The Mashantucket Pequot Tribal Nation owns and operates the Foxwoods Resort Casino in Mashantucket Connecticut, seen here in 2009. Photo: Eigenes Werk / Wikipedia

Compacts | Connecticut | Federal Register | Litigation

Trump team appears willing to delay tribal casino deal in Connecticut indefinitely

Tuesday, February 6, 2018

The Trump administration is advancing a curious argument as it battles the Mashantucket Pequot Tribal Nation and the Mohegan Tribe over plans for a new casino in Connecticut.

In a motion filed on Monday, government attorneys called for the removal of the Mashantuckets from the case. They contend the tribe's new casino deal is not subject to "mandatory deadlines — or any deadlines at all" at the federal level.

According to the government, the tribe is operating its Foxwoods Resort Casino under provisions of the Indian Gaming Regulatory Act that entitle the Department of the Interior to make a decision whenever it likes -- or possibly maybe never at all.

"The Secretary therefore has no discrete and mandatory obligation to take action," the motion states.

The argument is curious because it acknowledges that deadlines, whether discrete or mandatory, exist in IGRA. At issue in the case is one that gives the Bureau of Indian Affairs, which is part of Interior, 45 days to take action on a casino agreement.

The motion in fact makes repeated reference to the 45-day deadline, which is explicitly stated in IGRA and in the BIA's regulations.

"Both IGRA and the regulations address time limits on tribal-state compacts," government attorneys wrote.

The New England Casino Race: Tribal and commercial gaming facilities in Connecticut, Massachusetts and Rhode Island

The Mashantuckets, however, did not enter into a Class III gaming compact with the state of Connecticut -- the tribe instead opened its casino after securing approval at the federal level. That means the 45-day deadline does not apply to the tribe, according to the motion.

"Crucially (and fatal to plaintiffs’ claims), Mashantucket does not have a tribal-state compact," the document reads.

The argument becomes even more curious because it acknowledges that tribal-state compact are subject to the 45-day deadline. The Mohegans, the other plaintiff in the case, have a Class III gaming compact

“While troubling, this action falls in line with a pattern of behavior by the Department of the Interior,” a spokesperson for the two tribes said in a statement quoted by The New London Day.

The BIA received new casino deals from the two tribes on August 2. On September 15 -- exactly 45 days later -- the agency sent identical letters back, stating that "our review" has been "completed."

But if the 45-day deadline does not apply to the Mashantuckets, as government attorneys are now claiming, no one told Mike Black, who was serving as the "acting" Assistant Secretary for Indian Affairs at the time.

On the other hand, if the deadline applies to the Mohegans, the letter appears to indicate that something should have happened after 45 days. Yet the BIA never published notice of the tribe's agreement in the Federal Register.

The BIA published notice of the "Final Mashantucket Pequot Gaming Procedures" in the Federal Register on May 31, 1991. The publication was required by federal regulations.

The same regulations appear to impose deadlines on the Secretary of the Interior in the event a tribe wants to update, or amend, its existing procedures. "The Secretary must review the proposal by following the approval process for initial tribal proposals," 25 CFR 291.14 reads.

The deadline appears to be 30 days, according to 25 CFR 291.6. The government's motion, however, does not mention either 25 CFR 291.14 or 25 CFR 291.6.

The tribes are planning to open their new casino in the city of East Windsor. The project was authorized under state law -- federal approval is not needed.

But the tribes amended their existing arrangements to account for the new development. It is those arrangements that were submitted to the BIA for review.

Read More on the Story:
U.S. says Mashantuckets lack standing in 3rd-casino suit over gaming compact amendments (The New London Day February 5, 2018)
Interior Department seeks dismissal of CT gaming lawsuit (The CT Mirror February 5, 2018 )
Future Of Proposed East Windsor Casino In Doubt As Opposition Intensifies (WNPR February 6, 2018)