1 NOT RECOMMENDED FOR PUBLICATION File Name: 18a0020n.06 No. 17-1362 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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). Sagi naw alleges that the di strict court erred in finding that it did not share a co mmon question of law or fact w ith the main action. Saginaw further claims that the district court abused it s 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 e rr in denying Saginaw’s motion for permissive intervention. Even if there was a common qu estion of law or fact , Saginaw’s motion forNo. 17-1362, Bay Mills Indian Cmty. v. Snyder

2 intervention was not timely and the district co urt did not abuse its di scretion. We therefore affirm.
I. Saginaw is seeking to intervene in a dis pute between the Bay Mills Indian Community (“Bay Mills”) and the state of Michigan (represen ted by its governor, Rick Snyder). The dispute arose in 2010 when Bay Mills began opera ting a casino in Vande rbilt, 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 violat ed 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 permitte d to open casinos on “Indian lands.” Id. Bay Mills defended that the Vanderbilt land was “Ind ian 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 w ith 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 in junction against Bay Mills, but this Circuit reversed, holding that tribal sovereign immunity barred the st ate 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 certiora ri 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 am ended its complaint to drop the claims against Bay Mills and to plead claims against the curr ent 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

3 Concurrently to Glezen , in 2011, Bay Mills filed anothe r lawsuit—the instant case— seeking a declaratory judgment that the Vanderb ilt land was “Indian land” and that the casino was not in violation of the stat e compact or IGRA. This declar atory judgment suit was stayed pending the Glezen decision. In 2015, after the remand, Mi chigan 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 defe ndant. The district court denied the motion. It found that Saginaw did not have a suffi cient legal interest in the suit to warrant mandatory interventi on, nor did Saginaw have the co mmon 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 permis sive 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 “rev ers[e] only if ‘left with the definite and firm conviction’ that the district court co mmitted 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 discreti on 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 exer cising its discretion, the di strict court must alsoNo. 17-1362, Bay Mills Indian Cmty. v. Snyder

4 “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 co mmon question with the dispute between Bay Mills and Michigan. It mainly relies on the fact th at 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 sim ilar responses necessari ly indicates a common question of law or fact. Indeed, if that were true, a ny party wishing to in tervene to support one side of a lawsuit could simply reiterate the pl eadings of that side and thus meet the “common question” requirement. Permissive interv ention cannot be interpreted so broadly. 1 Saginaw further argues that th is case involves an interpre tation of IGRA, which governs all Indian tribes, including Sagi naw; therefore, this IGRA issu e 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 MILC SA. IGRA provides a fr amework 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 tr ust 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). Ba sed on this MILCSA language, Bay Mills and Michigan contest whether the Vanderbilt lan d, which was purchased with MILCSA funds, constitutes “Indian land.” Thus, as the district court corr ectly noted, the court is actually

1 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

5 interpreting MILCSA, not IGRA. Since Saginaw is not a party to the MILCSA, nor to the Bay Mills-Michigan compact, it does not share a ny 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 allo w any employer to intervene in any Title VII suit. Such an interpretation woul d 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 interventi on was not timely. When considering whether a motion to intervene is timely, the c ourt 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 shou ld have known of their interest in the case; (4) the prejudice to th e original parties due to the proposed intervenors’ failure to promptly interv ene after they knew or reas onably 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 interv ene 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 th e Supreme Court and back, and there has been much discovery and negotiati on between the original parties.No. 17-1362, Bay Mills Indian Cmty. v. Snyder

6 While Saginaw is correct is noting that ther e 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 he re 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 timel y and did share a common question with the main litigation, the district court still has discreti on 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 distri ct court pointed out that Michigan has filed a summary judgment motion represen ting Saginaw’s view that the Vanderbilt land is not “Indian land” simply because it was purchased with MILC SA funds. The fact th at 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 litigatio n that has already occurred between Bay Mills and Michigan also suggest that inte rvention would not be appropriate. Saginaw argues that the district court imposed the requirements of mandatory intervention in its analys is of permissive intervention. However, the district court did not do so; instead it merely considered some of the ma ndatory intervention factors when evaluating whether permissive intervention was appropriate in light of all the circumst ances. District courts can consider such factors when evalua ting permissive intervention motions. See Granholm , 501 F.3d at 784 (affirming district court’s denial of motion for permissive intervention andNo. 17-1362, Bay Mills Indian Cmty. v. Snyder

7 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 distri ct court’s denial of permissive intervention.