Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 30, 2007 

TAXPAYERS OF MICHIGAN AGAINST 

CASINOS and LAURA BAIRD, State 

Representative in her official capacity, 

Plaintiffs-Appellants, 

v No. 129816 

THE STATE OF MICHIGAN, 

Defendant-Appellee, 

and 

GAMING ENTERTAINMENT, LLC and 

LITTLE TRAVERSE BAY BANDS OF 

ODAWA INDIANS, 

 Intervening DefendantsAppellees, 

and 

NORTH AMERICAN SPORTS 

MANAGEMENT COMPANY, 

 Intervening Defendant. 
 

v 

TAXPAYERS OF MICHIGAN AGAINST 

CASINOS and LAURA BAIRD, State 

Representative in her official capacity, 

Plaintiffs-Appellees, 

No. 129818 

THE STATE OF MICHIGAN, 

Defendant-Appellant, 

and 

GAMING ENTERTAINMENT, LLC and 

LITTLE TRAVERSE BAY BANDS OF 

ODAWA INDIANS, 

 Intervening DefendantsAppellees, 

and 

NORTH AMERICAN SPORTS 

MANAGEMENT COMPANY, 

 Intervening Defendant. 

TAXPAYERS OF MICHIGAN AGAINST 

CASINOS and LAURA BAIRD, State 

Representative in her official capacity, 

Plaintiffs-Appellees, 

2
 

v 
 

_____________________________________ 

 

THE STATE OF MICHIGAN, 

Defendant-Appellee, 

and No. 129822 

GAMING ENTERTAINMENT, LLC, 

Intervening-DefendantAppellee, 

and 

LITTLE TRAVERSE BAY BANDS OF 

ODAWA INDIANS, 

 Intervening DefendantAppellant, 

and 

NORTH AMERICAN SPORTS 

MANAGEMENT COMPANY, 

 Intervening Defendant. 

BEFORE THE ENTIRE BENCH 

CAVANAGH, J. 

We granted leave to appeal to determine whether the amendatory provision 

in the compacts at issue and the exercise of that provision by the Governor violate 

the Separation of Powers Clause of the Michigan Constitution. 474 Mich 1097 

(2006).1

 We hold that the amendatory provision and the exercise of that provision 

1

 We note that while Laura Baird is a named plaintiff in this case, she has 

been inactive during the appellate process. In fact, Baird filed a motion with the 

(continued...) 

3
 
 

do not violate the Separation of Powers Clause because the amendatory provision 

was properly approved by legislative resolution and the Governor’s exercise of the 

amendatory provision was within the limits of the constitution. Further, we hold 

that the issue whether the compacts violate the Appropriations Clause of the 

Michigan Constitution is not properly before this Court because the issue is 

beyond the parameters of this Court’s prior order remanding this matter to the 

Court of Appeals. Thus, we reverse in part the judgment of the Court of Appeals 

and hold that the amendatory provision and the current exercise of that provision 

do not violate the Separation of Powers Clause. We further affirm in part the 

judgment of the Court of Appeals that struck the portion of plaintiff’s brief that 

sought to address the Appropriations Clause issue. Accordingly, we remand this 

case to the circuit court for the entry of a judgment of summary disposition in 

favor of defendants. 

I. STATEMENT OF FACTS AND PROCEEDINGS 

In January 1997, Governor John Engler and four Indian tribes signed tribal 

gaming compacts. The four tribes were the Little Traverse Bay Bands of Odawa 

Indians, the Pokagon Band of Potawatomi Indians, the Little River Band of 

Ottawa Indians, and the Nottawaseppi Huron Potawatomi. In Taxpayers of 

(continued...) 

Court of Appeals asking that she be dismissed as a party. While this motion was 

denied, her inactivity has rendered the issue of standing as it relates to legislators 

(continued...) 

4
 
 

Michigan Against Casinos v Michigan, 471 Mich 306; 685 NW2d 221 (2004) 

(TOMAC I), this Court considered three aspects of the alleged unconstitutionality 

of these tribal gaming compacts between the state and the tribes. This Court 

affirmed the Court of Appeals judgment, 254 Mich App 23; 657 NW2d 503 

(2002), that held that the compacts were properly approved by the Legislature 

through a resolution, rather than a bill; that this did not violate art 4, § 22 of the 

Michigan Constitution; and that the resolution was not a “local act” in violation of 

art 4, § 29 of the Michigan Constitution. However, this Court also held that the 

question whether the amendatory provision in the compacts was constitutional 

under the Separation of Powers Clause, Const 1963, art 3, § 2, was not ripe for 

review because the Court of Appeals had not considered the issue. Governor 

Jennifer Granholm’s exercise of the amendatory authority had not occurred until 

after the Court of Appeals decision. Thus, this Court remanded the matter to the 

Court of Appeals to determine whether the amendatory provision violates the 

separation of powers doctrine. 

On remand, the Court of Appeals held that the compacts’ amendatory 

provision, which allows the Governor to amend the compacts without legislative 

approval, violates the Separation of Powers Clause. Taxpayers of Michigan 

Against Casinos v Michigan (On Remand), 268 Mich App 226, 228; 708 NW2d 

(continued...) 

moot. Accordingly, the term “plaintiff” when used in this opinion only refers to 

(continued...) 

5
 
 

115 (2005). Judge Borrello dissented and stated that the Separation of Powers 

Clause was not violated because the Legislature’s approval of the compacts 

included approval of the amendatory provision. 

II. STANDARD OF REVIEW 

This Court reviews de novo a decision regarding a motion for summary 

disposition. Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000). 

This Court also reviews constitutional issues de novo. Harvey v Michigan, 469 

Mich 1, 6; 664 NW2d 767 (2003). Decisions involving the meaning and scope of 

pleadings are reviewed for an abuse of discretion. Dacon v Transue, 441 Mich 

315, 328; 490 NW2d 369 (1992). 

III. ANALYSIS 

Under the Indian Gaming Regulatory Act (IGRA), 25 USC 2701 et seq., an 

Indian tribe may conduct gaming within the borders of a state if the activity 

conforms to a compact between the state and the tribe. The compacts at issue 

were signed by Governor Engler, and the Legislature approved the compacts by 

resolution. In 2003, Governor Granholm consented to an amendment of the 

compact with the Little Traverse Bay Bands of Odawa Indians. 

A. SEPARATION OF POWERS CLAUSE 

(continued...) 

plaintiff Taxpayers of Michigan Against Casinos. 

6
 
Michigan’s Separation of Powers Clause states: “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. “This Court has established that the separation of powers 

doctrine does not require so strict a separation as to provide no overlap of 

responsibilities and powers.” Judicial Attorneys Ass’n v Michigan, 459 Mich 291, 

296; 586 NW2d 894 (1998). An overlap or sharing of power may be permissible 

if “the grant of authority to one branch is limited and specific and does not create 

encroachment or aggrandizement of one branch at the expense of the other . . . .” 

Id. at 297. The Separation of Powers Clause “has not been interpreted to mean 

that the branches must be kept wholly separate.” Soap & Detergent Ass’n v 

Natural Resources Comm, 415 Mich 728, 752; 330 NW2d 346 (1982). 

The amendatory provision at issue provides: 

Section 16. Amendment 

This Compact may be amended by mutual agreement 

between the Tribe and the State as follows: 

(A) The Tribe or the State may propose amendments to the 

Compact by providing the other party with written notice of the 

proposed amendment as follows: 

(i) The Tribe shall propose amendments pursuant to the 

notice provisions of this Compact by submitting the proposed 

amendments to the Governor who shall act for the State. 

7
 
 

(ii) The State, acting through the Governor, shall propose 

amendments by submitting the proposed amendments to the Tribe 

pursuant to the notice provisions of this Compact. 

(iii) Neither the tribe nor the State may amend the definition 

of “eligible Indian lands” to include counties other than those set 

forth in Section 2(B)(1) of this Compact. . . . 

* * * 

(B) The party receiving the proposed amendment shall advise 

the requesting party within thirty (30) days as follows: 

(i) That the receiving party agrees to the proposed 

amendment; or 

(ii) That the receiving party rejects the proposed amendment 

as submitted and agrees to meet concerning the subject of the 

proposed amendment. 

(C) Any amendment agreed to between the parties shall be 

submitted to the Secretary of the Interior for approval pursuant to the 

provisions of the IGRA. 

(D) Upon the effective date of the amendment, a certified 

copy shall be filed by the Governor with the Michigan Secretary of 

State and a copy shall be transmitted to each house of the Michigan 

Legislature and the Michigan Attorney General. [Emphasis added.] 

Governor Granholm and the Little Traverse Bay Band of Odawa Indians 

agreed to amend the compact in a number of ways. Among other items, the 

amendment permitted a second casino to be constructed on eligible Indian lands of 

the Little Traverse Bay Bands of Odawa Indians, contingent on the approval of the 

local unit of government; changed the age of legal gambling from 18 to 21 at this 

casino; mandated that tribal payments must now be sent to the state, as directed by 

the Governor or a designee of the Governor, as opposed to sending the payments 

to the Michigan Strategic Fund or its successor; and mandated that the compact 

8
 
 

was binding for 25 years from the effective date of the amendments, instead of 

being binding for 20 years from the effective date of the compact. 

The amendatory provision allows the Governor to act for the state in 

reviewing and approving amendments submitted by the tribes and in proposing 

amendments to the tribes. This amendatory provision expresses the bilateral 

agreement between the parties that the Governor will represent the state in matters 

involving amendments. The Legislature reviewed the language of this amendatory 

provision and approved the amendment procedure, which gives the Governor 

broad discretion—within the limits of the constitution—to amend the compacts. 

The compacts were properly approved by legislative resolution.2 As stated 

in TOMAC I, “our Constitution does not require that our Legislature express its 

approval of these compacts through bill rather than resolution.” TOMAC I, supra 

at 313. The compacts—when approved by the Legislature—included the 

amendatory provision. As this Court held in TOMAC I, supra at 313, a resolution 

was sufficient for legislative approval of the compacts. Similarly, the resolution 

2

 While Justice Markman again revisits his arguments that the compacts 

were legislation under Blank v Dep’t of Corrections, 462 Mich 103; 611 NW2d 

530 (2000), this Court already explained its position and addressed the flaws in 

Justice Markman’s rationale in TOMAC I, supra at 318-333; thus, there is no 

reason to reiterate this reasoning. Further, Justice Markman’s discussion that 

MCL 432.203(5) suggests that casino gaming must be authorized by legislation in 

the absence of a compact is irrelevant here because there is a compact in this case 

in accord with IGRA and the compact properly allows for amendments. 

9
 
 

 

also amounted to sufficient approval for the amendatory provision within the 

compacts. 

The Legislature’s approval of the amendatory provision gave consent to 

amendments that conform to the approved procedure. The Legislature chose to 

approve an amendment procedure that gives the Governor broad power to amend 

the compacts, and the Legislature was well within its authority to make such a 

decision. See id. at 329. This Court has long recognized the ability of the 

Legislature to confer authority on the Governor. See, e.g., People ex rel 

Sutherland v Governor, 29 Mich 320, 329 (1874). This Court has further 

recognized that discretionary decisions made by the Governor are not within this 

Court’s purview to modify. See, e.g., People ex Rel Ayres v Bd of State Auditors, 

42 Mich 422, 426; 4 NW 274 (1880).3 

As this Court stated in TOMAC I, supra at 328, “We have held that our 

Legislature has the general power to contract unless there is a constitutional 

limitation.” There is no limitation in Michigan’s Constitution on the Legislature’s 

power to bind the state to a compact with a tribe. “State legislatures have no 

regulatory role under IGRA aside from that negotiated between the tribes and the 

states.” Id. at 320. The Legislature’s approval of the compacts only follows the 

3

 Contrary to Justice Markman’s claims, we note that the Governor’s 

authority to negotiate amendments is not without limits. Some limits are in the 

compacts themselves, and the Governor cannot negotiate amendments that extend 

(continued...) 

10
 
 

assent of the parties to the compacts. This does not establish, “in the realm of 

Indian casinos, ‘government by contract’” that avoids the restrictions and 

provisions of the constitution, as argued by Justice Markman. Post at 23. The 

amendments—just as the compacts themselves—“only set forth the parameters 

within which the tribes, as sovereign nations, have agreed to operate their gaming 

facilities.” TOMAC I, supra at 324. Our constitution does not prohibit the 

Legislature from approving compacts by concurrent resolution. Id. at 327-328. 

Thus, it is entirely permissible for the Legislature to provide, by resolution, that 

the Governor may negotiate subsequent amendments to the compacts. Because 

the agreed-to amendments are permissible, plaintiff has failed to establish that the 

amendatory provision and the exercise of that provision are unconstitutional. The 

amendatory provision survives both a facial and an as-applied challenge under the 

Separation of Powers Clause because all the amendments negotiated by the 

Governor are permissible. See Judicial Attorneys Ass’n, supra at 303; Woll v 

Attorney General, 409 Mich 500, 535 n 50; 297 NW2d 578 (1980). Specifically, 

the amendments “do not impose new obligations on the citizens of the state 

subject to the Legislature’s power; they simply reflect the contractual terms agreed 

(continued...) 

beyond these limits. And, of course, the Governor cannot agree to an amendment 

that would violate the constitution or invade the Legislature’s lawmaking function. 

11
 
 

to by two sovereign entities.” TOMAC I, supra at 327;4

 see also TOMAC I, supra 

at 344 (Kelly, J., concurring) (The compacts “place no restrictions or duties on the 

people of the state of Michigan. They create no duty to enforce state laws on 

tribal lands.”). 

Finally, today’s decision is not in conflict with this Court’s past decision in 

Roxborough v Unemployment Compensation Comm, 309 Mich 505; 15 NW2d 

724 (1944). In Roxborough, supra at 510, this Court stated that the Governor 

could “exercise only such authority as was delegated to him by legislative 

enactment.” This Court held that the Governor could not increase compensation 

for an employee of the appeal board of the Unemployment Compensation 

Commission because the Legislature had passed legislation to limit the 

compensation of this employee to the maximum amount permitted by the Social 

Security Board. The Governor could not ignore this limitation. Roxborough is 

inapplicable because that case dealt with a unilateral act of the Legislature. The 

4

 Justice Markman is simply incorrect when he states that the fact that the 

amendments reflect the contractual terms agreed to by two sovereign nations is 

“irrelevant to the necessary constitutional analysis.” Post at 36. As thoroughly 

explained in TOMAC I, supra at 324, “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.” Thus, the Legislature’s role in approving the compacts and 

amendatory provision “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.” Id. Justice Markman’s dissent is largely premised 

on the notion that the compacts and the amendments constitute legislation; thus, it 

is perplexing why a statement showing the contrary is irrelevant to the analysis. 

12
 
compacts, however, are bilateral agreements. Further, the Legislature’s approval 

by resolution of the compacts—which included the amendatory provision— 

provides the Governor with authority to negotiate and agree to amendments on 

behalf of the state. Thus, the amendatory provision—on its face and as it was 

exercised by the Governor—does not violate the Separation of Powers Clause of 

the Michigan Constitution. 

B. APPROPRIATIONS CLAUSE 

Michigan’s Appropriations Clause states, “No money shall be paid out of 

the state treasury except in pursuance of appropriations made by law.” Const 

1963, art 9, § 17. On remand in the Court of Appeals, plaintiff argued that the 

compacts violate Michigan’s Appropriations Clause because this Court 

determined that the compacts are contracts. Plaintiff argued that consideration 

must have been exchanged by the parties to each compact. Therefore, the tribal 

payments under the compacts are state funds that the Legislature must appropriate 

by legislation. Plaintiff raised this issue for the first time in the Court of Appeals 

when this case was remanded, and plaintiff argued that the issue was within the 

scope of this Court’s remand order and could not have been raised earlier because 

it was based on this Court’s ruling in TOMAC I. Intervening defendant Gaming 

Entertainment, LLC, moved to strike the portion of plaintiff’s brief dealing with 

the Appropriations Clause because the issue went beyond this Court’s remand 

13
 
order. The Court of Appeals granted the motion to strike and, thus, did not 

address this issue. 

We agree with the Court of Appeals that the appropriations issue was not 

properly before it. This Court remanded this matter to the Court of Appeals to 

address a specific issue—“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.” 

TOMAC I, supra at 333. The appropriations issue is outside the scope of this 

Court’s remand order; thus, the Court of Appeals correctly held that the issue was 

not properly before it. See, e.g., Napier v Jacobs, 429 Mich 222, 228; 414 NW2d 

862 (1987); People v Jones, 394 Mich 434, 435-436; 231 NW2d 649 (1975). 

Plaintiff cannot raise any issue it chooses merely because this Court remanded this 

case to the Court of Appeals to address another issue. Simply, if this Court had 

not remanded the matter to the Court of Appeals to address the separation of 

powers issue, plaintiff would not be able to raise a new issue directly in the Court 

of Appeals. Similarly, plaintiff cannot do so now. 

IV. CONCLUSION 

We hold that the amendatory provision and the Governor’s exercise of that 

provision do not violate the Separation of Powers Clause because the amendatory 

provision was properly approved by legislative resolution and the Governor’s use 

of the amendatory provision was exercised within the limits of the constitution. 

14
 
Thus, we reverse in part the judgment of the Court of Appeals and hold that the 

amendatory provision and the current exercise of that provision do not violate the 

Separation of Powers Clause. We further hold that the issue whether the tribal 

payments under the compacts violate the Appropriations Clause of the Michigan 

Constitution is not properly before this Court because it is beyond the parameters 

of this Court’s prior remand order. Thus, we affirm in part the judgment of the 

Court of Appeals that struck the portion of plaintiff’s brief that sought to address 

15
 
the Appropriations Clause issue. Accordingly, we remand this case to the circuit 

court for entry of a judgment of summary disposition in favor of defendants. 

Michael F. Cavanagh 

Clifford W. Taylor 

 Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

16
 
 

v 

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, State 

Representative in her official capacity, 

Plaintiffs-Appellants, 

No. 129816 

THE STATE OF MICHIGAN, 

Defendant-Appellee, 

and 

GAMING ENTERTAINMENT, LLC and 

LITTLE TRAVERSE BAY BANDS OF 

ODAWA INDIANS, 

 Intervening DefendantsAppellees, 

and 

NORTH AMERICAN SPORTS 

MANAGEMENT COMPANY, 

 Intervening Defendant. 

TAXPAYERS OF MICHIGAN AGAINST 

CASINOS and LAURA BAIRD, State 

Representative in her official capacity, 

Plaintiffs-Appellees, 
 

v No. 129818 

THE STATE OF MICHIGAN, 

Defendant-Appellant, 

and 

GAMING ENTERTAINMENT, LLC and 

LITTLE TRAVERSE BAY BANDS OF 

ODAWA INDIANS, 

 Intervening DefendantsAppellees, 

and 

NORTH AMERICAN SPORTS 

MANAGEMENT COMPANY, 

 Intervening Defendant. 

TAXPAYERS OF MICHIGAN AGAINST 

CASINOS and LAURA BAIRD, State 

Representative in her official capacity, 

Plaintiffs-Appellees, 

v No. 129822 

THE STATE OF MICHIGAN, 

Defendant-Appellee, 

and 

GAMING ENTERTAINMENT, LLC, 

2
 
____________________________________ 

 

 

 Intervening DefendantAppellee, 

and 

LITTLE TRAVERSE BAY BANDS OF 

ODAWA INDIANS, 

 Intervening DefendantAppellant, 

and 

NORTH AMERICAN SPORTS 

MANAGEMENT COMPANY, 

Intervening Defendant. 

WEAVER, J. (dissenting). 

I dissent from the majority’s decision holding that the amendatory 

provision in the compacts at issue, and the exercise of that provision by Governor 

Granholm, does not violate the Separation of Powers Clause, because the compact 

containing the amendatory provision was not properly enacted by a legislative bill 

and the Governor’s exercise of the amendatory provision is outside the limits of 

the constitution. I would hold that the compacts are void because they are 

legislation, required to be enacted by bill. As a result, I would hold that the 

amendatory provisions contained within the compacts are also void.1 

1

 See Taxpayers of Michigan Against Casinos v Michigan, 471 Mich 306, 

353-354; 685 NW2d 221 (2004) (Weaver, J., concurring in part and dissenting in 

part). 

3
ANALYSIS 

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 the Senate and the 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. People ex rel Sutherland v Governor, 29 Mich 320, 325 

(1874); People ex rel Attorney General v Holschuh, 235 Mich 272, 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, 602; 

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, change the policy laid down by the legislature, or substitute its own 

policy for that of the legislature.” 16 CJS, Constitutional Law, § 359, pp 599-600. 

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 

4
 
 

 

of the Legislature. The compacts at issue in this case contain examples of policy 

decisions made for each of the seven issues recognized in 25 USC 

2710(d)(3)(C)(i) through (vii). 2 

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 multimember, representative 

2

 As allowed under 25 USC 2710(d)(3)(c)(i), tribal law and regulations, 

not state law, are applied to regulate gambling. But the compact applies state law, 

as amended, to the sale and regulation of alcoholic beverages encompassing 

certain areas. See § 10(A) of the compact. Under 25 USC 2710(d)(3)(c)(ii), the 

tribe, not the state, is given responsibility to administer and enforce the regulatory 

requirements. See Compact § 4(M)(1). As provided in 25 USC 2710(d)(3)(c) (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. See Compact § 

4(M)(5). Also, the compact states that the tribe must pay two percent of the “net 

win” at each casino derived from certain games to the county treasurer. See 

Compact § 18(A)(i). Under 25 USC 2710(d)(3)(c)(iv), the tribe could tax the 

gaming activity, but the compact does not allow such taxation. As allowed by 25 

USC 2710(d)(3)(c)(v), the compact provides for dispute resolution procedures in 

the event there is a breach of contract. See Compact § 7. As allowed by 25 USC 

2710(d)(3)(c)(vi), the compact includes standards for whom a tribe can license and 

hire in connection with gaming, Compact § 4(D), sets accounting standards the 

gaming operation must follow, Compact § 4(H), 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, Compact § 6(A). Under 25 USC 

2710(d)(3)(c)(vii), the compact addresses the “other subjects that are directly 

related to the operation of gaming activities” throughout the document. For 

example, it allows for additional class III games to be conducted through the 

agreement of the tribe and the state. Compact § 3(B). Also, the compact states that 

the tribe must purchase the spirits it sells at the gaming establishments from the 

(continued...) 

5
 
 

Legislature is entrusted to perform under the constitutional separation of powers. 

See Saratoga Co Chamber of Commerce v Pataki, 100 NY2d 801, 823; 766 

NYS2d 654; 798 NE2d 1047 (2003). 

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 hold that committing the state to 

the myriad policy choices inherent in negotiating a gaming compact constitutes a 

legislative function. Thus, the Governor did not have the authority to bind the 

state to a compact with an Indian tribe, as this Court wrongly concluded in 

Taxpayers of Michigan Against Casinos v Michigan, 471 Mich 306; 685 NW2d 

221 (2004), and the Governor does not now have the power to unilaterally 

exercise the amendatory provisions contained within the compacts. 

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 the Legislature must exercise 

its power to bind the state by enacting a bill, not by passing a joint resolution. I 

conclude that the compacts are void and, accordingly, so are the amendatory 

(continued...) 

Michigan Liquor Control Commission and that it must purchase beer and wine 

(continued...) 

6
 
 

provisions contained within the compacts. I would hold that the compacts are 

void and that the provisions that permit the Governor to amend the compacts are 

unconstitutional. 

Elizabeth A. Weaver 

(continued...) 

from distributors licensed by the commission. Compact § 10(B). 

7
 
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, State 

Representative in her official capacity, 

Plaintiffs-Appellants, 

v No. 129816 

THE STATE OF MICHIGAN, 

Defendant-Appellee, 

and 

GAMING ENTERTAINMENT, LLC, and 

LITTLE TRAVERSE BAY BANDS OF 

ODAWA INDIANS, 

Intervening DefendantsAppellees, 

and 

NORTH AMERICAN SPORTS MANAGEMENT 

COMPANY, 

Intervening Defendant. 

_____________________________________ 

TAXPAYERS OF MICHIGAN AGAINST 

CASINOS and LAURA BAIRD, State 

Representative in her official capacity, 

Plaintiffs-Appellees, 

v No. 129818 
_____________________________________ 

v 

THE STATE OF MICHIGAN, 

Defendant-Appellant, 

and 

GAMING ENTERTAINMENT, LLC and 

LITTLE TRAVERSE BAY BANDS OF 

ODAWA INDIANS, 

Intervening Defendants-Appellees, 

and 

NORTH AMERICAN SPORTS MANAGEMENT 

COMPANY, 

Intervening Defendant. 

TAXPAYERS OF MICHIGAN AGAINST 

CASINOS and LAURA BAIRD, State 

Representative in her official capacity, 

Plaintiffs-Appellees, 

No. 129822 

THE STATE OF MICHIGAN, 

Defendant-Appellee, 

and 

GAMING ENTERTAINMENT, LLC, 

Intervening Defendant-Appellee, 

and 

LITTLE TRAVERSE BAY BANDS OF 

ODAWA INDIANS, 

Intervening Defendant-Appellant, 

and 

2
 
_______________________________ 

NORTH AMERICAN SPORTS MANAGEMENT 

COMPANY, 

Intervening Defendant. 

MARKMAN, J. (dissenting). 

I respectfully dissent. The majority here expands the “casino exception” to 

representative government that it effectively established in Taxpayers of Michigan 

Against Casinos v Michigan, 471 Mich 306; 685 NW2d 221 (2004) (TOMAC I). 

Pursuant to this exception, in the realm of Indian casinos: (1) the Legislature may 

approve legislation by something other than the regular legislative process; (2) the 

Governor may enact the equivalent of legislation without the involvement of the 

Legislature; and (3) the Legislature may delegate its legislative power by 

authorizing the Governor to exercise this power without imposing adequate 

standards on its exercise. As I asserted in TOMAC I, the original ratification of the 

instant compact by legislative resolution did not conform to the constitutional 

requirements for the passage of legislation. Therefore, because this compact was 

unconstitutionally established, the 2003 amendments of the compact at issue are 

unconstitutional as well. Moreover, these amendments themselves constitute 

legislation, and their unilateral adoption by the Governor violates provisions of the 

Michigan Constitution that establish the procedures for the enactment of 

legislation. Const 1963, art 4, §§ 25, 26, and 33. Further, even if I accepted the 

rationale of the majority in TOMAC I that the compact did not constitute 

3
 
legislation, I would still conclude that the Legislature’s purported grant of power 

to the Governor to amend the compacts gives her amendatory authority without 

standards, and thereby violates the Separation of Powers Clause of the Michigan 

Constitution. Const 1963, art 3, § 2. The ultimate effect of the majority’s decision 

is, in the realm of Indian casinos, to establish “government by contract” in lieu of 

“government by constitution,” under which the Governor and the Legislature may 

circumvent the charter of this state through the formation of contracts with outside 

entities. This “government by contract” deprives the people of Michigan of the 

right to exercise self-government with regard to Indian casino policy by permitting 

the Governor to enact the equivalent of legislation, with little or no role for the 

people’s elected representatives in the Legislature. For these reasons, I would 

affirm the judgment of the Court of Appeals. 

I. STATEMENT OF FACTS 

In 1998, the state of Michigan and four Indian tribes entered into Indian 

gaming compacts to allow casino gaming on tribal land pursuant to the federal 

Indian Gaming Regulatory Act. 25 USC 2710(d)(1)(C). According to the 

compacts’ terms, the compacts would take effect when House Concurrent 

Resolution 115 was adopted by the Michigan Legislature on December 10, 1998. 

In § 16, the compacts provide for their own amendment, stating: 

This Compact may be amended by mutual agreement 

between the Tribe and the State as follows: 

4
 
 

(A) The Tribe or the State may propose amendments to the 

Compact by providing the other party with written notice of the 

proposed amendment as follows: 

(i) The Tribe shall propose amendments pursuant to the 

notice provisions of this Compact by submitting the proposed 

amendments to the Governor who shall act for the State. 

(ii) The State, acting through the Governor, shall propose 

amendments by submitting the proposed amendments to the Tribe 

pursuant to the notice provisions of this Compact. 

* * * 

(B) The party receiving the proposed amendment shall advise 

the requesting party within thirty (30) days as follows: 

(i) That the receiving party agrees to the proposed 

amendment; or 

(ii) That the receiving party rejects the proposed amendment 

as submitted and agrees to meet concerning the subject of the 

proposed amendment. 

This amendment process thus allows the Governor, acting on behalf of the state, to 

propose an amendment to the tribes, which the tribes may or may not accept. The 

tribes may also propose amendments to the Governor, who may accept or not 

accept the proposed amendments on behalf of the state. Although the Legislature 

initially ratified the compacts by resolution, the compacts exclude the Legislature 

from the amendment process. 

In July 2003, the Governor consented to amendments that had been 

proposed by the Little Traverse Bay Bands of Odawa Indians (LTBB). These 

amendments alter several features of the original compact. First, the amendments 

allow the LTBB to create a second casino, subject to the approval of the local 

5
 
government. Second, the amendments provide that the gambling age in the 

second casino would be 21, instead of 18 as in the tribe’s first casino. Third, the 

duration of the compact is lengthened from 20 to 25 years from the date of the 

amendments. Fourth, the tribe would now make payments as directed by the 

Governor, and not directly to the Michigan Strategic Fund. Fifth, the percentage 

of the “net win” accorded to the state would be modified for the second casino. 

Sixth, if another tribe was permitted more than two casinos, the LTBB would be 

allowed to operate an equal number. Finally, the LTBB agreed to make payments 

to the state as long as the state did not permit the erection of new casinos within a 

specified ten-county area. 

II. TOMAC I 

In TOMAC I, I dissented from the majority’s decision to acquiesce to the 

approval of the compacts by resolution. I continue to believe that TOMAC I was 

wrongly decided. The compacts, in my judgment, constitute legislation under the 

test adopted by this Court in Blank v Dep’t of Corrections, 462 Mich 103; 611 

NW2d 530 (2000). Because they are legislation, the Legislature and the Governor 

were required to approve the compacts by the legislative process set forth in the 

constitution. This method was not followed. Accordingly, the first reason that the 

present amendments of the LTBB compact are unconstitutional is simply because 

the compact itself was never constitutionally enacted. Moreover, as I sought to 

explain in TOMAC I, the amendment procedure in the compacts violates the 

6
 
 

Separation of Powers Clause, because this procedure allows the Governor to 

amend legislation. 

In TOMAC I, the critical issue was whether the compacts themselves are 

legislation, and are thus subject to constitutional requirements for the enactment of 

legislation. In Blank, this Court adopted a four-factor test developed 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), to determine whether governmental 

action constitutes legislation. I applied these factors in evaluating the compacts in 

TOMAC I and concluded that the compacts were legislation.1 The four factors are 

(1) whether the compacts at issue “‘had the purpose and effect 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.” [TOMAC I, supra at 378 

(opinion by Markman, J.).] 

1

 The majority rejects the application of the Blank framework, stating that 

“this Court already explained its position and addressed the flaws in Justice 

Markman’s rationale in TOMAC I, supra at 318-333.” Ante at 9 n 2. Indeed, the 

majority concluded in TOMAC I that the Blank framework was “not relevant 

because the compacts [did] not constitute legislation.” TOMAC I, supra at 378 n 9 

(opinion by Markman, J.). However, as I responded at the time, “the very point of 

utilizing the [Blank] framework is to determine whether the compacts constitute 

legislation.” Id. (emphasis in original). The majority does not even purport to 

apply the Blank framework to the amendments to the compact. 

7
 
 

For the reasons elaborated upon in TOMAC I, the compacts between the 

state and the tribes constitute legislation. Concerning the first Blank factor, the 

compacts alter the legal rights of persons outside the legislative branch, because 

Indian casino gaming was illegal in Michigan under state and federal law before 

the enactment of the compacts. Under 18 USC 1166(a), in the absence of a 

compact, “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.” See TOMAC I, supra at 379-381. Because casino 

gaming would be illegal on Indian lands under this provision if state law prohibits 

such gaming, it was necessary in TOMAC I to determine whether Michigan law 

prohibits Indian casino gaming in the absence of a compact. In fact, Michigan law 

generally prohibits casino gaming. MCL 750.301. Casino gaming in Michigan is 

only allowed pursuant to the Michigan Gaming Control and Revenue Act, MCL 

432.201 et seq., which does not apply to “[g]ambling on Native American land,” 

MCL 432.203(2)(d). Further, under the Indian Gaming Regulatory Act, class III 

gaming,2

 like that allowed in this case, is lawful on Indian lands only if the gaming 

2

 “[C]lass III gaming” is defined as “all forms of gaming that are not class I 

gaming or class II gaming.” 25 USC 2703(8). “[C]lass I gaming” is defined as 

“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). “[C]lass II gaming” is defined as 

“bingo” and “card games” that are either “explicitly authorized by the laws of the 

(continued...) 

8
 
 

is “conducted in conformance with a Tribal-State compact entered into by the 

Indian tribe and the State . . . .” 25 USC 2710(d)(1)(C). Therefore, under both 

federal and state law, casino gaming by these tribes would have been illegal in the 

absence of the compacts. Moreover, the compacts require local units of 

government either to create a local revenue sharing board to receive a percentage 

of tribal gaming profits or to pay for the additional municipal burdens created by 

the casinos, such as increased costs for public services. TOMAC I, supra at 382. 

Regardless of which option is chosen by local units, the compacts impose new 

duties on government. The compacts therefore alter the legal rights and duties of 

persons outside the legislative branch by permitting the tribes to operate casinos, 

and by requiring local units of government to undertake certain actions. 

Concerning the second Blank factor, passage of the compacts by resolution 

supplanted legislative action. Because federal law dictates that state laws apply 

within Indian reservations in the absence of a compact, 18 USC 1166, the sole 

alternative method for allowing Indian gaming in this state would have been 

through an alteration of state law. As I earlier explained: 

[I]n 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 

(continued...) 

State” or “not explicitly prohibited by the laws of the State . . . . ” 25 USC 

2703(7)(A). However, class II gaming does not include “any banking card games, 

including baccarat, chemin de fer, or blackjack,” or slot machines. 25 USC 

2703(7)(B). 

9
 
 

 

 

applicable within the state or by changing the reach of the [Michigan 

Gaming Control and Revenue Act]. Changing those laws would, it 

cannot seriously be disputed, require “legislation.” [TOMAC I, 

supra at 384.] 

With regard to the third Blank factor, enactment of the compacts involved 

numerous policy determinations, of which “the most significant . . . was the initial 

decision to make lawful what was otherwise unlawful-- casino gambling on the 

subject Indian lands.” Id. at 385. Other considerations, including how many 

casinos to allow, what the gambling age should be, what percentage of “net win” 

the tribes should be required to pay to the state, whether to extend the state 

employment security act and workers’ compensation benefits to casino workers, 

and who should enforce the rules and regulations of the compacts, are all 

significant policy decisions. Id. 

Concerning the final Blank factor, the Michigan Constitution does not 

allow the passage of legislation by resolution, except in specified instances that 

were not relevant in TOMAC I.

3 

Because each of the Blank factors suggests that the Indian gaming 

compacts are legislation, I concluded in TOMAC I that the compacts must be 

approved by the regular constitutional process of enacting legislation. 

Under the Michigan Constitution, “[a]ll legislation shall be by bill . . . .” 

Const 1963, art 4, § 22. The constitution requires that “[n]o bill shall become a 

3

 See Const 1963, art 4, §§ 12, 13, and 37; art 5, § 2; art 6, § 25. 

10
 
law without the concurrence of a majority of the members elected to and serving 

in each house.” Const 1963, art 4, § 26. Once the Legislature approves a bill, it is 

then presented to the Governor. If the Governor signs the bill, the bill is enacted 

into law. Const 1963, art 4, § 33. If the Governor does not sign the bill, the 

Governor may return the bill to the Legislature with her objections. Id. The 

Legislature may enact the bill despite the Governor’s objections if two-thirds of 

the members of each house vote for the bill. Id. If the Governor does not return 

the bill, and the Legislature continues in session, the bill “shall become law as if 

[the Governor] had signed it.” Id. After a bill becomes law, the constitution 

specifies how a law may be amended: “The section or sections of the act altered or 

amended shall be re-enacted and published at length.” Const 1963, art 4, § 25. 

Under these constitutional provisions, in order to enact legislation, a bill must be 

passed by both houses of the Legislature and then either approved by the 

Governor or, if vetoed, by two-thirds of each house of the Legislature. To amend 

a law once created, those sections amended must be reenacted by the same 

process. 

Because the Legislature approved the compacts by resolution, and such 

compacts are legislation, the compacts were not validly approved under the 

constitution. By approving the compacts, the majority in TOMAC I established 

the first provision of the “casino exception” to representative government: the 

Legislature may approve an Indian gaming compact by resolution, and is not 

11
 
required to abide by the regular legislative process established in the state 

constitution. 

A second issue presented in TOMAC I concerned the constitutionality of 

the amendment provisions in the compacts. Although the Court in TOMAC I 

remanded this issue to the Court of Appeals, I addressed it because I believed that 

it was ripe for our consideration. Under the compacts, the Governor possesses 

amendatory authority; such authority allows the Governor, on behalf of the state, 

to unilaterally modify the compacts. However, as already noted, the Michigan 

Constitution requires that an amendment of legislation-- including an Indian 

gaming compact-- be effected through the reenactment of the pertinent sections of 

the statute. Const 1963, art 4, § 25. This reenactment must occur by the 

constitutional method for the passage of legislation. The exercise of the legislative 

power of amendment by the executive violates the provisions of the Michigan 

Constitution that establish the procedure for enacting and amending legislation, as 

well as the Separation of Powers Clause, which states: “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. Therefore, in TOMAC I, I would have held the amendatory 

provision of the compacts unconstitutional and would not have remanded to the 

Court of Appeals. 

12
 
 

III. 2003 AMENDMENTS AND BLANK FACTORS 

At issue in this case are the 2003 amendments of the LTBB compact. 

Because the compact itself is unconstitutional, the amendments of the compact are 

unconstitutional. Moreover, under the Blank factors, the 2003 amendments 

themselves constitute legislation. The amendments alter the legal rights and duties 

of persons outside the legislative branch, they supplant legislative action, they 

involve determinations of public policy, and they are not authorized by the 

Michigan Constitution. Because these legislative acts were undertaken 

unilaterally by the Governor acting on behalf of the state, the enactment of these 

amendments violated multiple provisions of the Michigan Constitution. 

A. LEGAL RIGHTS AND DUTIES 

The first Blank factor examines the effect of the amendments on the legal 

rights, duties, and relations of persons outside the legislative branch. The 2003 

amendments alter the rights and relations of persons outside the legislative branch. 

The amendments allow a new casino to be built, which would not have been legal 

under state and federal law before the 2003 amendments.4 As explained above, 

under 18 USC 1166, state law applies to casino gaming on Indian lands. Under 

4

 Because the building of the second casino is “contingent on the approval 

of the affected local unit of State government (either city, village, or township),” 

§ 2(F) of the amended LTBB compact, one might assert that the legal rights of the 

tribe have not been altered; that is, the LTBB has no “right” to build a second 

casino until the local unit of government approves the location of the casino. 

(continued...) 

13
 
 

MCL 750.301, such gaming is generally prohibited in Michigan. Although MCL 

432.203(1) allows for gaming “conducted in accordance with this act,” MCL 

432.203(2)(d) states that the act does 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 the Indian 

gaming regulatory act, Public Law 100-497, 102 Stat. 2467.” Under MCL 

432.203(2)(d), Indian casino gaming is not allowed on Indian land subject to the 

Indian Gaming Regulatory Act. Thus, by allowing another casino to be built by 

the LTBB, the amendments alter the legal rights of the LTBB, which now 

possesses a legal right to build a second casino without violating state law. 

Moreover, the amendments extend the duration of the compact from 20 

years to 25 years from the date of the amendments. Because the compact was 

effective in 1998, and the amendments became effective in 2003, the amendments 

will enable the LTBB to operate casinos for ten years longer than the original 

compact. From 2018 through 2028, the LTBB will be able to operate casinos, 

something it could not have done lawfully in the absence of the amendments. 

Further, under the original compact, if certain criteria were met, the LTBB 

would no longer be required to make tribal gaming payments to the state. For 

example, if the state were to allow a person to operate commercial casino games, 

(continued...) 

However, the 2003 amendments of the compact ensure that the LTBB will face no 

(continued...) 

14
 
 

and that person was neither a federally recognized Indian tribe operating a casino 

pursuant to a compact nor a person operating a casino in Detroit pursuant to MCL 

432.201 et seq., then the tribe could cease making payments to the state. The 2003 

amendments add additional criteria: under the amended compact, if the prior 

criteria apply, or if the state permits casinos to be built within ten specified 

counties, the tribe will no longer be bound to make payments to the state. 

Therefore, this amendment alters the legal duty of the tribe in terms of its gaming 

payment obligations.5 

Because the 2003 amendments alter the legal rights and duties of persons 

outside the legislative branch in at least several ways, the first Blank factor 

indicates that the 2003 amendments constitute legislation. 

B. SUPPLANTING LEGISLATIVE ACTION 

The second Blank factor considers whether the Governor’s 2003 

amendments of the compact supplant legislative action. Federal law requires a 

tribe to abide by state law in the absence of an Indian gaming compact. 18 USC 

1166. As described above, Michigan law generally forbids the creation of new 

casinos unless allowed by statute. MCL 750.301; MCL 432.203. Thus, in the 

(continued...) 

opposition from the state of Michigan when it builds its second casino. 

5

 The 2003 amendments also effect changes in the minimum gambling age 

and in the percentages of “net win” that must be paid to the state. These changes, 

however, only pertain to the second casino. 

15
 
absence of an amendment of the Indian gaming compact, the LTBB could build a 

second casino only if Michigan law was changed through legislation. 

Moreover, the amendments extend the period that the tribe may operate its 

casinos from 20 years to 25 years from the date of the amendments. As described 

earlier, casino gaming by the LTBB is only legal pursuant to its compact under the 

Indian Gaming Regulatory Act. In the absence of these amendments, it would 

have been illegal in Michigan for the tribe to operate casinos from 2018 to 2028, 

and the only way the tribe could operate casinos during that period would be 

through a change in Michigan law through legislation. 

Indeed, MCL 432.203(5) suggests that casino gaming must be authorized 

by legislation, in the absence of a compact: 

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 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. [Emphasis added.] 

Under current federal law, a state does not possess the right to regulate gambling 

on Native American land. California v Cabazon Band of Mission Indians, 480 US 

202, 207; 107 S Ct 1083; 94 L Ed 2d 244 (1987); 25 USC 2710(d). However, in 

the event that federal law changes, MCL 432.203(5) requires the Legislature to 

16
 
 

regulate Indian gaming through legislation.6 Thus, MCL 432.203(5) strongly 

suggests that the enactment of legislation is the authorized method for regulating 

Indian gaming in Michigan, if the state is accorded the power by federal law to 

regulate such gaming. 

In the absence of the instant amendments, the building of a new casino and 

the ten-year extension of the period the LTBB may operate its casinos would only 

be permitted through legislation. Thus, the amendments can fairly be said to 

supplant legislative action, indicating that the amendments also constitute 

legislation under the second Blank factor. 

C. POLICY DETERMINATIONS 

The third Blank factor considers whether a governmental action involves 

“determinations of policy.” Blank, supra at 114 (opinion by Kelly, J.). 

Indisputably, the enactment of these amendments involved policy determinations 

of considerable and far-reaching consequence. The clearest example of such a 

determination is obviously that the LTBB has been allowed to build a second 

6

 The majority opines that MCL 432.203(5) is “irrelevant [to this case] 

because there is a compact . . . and the compact properly allows for amendments.” 

Ante at 9 n 2 (emphasis in original). The majority misapprehends my argument. 

Although I agree that MCL 432.203(5) is not directly applicable because federal 

law does not currently entrust regulation of Indian gaming to Michigan, the statute 

is nonetheless relevant. The second Blank factor considers whether the action 

taken by the government would normally entail legislation. Because MCL 

432.203(5) indicates that regulation of Indian gaming would normally entail 

legislation, it contributes to the conclusion that the instant amendments supplant 

legislative action. 

17
 
casino, and will be allowed to operate its existing casino for ten years longer than 

the original compact allowed. Presumably, the enlargement of casino operations 

must have been premised at least in part on a determination that casinos generally, 

and the LTBB casino in particular, have benefited the people of Michigan. 

Such a determination is a policy determination of the sort routinely 

undertaken by the elected representatives of the people in the Legislature. Absent 

the “casino exception” to representative government, these legislators would be 

required to confront a wide range of questions implicated by the expansion of 

casino gaming in Michigan: whether the growth of casinos has adversely affected 

the social environment of the state and, if so, whether there are ways by which this 

can be ameliorated; whether any such adverse effect would be exacerbated by an 

increase in the number of casinos; whether casinos have benefited or harmed noncasino businesses in their communities; whether casinos have affected rates of 

personal and business bankruptcies; whether casinos have affected crime rates; 

whether casinos have resulted in the congestion of particular roads or otherwise 

affected state and local infrastructure; whether casinos have had an adverse effect 

on the quality of life in rural communities near casinos; whether casinos have 

harmed aspects of the environment; and whether casinos have adversely affected 

other tourist-related businesses within the state. 

To confront these and other similar questions, legislators would normally 

seek out the views of their constituents and interested organizations, both through 

18
 
 

committee hearings and through less formal means, and debate these matters with 

their colleagues. However, the result of the present amendment process for 

matters pertaining to Indian casinos is that such traditional decision-making, 

characteristic of a republican form of government, see US Const, art IV, § 4, has 

been replaced by unilateral decision-making on the part of a single person not part 

of the legislative branch. The third Blank factor thus also counsels in favor of 

finding that these amendments constitute legislation. 

D. MICHIGAN CONSTITUTION 

The fourth Blank factor essentially examines whether the constitution 

authorizes an exception to the normal legislative processes, in this case permitting 

the Governor to undertake amendments of the law. Of course, the constitution 

neither states nor implies such an exception. Rather, it defines the Governor’s 

power by simply stating, “The executive power is vested in the governor.” Const 

1963, art 5, § 1. With several very specific exceptions,7

 the constitution does not 

identify any traditionally legislative actions that the Governor may undertake, and 

I am aware of no inherent executive power within Michigan that allows the 

Governor to undertake such actions. 

7

 See Const 1963, art 5, § 19, pertaining to the Governor’s line-item veto 

authority, and Const 1963, art 5, § 2, enabling the Governor to reorganize the 

executive branch after the Legislature has organized the executive branch “by 

law.” 

19
 
Indeed, the constitution expressly sets forth the procedures for the 

amendment of legislation: “The section or sections of the act altered or amended 

shall be re-enacted and published at length.” Const 1963, art 4, § 25 (emphasis 

added). Because the original LTBB compact constitutes legislation, the 

amendment of the LTBB compact could only occur through “reenactment,” i.e., 

through legislation. As described above, the elaborate process for the enactment 

of legislation established in article 4 nowhere allows the Governor to reenact 

legislation on her own volition. Consequently, the Michigan Constitution does not 

grant the Governor the executive authority to amend Indian gaming compacts. 

Nor does any other provision of the constitution grant the Governor the 

power to amend the compact absent involvement by the Legislature. The only 

arguably appropriate provision, as I discussed in TOMAC I, supra at 400-402, is 

Const 1963, art 3, § 5, which states: 

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. 

By its terms, this provision applies only to agreements with other states, the 

federal government, Canada, or any political subdivision of these. This provision 

does not refer to Indian tribes, and therefore the Governor does not appear to 

possess the authority under this provision to unilaterally enter into agreements 

20
 
with Indian tribes, even with legislative authorization. See TOMAC I, supra at 

400-402 (opinion by Markman, J.). Even supposing that this provision does allow 

the Governor to amend a compact with Indian tribes, such agreements are limited 

to “agreements for the performance, financing or execution of their respective 

functions,” the latter presumably referring to the Governor’s exercise of her 

authority as the chief executive of this state. Const 1963, art 3, § 5. As I stated in 

TOMAC I, supra at 402, “[T]he 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 amendments at issue here-- extending the 

duration of the compacts, enabling a new casino, adjusting the gambling age for 

that casino, altering tribal gaming payments-- are not related in any coherent sense 

to the Governor’s executive role. Because there is no constitutional warrant for 

the authority exercised here by the Governor, the fourth Blank factor also suggests 

that the amendments of the compact constitute legislation. 

The Blank factors thus demonstrate, I believe, that the 2003 amendments 

constitute legislation. This conclusion accords with the decisions of other courts 

that have held that Indian gaming compacts constitute legislation. State ex rel 

Clark v Johnson, 120 NM 562, 573; 904 P2d 11 (1995) (holding that the 

governor’s unilateral approval of an Indian gaming compact was “an attempt to 

create new law,” in violation of New Mexico’s separation of powers clause); 

Saratoga Co Chamber of Commerce, Inc v Pataki, 100 NY2d 801; 766 NYS2d 

21
 
654; 798 NE2d 1047 (2003) (holding that approval of Indian gaming compact by 

the governor usurped the power of the legislature and violated the state 

constitution and the separation of powers doctrine); Narragansett Indian Tribe of 

Rhode Island v State, 667 A2d 280 (RI, 1995) (holding that the legislature, not the 

governor, has power to approve compacts under the state constitution); Panzer v 

Doyle, 271 Wis 2d 295, 338; 680 NW2d 666 (2004) (holding that “committing the 

state to policy choices negotiated in [Indian] gaming compacts constitutes a 

legislative function”), overruled in part on other grounds by Dairyland Greyhound 

Park, Inc v Doyle, 295 Wis 2d 1; 719 NW2d 408 (2006); American Greyhound 

Racing, Inc v Hull, 146 F Supp 2d 1012 (D Ariz, 2001) (holding that power to 

enter into Indian gaming compacts is “legislative”), vacated on other grounds 305 

F3d 1015 (CA 9, 2002); State ex rel Stephan v Finney, 251 Kan 559; 836 P2d 

1169 (1992) (holding that the power to bind the state to an Indian gaming compact 

is “legislative”). 

Because the amendments constitute legislation, they can only be effected 

by the procedures set forth in the constitution. As noted earlier with regard to 

amending a legislative act, Const 1963, art 4, § 25 requires the “section or sections 

of the act altered or amended” to be “re-enacted.” Amendments to laws are 

therefore subject to the same procedural requirements as newly enacted laws. 

The amendment process established in the LTBB compact violates this 

procedure. Instead of the Legislature originating a bill to amend the compact, the 

22
 
 

Governor effected the amendments on her own authority. No bill was passed by 

the Legislature, and no bill was presented to the Governor. The process that was 

followed violated a variety of sections of the Michigan Constitution concerning 

how a bill becomes a law: Const 1963, art 4, §§ 25, 26, and 33. As a result, the 

Governor has exercised-- and the Legislature has allowed her to exercise-- powers 

granted solely to the Legislature.8 Thus, the amendments violate the Separation of 

Powers Clause, Const 1963, art 3, § 2, which states: “No person exercising powers 

of one branch shall exercise powers properly belonging to another branch except 

as expressly provided in this constitution.” By approving the Governor’s exercise 

of amendatory power, the majority establishes the second provision of the “casino 

exception” to representative government: in the realm of Indian casinos, the 

Governor may enact the equivalent of legislation without the involvement of the 

Legislature. 

The majority opinion, which permits the Governor to undertake legislative 

acts by contracting with the affected Indian tribe, may be aptly described as 

establishing, in the realm of Indian casinos, “government by contract” in lieu of 

“government by constitution.” Pursuant to this, the Governor and the Legislature 

8

 The Legislature’s acquiescence in the enlargement of the Governor’s 

power is irrelevant in assessing the propriety of this grant: “the acceptance by one 

branch of the expansion of the powers of another branch is not dispositive in 

whether a constitutional power has been properly exercised.” Nat’l Wildlife 

Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 616; 684 NW2d 800 

(2004). 

23
 
may avoid restrictions, i.e., checks and balances, imposed under our “government 

by constitution,” which provides that the Legislature alone may exercise “[t]he 

legislative power of the State of Michigan,” Const 1963, art 4, § 1, and that the 

Governor may exercise only “[t]he executive power,” Const 1963, art 5, § 1. 

IV. ACCEPTING THE PREMISE OF TOMAC I 

Even accepting the premise of the majority in TOMAC I that the instant 

compact does not constitute legislation, I would still dissent. The amendment 

procedure in the LTBB compact improperly delegates the legislative power to 

contract to the Governor because the Legislature has failed to impose adequate 

standards on the Governor’s exercise of that power. 

As already noted, the Michigan Constitution grants the legislative power-- 

the entirety of it-- to the Legislature. Const 1963, art 4, § 1. The Legislature 

retains the general power to contract. See TOMAC I, supra at 328 (“[O]ur 

Legislature has the general power to contract unless there is a constitutional 

limitation.”); Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 

311, 318; 254 NW2d 544 (1977). Here, the Legislature has authorized the 

Governor to carry out the contracting power through the amendment provision in 

the compact. Even if the compact as a whole had been validly approved by the 

Legislature under the rationale of TOMAC I, the Legislature was still required to 

have properly authorized the exercise of the contracting power in the amendment 

provision. If the exercise of the contracting power was improperly authorized, 

24
 
 

then the Legislature essentially delegated its legislative power to the Governor and 

thereby violated the Separation of Powers Clause. 

“Strictly speaking, there is no acceptable delegation of legislative power.” 

Mistretta v United States, 488 US 361, 419; 109 S Ct 647; 102 L Ed 2d 714 

(1989) (Scalia, J., dissenting) (emphasis in original). In determining whether a 

delegation of legislative power has occurred, the Court should inquire whether the 

Legislature has “authorize[d] the exercise of executive or judicial power without 

adequate standards.” Id. Justice Scalia elaborated: “The focus of controversy . . . 

has been whether the degree of generality contained in the authorization for 

exercise of executive or judicial powers in a particular field is so unacceptably 

high as to amount to a delegation of legislative powers.” Id. (emphasis in 

original). A determination whether the Legislature has improperly delegated 

legislative power to the Governor requires that this Court examine whether the 

authorization of amendatory power provides “adequate standards” for the 

Governor’s exercise of amendatory power, and whether the “degree of generality . 

. . is so unacceptably high as to amount to a delegation of legislative powers.” Id. 

“The true distinction . . . is between the delegation of power 

to make the law, which necessarily involves a discretion as to what it 

shall be, and conferring authority or discretion as to its execution, to 

be exercised under and in pursuance of the law. The first cannot be 

done; to the latter no valid objection can be made.” [Id. at 418 

(emphasis in original), quoting Field v Clark, 143 US 649, 693-694; 

12 S Ct 495; 36 L Ed 294 (1892).] 

25
 
 

 

This Court considered whether an authorization of executive power 

violated the principle of separation of powers in Soap & Detergent Ass’n v 

Natural Resources Comm, 415 Mich 728; 330 NW2d 346 (1982). Soap & 

Detergent considered a separation of powers challenge to the Governor’s power to 

reorganize executive agencies. Id. at 751. Although the Governor possesses the 

power to reorganize under Const 1963, art 5, § 2, Soap & Detergent nonetheless 

characterized this power as a “legislative” power.9 Id. After noting that the grant 

of power to the Governor under the constitution precluded a separation of powers 

claim, Soap & Detergent argued that inherent checks in Michigan’s constitutional 

scheme barred the conclusion that the principle of separation of powers had been 

violated: 

Article 5, § 2, does not by any means vest “all” or any 

considerable legislative power in the executive. While it is true that 

broad legislative power has been delegated to the Governor to 

effectuate executive reorganization, this power is clearly limited. 

Three limitations must be emphasized. First, the area of executive 

exercise of legislative power is very limited and specific. Second, 

the executive branch is not the sole possessor of this power; the 

Legislature has concurrent power to transfer functions and powers of 

the executive agencies. Third, the Legislature is specifically granted 

the power to veto executive reorganization orders before they 

become law. 

9

 It is axiomatic that when the constitution grants a specific power to the 

executive branch, that power becomes an “executive” power, however it might 

have been characterized in the absence of such a grant. Cf., e.g., Const 1963, art 

3, § 8 (advisory opinions as part of the “judicial power” in Michigan). I cite Soap 

& Detergent here only because it illustrates the criteria for determining when a 

violation of the separation of powers occurs. 

26
 
Therefore, the specific intent of the constitutional convention 

in fashioning art 5, § 2, having been to delegate a very limited and 

specific legislative power to the executive, and this provision having 

been adopted into the constitution with sufficient checks to restrain 

an improper exercise of this power, we find no constitutional 

infirmity negating the Governor’s ability to transfer rulemaking 

authority from one agency to that agency’s department head. [Id. at 

752-753.] 

Under Soap & Detergent, when one branch authorizes the use of power by another 

branch, the authorizing branch must provide “sufficient checks” on the exercise of 

power. Whether the Legislature has provided sufficient checks on the exercise of 

power depends on whether the authorization of power is “limited and specific,” 

whether the branch authorizing the power retains concurrent power, and whether 

the branch authorizing the power may veto the decisions of the branch exercising 

the power. 

Although I would prefer to cast this inquiry in terms of whether the power 

being conferred has, by the constraints placed upon its exercise, been effectively 

transformed from a power properly exercised by the grantor branch into a power 

properly exercised by the grantee branch, Soap & Detergent does identify 

important aspects of this analysis. 

Although this Court has never before addressed an authorization of 

amendatory power in the context of Indian gaming compacts, the Wisconsin 

Supreme Court addressed a similar question in Panzer v Doyle, supra. In Panzer, 

the Wisconsin legislature had statutorily authorized the governor to enter into and 

amend compacts with Indian tribes. Id. at 303. “The delegation of power to a 

27
 
sister branch of government must be scrutinized with heightened care to assure 

that the legislature retains control over the delegated power . . . .” Id. at 335. 

Panzer held that the Wisconsin legislature had properly authorized the governor to 

enter into Indian gaming compacts because the legislature retained “procedural 

safeguards” against the abuse of this power. Id. at 340-341. First, the legislature 

could repeal the statute enabling the governor to enter into Indian gaming 

compacts; second, the legislature could amend the statute to require that 

modifications be subject to legislative ratification; third, the governor would be 

held accountable for his actions at the ballot box. Id. at 341. 

Panzer next addressed whether the legislature had properly authorized the 

governor to extend the duration of an Indian gaming compact indefinitely by later 

amendments of the compact entered into solely by the governor. Id. at 341-342. 

The governor had amended the compact to effectively prevent the state from 

rescinding the compact in the future, thereby rendering the duration of the 

compact indefinite. Panzer stated: 

We think it is extremely unlikely that, in the factual and legal 

atmosphere in which [Wis Stat] 14.035 was enacted, the legislature 

intended to make a delegation that could terminate its ability to 

make law in an important subject area. If such a far-reaching 

delegation were in fact intended, the delegation would be 

unconstitutional. [Id. at 347-348 (citation omitted).] 

Panzer concluded that the Wisconsin legislature could not have authorized the 

governor to extend the duration of the compacts, even if it had intended to do so, 

because the legislature would lose all ability to control the power that it had 

28
 
authorized the governor to wield. “The legislature would be powerless to alter the 

course of the state’s position on Indian gaming” by changing state law. Id. at 345. 

The authorization of the Governor’s use of amendatory power in the LTBB 

compact constitutes a similar delegation of legislative power and hence violates 

the Separation of Powers Clause. Legislative power has been delegated here 

because the authorization of power does not impose “adequate standards” on the 

exercise of that power, and the “degree of generality . . . is so unacceptably high as 

to amount to a delegation of legislative powers.” Mistretta, supra at 419 (Scalia, 

J., dissenting). The Legislature placed a single restriction on the Governor’s 

ability to amend the compact: the Governor merely cannot expand the counties in 

which the LTBB may operate casinos. Beyond this stricture, the Governor 

possesses plenary authority, subject to no constraint beyond her own discretion, in 

the exercise of the contracting power. The compact imposes no limit on where or 

when the Governor may authorize new casinos. The compact imposes no limit on 

when or for how long the Governor may extend its duration. The compact 

imposes no procedural standards or obligations upon the Governor. For example, 

the Governor is not required to submit proposed amendments to the Legislature, to 

the affected local unit of government, or to any other governmental body, before 

enacting amendments of the compact. The compact contains no overarching 

standard to guide the Governor in her exercise of the amendatory power, not even 

one as general as those that have sustained delegations of power by the Congress 

29
 
to federal administrative agencies, e.g., the Federal Communications Commission 

must regulate to promote the “public convenience, interest, or necessity . . . .” 47 

USC 303. The LTBB compact contains no standard, broad or narrow, substantive 

or procedural, that would transform the legislative power being delegated into an 

executive power. Consequently, the authorization of the amendatory power 

constitutes an unconstitutional delegation of legislative power. 

Thus, the majority establishes the third provision of the “casino exception”: 

in the realm of Indian casinos, the Legislature may authorize the exercise of power 

without imposing any standard on the Governor’s exercise of power, thereby 

effectively delegating legislative power to the Governor. 

Moreover, Soap & Detergent directs this Court to consider whether the 

authorization of power is “limited and specific,” whether the branch authorizing 

the power retains “concurrent power,” and whether the branch authorizing the 

power “is specifically granted the power to veto” the other branch’s exercise of 

that power. Soap & Detergent, supra at 752. None of these considerations alters 

the conclusion that the Governor here is exercising a legislative power. First, the 

authorization of the amendatory power is not “limited” or “specific.” Pursuant to 

these amendments, the Governor has already allowed another casino and extended 

the duration of the compact for 25 years; there is nothing that precludes the 

Governor and her successors from allowing 50 or 100 casinos and extending the 

compact indefinitely. Second, unlike in Soap & Detergent, the Legislature here 

30
 
does not retain any power to amend compacts with the LTBB. Third, the 

Legislature cannot thwart actions of the Governor by legislative veto. The 

Governor’s ability to expand the scope of the compacts is plenary. 

Moreover, under the rationale in Panzer, the Legislature should never be 

allowed to completely “terminate its ability to make law in an important subject 

area.” Panzer, supra at 347. In this case, the Legislature has wholly ceded its 

ability to effect future amendments of the compact. The Legislature’s 

acquiescence to the amendment procedure “terminate[d] its ability to make law in 

an important subject area.” Id. Such acquiescence transforms both the legislative 

and executive powers of our state by precluding the Legislature in the future from 

reasserting its proper authority over both state contracting and Indian casinos. 

Rather, it will remain bound indefinitely by the actions of the Legislature in 1998. 

The majority argues: (1) because the Legislature properly approved the 

compacts under TOMAC I, any amendment approved by the Governor pursuant to 

the amendment process would be permissible, but only as long as the amendment 

is “within the limits of the constitution,” ante at 4, 9, and 14; (2) the Legislature 

acquiesced in the authorization of the Governor’s exercise of amendatory power 

by approving the compacts by resolution; (3) the Legislature may properly confer 

amendatory authority on the Governor, citing People ex rel Sutherland v 

Governor, 29 Mich 320 (1874), and discretionary decisions made by the Governor 

pursuant to delegated authority are not reviewable by this Court, citing People ex 

31
 
rel Ayres v Bd of State Auditors, 42 Mich 422; 4 NW 274 (1880); (4) the conferral 

of amendatory power on the Governor was “limited and specific,” Judicial 

Attorneys Ass’n v Michigan, 459 Mich 291; 586 NW2d 894 (1998); and (5) the 

amendments “‘[did] not impose new obligations’” on the people of Michigan 

because the amendments “‘simply reflect the contractual terms agreed to by two 

sovereign entities.’” Ante at 11, quoting TOMAC I, supra at 327. I will briefly 

respond to these arguments. 

First, the majority argues that the Legislature validly approved the 

amendment procedure in the compact, thereby “giv[ing] the Governor broad 

discretion-- within the limits of the constitution-- to amend the compacts.” Ante at 

9. However, this ignores that our constitution itself limits the methods by which 

the LTBB compact may be amended, by defining and limiting the powers of the 

three branches of government. An amendment procedure in violation of the 

separation of powers is made unconstitutional by Const 1963, art 3, § 2. 

Second, the majority also argues that the Legislature acquiesced to the 

delegation of power to the Governor. While this may be true, it is this Court's 

obligation to uphold the constitution in service to the people, not in service to a 

particular branch of government. Moreover, it is our obligation to uphold the 

permanent interests of the separate branches, not those of its particular members at 

a particular moment in time. That one branch agrees to the exercise by another of 

an unconstitutional power does not mitigate the breach of the constitution. The 

32
 
 

premise of a government of defined and limited constitutional powers is that the 

rights of “we the people” will most securely be maintained by this method. “The 

acceptance by one branch of the expansion of the powers of another branch is not 

dispositive in whether a constitutional power has been properly exercised.” Nat’l 

Wildlife Federation, supra at 616. 

Third, the majority contends that Sutherland allows the Legislature “to 

confer authority on the Governor.” Ante at 10. It further contends that 

“discretionary decisions made by the Governor are not within this Court’s purview 

to modify.” Ante at 10, citing Ayres, supra at 426. Who could doubt either of 

these propositions? However, the relationship these propositions bear to the 

majority’s conclusion that the Legislature may “confer authority” upon another 

branch of government in any way or to any extent the Legislature chooses is hard 

to comprehend. Sutherland did not assert that courts should be disinterested in the 

nature of the authority being conferred, and Ayres did not assert that all decisions 

made by a Governor were “discretionary.” Indeed, neither Sutherland nor Ayres 

even addressed delegations of “legislative power” to the executive.10 The 

10 In Sutherland, the Legislature had granted the Governor the discretion to 

issue certificates stating that a canal and harbor had been built in conformity with 

federal law. The dispute in Sutherland centered on whether this power was an 

“essentially executive” duty or a ministerial duty. Sutherland, supra at 329. In 

Ayres, the Legislature had authorized the Board of State Auditors to solicit 

contracts for the printing of Supreme Court reports. Ayres noted that “State 

officers inferior to the Governor have many duties which courts can compel them 

to perform . . .” Ayers, supra at 427. The dispute in Ayres was whether the Board 

(continued...) 

33
 
 

majority’s casual assertion of governmental authority simply bears no resemblance 

to any traditional understanding of American constitutionalism. 

Fourth, the majority invokes the test from Judicial Attorneys Ass’n v 

Michigan in support of its decision, but fails to properly apply that test. The 

majority states: 

An overlap or sharing of power may be permissible if “the 

grant of authority to one branch is limited and specific and does not 

create encroachment or aggrandizement of one branch at the expense 

of the other . . . .” [Ante at 7, quoting Judicial Attorneys, supra at 

297.] 

Judicial Attorneys concluded that a statute that allowed a local county to become 

the employer of judicial employees was not “limited and specific” and constituted 

an “aggrandizement” of the Legislature at the expense of the judicial branch. Id. 

at 301-303.11 In the instant case, the Governor has been given the power to 

unilaterally amend the compact, constrained only by her inability to alter the 

definition of “eligible Indian lands.” This near-plenary power is neither “limited” 

(continued...) 

of State Auditors could be compelled to perform its duties in a manner similar to 

an inferior officer. 

11 I dissented in part from the Court of Appeals opinion in the Judicial 

Attorneys cases and would have found that the Separation of Powers Clause was 

not violated. See Detroit Mayor v Michigan, 228 Mich App 386; 579 NW2d 378 

(1998). I concluded that “any potential separation of powers concerns are not ripe 

for decision,” id. at 427, and that the law in dispute “could be construed or applied 

in many ways, in many combinations and permutations, anticipated and 

unanticipated, some of which would engender no serious constitutional difficulties 

and others of which might be inconsistent with Const 1963, art 3, § 2 in whole or 

(continued...) 

34
 
 

nor “specific,” and permits the “aggrandizement” of the executive branch at the 

expense of the legislative, which will play a sharply limited role in the formulation 

of Indian casino policy. 

The majority further contends that the authorization of power in this case is 

limited by the “compacts themselves” and by the Governor’s inability to “agree to 

an amendment that would violate the constitution or invade the Legislature’s 

lawmaking function.” Ante at 10 n 3. However, as already mentioned, there is 

only a single relatively insignificant limitation upon the Governor in the compact 

itself, and the majority apparently understands constitutional violations only in 

terms of substantive and not procedural terms. That is, while the Governor 

presumably could not set different minimum age limits for gambling in new 

casinos on the basis of race or nationality, the fact that she has exercised 

legislative power in this realm in the first place apparently does not implicate the 

constitution, no matter how much “aggrandizement” of one branch has occurred at 

the expense of another. 

Finally, the majority concludes by saying, “[T]he amendments ‘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.’” Ante at 11, quoting TOMAC I, supra at 327. The issue in the instant 

(continued...) 

in part.” Id. at 439. This case is distinguishable in that the Governor’s exercise of 

(continued...) 

35
 
 

case is not whether the 2003 amendments were agreed to by “two sovereign 

entities”; obviously they were.12 Rather, the issue is whether the procedure 

undertaken to approve the 2003 amendments complied with the requirements of 

our constitution. Just as the United States cannot enter into a treaty with Belgium, 

and Michigan cannot enter into a compact with Ohio, by extra-constitutional 

procedures, neither can Michigan negotiate an Indian casino compact by extraconstitutional means. The amendment procedure utilized here involves an 

unconstitutional delegation of legislative power to the Governor because it fails to 

provide “adequate standards”-- indeed it fails to provide any standards-- for the 

Governor’s exercise of such power. Such standards are necessary to transform a 

legislative power into an executive power. The majority’s conclusion that the 

amendments “‘simply reflect the contractual terms agreed to by two sovereign 

entities’” is simply irrelevant to the necessary constitutional analysis.13 

(continued...) 

power engenders “serious constitutional difficulties” under all circumstances. 

12 See TOMAC I, supra at 397 (“I do not dispute that the compacts are akin 

to contracts of a unique nature.”). 

13 The majority asserts that the contractual nature of the compact and the 

amendments is relevant because “‘mutual assent’” is “‘a characteristic that is not 

only the hallmark of a contractual agreement but is also absolutely foreign to the 

concept of legislating.’” Ante at 11 n 4, quoting TOMAC I, supra at 324. I do not 

disagree that the compact and its amendments are contractual. Where I disagree is 

in the majority’s assertion that, when acting pursuant to a contract, the Governor 

and the Legislature are no longer bound by the grants and limitations of authority 

set forth in our constitution. The fundamental flaw in the majority opinion is that 

(continued...) 

36
 
 

Moreover, the majority’s assertion that the amendments are not legislation 

because they “‘do not impose new obligations on the citizens of the state’” simply 

ignores the reality that the citizens of this state are now obliged to admit a new 

casino and an indefinite number of future casinos into their communities, replete 

with the attendant economic and social consequences, without their elected 

representatives having had a voice in this determination. It is hard to conceive of a 

greater “obligation” being imposed upon a free citizenry than to be deprived of its 

ability to effectively communicate with its elected representatives. 

V. CONSEQUENCES OF MAJORITY OPINION 

The separation of powers among our three branches of government is not 

an afterthought to our constitutional structure. “The framers of Michigan’s 

Constitution understood well the importance of separating the powers of 

government.” 46th Circuit Trial Court v Crawford Co, 476 Mich 131, 141; 719 

NW2d 553 (2006). “By separating the powers of government, the framers of the 

Michigan Constitution sought to disperse governmental power and thereby to limit 

its exercise.” Nat’l Wildlife Federation, supra at 613. With regard to this state’s 

Separation of Powers Clause, the official proposal at the Constitutional 

Convention stated: 

(continued...) 

it never explains why the LTBB contract should be permitted to prevail over the 

contract between the people and their government embodied in our constitution. 

37
 
 

The doctrine of the separation of powers prevents the 

collection of governmental powers into the hands of 1 man, thus 

protecting the rights of the people. It is as old as our American 

governmental system, and was devised by our founding fathers, 

greatly influenced by the French political theorist, Montesquieu. 

Desirous of protecting a free people, their idea was that if, somehow, 

the powers of government could be divided, it could not grow so 

large as to enslave them. [1 Official Record, Constitutional 

Convention 1961, at 601.] 

In equally strong language, former Justice Cooley explained that the separation of 

powers “operates as a restraint upon such action of the [other branches of 

government] as might encroach on the rights and liberties of the people, and 

makes it possible to establish and enforce guaranties against attempts at tyranny.” 

Cooley, The General Principles of Constitutional Law in the United States of 

America (Boston: Little, Brown & Co, 1880), p 43. 

The majority allows the Governor, with the acquiescence of the Legislature, 

to circumvent the separation of powers principle embedded in Const 1963, art 3, § 

2; art 4, § 1; art 5, § 1; and art 6, § 1. The grant of power from the Legislature in 

this case authorizes the Governor to enter into a contract. By some unexplained 

alchemy, such contract-- one authorized by constitutionally-designated officials in 

the legislative branch and one negotiated by a constitutionally-designated official 

in the executive branch-- is somehow permitted to trump a precedent contract that 

is part of the constitution. This precedent contract, entered into between “[w]e, the 

people of the State of Michigan” and its government, “ordain[ed] and establish[ed] 

this constitution.” Const 1963, Preamble (emphasis added). “[T]his constitution” 

38
 
sets forth an architecture and a process of government instituted for the “equal 

benefit, security and protection” of the people. Const 1963, art 1, § 1. 

Governmental officials are to operate within these constraints. Here, the majority 

allows these officials to act in disregard of constraints placed upon them by the 

constitution and thereby to impose new obligations upon the people. 

As a result, a matter of public policy significance-- the nature of Indian 

gaming within this state-- is exempted from the regular processes of government. 

Through an improper delegation and exercise of legislative power, the Legislature 

has been deprived of its future authority to act on behalf of the people in this 

realm, the people have lost the effective opportunity to “instruct their 

representatives” in this same realm, Const 1963, art 1, § 3, and communities 

across the state have had diluted their ability to influence their local 

representatives in the law-making process in this realm. It is fair to describe the 

effect of the majority opinion, in conjunction with its opinion in TOMAC I, as the 

creation of a “casino exception” to representative government. Within the realm 

of the “casino exception,” government is undertaken by contract rather than by 

regular constitutional processes, and public policy decisions normally within the 

contemplation of the legislative process are made by executive branch negotiators 

rather than by elected legislators. 

Because of the majority opinion, the LTBB will be allowed to build a 

second casino in a second Michigan community, unburdened by the involvement 

39
 
of the people’s elected representatives in the Legislature. Perhaps this will prove 

to be a wise judgment. Perhaps the effect of these casinos-- as well as the effect of 

an unknown number of future casinos to be established by this same process over 

the next quarter-century-- will prove salutary. Perhaps the effect of these and later 

casinos on traffic, the environment and pollution, nearby schools, rural lifestyles, 

the character of communities, levels of noise, rates of crime, the competitiveness 

of state and local businesses, the incidence of bankruptcies, and the moral and 

social fabric of our state will all turn out well. Even if so, however, decisions such 

as these should be undertaken by the people through their elected representatives 

and not through the processes of the “casino exception” to representative 

government. The result of the majority’s approach will be that, in the realm of 

Indian casinos, the authority of the people will be eroded, local influence will be 

eroded, and self-government itself will be eroded. 

VI. CONCLUSION 

In my judgment, the Governor’s approval of the 2003 amendments violates 

the constitution, and the majority errs in affirming this action through what I view 

as the effective creation of a “casino exception” to representative government. By 

this exception, the majority enables the following: 

First, in the realm of Indian casinos, the majority allows the Legislature to 

approve legislation through something other than the regular legislative process 

established by the constitution, as in this case where the Legislature approved the 

40
 
LTBB compact by a simple resolution vote. Because the compact constitutes 

legislation, it was unconstitutionally enacted in deviation from the regular 

legislative process. Consequently, the amendments of the compact are themselves 

unconstitutional. 

Second, in the realm of Indian casinos, the Governor may enact the 

equivalent of legislation without the involvement of the Legislature, as in this case 

where the Governor has unilaterally approved amendments of the LTBB compact. 

Because the amendments of the compact themselves constitute legislation under 

the Blank factors, unilateral enactment of these amendments violated the 

provisions of our constitution that establish the procedure for the passage of 

legislation, Const 1963, art 4, §§ 25, 26, and 33, as well as the clauses pertaining 

to the separation of powers, Const 1963, art 3, § 2; art 4, § 1; art 5, § 1; art 6, § 1. 

Consequently, the amendments are unconstitutional. 

Third, in the realm of Indian casinos, the Legislature may delegate 

legislative power without supplying an adequate standard for its exercise, as in this 

case where the Legislature delegated to the Governor amendatory power over the 

compact without specifying any standards for its exercise. Consequently, the 

compact unconstitutionally delegates legislative power, and the Governor’s 

exercise of that power by enacting the 2003 amendments is unconstitutional. 

The majority allows the Governor and the Legislature to act outside their 

authority and beyond the limitations of our constitution. As a result, in the realm 

41
 
42
 
of Indian casinos, I believe that the authority of the people to exercise selfgovernment will be diminished. For these reasons, I respectfully dissent. 

Stephen J. Markman 

43