit the
Tribe to conduct a background check on those persons. The Tribe shall
not enter into any lease or purchase agreement for Class III gaming
equipment or supplies with any person or entity if the lessor, seller,
or any manager or person holding direct or indirect financial interest
in the lessor/sellor or the proposed lease/purchase agreement, is
determined to have participated in or have involvement with organized
crime or has been convicted of or entered a plea of guilty or no contest
to a gambling-related offense, fraud or misrepresentation, or has
been convicted of or entered a plea of guilty or no contest to any
other felony offense within the immediately preceding five years,
unless that person has been pardoned.
(C)
The seller, lessor, manufacturer, or distributor shall provide, assemble
and install all Class III games of chance, gaming equipment, and supplies
in a manner approved and licensed by the Tribe.
(A)
In the event either party believes that the other party has failed
to comply with or has otherwise breached any provision of this Compact,
such party may invoke the following procedure:
(1)
The party asserting noncompliance shall serve written notice on the
other party. The notice shall identify the specific Compact provision
alleged to have been violated and shall specify the factual and legal
basis for the alleged noncompliance. The notice shall specifically
identify the type of game or games, their location, and the date and
time of the alleged noncompliance. Representatives of the State and
Tribe shall thereafter meet within 30 days in an effort to resolve
the dispute.
(2)
In the event an allegation by the State is not resolved to the satisfaction
of the State within 90 days after service upon the office of the tribal
Chairperson a notice to cease conduct of the particular game(s) or
activities alleged by the State to be in noncompliance. Upon receipt
of such notice, the Tribe may elect to stop the game(s) or activities
specified in the notice or invoke arbitration and continue the game(s)
or activities pending the results of arbitration. The Tribe shall
act upon one of the foregoing options within 30 days of receipt of
notice from the State. Any arbitration under this authority shall
be conducted under the Commercial Arbitration rules of the American
Arbitration Association except that the arbitrators shall be attorneys
who are licensed members of the State Bar of Michigan, or of the bar
of another state, in good standing, and will be selected by the State
picking one arbitrator, the Tribe a second arbitrator, and the two
so chosen shall pick a third arbitrator. If the third arbitrator is
not chosen in this manner within 10 days after the second arbitrator
is picked, the third arbitrator will be chosen in accordance with
the rules of the American Arbitration Association. In the event an
allegation by the Tribe is not resolved to the satisfaction of the
Tribe within 90 days after service of the notice set forth in Section
7(A)(1), the Tribe may invoke arbitration as specified above.
(3)
All parties shall bear their own costs of arbitration and attorney
fees.
(B)
Nothing in Section 7(A) shall be construed to waive, limit or restrict
any remedy which is otherwise available to either party to enforce
or resolve disputes concerning the provisions of this Compact. Nothing
in this Compact shall be deemed a waiver of the Tribe's sovereign
immunity. Nothing in this Compact shall be deemed a waiver of the
State's sovereign immunity.
In each facility of the Tribe where Class III gaming is conducted
the Tribe shall post in a prominent position a Notice to Patrons at
least two feet by three feet in dimension with the following language:
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NOTICE
THIS FACILITY IS NOT REGULATED BY THE STATE OF MICHIGAN
THIS FACILITY IS REGULATED BY ONE OR MORE OF THE FOLLOWING:
THE NATIONAL INDIAN GAMING COMMISSION, BUREAU OF INDIAN AFFAIRS OF
THE U.S. DEPARTMENT OF THE INTERIOR AND THE GOVERNMENT OF THE GRAND
TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS
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An application to take land in trust for gaming purposes pursuant
to § 20 of IGRA (25 U.S.C. § 2719) shall not be
submitted to the Secretary of the Interior in the absence of a prior
written agreement between the Tribe and the State's other federally
recognized Indian Tribes that provides for each of the other Tribes
to share in the revenue of the off-reservation gaming facility that
is the subject of the application.
(A)
The Tribe hereby adopts and applies to its tribal Class III gaming
establishment as tribal law those State laws, as amended, relating
to the sale and regulation of alcoholic beverages encompassing the
following areas: sale to a minor; sale to a visibly intoxicated individual;
sale of adulterated or misbranded liquor; hours of operation; and
similar substantive provisions. Said tribal laws, which are defined
by reference to the substantive areas of State laws referred to above,
shall apply to the tribal Class III gaming establishment in the same
manner and to the same extent as such laws apply elsewhere in the
State to off-reservation transactions.
(B)
The Tribe, for resale at its Class III gaming establishment, shall
purchase spirits from the Michigan Liquor Control Commission, and
beer and wine from distributors licensed by the Michigan Liquor Control
Commission, at the same price and on the same basis that such beverages
are purchased by Class C licensees.
This Compact shall be effective immediately upon:
(A)
Endorsement by the Tribal Chairperson after approval by the Tribal
Council;
(B)
Endorsement by the Governor of the State and concurrence in that
endorsement by resolution of the Michigan Legislature;
(C)
Approval by the Secretary of the Interior of the United States; and
(D)
Publication in the Federal Register.
(A)
This Compact shall be binding upon the State and the Tribe for a
term of 20 years from the date it becomes effective unless modified
or terminated by written agreement of both parties.
(B)
At least one year prior to the expiration of 20 years after the Compact
becomes effective, and thereafter at least one year prior to the expiration
of each subsequent five-year period, either party may serve written
notice on the other of its right to renegotiate this Compact.
(C)
In the event that either party gives written notice to the other
of its right to negotiate this Compact pursuant to subsection (B),
the Tribe may, pursuant to the procedures of IGRA, request the State
to enter into negotiations for a successor compact governing the conduct
of Class III gaming activities. If the parties are unable to conclude
a successor compact, this Compact shall remain in full force and effect
pending exhaustion of the administrative and judicial remedies set
forth in IGRA and/or any other applicable federal law.
(D)
The Tribe may operate Class III gaming only while this Compact or
any renegotiated compact is in effect.
(E)
In the event that any section or provision of this Compact is held
invalid by any court of competent jurisdiction, it is the intent of
the parties that the remaining sections or provisions of this Compact,
and any amendments thereto, shall continue in full force and effect.
Unless otherwise indicated, all notices, payments, requests,
reports, information or demand which any party hereto may desire or
may be required to give to the other party hereto, shall be in writing
and shall be personally delivered or sent by first-class, certified
or registered United States Mail, postage prepaid, return receipt
requested, and sent to the other party at its address appearing below
or such other address as any party shall hereinafter inform the other
party hereto by written notice given as aforesaid:
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Notice to the Tribe shall be sent to:
Chairperson
Grand Traverse Band of Ottawa and Chippewa Indians
2605 N.W. Bay Shore Drive
Suttons Bay, MI 49682
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Notice to the State shall be sent to:
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Governor's Office
State of Michigan
P.O. Box 30013
Lansing, MI 48909
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Office of Attorney General
Treasury Building
First Floor
Lansing, MI 48922
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Every notice, payment, request, report, information or demand
so given shall be deemed effective upon receipt, or if mailed, upon
receipt or the expiration of the third day following the day of mailing,
whichever occurs first, except that any notice of change of address
shall be effective only upon receipt by the party to whom said notice
is addressed.
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This Compact is the entire agreement between the parties and
supersedes all prior agreements, whether written or oral, with respect
to the subject matter hereof. Neither this Compact nor any provision
herein may be changed, waived, discharged, or terminated orally, but
only by an instrument in writing signed by the Tribe and the State.
Upon the effective date of this Compact, a certified copy shall
be filed by the Governor with the Michigan Secretary of State and
a copy shall be transmitted to each house of the Michigan State Legislature
and the Michigan Attorney General. Any subsequent amendment or modification
of this Compact shall be filed with the Michigan Secretary of State.
IN WITNESS WHEREOF, the Tribal Chairperson acting for the Grand
Traverse Band of Ottawa and Chippewa Indians and the Governor acting
for the State of Michigan have hereunto set their hands and seals.
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Dated
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August 20, 1993
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Dated
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August 20, 1993
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GRAND TRAVERSE BAND OF STATE OF MICHIGAN
OTTAWA AND CHIPPEWA INDIANS
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By
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[signed]
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By
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[signed]
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Joseph Raphael, Chairperson
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Governor
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APPROVAL BY THE SECRETARY OF THE INTERIOR.
The foregoing Compact between the Grand Traverse Band of Ottawa
and Chippewa Indians and the State of Michigan is hereby approved
this _____ day of __________, 1993, pursuant to authority conferred
on me by Section 11 of the Indian Gaming Regulatory Act, 102 Stat.
2472. I direct that it be promptly submitted to the Federal Register
for publication.
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________________________________
Secretary of the Interior
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