Indian law expert: Walker wrong to ask for consensus among tribes on Kenosha casino

2013-10-19T11:50:00Z Indian law expert: Walker wrong to ask for consensus among tribes on Kenosha casinoJACK CRAVER | The Capital Times |

"There's more fighting now than ever before between the tribes," says Craig Corn, chairman of the Menominee Indian Tribe, whose push to build an off-reservation casino in Kenosha has met fierce resistance from the Forest County Potawatomi Tribe, which runs a nearby casino in Milwaukee.

"This is really taking everything to a new level," he says. "I'm scared for the Menominee. I'm scared for the other members of the other tribes."

A new casino, he believes, could be a major economic boon for his poverty-stricken tribe. After nearly a decade of planning and bureaucratic navigation, however, the tribe fears plans won't move forward because Gov. Scott Walker, whose approval is necessary for the tribe to take the land “in trust,” has signaled that he will not support the project if other tribes object.

Corn says trying to get approval for a casino at another location –– one that is less threatening to Potawatomi, for instance –– is not an option.

"It's too long of a process," he says. "It's been hard on the Menominee Tribe and I don't know that we can endure something like this again. This is our one shot to bring us out of poverty and unemployment."

Inter-tribal tensions over gaming are nothing new, says Richard Monette, a former chairman of the Turtle Mountain Band of Chippewa in North Dakota and current director of the Great Lakes Indian Law Center at the University of Wisconsin Law School.

It's not Walker's role, he says, to broach a consensus between tribes which, as sovereign nations, have historically dealt directly with the federal government.

The Indian Gaming Regulatory Act of 1988 was the first legislation that brought governors into the casino equation. First, it required the state to enter into compacts with tribes to determine rules and regulations for gaming. Second, it gave governors the power to reject the construction of off-reservation casinos in the interest of the surrounding community. The grounds for opposition are not clearly defined in the legislation, but previous examples include potential environmental degradation, impact on area infrastructure and traffic and security concerns.

But it is not the role of the governor, says Monette, to determine how the Menominee’s gaming business will affect another nation’s ventures.

Monette compares Walker seeking approval from Potawatami for the Menominee casino to asking Trek Bicycles if another bike company can set up in Wisconsin. While there are many reasons state and local government may oppose a business project, the interests of a competing business are usually not supposed to be taken into account.

"The process is that the governor represents the interest of the state and then the federal government brings a federal review of this process and decides whether this benefits the tribe," he says.

George Ermert, a lobbyist for Potawatomi, disagrees.

“The law is clear," says Ermert. "Governors have wide discretion and can concur for any reason or no reason all.”

Similarly, in a letter-to-the-editor in the Milwaukee Journal Sentinel, the executive director of the Great Plains Indian Gaming Association, which represents a number of tribal casinos in other states, argues that tribal consensus is a good way to operate in the interests of the entire Native community. He mentions, for instance, that tribal consensus is required for the approval of off-reservation casinos in Michigan.

While the Michigan compacts indeed require all tribes to approve of such casinos, it also requires all tribes to work out profit-sharing agreements among themselves. Under Michigan law, the money that the Potawatomi has made in the past two decades at its off-reservation casino in Milwaukee would have been shared with the state’s ten other tribes.

While Monette agrees that the law effectively grants governors veto power, he says that if Walker ultimately opposes the casino, he should be careful in how he frames his rejection. If Walker uses reasoning that falls outside of what federal law “contemplates,” Monette believes he could prompt a lawsuit alleging that the governor did not act in good faith.

The precedent, he says, is a case in which the Seminole Tribe sued the state of Florida, whose state government had steadfastly refused to set up a compact with the tribe to govern gaming (it didn’t want any gambling whatsoever in the state). Although the Supreme Court ultimately ruled that there was effectively no way for Congress to force states to enter such agreements with tribes, the federal government resolved the issue by simply setting up the compacts itself and allowing the tribes to take certain state land for casinos.

There has never been a court decision that dealt specifically with the issue of a governor denying a tribe’s right to take land in trust, but Monette says it could happen.

“Most (tribal legal experts) think that the feds could do the same thing that they did regarding compacting in Florida,” he says.


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(19) Comments

  1. timbo
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    timbo - October 21, 2013 7:12 am
    MOnette is being deliberately obtuse. He surely cannot miss Walker’s concern is with expansion of gaming, not one casino’s effect on another. He surely has not forgotten the 1993 referendum where 61% said no more casino gambling.
  2. Maerzie
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    Maerzie - October 20, 2013 5:20 pm
    Walker always oversteps his bounds. He thinks he's some kind of a god! His delusions of grandeur will have him locked up one of these days.
  3. Cornelius Gotchberg
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    Cornelius Gotchberg - October 20, 2013 11:28 am

    Good point; the one thing that Native Americans are near unanimous in their oppostion to is "outsiders" deciding what ought and what ought not offend them.

    That goes both ways. They don't want guilt-suffocated White Lefties (who seem to be offended by pretty much anything that isn't a preapproved selection from the Lefty World View Cafeteria) deciding that very same thing.

    Me? I reserve judgement.

    At least until I hear what Harvard Law's First Woman of Color and former Professor and artistic/intellectual property thief Ward "I have Long Hair so I must be an Indian" Churchill have to say.

    The Gotch
  4. ButSiriuslyFolks
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    ButSiriuslyFolks - October 20, 2013 10:58 am
    It's a wash-wash for Walker either way. If they band together, the casino opens and the job numbers apply to his 250,000 jobs goal, though he has to deflect credit away to the tribes for creating it.

    if they can't band together, he gets to avoid actually doing his job and avoiding any possible blowback he might get.

    Such is the life of a coward.
  5. ButSiriuslyFolks
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    ButSiriuslyFolks - October 20, 2013 10:55 am
    Definitely interesting. How does Gogebic Taconite reduce Florida's unemployment by opening a mine in northern Wisconsin? They shouldn't open that mine until they give us a rational explanation for us to open another mine in Wisconsin.
  6. ButSiriuslyFolks
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    ButSiriuslyFolks - October 20, 2013 10:52 am
    I always find it funny how people that are white find it within their jurisdiction to inform people who are not white what they should and should not be offended by.

    How do you know what they find "an honor" or "offensive"?
  7. Oshbgosh
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    Oshbgosh - October 20, 2013 9:36 am
    How does a casino in Kenosha county reduce unemployment on the Menominee reservation nearly 200 miles away? When someone provides a rational explanation, then maybe there will be a reason to allow another casino in WI.
  8. Fartinthewind
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    Fartinthewind - October 20, 2013 9:14 am
    Lexus sums it up best below. Walker is asking for a consensus, because he doesn't think one is forthcoming. No consensus and Walker doesn't have to deal with the issue.

    This is where the tribes should throw a chink in the works. Upstage Walker. Band together.
  9. Lexus Peterson
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    Lexus Peterson - October 20, 2013 8:00 am
    Wear Redskin as an honor? You're an idiot. Actually, you're a little scary.
  10. bosco
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    bosco - October 20, 2013 7:57 am
    It is not right or wrong for Gov Walker to base his decision on what another tribe wants. That is misinformation. I do not want more gaming. I do not want more WI being owned by a tribe forever. Why does a tribe have more rights than a WI citizen on a WI matter?
  11. reality22
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    reality22 - October 20, 2013 2:26 am
    Mascots: It baffles me why Native Americans would find team names like braves, chiefs, Indians or even redskins as offensive. Isn't it really an honor to have these names! If that is the case shouldn't we scrap the city names like Oshkosh Shawano ...... The Native Americans need to take a long look at themselves and quit wearing their hearts out on their sleeve. There should be nothing but pride in these names and having a team using them as a mascot!

  12. Husky
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    Husky - October 19, 2013 11:24 pm
    Each of the 11 tribes in Wisconsin are sovereign nations. What walker is doing is asking 11 countries to sign off on what one country wants to do business-wise. When has that been done in the world? Please advise me where this gas been done. If he is doing what Michigan has done , then make Potowatomi And Ho-chunk share their millions with the other nations. Just like Michigan requires.
  13. Stuck In The Middle With You
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    Stuck In The Middle With You - October 19, 2013 11:04 pm
    Walkers just looking to his slice of the pie. I think the Indians learned long ago not to deal with the paleface.
  14. jonathan
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    jonathan - October 19, 2013 5:25 pm

    It's a zero sum deal. Add jobs at a new casino and take them away from an existing one. Adding a new casino brings nothing to Wisconsin. In fact, it reduces existing tribal income and ships money out of state.

    Walker is basing the decision where it belongs: on the tribes. They can decide to share the pie or not. Further, the Governor is honoring Wisconsin voters who, in a referendum, made it very clear. that no new gaming was to be permitted.

    Lighten up BS of F.

  15. imbobim
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    imbobim - October 19, 2013 5:24 pm
    WI does NOT need any more casinos.
  16. joe
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    joe - October 19, 2013 4:16 pm
    If it is up to the Governor, he can do what he wants. If he wants it based on football scores, he can. He can also say no for any reason as well. Maybe we should just get rid of gaming in Wisconsin altogether. I would think the Dems would understand it is more detrimental to the poor as well, but they backed it pretty hard with Doyle. Take from one poor group and give to another.
  17. ButSiriuslyFolks
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    ButSiriuslyFolks - October 19, 2013 2:26 pm
    Once again, this is just cowardice on the part of Scott Walker.

    This is jobs, but its not the "right people" making the jobs. You see, Native Americans have traditionally voted blue over the years, and the GOP just pushed through a bill that will make it harder for Native Americans to have their voice heard with high school mascots.

    So much so, that several GOP states are already working on Native American voter suppression laws.

    So, stuck between a rock and a hard place (or a hard rock, as the case may be), Walker doesn't want to make the decision to actually prevent jobs from coming to Wisconsin, but doesn't want more tribal power and money, either. So, he leaves it to the tribes to fight it out among themselves, allowing the Potowotami to act as the "bad guy" to the "Menominee" (which is kind of ironic, if you know anything of Wisconsin Native American history) and he can wash his hands of it.


  18. Lexus Peterson
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    Lexus Peterson - October 19, 2013 2:15 pm
    He's asking because he knows they will never all agree and then he's off the hook of actually needing to make a decision.
  19. cc1038
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    cc1038 - October 19, 2013 1:09 pm
    Divide and conquer!
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