Turtle Talk: Gaming compact cases are extremely difficult to win

Here are some initial thoughts about the case:

These are very difficult cases to win. Under the Administrative Procedure Act, federal agencies have broad discretion in making decisions and interpreting statutory law. The Department’s decision to disapprove the Forest County Potawatomi gaming compact strikes me as consistent with its approach in recent years to limit the scope of these types of agreements.

The Complaint alleges that the Department’s rejection of the compact “departed from long-established and consistent policies reflected in previous [compact] decisions…” However, the Department of the Interior has always expressed concerns over revenue sharing in gaming compacts. In the past 15 years, the Department has also warned tribes that gaming compacts are not an appropriate means to restrict the ability of other Indian tribes to engage in gaming under IGRA – including the Forest County Potawatomi Community. Finally, the Department of the Interior under the Obama Administration has rejected a number of gaming compacts for similar reasons.

The Complaint alleges that “Potawatomi has not received what it bargained for:…the 50-mile non-competition zone.” Later, it asserts that “[Potawatomi] has paid the State over $243 million” for that benefit. This sounds like Potawatomi intends the new compact to remedy the old compact’s supposed flaws, which is a tough sell considering the fact that the Forest County Potawatomi Community has enjoyed the exclusive right to operate a gaming facility in Milwaukee for more than two decades.