Kenosha Casino (copy)

This artist's rendering provided by the Menominee Nation shows the tribe's proposed casino in Kenosha. 

Associated Press

"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.

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“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.

 

Jack Craver is the Capital Times political reporter, focusing on elections, candidates and campaign finance.