Attorney General: John B. Larson, President Pro Tempore, Cornelius O'Leary, Senate Majority Leader, 1991-016 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

May 1, 1991

John B. Larson, President Pro Tempore
Cornelius O'Leary, Senate Majority Leader
Legislative Office Building
Capitol Avenue
Hartford, CT 06106

Dear Senator Larson and Senator O'Leary:

The issue in this request for opinion is whether the Connecticut General Assembly can, by repealing the authorization for charitable Las Vegas Nights in Conn. Gen. Stat. 7-186a et seq., eliminate the right of the Mashantucket Pequot Tribe (Tribe) to conduct a casino on its reservation in Ledyard. For the following reasons we believe that eliminating the exception for Las Vegas Nights and thereby leaving in place a criminal prohibition on all casino gaming in Connecticut would eliminate the legal basis for the District Court and Court of Appeals decisions that the Tribe was authorized under the Indian Gaming Regulatory Act (IGRA) 25 U.S.C. 2710-2721 (1988) and 18 U.S.C. 1166-1168 (1988) to pursue casino gaming on its reservation. We must caution, however, that this is a case of first impression and the issue will ultimately have to be decided by the courts.

By way of background, the Tribe is seeking to conduct a casino in Connecticut under procedures prescribed by the Indian Gaming Regulatory Act. The contemplated games are Class III gaming activities which are allowed only in conformity with an agreed upon Tribal-State Compact or, in the absence of such an agreement, pursuant to procedures promulgated by the U.S. Secretary of the Interior. 25 U.S.C. 2710. In 1989, the Tribe requested that the State enter into negotiations with the Tribe concerning the formation of a Compact shortly after IGRA became law. The State refused to negotiate over casino gaming because the State prohibited "such gaming", 25 U.S.C. 2710(d)(1), allowing only certain limited games of chance to be conducted by charitable organizations pursuant to Conn. Gen. Stat. 7-186a et seq. The Tribe brought suit in the federal courts to compel the State to negotiate, and the courts agreed to compel negotiations, based on their conclusion that the State allows casino gambling, albeit in a limited sense only:

The district court concluded that the games of chance that the Tribe seeks to conduct constitute "such gaming" as is permitted by Connecticut law at "Las Vegas nights" and that the Tribe's contemplated activities therefore constituted permissible class III gaming activities in the State. In our view the district court correctly decided the issue.

Mashantucket Pequot Tribe v. State of Connecticut, et al ., 913 F.2d 1024, 1029 (2nd Cir. 1990) aff'g 737 F.Supp. 169 (D. Conn. 1990), cert. denied, No. 90-871 (U.S. Sup. Ct. April 22, 1991).

Under order of the courts, the State negotiated with the Tribe over a Compact, but no agreement was reached. As required by law, each side drafted a proposed compact and the matter was referred to a mediator to choose which compact best comported with IGRA. The Tribe withdrew its proposal and the mediator selected the remaining State compact. Since the State was continuing to pursue its position in the pending litigation that the Tribe was not entitled to conduct casino gaming as a matter of law, the State did not consent to the compact.

Absent State assent, the matter was referred to the Secretary of the Interior, who is authorized to promulgate procedures under which Class III gaming may be conducted on the Tribe's Indian lands "consistent with the proposed compact selected by the mediator...the provisions of [IGRA], and the relevant provisions of the laws of the State." 25 U.S.C. 2710(d)(7)(B)(vii). There the matter remains. The Secretary of the Interior has given notice that he intends to adopt the Compact submitted but never agreed to by the State, which authorizes the conducting of a casino on the Tribe's reservation. The State has gone on record opposing the authorization, and interested parties have until May 17, 1991, to file comment. 56 Fed. Reg. 74, 15746 (to prescribe procedures) Notice of April 17, 1991).

Under our reading of the decisions of the District Court and the Court of Appeals in the Mashantucket litigation, it was the absence of a clear criminal prohibition of casino gaming under state law - the type of gaming requested by the Tribe - which led to the courts' conclusion that Connecticut was a "State that permits such gaming" under State Law. 25 U.S.C. 2710(d)(1)(B). Therefore, we believe that eliminating the exception for Las Vegas nights, and having in place a clear criminal prohibition of casino gaming, would alter the fundamental basis from the courts' conclusion that Connecticut permits "such gaming." Under IGRA, therefore, the Tribe would not have a right to conduct such gaming on its reservation. Although an argument may be raised that the State would have to bar all forms of gaming to accomplish this result, decisions of the District Court and the Court of Appeals for the Second Circuit clearly turned on the exception for Las Vegas Nights under State law. We believe the legislature may justifiably rely on those decisions.

We believe the Tribe has not acquired any vested or existing right to conduct casino gaming under IGRA. The Tribe has not been granted the right to conduct a casino in Connecticut by virtue of the federal court litigation. The federal court only required the negotiations for the conducting of games of chance regulated in Connecticut. Mashantucket, 913 F.2d at 1032. Given the absence of an agreed upon Compact, the Tribe is seeking the promulgation of procedures by the Secretary of the Interior to allow and govern casino gaming on the reservation, but such procedures have not yet been finally prescribed pursuant to 25 U.S.C. 2710(d)(7)(B)(vii). The matter is still pending. See 56 Fed. Reg. at 15746. Thus, the federal administrative proceedings under IGRA are still in progress, and the Tribe has no present right to operate a casino. Moreover, any such procedures prescribed by the Secretary must be "consistent with ... relevant provisions of the laws of the State ...." See Sutherland Stat. Const. (4th Ed.) 51.07-51.08.

As noted, the legislative change being contemplated raises an issue of first impression under IGRA and will undoubtedly have to be resolved by the courts. For the foregoing reasons, it is our opinion that, under the reasoning of the District Court and Second Circuit Court of Appeals, repealing the statutory exemption that permits charitable Las Vegas Nights would eliminate the Tribe's right under IGRA to conduct casino gaming on its reservation.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

RB/RFV/td


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