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NOT RECOMMENDED FOR PUBLICATION 

File Name: 18a0020n.06 

No. 17-1362 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

BAY MILLS INDIAN COMMUNITY, 

Plaintiff-Appellee, 

 v. 

RICK SNYDER, Governor, 

 Defendant-Appellee, 

SAGINAW CHIPPEWA INDIAN TRIBE OF 

MICHIGAN, 

 Proposed Intervenor-Appellant. 

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE WESTERN 

DISTRICT OF MICHIGAN 

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BEFORE: CLAY, GIBBONS, and BUSH, Circuit Judges. 

JULIA SMITH GIBBONS, Circuit Judge. The Saginaw Chippewa Indian Tribe of 

Michigan (“Saginaw”) appeals the district court’s denial of its motion for permissive intervention 

under Federal Rule of Civil Procedure 24(b). Saginaw alleges that the district court erred in 

finding that it did not share a common question of law or fact with the main action. Saginaw 

further claims that the district court abused its discretion in denying permissive intervention 

because the district court incorrectly imposed requirements necessary for mandatory intervention 

onto its permissive intervention analysis.

We hold that the district court did not err in denying Saginaw’s motion for permissive 

intervention. Even if there was a common question of law or fact, Saginaw’s motion for 
No. 17-1362, Bay Mills Indian Cmty. v. Snyder 

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intervention was not timely and the district court did not abuse its discretion. We therefore 

affirm. 

I. 

 Saginaw is seeking to intervene in a dispute between the Bay Mills Indian Community 

(“Bay Mills”) and the state of Michigan (represented by its governor, Rick Snyder). The dispute 

arose in 2010 when Bay Mills began operating a casino in Vanderbilt, Michigan. Michigan v. 

Bay Mills Indian Cmty., 134 S. Ct. 2024, 2029 (2014). Michigan sued Bay Mills one month after 

the casino opened, alleging that the casino violated Bay Mills’s compact with the State and the 

Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq. Id. Under both the state 

compact and IGRA, Bay Mills was only permitted to open casinos on “Indian lands.” Id. Bay 

Mills defended that the Vanderbilt land was “Indian land” because it was purchased with accrued 

interest from a federal appropriation under the Michigan Indian Land Claims Settlement Act 

(“MILCSA”), which states that any land acquired with the appropriated funds “shall be held as 

Indian lands are held.” 111 Stat. 2652 § 107(a)(3); Bay Mills Indian Cmty., 134 S. Ct. at 2029. 

 The district court issued a preliminary injunction against Bay Mills, but this Circuit 

reversed, holding that tribal sovereign immunity barred the state from suing Bay Mills. Bay 

Mills Indian Cmty., 134 S. Ct. at 2029–30. Instead, Michigan could only proceed against 

individual defendants. Id. The Supreme Court granted certiorari and affirmed this Circuit’s 

finding of sovereign immunity. Id. at 2039. In accordance with that decision, the case was 

remanded to the district court and Michigan amended its complaint to drop the claims against 

Bay Mills and to plead claims against the current members of the Bay Mills Executive Council 

and Bay Mills Gaming Commission. The case is now known informally as Glezen, after the first 

defendant named on the pleadings after remand. 
No. 17-1362, Bay Mills Indian Cmty. v. Snyder 

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Concurrently to Glezen, in 2011, Bay Mills filed another lawsuit—the instant case—

seeking a declaratory judgment that the Vanderbilt land was “Indian land” and that the casino 

was not in violation of the state compact or IGRA. This declaratory judgment suit was stayed 

pending the Glezen decision. In 2015, after the remand, Michigan and Bay Mills entered into 

stipulations to coordinate both Glezen and this case. In part, the stipulations required Michigan 

to file a dispositive motion raising the sole issue of whether lands purchased with funds from the 

MILCSA were “Indian lands,” before proceeding on any other dispositive motions or discovery. 

 A day before Michigan was due to file its dispositive motion on the MILCSA issue, 

Saginaw moved for both mandatory and permissive intervention as a defendant. The district 

court denied the motion. It found that Saginaw did not have a sufficient legal interest in the suit 

to warrant mandatory intervention, nor did Saginaw have the common question of law or fact 

necessary for permissive intervention. Saginaw now appeals only the denial of permissive 

intervention under Fed. R. Civ. Pro. 24(b). Both Michigan and Bay Mills oppose Saginaw’s 

proposed intervention. 

II. 

 We review the district court’s denial of a motion for permissive intervention for abuse of 

discretion. Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 784 (6th Cir. 2007). 

Under this deferential standard, the court should “revers[e] only if ‘left with the definite and firm 

conviction’ that the district court committed a clear error of judgment.” Serv. Emps. Int’l Union 

Local 1 v. Husted, 515 F. App’x 539, 541 (6th Cir. 2013) (quoting Granholm, 501 F.3d at 784). 

A district court has discretion to grant permissive intervention on a timely motion to 

anyone who “has a claim or defense that shares with the main action a common question of law 

or fact.” Fed. R. Civ. P. 24(b)(1)(B). In exercising its discretion, the district court must also 
No. 17-1362, Bay Mills Indian Cmty. v. Snyder 

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“consider whether the intervention will unduly delay or prejudice the adjudication of the original 

parties’ rights.” Id. 24(b)(3). 

Here, Saginaw argues that it does share a common question with the dispute between Bay 

Mills and Michigan. It mainly relies on the fact that its responses to Bay Mills’s amended 

complaint substantially mirror the positions advanced by Michigan. However, Saginaw cites no 

precedent to support the idea that pleading similar responses necessarily indicates a common 

question of law or fact. Indeed, if that were true, any party wishing to intervene to support one 

side of a lawsuit could simply reiterate the pleadings of that side and thus meet the “common 

question” requirement. Permissive intervention cannot be interpreted so broadly.1

 

Saginaw further argues that this case involves an interpretation of IGRA, which governs 

all Indian tribes, including Saginaw; therefore, this IGRA issue fulfills the common question 

requirement. However, the district court correctly held that the real issue in this case does not 

involve interpreting IGRA, but rather the MILCSA. IGRA provides a framework for regulating 

gambling activity on “Indian lands.” Bay Mills Indian Cmty., 134 S. Ct. at 2028. Pursuant to 

IGRA, Bay Mills and Michigan entered into a compact in 1993, which allowed Bay Mills to 

operate casinos on “Indian lands.” Id. at 2029. 

Separately, under the MILCSA, Congress appropriated certain funds to go into a “land 

trust” for Bay Mills, and earnings from that trust were to be used to improve or purchase 

property. Id. The MILCSA also stated that any land so acquired “shall be held as Indian lands 

are held.” 111 Stat. 2652 § 107(a)(3). Based on this MILCSA language, Bay Mills and 

Michigan contest whether the Vanderbilt land, which was purchased with MILCSA funds, 

constitutes “Indian land.” Thus, as the district court correctly noted, the court is actually 

 

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 An amicus brief would have been more appropriate in this situation and, in fact, Governor Snyder suggested that 

Saginaw file an amicus brief in this case, but it did not do so. 
No. 17-1362, Bay Mills Indian Cmty. v. Snyder 

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interpreting MILCSA, not IGRA. Since Saginaw is not a party to the MILCSA, nor to the Bay 

Mills-Michigan compact, it does not share any common questions with this case. 

Saginaw points out that since Bay Mills is arguing that the Vanderbilt land is “Indian 

land,” the district court’s decision will inevitably impact what “Indian land” means under IGRA. 

However, the case is mainly focused on the language in MILCSA, not IGRA, and any effect on 

the interpretation of IGRA would be a mere side effect. Allowing this to fulfill the “common 

question” requirement would mean that any Indian tribe would be able to intervene whenever 

IGRA is implicated in any way—or, to analogize, it would allow any employer to intervene in 

any Title VII suit. Such an interpretation would be much too broad. Accordingly, the district 

court was correct to find that Saginaw does not meet the “common question” requirement for 

permissive intervention because it is not a party to MILCSA. 

III. 

Additionally, Saginaw’s motion for intervention was not timely. When considering 

whether a motion to intervene is timely, the court should consider all the circumstances, 

including: 

(1) the point to which the suit has progressed; (2) the purpose for which 

intervention is sought; (3) the length of time preceding the application during 

which the proposed intervenors knew or should have known of their interest in the 

case; (4) the prejudice to the original parties due to the proposed intervenors’ 

failure to promptly intervene after they knew or reasonably should have known of 

their interest in the case; and (5) the existence of unusual circumstances militating 

against or in favor of intervention. 

Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990). Here, these factors point to a 

finding of untimeliness. First, Saginaw filed its motion to intervene more than five years after 

this suit was initiated in 2011. Second, Saginaw admits that it has known about this litigation 

since the case began. And third, this dispute has been to the Supreme Court and back, and there 

has been much discovery and negotiation between the original parties. 
No. 17-1362, Bay Mills Indian Cmty. v. Snyder 

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While Saginaw is correct is noting that there is no absolute amount of time that makes a 

motion untimely, Stupak-Thrall v. Glickman, 226 F.3d 467, 475 (6th Cir. 2000), and that a court 

can still allow intervention even when a case is well advanced, In re Telectronics Pacing Sys., 

Inc., 221 F.3d 870, 881–82 (6th Cir. 2000), the factors here indicate that Saginaw should have 

filed a motion to intervene earlier. Accordingly, we hold that Saginaw’s motion to intervene was 

untimely. 

IV. 

Lastly, even if Saginaw’s motion was timely and did share a common question with the 

main litigation, the district court still has discretion to decide whether or not to grant permissive 

intervention. Here, the court was reasonable to conclude that the circumstances of this case did 

not warrant an intervention by Saginaw. The district court pointed out that Michigan has filed a 

summary judgment motion representing Saginaw’s view that the Vanderbilt land is not “Indian 

land” simply because it was purchased with MILCSA funds. The fact that Saginaw’s position is 

being represented counsels against granting permissive intervention. See Menominee Indian 

Tribe of Wisconsin v. Thompson, 164 F.R.D. 672, 678 (W.D. Wis. 1996.) Additionally, the long 

history of the dispute and the extensive litigation that has already occurred between Bay Mills 

and Michigan also suggest that intervention would not be appropriate. 

Saginaw argues that the district court imposed the requirements of mandatory 

intervention in its analysis of permissive intervention. However, the district court did not do so; 

instead it merely considered some of the mandatory intervention factors when evaluating 

whether permissive intervention was appropriate in light of all the circumstances. District courts 

can consider such factors when evaluating permissive intervention motions. See Granholm,

501 F.3d at 784 (affirming district court’s denial of motion for permissive intervention and 
No. 17-1362, Bay Mills Indian Cmty. v. Snyder 

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noting that the district court had properly considered the lack of a substantial legal interest and 

adequate representation by the existing parties). Thus, the district court was well within its 

discretion to deny Saginaw’s motion to intervene. 

V. 

 For the forgoing reasons, we affirm the district court’s denial of permissive intervention.