The Honorable Joe Aresimowicz
AGO 2018-1
No. 2018-01
Connecticut Attorney General Opinion
Office of the Attorney General State of Connecticut
April 17, 2018
The
Honorable Joe Aresimowicz
Speaker
of the House
State
of Connecticut
House
of Representatives
Legislative
Office Building, Suite 4100
Hartford,
CT 06106
Dear
Speaker Aresimowicz:
You
have requested opinions on several gaming-related issues.
First, you ask questions about the amendments to the existing
gaming agreements with the Mashantucket Pequot Tribe and the
Mohegan Tribe (Tribes), and the federal approval thereof,
required by Public Act 17-89. Second, you inquire about the
implications of a decision in a pending U.S. Supreme Court
case that could result in the lifting of a federal
prohibition on sports betting. And third, you ask about the
legal consequences of legislation creating a request for
proposal process for sports betting or casino gaming.
In
summary, we conclude that (1) Public Act 17-89's
condition that the amendments to the existing gaming
agreements be approved by the U.S. Department of the Interior
(Interior) has not been satisfied; (2) because that condition
has not been satisfied, Public Act 17-89's authorization
to conduct casino gaming in East Windsor is not yet
effective; (3) eliminating the federal approval condition
would raise risks for the current gaming arrangements with
the Tribes about which we have previously opined and continue
to have serious concerns; (4) if the federal ban on sports
betting is found to be unconstitutional, the Tribes would not
have the exclusive right to provide sports betting to the
public; and (5) legislation similar to Special Act 15-7 that
would provide for a request for proposal process for sports
betting or casino gaming, but requiring subsequent
legislation to actually authorize such activity, would not
affect the existing gaming arrangements with the Tribes.
Compact
Amendments and Public Act 17-89
Last
year, the General Assembly enacted Public Act 17-89, which
authorized MMCT Venture, LLC (MMCT), an entity jointly owned
by the Tribes, to conduct casino gaming at a facility in East
Windsor. That authorization was subject to the satisfaction
of several conditions, including in particular the amendment
of the Mashantucket Procedures and the Mohegan Compact
(Compacts) and of the related Memoranda of Understanding
between the State and the Tribes (MOUs). The amendments to
the Compacts must provide that the authorization of MMCT to
conduct casino gaming would not terminate the moratorium on
video facsimile games in the Compacts, and the amendments to
the MOUs must provide that the authorization would not
relieve the Tribes of their revenue sharing obligations under
the MOUs. After approval by the General Assembly pursuant to
Conn. Gen. Stat. § 3-6c, the amendments were to be
submitted to Interior for approval pursuant to the Indian
Gaming Regulatory Act (IGRA). P.A. 17-89, § 14(c).
The
Governor and the Tribes executed the amendments to the
Compacts and the MOUs, the General Assembly approved them,
and they were submitted to Interior for approval. Under IGRA
and its regulations, Interior had 45 days to affirmatively
approve or disapprove the proposed amendments or, in the
absence of approval or disapproval within that time, the
amendments are to be deemed approved. 25 U.S.C. §
2710(d)(8)(C); 25 C.F.R. § 293.12. Interior neither
affirmatively approved nor disapproved the amendments.
Further, it did not publish in the Federal Register, as
required by the regulations, that the amendments were
approved, disapproved or deemed approved. The State and the
Tribes thereafter jointly filed suit against Interior in the
federal district court for the District of Columbia.
Connecticut, et al. v. Zinke, et al., No.
1:17-cv-2564-RC. Among other things, the State and the Tribes
maintain that the amendments were deemed approved by
operation of law and that such approval must be published in
the Federal Register. The lawsuit remains pending.
Your
first question asks whether, in light of the position the
State and the Tribes have taken in the litigation, the
condition in Public Act 17-89 of federal approval of the
amendments has been satisfied. First, the issue is in
litigation. Although we have confidence in the position we
have taken that the amendments should be treated as deemed
approved, it remains possible that the court could rule
adversely. To take action on the assumption that the State
and the Tribes will succeed in the ongoing litigation would
be highly imprudent. Second, and just as importantly, IGRA
and its implementing regulations provide that Interior's
approval of compact amendments is effective upon publication
in the Federal Register. 25 U.S.C. § 2710(d)(3)(B); 25
C.F.R. § 293.15. Such publication has not occurred, and
indeed an order requiring Interior to publish approvals of
the amendments is part of the relief the State and the Tribes
seek. Therefore, it is our opinion that the federal approval
condition has not been satisfied.
As a
follow up question, you ask if MMCT is now authorized to
operate the proposed gaming facility in East Windsor.
Because, in our opinion, the federal approval condition has
not been met, MMCT does not have such authority yet.
You
further ask for an opinion about the legal effect of removing
the federal approval condition. Prior to the enactment of
Public Act 17-89 when the General Assembly was first
considering proposals for a gaming facility, we provided a
letter to the legislative leadership addressing, among other
things, the risks of proceeding with such a proposal without
amending the Compacts and the MOUs. Letter to Legislative
Leadership dated April 15, 2015 (copy attached). In that
letter we discussed the not insubstantial risk that
authorizing a gaming facility without the amendments and
federal approval of them could potentially terminate the
moratoriums on video facsimiles in the Compacts and the
revenue sharing obligations under the MOUs. We therefore
recommended that as part of any legislative authorization
that amendments and Interior Department approval be required
as conditions. Id. at 2-4; see also A.G.
Op. No. 2017-02, 2017 WL 1052342 (2017).
Our
view of the risks of proceeding without federal approval of
the amendments is unchanged. Indeed, subsequent events and
actions of Interior only reaffirm our view that approval of
the amendments is highly recommended to protect the
State's interests under the Compacts and the
MOUs.1
Sports
Betting
You
note that the U.S. Supreme Court has recently heard arguments
in Christie v. NCAA, Nos. 16-476, 16-477, involving
the claim of the State of New Jersey that the prohibitions of
the federal Professional and Amateur Sports Protection Act
(PASPA) on state-sanctioned sports gambling violates the
anti-commandeering doctrine of the Tenth Amendment. A
decision is likely before the end of the Supreme Court's
current term in June. You ask, if the Supreme Court concludes
that PASPA is unconstitutional, would the Tribes have the
exclusive right to offer sports wagering. Of course, any
views we express now on the effect of the Supreme Court's
decision on the state of the law on sports betting could be
altered by the Court's actual ruling.
Connecticut's
agreements with the Tribes require the legislature to
carefully consider a number of factors before legalizing
sports wagering. In the event PASPA is struck down and state
law continues to prohibit sports wagering (as it presently
does), because sports wagering is a Class III game under
federal law and is not an authorized game under either of the
respective Compacts, the Tribes would still be prohibited
from conducting sports wagering on their reservations.
Moreover,
it is our opinion that if sports betting were...
