The Forest County Potawatomi Community has filed a complaint against the Department of the Interior over the disapproval of its gaming compact – the latest development in the Menominee Tribe’s efforts to develop a class III gaming facility in Kenosha, Wisconsin.

Here are some initial thoughts about the case:

1. 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.
2.  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.
3. 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.  
4. The Department’s decision to disapprove the Forest County Potawatomi gaming compact was based on its determination that the compact included terms that went far beyond what IGRA allows. The Complaint alleges that determination was wrong, and states, “IGRA expressly provides that a compact may include provisions that take into account the adverse economic impacts on existing gaming activities” and then cites 25 U.S.C. §§ 2710(d)(7)(A)(iii)(I) and 2710 (d)(3)(C)(vii).  Nothing in either of those sections of IGRA “expressly” allows a compact to include terms that mitigate a tribal gaming facility for lost profits.  The Department is going to get a lot of deference on its interpretation of those sections.
5. The Complaint alleges that the Department had “a ministerial duty to approve the [Potawatomi] Compact amendment” because it was the product of an earlier compact amendment that survived the Department’s review. This is, perhaps, the biggest stretch in the complaint.  A court could see that argument as an effort to allow tribes and states to collude to avoid DOI review of gaming compact amendments.

Gaming compacts have become increasingly more complex, and the Department of the Interior has become much more active in reviewing those agreements.  This will be a difficult case for Forest County Potawatomi to win, as I suspect the Court will defer to the Department’s expertise in this area. All in all, there are lot of interesting questions for the court to consider in this matter.

Here are related documents:

1-1 Exhibit A — Compact Amendment

1-2 Exhibit B — Disapproval Letter