Taxpayers of Michigan Against Casinos v. State

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

2

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

3

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

(C) conducted in conformance with a Tribal-
State compact entered into by the Indian tribe
and the State under paragraph (3) that is in
effect.

* * *

(3) (A) Any Indian tribe having
jurisdiction over the Indian lands upon which a
class III gaming activity is being conducted, or
is to be conducted, shall request the State in
which such lands are located to enter into
negotiations for the purpose of entering into a
Tribal-State compact governing the conduct of
gaming activities. Upon receiving such a request,

4

 the State shall negotiate with the Indian tribe
in good faith to enter into such a compact.[1]

* * *

(C) Any Tribal-State compact negotiated
under subparagraph (A) may include provisions
relating to -

(i) the application of the criminal and
civil laws and regulations of the Indian tribe or
the State that are directly related to, and
necessary for, the licensing and regulation of
such activity;

(ii) the allocation of criminal and civil
jurisdiction between the State and the Indian
tribe necessary for the enforcement of such laws
and regulations;

(iii) the assessment by the State of such
activities in such amounts as are necessary to
defray the costs of regulating such activity;

(iv) taxation by the Indian tribe of such
activity in amounts comparable to amounts
assessed by the State for comparable activities;

(v) remedies for breach of contract;

(vi) standards for the operation of such
activity and maintenance of the gaming facility,
including licensing; and

(vii) any other subjects that are
directly related to the operation of gaming
activities.

1
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

 * * *

(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-

2
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.
3
See § 11 of the compacts.

6

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

4
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.
5
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).

7

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.

8

 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

9

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

10

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

11

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

12

 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)

13

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.

(c) For the purpose of this section, the
term "gambling" does not include—

(1) class I gaming or class II gaming
regulated by the Indian Gaming Regulatory Act, or

(2) class III gaming conducted under a
Tribal-State compact approved by the Secretary of
the Interior under section 11(d)(8) of the Indian
Gaming Regulatory Act [25 USC 2710(d)(8)] that is
in effect.

14

 (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.

15

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

6
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…)

16

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).

17

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

18

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

19

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

7
The court did not specify what form that legislative
approval would have to take.

20

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,

21

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]

8
See also Thompson v Auditor General, 261 Mich 624,
642; 247 NW 360 (1933), in which the Court stated:
(continued…)

22

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.
9
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.

23

 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
. . . .

24

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.

25

 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

26

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.

27

 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

28

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

29

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

30

 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

31

“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

10
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.

32

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

33

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

34

 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;
(C) Approval by the Secretary of the
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.

2

 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).

1
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.

3

 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

4

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

5

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

6

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

2
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.
3
MCL 431.301 et seq.
4
MCL 432.9.
5
See MCL 432.201 et seq.

7

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

6
MCL 432.201 et seq.

8

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

9

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

10

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

7
Westervelt v Natural Resources Comm, 402 Mich 412,
440; 263 NW2d 564 (1978) (opinion by Williams, J.).

11

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)].

12

 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

13

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

14

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,

15

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

16

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

8
Opinion of Markman, J., post at 38.

17

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

18

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.

19

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.]

20

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

21

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

22

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

23

 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

1
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

2

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.

I

The compacts at issue were signed by Governor Engler

and the various Indian tribes, and approved by the

Legislature pursuant to a joint resolution.2 Appellants

argue that the Legislature’s approval by joint resolution

was not valid. Appellants assert that the policy

determinations in deciding whether and how to allow Indian

tribes to operate casinos in Michigan are legislative in

nature, and therefore the compacts must be approved by

bill, not joint resolution, because the Michigan

2
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.

3

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.

II

IGRA does not specify which branch of a state

government should bind the state to a compact with Indian

tribes.3 Rather, the determination whether a state has

3
The IGRA provides, in pertinent part: “Any Indian
tribe having jurisdiction over the Indian lands upon which
(continued…)

4

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).

5

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

6

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.

4
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).

7

(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).

5
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).

8

(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

9

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

6
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.

10

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.

11

 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

12

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

13

unnecessary to address whether the provision that permits

the Governor to amend the compacts is unconstitutional.

Elizabeth A. Weaver

14

 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

2

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

1
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.

3

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.

2
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.

4

 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

3
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).

5

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.

(c) For the purpose of this section, the
term "gambling" does not include—

(1) class I gaming or class II gaming
regulated by the Indian Gaming Regulatory Act, or

(2) class III gaming conducted under a
Tribal-State compact approved by the Secretary of
the Interior under [25 USC 2710(d)(8)] of the
Indian Gaming Regulatory Act that is in effect.

(d) The United States shall have exclusive
jurisdiction over criminal prosecutions of
violations of State gambling laws that are made
applicable under this section to Indian country
. . . .

6

 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

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…)

7

 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

(C) conducted in conformance with a Tribal-
State compact entered into by the Indian tribe
and the State under paragraph (3) that is in
effect.

* * *

(3)(A) Any Indian tribe having jurisdiction
over the Indian lands upon which a class III
gaming activity is being conducted, or is to be
conducted, shall request the State in which such
lands are located to enter into negotiations for
the purpose of entering into a Tribal-State
compact governing the conduct of gaming
activities. Upon receiving such a request, the
State shall negotiate with the Indian tribe in
good faith to enter into such a compact.[5]

(…continued)
those acts which would be punishable under state
law and redefine them as identical, independent
federal offenses [under § 1166(b)].
5
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…)

8

 * * *

(C) Any Tribal-State compact negotiated
under subparagraph (A) may include provisions
relating to—

(i) the application of the criminal and
civil laws and regulations of the Indian tribe or
the State that are directly related to, and
necessary for, the licensing and regulation of
such activity;

(ii) the allocation of criminal and civil
jurisdiction between the State and the Indian
tribe necessary for the enforcement of such laws
and regulations;

(iii) the assessment by the State of such
activities in such amounts as are necessary to
defray the costs of regulating such activity;

(iv) taxation by the Indian tribe of such
activity in amounts comparable to amounts
assessed by the State for comparable activities;

(v) remedies for breach of contract;

(vi) standards for the operation of such
activity and maintenance of the gaming facility,
including licensing; and

(vii) any other subjects that are directly
related to the operation of gaming activities.

(…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.

9

 * * *

(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

6
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…)

10

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.

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

7
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.”)

12

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

8
Cabazon, supra at 221.
9
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.
10
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…)

13

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.

14

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.

11
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.
12
See § 11 of the compacts.

15

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

16

 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

17

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.

18

 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

19

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

20

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

13
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.

21

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.

14
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.

22

 [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

15
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.

23

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

24

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

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…)

25

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 with this act to regulate
casinos that are operated on Native American land
or land held in trust by the United States for a
federally recognized Indian tribe. The
legislation shall be passed by a simple majority
of members elected to and serving in each house.
[MCL 432.203(5).]
Thus, within the framework of the MGCRA, the Legislature
apparently recognized that if Michigan is granted the right
to regulate gambling on Indian lands within Michigan’s
borders, such ensuing regulation would be “legislative” in
nature and would require legislative action in accordance
with the enactment requirement of Const 1963, art 4, § 26.
In fact, the MGCRA requires that the Legislature pass
legislation regulating gambling on Indian lands if federal
law so permits. It is clear, in my judgment, that IGRA
grants states, through both § 1166 and the compacting
process of § 2710(d), a means of regulating gambling on
Indian lands. Accordingly, pursuant not only to Const
1963, art 4, §§ 22 and 26, but also pursuant to the
Legislature’s own self-imposed mandate in MCL 432.203(5),
the compacts, because they represent federally permitted
state regulation of gambling on Indian lands, should have
been passed by a majority of those elected to and serving
in each house.
17
My colleagues in the majority, in my judgment,
simply ignore the relevance of § 1166 in determining the
lawfulness, in the absence of a compact, of casino gambling
on Indian land. They do this by summarily noting and
relying on the fact that it is the federal government that
is charged under § 1166 with enforcing the applicable state
law regulations. Opinion of Corrigan, C.J., ante at 14-16;
opinion of Kelly, J., ante at 9-10. As already indicated,
(continued…)

26

 Moreover, gambling on the subject Indian lands absent

the challenged compacts was unlawful pursuant to 25 USC

2710(d)(1)(C). This is because, as noted, § 2710(d)

provides that “[c]lass III gaming activities shall be

lawful on Indian lands only if such activities are . . .

conducted in conformance with a Tribal-State compact

entered into by the Indian tribe and the State . . . .”

Therefore, before these challenged compacts existed,

gambling on the subject Indian lands was unlawful.

(…continued)
I agree with the United States Court of Appeals for the
Ninth Circuit in Artichoke Joe’s, supra at 722, that, “the
fact that the federal government retained [the enforcement]
power does not change the fact that [states] may enact laws
and regulations concerning gambling that have an effect [in
the absence of a compact] on Indian lands.” That is, the
states retain substantive authority over gambling law on
Indian lands. See n 6. Chief Justice Corrigan further
states that § 1166 does not truly give the states
regulatory power because “the federal government may
conclude at any time that it will no longer apply state law
and so amend IGRA.” Ante at 16. While it is true that it
is within Congress’s power to amend IGRA, this fact is
irrelevant because we are called upon to decide this case
under the law as it is today, and not under the law as it
could conceivably one day be. Moreover, Chief Justice
Corrigan opines that Congress chose to make state casino
gambling laws applicable to Indian land “for expediency.”
Id. She provides no support for this finding. The
relevant legislative history indicates that Congress chose
to make state gambling laws applicable to tribes not for
reasons of “expediency,” but to specifically give states
some regulatory power over casino gambling on Indian land.
See Cheyenne River Sioux Tribe, supra at 526.

27

 Thus, it becomes clear that, before the challenged

compacts existed, the tribes would have been engaging in an

unlawful activity had they endeavored to operate their

respective casinos. It necessarily follows that the

compacts had the intended purpose, and the effect, of

altering legal rights and relations of Michigan citizens

generally. The compacts purport to allow Indian tribes to

lawfully engage in activities that would otherwise be

unlawful.

Moreover, the compacts impose specific duties upon

both the members of the tribes and upon non-Indian peoples

and entities. By way of example, the compacts impose a

duty on the tribes to administer and enforce on the casinos

the regulatory requirements embodied in the compacts.

Further, the compacts impose a duty on local units of

government to create a local revenue sharing board to

receive and distribute a percentage of casino profits that

the tribes are required under the compacts to disburse.

Alternately, if the local units of government do not create

a local revenue sharing board, it may be said that the

compacts impose a duty on local units of government to

expend their own government funds to cover the inevitable

costs for public services, police, etc., that they will

incur as a result of having a casino in their area. Under

28

either scenario, the compacts impose duties on local units

of government.18 Accordingly, it is clear that the compacts

18
Defendants argue, and the majority concludes, that
the compacts do not actually require the creation of local
revenue sharing boards, but rather permit local units of
government to voluntarily create such boards if they wish
to enjoy the benefits of the annual percentage payment that
the tribes are to make to those local units of government
pursuant to the compacts. Opinion of Corrigan, C.J., ante
at 18-19; opinion of Kelly, J., ante at 13-14. This
argument is both flawed and disingenuous. First, as is
expressly stated in the compacts themselves, the annual
payment of funds by the tribe to the local revenue sharing
boards is meant to “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[ies].” See §
18(A)(ii) of the compacts. Thus, it is evident that the
“choice” the local units of government have is either: (1)
to create a local revenue sharing board or (2) to simply
assume the actual costs incurred by the unit of government
in the operation of the casinos. Either choice, as noted
above, imposes a duty on local units of government.
Moreover, I note that the compacts purport to mandate the
creation of the local revenue sharing boards, as evidenced
by the term “shall.” That is, the compacts provide that “a
Local Revenue Sharing Board shall be created by those local
units of government . . . .” Thus, the compacts themselves
do not purport to provide any “choice” on this matter.
My colleagues espouse a third-party beneficiary
analysis in reaching their conclusion that the compacts
impose no duties on local units of government. Opinion of
Corrigan, C.J., ante at 18-19; opinion of Kelly, J., ante
at 14. It may be that under contract law, the local units
are indeed third-party beneficiaries. However, that is
simply not dispositive, nor particularly relevant, in this
case. The fact remains that local units of government must
either create the revenue sharing boards or assume the
actual costs incurred by the units of government in the
operation of the casinos.

29

had the intended purpose and the effect of altering the

legal duties generally of Michigan citizens.

Further, the tribal-state compacts alter legal

relationships because the compacts remove from the federal

government the jurisdiction to enforce the applicable state

gambling laws and regulations that apply, pursuant to §

1166, on Indian land in the absence of a tribal-state

compact and place that jurisdiction in the hands of the

tribes themselves. This change in jurisdiction affects

Michigan citizens generally because citizens engaging in

gambling in tribal casinos were formerly subject to federal

jurisdiction, but are now subject to tribal jurisdiction.

Additionally, the compacts alter the legal relationships of

Michigan citizens generally because they may allow anyone

over the age of eighteen to gamble in tribal casinos,

whereas the legal gambling age that applies to Michigan

casinos subject to the MCGRA is twenty-one.

Thus, the first factor of the Chadha/Blank framework

leads to the conclusion that the compacts constitute

legislation. That is, the compacts “had the [intended]

purpose and effect of altering . . . legal rights, duties

and relations of persons . . . outside the legislative

branch.” Blank, supra at 114.

30

 ii. Supplanting legislative action
The second Chadha/Blank factor requires that we

consider whether the Governor’s action in negotiating the

compacts and the Legislature’s resolution vote on the

compacts “supplanted legislative action.” In Blank, supra

at 114, we further elaborated on this point, as did the

United States Supreme Court in Chadha, by considering

whether “[t]he only way the House could have [properly]

obtained the same result would have been by enacting

legislation.” Thus, we must consider how, in the absence

of the challenged compacts, the Legislature could

alternatively have achieved the same result, i.e., how the

Legislature could alternatively have made gambling on

Indian land lawful. If no IGRA tribal-state compact

exists, general state laws pertaining to the regulation or

prohibition of gambling apply on any particular Indian land

as they apply elsewhere in the state. 18 USC 1166.

Therefore, in the absence of a compact, if the Legislature

wanted to make gambling on Indian land lawful, the only way

it could do that would be by either changing the gambling

laws that are generally applicable within the state or by

changing the reach of the MGCRA. Changing those laws

would, it cannot seriously be disputed, require

“legislation.” Thus, it becomes clear that the compacts

31

effectively supplanted legislative action and, therefore,

they themselves constitute “legislation.”19

iii. DETERMINATIONS OF POLICY

The third Chadha/Blank factor requires that we

consider whether the compacts “involved determinations of

policy.” Blank, supra at 114. The compact negotiation

process required the Governor to undertake and resolve

multiple policy-making decisions of great consequence to

this state, the most significant of which was the initial

decision to make lawful what was otherwise unlawful—casino

gambling on the subject Indian lands. The fact that casino

gambling engenders considerable controversy and passion

throughout our society at large, as evidenced by the very

existence of this lawsuit, underscores the significance of

the policy decision that these compacts represent.

Moreover, the compacts represent a host of additional

policy decisions that sprang from the initial decision to

make gambling lawful on the subject Indian lands. These

19
Furthermore, the compacts “supplant legislative
action,” Blank, supra at 114, because they attempt to bind
the state to their terms for a period of twenty years, and
during those twenty years, the Legislature may not, even by
appropriate legislative action, amend or repeal the
compacts. Thus, the compacts not only supplant current
legislative actions, but in effect, they likewise supplant
any future proper legislative action that the Legislature
might otherwise undertake regarding this issue.

32

include, but certainly are not limited to, decisions

regarding the number of compacts to sign and the number of

casinos to allow, the minimum gambling age that would be

enforced in the relevant casinos, the percentage of profits

that the tribes would be required to submit to the state

and the subsequent use of those funds by the state, the

decision to incorporate into the compacts the protections

of the Michigan Employment Security Act, MCL 421.1 et seq.,

and the Worker’s Disability Compensation Act, MCL 418.101

et seq., and the decision to leave enforcement of the

compact rules and regulations to the tribes themselves

rather than delegating that duty to the relevant state

agencies as the state clearly could have done pursuant to

25 USC 2710(d)(3)(C).20

20
It appears that that Court of Appeals considered
significant the fact that the compacts do not give the
state the power to enforce them other than by arbitration
or mediation. The Court of Appeals stated, “While states
may have the ability [under IGRA] to negotiate and include
regulatory terms in the compacts, there is no mechanism for
enforcement. Rather, any dispute is submitted to
arbitration or a mediator. Consequently, the challenge to
the method of approval by resolution is without merit.”
Slip op at 13. Likewise, defendants emphasize, as did the
Court of Appeals, id., that the compacts confer no
regulatory power on the state because the responsibility to
ensure that the compacts' "regulatory requirements" are
being enforced within the casinos lies solely within the
tribes’ hands; and therefore the compacts are not
“legislation.” However, IGRA provides that compacts may
include provisions relating to “the allocation of criminal
(continued…)

33

 In my judgment, these policy decisions are exactly the

sorts of decisions that properly belong within the province

of the Legislature.21 This point was well made by the

(…continued)
and civil jurisdiction between the State and the Indian
tribe necessary for the enforcement of such laws and
regulations . . . .” 25 USC 2710(d)(3)(C)(2). Thus, the
compacts could have granted the state the jurisdiction to
enforce the relevant laws and regulations. Justice Kelly
concedes that if the compacts “extend[ed] state
jurisdictional authority to tribal land,” they would
constitute legislation. Ante at 16. In my judgment, the
decision to place the enforcement jurisdiction entirely
within the tribes’ hands, as well as the decision to
resolve compact disputes through mediation and arbitration,
were, in fact, policy decisions made by the Governor that
may not now be used to insulate the compacts from a finding
that they constitute legislation. Chief Justice Corrigan
likewise refers to many of the compact terms in order to
support her contention that the compacts do not constitute
legislation. Ante at 17-21. As an example, she notes that
“[u]nder 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 enforce a violation of the compacts.” Ante at
17-18. This term, and the other compact terms discussed in
the Chief Justice's opinion, were the direct result of
policy choices made on behalf of the state by the Governor
and should not now be used circularly to insulate the
compacts from being characterized as legislation. It is,
in part, precisely because the compacts resolve such
fundamental policy choices that they constitute
legislation.
21
As noted in n 16, MCL 432.203 indicates that the
Legislature itself recognized this when it provided in the
MGCRA that the Legislature must, if permitted by federal
law, enact an act similar to and consistent with the MGCRA
that would govern casino gambling in Indian territory, just
as the MGCRA governs other casino gambling that is
authorized in Michigan.

34

highest court for the state of New York, the Court of

Appeals of New York, in a decision in which that Court held

that IGRA tribal-state compacts represent legislation. In

Saratoga Co Chamber of Commerce v Pataki, 100 NY2d 801,

822-823; 798 NE2d 1047; 766 NYS2d 654 (2003), the Court

stated:

IGRA itself contemplates that states will
confront several policy choices when negotiating
gaming compacts. Congress provided that
potential conflicts may be resolved in the
compact itself, explicitly noting the many
policies affected by tribal gaming compacts.
Indeed, gaming compacts are laden with policy
choices, as Congress well recognized.

“Any Tribal-State compact negotiated under
subparagraph (A) may include provisions relating
to—

“(i) the application of the criminal and
civil laws and regulations of the Indian tribe or
the State that are directly related to, and
necessary for, the licensing and regulation of
such activity;

“(ii) the allocation of criminal and civil
jurisdiction between the State and the Indian
tribe necessary for the enforcement of such laws
and regulations;

“(iii) the assessment by the State of such
activities in such amounts as are necessary to
defray the costs of regulating such activity;

“(iv) taxation by the Indian tribe of such
activity in amounts comparable to amounts
assessed by the State for comparable activities;

35

 “(v) remedies for breach of contract;

“(vi) standards for the operation of such
activity and maintenance of the gaming facility,
including licensing; and

“(vii) any other subjects that are directly
related to the operation of gaming activities.”
[25 USC 2710(d)(3)(C).]

Compacts addressing these issues necessarily
make fundamental policy choices that epitomize
"legislative power." Decisions involving
licensing, taxation and criminal and civil
jurisdiction require a balancing of differing
interests, a task the multi-member,
representative Legislature is entrusted to
perform under our constitutional structure.
[Emphasis added.]

I agree with the court’s decision on this issue in

Saratoga Co and with the other state supreme courts that

have considered this issue and reached a similar

conclusion. See State ex rel Clark v Johnson, 120 NM 562;

904 P2d 11 (1995); State ex rel Stephan v Finney, 251 Kan

559; 836 P2d 1169 (1992); Panzer v Doyle, __ Wis 2d __; 680

NW2d 666 (2004); Narragansett Indian Tribe of Rhode Island

v Rhode Island, 667 A2d 280 (RI, 1995).22 It is evident

22
My research revealed that every state supreme court
that has directly considered this issue has held that
tribal-state gaming contracts constitute legislation. The
majority cites to Confederated Tribes of the Chehalis
(continued…)

36

that the compacts “involved determinations of policy,”

Blank, supra at 114, such that they themselves constitute

“legislation.”

iv. Michigan Constitution

The fourth Chadha/Blank factor requires that we

consider whether Michigan’s Constitution explicitly

authorizes the Legislature to approve these compacts by

resolution even if the compacts otherwise constitute

legislation.

Before 1908, the Michigan Constitution allowed the

Legislature to make laws by the resolution process. See

Const 1850, art 4, § 19. However, the constitutions of

1908 and 1963 leave out that earlier proviso, and our

Constitution now makes it entirely clear, as already

(…continued)
Reservation v Johnson, 135 Wash 2d 734, 750; 958 P2d 260
(1998), for an opposite conclusion. Opinion of Corrigan,
C.J., ante at 17; opinion of Kelly, J., ante at 15. In
that case, the Supreme Court of Washington stated that
tribal-state compacts are “agreements” and not legislation.
However, the issue in that case was whether the compacts
were subject to Washington’s public records disclosure act,
and the court’s statement regarding the legislative nature
of a compact, which was made with no analysis whatever, was
therefore not in response to a direct consideration of that
question. Justice Kelly likewise string cites Confederated
Tribes of Siletz Indians of Oregon v Oregon, 143 F3d 481
(CA 9, 1998), and Gallegos v Pueblo of Tesque, 132 NM 207,
218; 46 P3d 668 (2002). Both those cases are equally
irrelevant to the instant issue.

37

explained, that lawmaking is subject to the enactment

requirement. See Const 1963, art 4, §§ 1, 22, and 26.

In Becker v Detroit Savings Bank, 269 Mich 432, 434-

436; 257 NW 855 (1934), this Court considered whether a

legislative resolution can create binding law. In

accordance with our Constitution, the Becker Court held

that it could not, stating:

The language of the constitution is in
itself a complete answer to the proposition. It
provides in express terms that there shall be but
one mode of enacting a “law” thereunder, and that
mode is the exclusive measure of the power of the
legislature in that regard. A mere resolution,
therefore, is not a competent method of
expressing the legislative will, where that
expression is to have the force of law, and bind
others than the members of the house or houses
adopting it. . . . The requirements of the
Constitution are not met by that method of
legislation. “Nothing becomes law simply and
solely because men who possess the legislative
power will that it shall be, unless they express
their determination to that effect in the mode
pointed out by the instrument which invests them
with the power, and under all the forms which
that instrument has rendered essential.” Cooley,
[Const Lim at 155, ch 6.] . . .

* * *

[W]hile the resolution of the Legislature is
entitled to respectful consideration, it is not
law and courts are bound by the law. [Id. at
434-436 (emphasis added).]

Moreover, Michigan’s Constitution provides a number of

specific instances in which the Legislature is explicitly

authorized to act by way of resolution. See Const 1963,

38

art 4, §§ 12, 13, 37; art 5, § 2; art 6, § 25. However,

none of these provisions is applicable to this issue and

none provides a basis for concluding that our Constitution

explicitly grants the Legislature the authority to approve

the instant compacts by way of resolution even though they

otherwise constitute legislation.23 Therefore, the

Legislature’s approval of the challenged compacts is not

constitutionally exempted from the general lawmaking

procedures embodied in our Constitution. Thus, the fourth

Chadha/Blank factor likewise leads to a finding that the

Legislature was required to adopt the compacts consistently

with the enactment requirements of Michigan’s Constitution.

Accordingly, in my judgment, the tribal-state compacts

at issue constitute legislation. The compacts had the

purpose and effect of generally altering legal rights,

23
The majority concludes that legislative approval by
resolution was appropriate because the Constitution is a
limit on our Legislature’s power rather than a grant of
power and, therefore, the Legislature may do anything that
it is not specifically prohibited by the Constitution from
doing. Opinion of Corrigan, C.J., ante at 21-22; opinion
of Kelly, J., ante at 17. It may well be true that the
Constitution is a limit on legislative power, but one of
those limits is embodied in Const 1963, art 4, § 22 and §
26, and these require that legislation be by bill. The
majority essentially engages in a faulty, circular argument
to support the conclusion that the compacts are not
legislation.

39

duties, and relations of Michigan citizens; they supplanted

legislative action; they represent determinations of policy

issues of fundamental importance to the social and economic

environment of the state of Michigan; and our Constitution

does not authorize the Legislature to approve the compacts

by a resolution vote.

B. IS A RESOLUTION NONETHELESS CONSTITUTIONAL?

Having determined that the Chadha/Blank analytical

framework leads to the conclusion that the compacts

constitute “legislation” subject to the enactment

requirement of Michigan’s Constitution, I will now consider

the significant issues raised by defendants and upon which

the majority opinions are primarily based.

i. FEDERAL PREEMPTION

First, Justice Kelly concludes that the compacts are

not “legislation” because federal law preempts Indian

gambling regulation unless the state prohibits gambling.

Thus, because Michigan permits limited casino gambling,

Justice Kelly reasons that Michigan may not legislate with

respect to gambling on Indian land. Ante at 5-8. In

support of this proposition, the opinion refers to 25 USC

2701 of IGRA, which provides:

40

 The Congress finds that
(5) Indian tribes have the exclusive right
to regulate gaming activity on Indian lands if
the gaming activity is not specifically
prohibited by Federal law and is conducted within
a State which does not, as a matter of criminal
law and public policy, prohibit such gaming
activity.

Justice Kelly has misconstrued the relevance of §

2701(5). This provision is simply a part of the Congress’s

legislative “findings” and does not constitute substantive

law.24 That is, the Congress found, before enacting IGRA,

that Indian tribes had the "exclusive right to regulate

gaming activity on Indian lands if the gaming activity

[was] not specifically prohibited by Federal law and [was]

conducted within a State which did not . . . prohibit such

gaming activity."25 Id. Having so found, the Congress

24
A “findings” statement in a federal act is a part of
what is commonly referred to as the “preamble.” As long
ago as 1889, the United States Supreme Court, in Yazoo & M
V R Co v Thomas, 132 US 174; 10 S Ct 68; 33 L Ed 302
(1889), stated: “[A]s the preamble is no part of the act,
and cannot enlarge or confer powers, nor control the words
of the act, unless they are doubtful or ambiguous, the
necessity or resorting to it to assist in ascertaining the
true intent and meaning of the legislature is in itself
fatal to the claim set up.” See also Singer, 1A
Sutherland Statutory Construction (6th ed), § 20:3, p 123:
“The function of the preamble is to supply reasons and
explanations and not to confer power or determine rights.
Hence it cannot be given the effect of enlarging the scope
or effect of a statute.”
25
This congressional finding comports with the pre-
IGRA opinion of the United States Supreme Court in Cabazon
(continued…)

41

subsequently enacted IGRA in order to “provide a statutory

basis for the regulation of gaming . . . .” 25 USC

2702(2). Because 25 USC 2701(5) is not substantive law,

Justice Kelly errs in invoking it as such and using it to

effectively shield Indian tribes from state regulation of

gambling otherwise consistent with the text of IGRA.

ii. STATE AUTHORITY TO LEGISLATE

Second, defendants argue that the compacts cannot

constitute legislation because the state has no authority

to legislate casino gambling on Indian lands, and,

therefore, the compacts merely constitute an “agreement”

between the tribe and the state that has nothing to do with

“legislation.” However, pursuant to the express terms of

IGRA itself, the Congress recognized that a tribal-state

compact may result in state legislation. Therefore, it

cannot be disputed that IGRA permits states to legislate

pursuant to a compact. Section 2710(d)(5) of IGRA

(…continued)
in which the Court acknowledged that if California
prohibited casino gambling within its borders, California
could enforce its criminal laws relating to that
prohibition on Indian lands through 18 USC 1162; but absent
express Congressional permission, California could not
enforce its purely regulatory gambling laws on Indian
lands. Thus, under Cabazon, Indian tribes indeed had the
exclusive right to regulate casino gambling on Indian lands
if the gambling was not specifically prohibited by federal
law and was conducted within a state that did not prohibit
such gambling.

42

provides:

Nothing in this subsection shall impair the
right of an Indian tribe to regulate class III
gaming on its Indian lands concurrently with the
State, except to the extent that such regulation
is inconsistent with, or less stringent than, the
State laws and regulations made applicable by any
tribal-state compact entered into by the Indian
tribe under paragraph (3) that is in effect.

This section both affirms that an Indian tribe’s right

to regulate gambling on its lands is not exclusive and that

the state does, indeed, have authority to regulate gambling

on Indian lands through lawmaking. The compact provisions

in IGRA merely ensure that any state regulation over tribal

gambling arises out of the negotiation process; they do

not, however, prohibit such regulation.

The majority concludes, however, that the fact that

the compacts must arise out of the negotiation process

means that they do not constitute “legislation” because

legislation must be “unilateral.” Opinion of Corrigan,

C.J., ante at 9-10; opinion of Kelly, J., ante at 11-12.

That is, if a tribal-state compact, and thus any state

regulation over tribal gambling, can only result through a

federally mandated negotiation process, it cannot be said

that the state enjoys a right to “unilaterally” legislate

gambling on Indian land. In support of this theory—that

unless a state may “unilaterally” regulate, it may not

43

“legislate”—Justice Kelly refers to this Court’s opinion in

Westervelt v Natural Resources Comm, 402 Mich 412, 440; 263

NW2d 564 (1978). Ante at 11-12.

Westervelt considered whether an executive agency

“legislates” when it engages in rulemaking pursuant to a

legislative delegation of power. If so, the executive

agency would be violating the separation of powers doctrine

embodied in Const 1963, art 3, § 2 because, pursuant to

Const 1963, art 4, § 1, “[t]he legislative power of the

State of Michigan is vested in [the Legislature].”26

Westervelt, in concluding that an executive agency does not

legislate when it engages in rulemaking, stated, “the

concept of ‘legislation,’ in its essential sense, is the

power to speak on any subject without any specified

limitations.” Westervelt, supra at 440. (Emphasis

deleted). The “specified limitations” referred to in

Westervelt were those limitations inherent in the

legislative delegation of authority to the executive

branch. Because an executive agency is confined in its

exercise of authority to the relevant legislative

26
Compare the United States Constitution, art I, § 1,
in which "All legislative Powers herein granted shall be
vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives.”
(Emphasis added.)

44

delegation, including any specific limitations upon such

delegation set by the Legislature, the power to engage in

rulemaking is not a power to “legislate.” It could not be

such a power under the Constitution if the delegation is

valid because the Constitution does not allow any entity to

exercise “legislative power” other than the Legislature.27

Justice Kelly argues that the power to speak “without

any specified limitations” means the power to

“unilaterally” legislate. In this case, she argues, the

Legislature may not speak “without specified limitations”

because it is limited by the mandate that the state must

negotiate in good faith with the tribes and, therefore, it

may not legislate. Ante at 11-12. In my judgment,

Westervelt must be interpreted within the different context

of that case. I see no reason to expand its specific

holding to mean that any time the Legislature is

constricted in any sense by “any specified limitation,” it

may not “legislate.” A legislature is always subject to

27
Westervelt, considered in its totality, actually
supports plaintiffs’ position in this case. This is
because the compacts constitute legislation, yet the
legislative power is exclusively vested in the Legislature.
Const 1963, art 4, § 1. Thus, when the Governor negotiated
and signed the compacts without having first received a
proper delegation of power from the Legislature, he
effectively exercised the Legislature’s functions in
contravention of Const 1963, art 3, § 2.

45

“specified limitations,” such as those posed by the federal

and state constitutions, or, in this case, by federal law.

Indeed, the very premise of our constitutional system is

that all governmental institutions operate under "specified

limitations." The fact that federal law imposes some

limits on the state’s power to regulate in a specific area

simply cannot mean that any legislative action touching

upon such an area is not actually “legislation.”

Chief Justice Corrigan, in support of her contention

that the state has no power to “unilaterally” regulate, and

therefore legislate, tribal gambling under § 2710(d), cites

Boerth v Detroit City Gas Co, 152 Mich 654; 116 NW 628

(1908), and Detroit v Michigan Pub Utilities Comm (MPUC),

288 Mich 267; 286 NW 368 (1939), for the proposition that

the power to legislate does not require “consent” from

those subject to its powers. Ante at 9-10. Because §

2710(d) provides for a process of negotiation, the Chief

Justice opines that it gives tribes a power to “consent”

that negates a finding that a compact constitutes

legislation. In Boerth and MPUC, this Court held that,

absent a legislative delegation of power to Detroit,

Detroit possessed no legislative power to set gas rates

because such power was within the exclusive jurisdiction of

the Legislature. However, Detroit was found to possess a

46

power to contract for reasonable gas rates under its power

to control its streets. In this case, the state possesses

regulatory power over tribal casino gambling even in the

absence of a compact, see § 1166, including the outright

power to prohibit such gambling. Moreover, the “consent”

that the Chief Justice argues that the tribes may exercise

in this case, by virtue of § 2710(d), is the type of

“consent” referred to in Boerth and MPUC. Although §

2710(d) provides for a negotiation process, the tribes are

not wholly free to withhold their “consent” from the

Legislature to enter into contracts regulating casino

gambling on their lands and to, instead, engage in such

gambling without compacts. This is because in the absence

of a compact, casino gambling is unlawful. § 2710(d)(1).28

28
I do not accept the premise of the Chief Justice
that, when a state exercises its regulatory authority over
casino gambling within its borders, expressly granted to it
by Congress, and makes that which was unlawful into that
which is lawful, and in doing so binds itself to specific
terms and conditions under which that which was unlawful is
now lawful, the state is not “legislating” merely because
IGRA provides a mechanism by which the tribes may
participate in the negotiation process. The pertinent
consideration in determining whether a compact constitutes
legislation is not whether IGRA purports to compel a state
to negotiate in good faith with a tribe, but rather whether
the compact bears the larger hallmarks of “legislation.”
These hallmarks are sufficiently expounded upon in
Chadha/Blank, and, as already discussed, I believe they
(continued…)

47

 iii. CONTRACTUAL NATURE OF COMPACTS

Third, the majority concludes that the tribal-state

compacts are not legislation because they merely constitute

contracts between two sovereign entities that the Governor,

pursuant to IGRA, may enter into on behalf of the state and

that the Legislature may approve of by resolution vote.29

Opinion of Corrigan, C.J., ante at 9-10; opinion of Kelly,

J., ante at 15. I do not dispute that the compacts are

akin to contracts of a unique nature. However, as

explained above, these “contracts” create new law and

constitute legislation and they purport to bind the state

of Michigan to that legislation. That is the pivotal

consideration in this case. A “contract” may, in effect,

(…continued)

lead to the conclusion that these sorts of compacts

constitute legislation.

29
If the majority were correct, but for the term in
the compacts themselves stipulating that they become
effective only upon resolution approval by the Legislature,
the Legislature would not be required to approve them.
This is because the Legislature’s power is the power to
legislate. Const 1963, art 4, § 1. Therefore, unless the
compacts constitute legislation, neither the Constitution
nor any other source of law would require that they be
approved by the Legislature by any method. Thus, under the
majority’s faulty analysis, there is no reason that the
Governor, in the future, cannot simply bind the state to
casino compacts without even seeking resolution approval
from the Legislature.
Thus, the compacts would have been effective between
the state and the tribe once they had been signed by the
Governor.

48

create new law and such a legislative contract should not

be exempt from the constitutional provisions otherwise

applicable to legislation.30 Neither the executive nor the

legislative branch of our state government may circumvent

the constitutionally mandated processes for enacting

legislation by entering into a contractual relationship.

However, I will consider whether there is some source of

law that does allow the Governor to enter into a compact

without legislative approval consistently with the

enactment requirement of Michigan’s Constitution.

First, it should be considered whether IGRA itself,

regardless of state constitutional procedures, provides

that a Governor may enter into a tribal-state compact with

only a resolution vote of the Legislature. It is clear

that IGRA does not so provide. The court in Saratoga Co,

supra at 822, stated:

30
See Flint & F Plank-Road Co v Woodhull, 25 Mich 99,
(1872), in which Justice Cooley acknowledged that a
charter-compact is both a “law” and a contract. “It is not
disputed . . . that the charter of a private corporation is
to be regarded as a contract, whose provisions are binding
upon the State . . . . Such a charter is a law, [and] it .
. . also . . . contains stipulations which are terms of
compact between the State as the one party, and the
corporators as the other . . . .” Id. at 101. (Emphasis
added.) Thus, a “contract” may clearly be a vehicle for
creating both legislation and contractual terms that are
binding on the state.

49

 IGRA imposes on “the State” an obligation to
negotiate in good faith (25 USC 2710[d][3][a]),
but identifies no particular state actor who
shall negotiate the compacts; that question is
left up to state law . . . . As the Supreme Court
noted, the duty to negotiate imposed by IGRA “is
not of the sort likely to be performed by an
individual state executive officer or even a
group of officers.” [Quoting Seminole Tribe of
Florida v Florida, 517 US 44, 75 n 17; 116 S Ct
1114; 134 L Ed 2d 252 (1996), citing State ex rel
Stephen Finney, supra.]

Likewise, in Clark, supra at 577, the Supreme Court of

New Mexico stated:

We entertain no doubts that Congress could,
if it so desired, enact legislation legalizing
all forms of gambling on all Indian lands in
whatever state they may occur. . . . That is,
however, not the course that Congress chose.
Rather, Congress sought to give the states a role
in the process . . . . It did so by permitting
Class III gaming only on those Indian lands where
a negotiated compact is in effect between the
state and the tribe. [25 USC 2710(d)(1)(C).] To
this end, the language of the IGRA provides that
“Any State . . . may enter into a Tribal-State
compact governing gaming activities on the Indian
lands of the Indian Tribe.” Id. § 2710(d)(3)(B).
The only reasonable interpretation of this
language is that it authorizes state officials,
acting pursuant to their authority held under
state law, to enter into gaming compacts on
behalf of the state. [Emphasis added.]

Accordingly, IGRA does not provide or require that the

Governor shall have the power to bind the state to tribal-

state compacts with only a resolution vote of the

Legislature. The pertinent consideration is which state

actor has the power to bind the state to a legislative

50

compact and according to which procedures under state law.31

Second, it is therefore necessary to consider whether

state law grants the Governor the authority to bind the

state to a tribal-state compact with only a resolution vote

of the Legislature regardless whether that compact

31
Because IGRA does not purport to require or allow
the Governor to negotiate a tribal-state compact subject
only to a resolution vote, we need not consider whether
such a provision in the IGRA would be lawful. However, I
note the following statement made by the court in Clark,
supra at 577:
[The governor] . . . argues that he
possesses the authority, as a matter of federal
law, to bind the State to the terms of the
compact . . . . We find the Governor’s argument
on these points to be inconsistent with core
principles of federalism. The Governor has only
such authority as is given to him by our state
Constitution and statutes enacted pursuant to it.
. . . We do not agree that Congress, in enacting
the IGRA, sought to invest state governors with
powers in excess of those that the governors
possess under state law. Moreover, we are
confident that the United States Supreme Court
would reject any such attempt by Congress to
enlarge state gubernatorial power. Cf. Gregory [v
Ashcroft, 501 US 452, 460; 111 S Ct 2395; 119 L
ED 2d 410 (1991)] (recognizing that “[t]hrough
the structure of its government . . . a State
defines itself as a sovereign”); New York v.
United States, [505 US 144, 176; 112 S Ct 2408;
120 L. Ed. 2d 120 (1992)] (striking down an act
of Congress on the ground that principles of
federalism will not permit Congress to
“‘commandeer[] the legislative processes of the
States’” by directly compelling the states to
act) (quoting Hodel v. Virginia Surface Mining &
Reclamation Ass’n, [452 US 264, 288; 101 S Ct
2352; 69 L Ed 2d 1 (1981)] . . . .

51

constitutes legislation. The Michigan Constitution

provides that “[t]he executive power is vested in the

governor.” Const 1963, art 5, § 1. The majority

essentially argues that the executive power includes the

power to bind the states to contractual agreements with

sovereign entities and, therefore, whether those agreements

otherwise constitute “legislation” is irrelevant. The

“executive power” is, first and foremost, the power to

enforce. This observation was concisely summed up by this

Court in People ex rel Attorney General v Holschuh, 235

Mich 272, 274-275; 209 NW 158 (1926), in which we stated,

“Consideration of some fundamental principles relative to

the powers of government will aid greatly in determining

the issues before us. . . . The law . . . must observe

constitutional limitations; but within such limitations the

legislative power may command, the executive power must

enforce, and the judicial power respond.” (Emphasis

added.)32 While our state Constitution grants specific

32
See Const 1963, art 5, § 8: “The governor shall take
care that the laws be faithfully executed.” See also The
People ex rel Sutherland v Governor, 29 Mich 320, 324-325
(1874), in which Justice Cooley stated: “And that there is
such a broad general principle seems to us very plain. Our
government is one whose powers have been carefully
apportioned between three distinct departments, which
emanate alike from the people, have their powers alike
(continued…)

52

additional powers to our executive branch of government

beyond the “enforcement” of legislative enactments, I find

no provision in our Constitution that supports a finding

that the Governor possesses broad powers to bind the state

to legislative compacts with foreign sovereignties absent

legislative action consistent with the enactment

requirement. Nor have my colleagues pointed to any

language of that sort.

In addressing this issue, it is also necessary to

consider what our Constitution does say regarding the

Governor’s right to bind the state to an “intergovernmental

agreement.” Const 1963, art 3, § 5 provides:

Subject to provisions of general law, this
state or any political subdivision thereof, any
governmental authority or any combination thereof
may enter into agreements for the performance,
financing or execution of their respective
functions, with any one or more of the other
states, the United States, the Dominion of
Canada, or any political subdivision thereof
unless otherwise provided in this constitution.
. . .

(…continued)
limited and defined by the constitution, are of equal
dignity, and within their respective spheres of action
equally independent. One makes the laws, another applies
the laws in contested cases, while the third must see that
the laws are executed. This division is accepted as a
necessity in all free governments, and the very
apportionment of power to one department is understood to
be a prohibition of its exercise by either of the others.”
(Emphasis added.)

53

 Thus, pursuant to this constitutional provision, the

Governor of this state may enter into intergovernmental

agreements without the advice or consent of the

Legislature—whether by resolution vote or consistently with

the enactment requirements of our Constitution. However,

this power is not unlimited. First, it is specifically

limited to agreements with “the other states, the United

States, the Dominion of Canada, or any political

subdivision thereof.” The power to enter into an

intergovernmental agreement with an Indian tribe is

conspicuously absent. Second, the power is specifically

limited to those agreements necessary “for the performance,

financing or execution of [its] functions.” Neither IGRA

nor any other law places the duty or the power to determine

the scope and parameters of gambling within Michigan’s

borders, on or off Indian lands, within the “functions” of

the executive branch. Accordingly, unless the Legislature

properly delegates to the executive branch a rulemaking

power to set the parameters for gambling on Indian lands

within Michigan’s borders, that power is not, in my

judgment, reasonably within the scope of the executive

branch’s “functions.”

It may be said that because the intergovernmental

agreement provision of the Michigan Constitution does not

54

refer to agreements with Indian tribes that provision is

inapplicable to this case. However, in light of the fact

that the powers of the executive branch are

constitutionally defined, I read additionally a negative

implication in Const 1963, art 3, § 5. Because our

Constitution contains an express provision regarding

intergovernmental agreements that may validly be entered

into by governmental authorities, I conclude that, subject

to provisions of general law, intergovernmental agreements

beyond the scope of Const 1963, art 3, § 5 are invalid.33

Moreover, even were I to decline to read a negative

implication into Const 1963, art 3, § 5, this provision is,

nonetheless, significant insofar as it expressly provides

that, in the realm of applicable intergovernmental

agreements, no branch of the government may contract in

33
Const 1963, art 3, § 5 provides that it is “subject
to general law.” Therefore, a governmental authority may
enter into an intergovernmental agreement with an Indian
tribe despite the fact that tribes are not specifically
mentioned in art 3, § 5 provided the agreement is
consistent with provisions of general law. Federal law,
under IGRA, permits a state to enter into a tribal-state
gambling compact. However, because the compacts at issue
constitute legislation, state law, particularly Const 1963,
art 4, §§ 22 and 26, requires that they be approved by the
Legislature by bill. Therefore, consistently with these
provisions of general law, the Legislature may bind the
state to tribal-state gambling compacts despite the fact
that “Indian tribes” are not specifically referenced in art
3, § 5.

55

such a way that is inconsistent with its own powers or that

usurps the powers of another branch. That rule, which is

consistent with the separation of powers doctrine of Const

1963, art 3, § 2, should apply equally to intergovernmental

agreements that are expressly subject to Const 1963, art 3,

§ 5, as well as those that are not. Thus, in any case, a

governmental authority may only bind the state to an

intergovernmental agreement that is “for the performance,

financing or execution of their respective functions

. . . .” Id. As already noted, absent a proper

legislative delegation of power to the executive branch,

the duty and power to set the parameters for casino

gambling on land within Michigan’s borders is not in any

comprehensible sense a “function” of the executive branch.

The United States Constitution expressly provides that

the President “shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided two

thirds of the Senators present concur . . . .” US Const,

art II, § 2, cl 2.34 The Michigan Constitution notably

34
It is noteworthy that federal case law acknowledges
that treaties are both agreements with other sovereignties,
and they create “law.” See El Al Israel Airlines, Ltd v
Tsui Yuan Tseng, 525 US 155, 167; 119 S Ct 662; 142 L Ed 2d
576 (1999), in which the United States Supreme Court
stated: “‘Because a treaty ratified by the United States is
not only the law of this land, see U.S. Const., Art. II, §
(continued…)

56

contains no explicit authorization for the Governor to

enter into treaties with sovereign nations without the

majority approval of the entire Legislature. I have found

no case law, nor have my colleagues identified such a law,

that would support a determination that, despite our

Constitution’s silence on the issue, such a right exists.35

(…continued)
2, but also an agreement among sovereign powers, we have
traditionally considered as aids to its interpretation the
negotiating and drafting history (travaux préparatoires)
[italics in original] and the post-ratification
understanding of the contracting parties.’” (Citation
omitted; emphasis added.) The point is that, pursuant to
US Const, art II, § 2, treaties are binding even though
they amount to lawmaking because the federal Constitution
expressly so provides. Thus, that the tribal-state
compacts at issue here are akin to contracts with a
sovereign power does not, by that fact alone, mean that the
compacts do not constitute “lawmaking.” I believe the
majority's conclusion that the compacts are not legislation
simply because they are “contracts” with sovereign nations
to be without merit. See also n 30.
35
Does the Governor possesses some "inherent"
authority to bind the state to a legislative compact with
only a resolution vote of the Legislature, or indeed
unilaterally? While the Governor has the power to issue
executive orders on his own accord that have the status of
enacted law, the permissible scope of such orders is
limited by the express powers constitutionally or
legislatively delegated to the Governor. See, generally,
House Speaker v Governor, supra at 578-579; see also Straus
v Governor, 230 Mich App 222, 228-230; 583 NW2d 520 (1998).
Further, the separation of powers doctrine embodied in
Michigan’s Constitution provides that “[n]o 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.
Tribal-state compacts constitute legislation, and all
(continued…)

57

 I believe that no source of law, federal or state,

exists that would permit the Governor to bind the state to

these legislative compacts without the approval of the

Legislature consistent with the enactment requirements of

Michigan’s Constitution. Because the compacts constitute

legislation, they were subject to Const 1963, art 4, §§ 22

and 26. Therefore, I would reverse the judgment of the

Court of Appeals on this issue and hold that the approval

of HCR 115 by resolution, rather than by bill, did not

comport with the enactment requirement of our

Constitution.36

C. DO AMENDATORY PROVISIONS VIOLATE THE CONSTITUTION?

Each of the challenged tribal-state compacts contains

(…continued)
legislative power is constitutionally vested in the
Legislature. Const 1963, art 4, § 1. Therefore, the
Governor may not bind the state to such a compact under
some “inherent” power because the Governor may exercise
legislative powers only “as expressly provided in this
constitution.” Const 1963, art 3, § 2. Nowhere does our
Constitution expressly, or otherwise, grant the Governor a
power to bind the state to a legislative agreement with
another sovereignty.
36
The pertinent question in this case is whether the
compacts constitute legislation. Because they do, the
Legislature should have approved HCR 15 by bill. If the
compacts did not constitute legislation, then no
legislative approval, by either bill or resolution, would
have been constitutionally required. In that case, the
Legislature would have been required to approve the
compacts only because the compacts themselves expressly
required it in § 11, and either resolution or bill approval
of HCR 115 would have been sufficient.

58

a provision that purports to empower the Governor to amend

it on behalf of the state without seeking legislative

approval of any specific amendment.37 This provision,

plaintiffs contend, violates the separation of powers

doctrine embodied in art 3, § 2 of Michigan’s Constitution

because it grants broad authority to the Governor to usurp

a legislative power. That is, plaintiffs argue that, like

the original compacts, any amendment constitutes

“legislation” that is subject anew to the enactment

requirement of Const 1963, art 4, § 26. Plaintiffs

essentially argue that even had the Legislature properly

adopted the compacts, the specific amendatory provision

would nonetheless violate the separation of powers doctrine

because the Legislature may not, even by properly enacted

legislation, grant the Governor a general power to amend

that legislation. Defendants contend, on the other hand,

that the amendments to the compacts, like the compacts

themselves, in no way implicate “legislation,” and,

therefore, the Governor does not usurp legislative

functions in exercising his power to amend them.

The Court of Appeals ruled that this issue was not

ripe for review because the Governor had not yet attempted

37
See § 16 of the compacts.

59

to amend the compacts. However, during the pendency of

this suit, Governor Granholm purported to amend the compact

with the Odawa Tribe by (1) extending the terms of the

compact from twenty to twenty-five years, (2) requiring the

eight percent semiannual payment that the tribes must make

to the Michigan Strategic Fund to instead be made “to the

State . . . as the governor so directs,” (3) increasing the

semiannual payment from eight percent of profits to either

eight, ten, or twelve percent depending on the profits of

the casino, and (4) providing less restrictive limitations

on gaming by requiring the tribe to make the semiannual

payments to the state only as long as the state does not

authorize new gaming in ten specified counties rather than

statewide as under the original compact terms.

Accordingly, this issue is at present ripe for review.38

As long ago as 1874, this Court recognized the

importance of respecting the proper lines of demarcation

38
The majority concludes that the issue may now be
ripe for review, but that this Court should nonetheless
decline to review it because the lower courts did not
assess this issue. Opinion of Corrigan, C.J., ante at 30;
opinion of Kelly, J., ante at 19. It is true that the
Court of Appeals declined to address the issue. However,
the circuit court considered it and found a constitutional
violation. Further, the parties briefed this issue and, in
my judgment, the record is sufficiently developed that we
may consider this question without having to first remand
it to the lower courts.

60

between the practices of our three branches of government.

In Sutherland, supra at 324-325, Justice Cooley stated:

And that there is such a broad general
principle seems to us very plain. Our government
is one whose powers have been carefully
apportioned between three distinct departments,
which emanate alike from the people, have their
powers alike limited and defined by the
constitution, are of equal dignity, and within
their respective spheres of action equally
independent. . . . This division is accepted as
a necessity in all free governments, and the very
apportionment of power to one department is
understood to be a prohibition of its exercise by
either of the others. [Emphasis added.]

This “broad general principle” elaborated upon by Justice

Cooley in Sutherland is what is now embodied in the

separation of powers doctrine of Michigan’s Constitution.

Art 3, § 2 of our Constitution provides, “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.”

“The legislative power of the State of Michigan is

vested in a senate and a house of representatives.” Const

1963, art 4, § 1. Thus, the Governor may not exercise

legislative power unless expressly provided for in the

Constitution. Yet, the amendatory provision of the tribal-

state compacts purports to grant the Governor a broad and

undefined legislative power—the power to amend legislation.

61

The Legislature may not, either by resolution or by bill,

delegate to the executive branch a broad and undefined

power to amend legislation. Thus, I would reverse the

judgment of the Court of Appeals on this issue and hold

that the amendatory provision contained in each compact

violates the separation of powers doctrine and is, thus,

void insofar as it may be regarded as granting sole

amendatory power over legislation to the Governor.39

D. DO COMPACTS CONSTITUTE LOCAL ACTS?

For the reasons set forth in part VI of Chief Justice

Corrigan’s lead opinion, I do not believe that the compacts

violate Const 1963, art 4, § 29. Accordingly, on this

39
Justice Kelly concludes that plaintiffs’ challenge
to the amendatory provision fails because plaintiffs cannot
show that “no set of circumstances exists under which the
[a]ct would be valid.” Ante at 18. She explains that
“[t]here 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.” Id. at 18. For
reasons already explained in part III (A) of this opinion,
Justice Kelly's examples represent legislative decisions
that are properly within the province of the Legislature.
That is, such amendment would constitute important policy
decisions undertaken in the process of lawmaking and they
would supplant legislative action. Therefore, such
amendments, undertaken by the Governor and not approved by
the Legislature pursuant to Const 1963, art 4, §§ 22 and 26
would offend the separation of powers doctrine. Justice
Kelly has not demonstrated that there are, in fact,
“conceivable amendments that a governor might make to these
compacts,” id., so as to not offend this doctrine.

62

issue, I concur in the lead opinion that the decisions of

the lower courts should be affirmed.

E. CONCLUSION & CONSEQUENCES

We have been asked to consider, in an action seeking

declaratory relief, whether the four tribal-state compacts

at issue are inconsistent with various procedures and

doctrines embodied in Michigan’s Constitution. Having

considered the questions presented, I strongly dissent from

the majority judgment that these compacts have been

effected consistently with our Constitution. I would hold

that these compacts constitute legislation and, thus, were

subject to legislative approval consistent with the

lawmaking procedures of art 4, §§ 22 and 26 of our

Constitution. Accordingly, I would reverse the judgment of

the Court of Appeals and reinstate the judgment of the

circuit court on this issue.

Further, in my judgment, the provision in the compacts

that purports to empower the Governor with sole amendatory

power over their covenants violates the separation of

powers doctrine of art 3, § 2 of our Constitution. I

therefore would hold that this provision is void insofar as

it grants sole amendatory power over legislation to the

Governor. Absent a proper delegation of power to the

executive branch, amendments of the compacts must

63

themselves comport with the bill-making enactment

procedures of our Constitution. Accordingly, I would

reverse the judgment of the Court of Appeals and reinstate

the judgment of the circuit court on this issue as well.

Finally, I believe that the compacts do not violate

the local acts provision of art 4, § 29 of our

Constitution. Accordingly, on this issue, I concur with

the analysis as set forth in part VI of the lead opinion,

and would affirm the decisions of the lower courts.

Concerning the consequences of this opinion for the

casinos operated by defendants, I would afford plaintiffs

no more relief than that requested. That is, in this

action for declaratory judgment, I have sought only to say

what the Constitution requires of the compact process. In

order to assess the consequences of this requirement for

the compacts at issue, other considerations must

necessarily come into play, including the standards to be

applied by the Secretary of the Interior, pursuant to 25

USC 2710(d)(8), in approving a compact, in particular, a

compact approved through procedures apparently acquiesced

in by the executive and legislative branches of a state;40

40
Generally, deliberate acts of any of the three
branches of government are presumed constitutional and,
(continued…)

64

the standards by which the Secretary of the Interior will

revisit prior approval of a compact;41 and various equitable

considerations pertinent to casinos that have already been

built and are presently operating.

The analyses of the majority are deeply flawed and

circular. As is typical in cases of this sort, the long-

term consequences of the majority judgment cannot be fully

predicted, but what is predictable is that there will be

consequences in terms of the relationships between the

branches of government. The result of the majority's

analyses in this case is that a matter of fundamental

policy concern to the people of this state—casino gambling

and its social and economic impact—a realm in which the

federal government has unequivocally authorized Michigan to

(…continued)
moreover, “state officials and those with whom they deal
are entitled to rely on a presumptively valid state [act],
[performed] in good faith and by no means plainly
unlawful.” See Lemon v Kurtzman, 411 US 192, 209; 93 S Ct
1463; 36 L Ed 2d 151 (1973). See also Thompson v
Washington, 179 US App DC 357; 551 F2d 1316 (1977), Bd of
Comm’rs of Wood Dale Pub Library Dist v Co of Du Page, 103
Ill 2d 422; 469 NE2d 1370 (1984), and, of significant
interest, Lac Vieux Desert Band of Lake Superior Chippewa
Indians v Michigan Gaming Control Bd, 2002 WL 1592596 (WD
Mich, 2002).
41
The compacts at issue have already been approved by
the Secretary of the Interior, and any declaratory judgment
along the lines of this dissenting opinion would not,
without further action by the Secretary, render such
approval null and void.

65

exercise regulatory authority, has now been transformed

into the exclusive province of a single public official,

the Governor.42 By concluding that tribal-state casino

gambling compacts do not constitute legislation, and are

not required to conform to the legislative process set

forth in the Michigan Constitution, the majority has

effectively ensured that in future cases the Legislature's

role in approving such compacts will exist merely at the

sufferance of the Governor. That is, according to the

understanding of the majority, unless the Governor agrees

in future compacts to affirmatively grant a role for the

Legislature, it will have no role. Rather than both the

executive and legislative branches being required to

42
Moreover, I fear that the majority’s "contractual"
approach to Michigan constitutional law in this case cannot
be cabined to apply only to tribal-state casino gambling
compacts, and do not understand why it would not be equally
applicable to any compact between Michigan and an Indian
tribe, a sister state, or a sovereign nation to which the
Governor may be inclined to unilaterally bind the state.
The majority appears to grant the Governor a broad power,
not even implicitly recognized in the Michigan
Constitution, to bind the state as the Governor sees fit,
as long as the Governor does so within the framework of the
majority's “contractual" approach to compacts, i.e., an
approach in which state compacts can be fully understood
through resort to the four corners of the compact itself
and without consideration to surrounding constitutional
circumstances, including the Constitution's separation of
powers doctrine, its legislative processes, and the
specific limitations it places upon the individual branches
of government.

66

approve the expansion of casinos within Michigan, the

approval of a single branch, the executive branch, will be

sufficient.

The lead decision represents the first state supreme

court decision in the United States to conclude that a

tribal-state casino gambling compact does not constitute

"legislation" and, therefore, does not require the approval

of the branch of government that is most directly

representative of the people.

Stephen J. Markman

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