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Dice Roll: Jepsen Raises Risks Of Third Casino For Tribal Nations

March 13th, 2017 · 7 Comments · Development and Zoning, News and Events

Connecticut Attorney General George Jepsen on Monday issued a legal opinion warning of financial and legal risks associated with the state authorizing a third casino gaming facility operated by an entity jointly owned by Connecticut’s two tribal nations that manage Foxwoods and Mohegan Sun. The opinion could impact legislative approval for a proposed East Windsor casino on non-tribal property to counter MGM Resorts nearly $1 billion casino under construction in Springfield, Massachusetts while bolstering support for an open, competitive casino that could put Bridgeport in play. See full opinion here.

At issue are constitutional concerns with breaking the state’s exclusive compact with the tribal nations, that provide 25 percent of the slot take, if they are granted a joint venture for a third casino on non-tribal land.

MGM Resorts and proponents of a competitive bidding process argue the exclusive compact is limited to tribal land. The legislature is weighing two bills, one for approving the tribal nation joint entity and one for an open, competitive process.

Jepsen writes:

Thus, there is an increased likelihood that a court would reach the merits of equal protection or commerce clause challenges.

As noted, we must be circumspect in our comments in light of our responsibility to defend such claims if, as is foreseeable, they are asserted and their merits litigated. To be sure, legislation currently pending to approve a joint tribal casino does not explicitly reference or rely upon the process that was previously established in Special Act 15-7 and that is currently being challenged in litigation. However, it is foreseeable that any legislation resulting in approval of the joint tribal entity’s operation of a casino will be challenged as effectuating and furthering an allegedly discriminatory intent first manifested in Special Act 15-7 in violation of the commerce and equal protection clauses of the United States Constitution.

We do believe that there are potentially meritorious defenses that we would be able to raise against these constitutional claims, including that the special nature of state-tribal relationships permit special legislative treatment and require judicial deference. However, the relative novelty of the legal issues such claims would present makes it difficult to predict their outcome with confidence. We caution that the potential of equal protection or commerce clause challenges succeeding in this context is not at all insubstantial.

MGM official Uri Clinton who asserts a third casino in southwestern Connecticut would far outweigh the economic benefits of the East Windsor location declared in response to Jepsen’s opinion:

“Attorney General Jepsen’s legal analysis reiterates and underscores what he stated so effectively two years ago. Once again, the conclusion is clear and unmistakable: Connecticut risks hundreds of millions in annual revenue if it proceeds with a commercial casino–even if that casino is to be operated jointly by the two federally recognized tribes.

“Connecticut cannot afford to take this and the other risks identified by Attorney General Jepsen, especially in the midst of budgetary shortfalls and economic uncertainty. There is a better, no-risk option. Connecticut can generate more revenue, create more jobs, and drive greater economic development for the state as a whole by establishing a competitive bidding process.”

More from the CT Mirror here.

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7 Comments so far ↓

  • Frank Gyure

    I think OIB is trying to convince OIB participants to support the possibility of casinos in BPT.

  • Jeff Kohut

    Not hard to see the biased “hedge” in that opinion.

    “… We do believe that there are potentially meritorious defenses that we would be able to raise against these constitutional claims, including that the special nature of state-tribal relationships permit special legislative treatment and require judicial deference …”

    Jepsen’s political base is in the 27th Senatorial District (Stamford/Darien), and he doesn’t want to alienate Greater Hartford and his fellow Gold Coaster, Hartford Mayor/designated Malloy successor Luke Bronin, so it isn’t hard to imagine the Attorney General might want to discourage potential Bridgeport casino support with a few legal red flags raised at critical junctures in the legislative process, or more likely, with a legal challenge to a legislative green light for a competitive process.

    But it looks like Mr. Clinton and MGM are well prepared for legal wrangling if they are actually interested in a Bridgeport casino. Meanwhile; it will be interesting to see if additional interest in Bridgeport is rekindled in the gambling industry beyond MGM. It would seem it is very likely, given the need for the development of other markets by the other players.

    • Joel Gonzalez

      Jeff, I had a short exchange with a representative of the Golden Hill tribe. They have been kept out of this round of gaming discussion and as usual, they feel left out. I’m told that despite what the other tribe is saying about putting a casino in Bridgeport, the Paugussett Tribe doesn’t see that happening. Does MGM knows something they’re not telling us?

      The Schaghticoke split in two Tribes/Nations. How does MGM handle this situation? If it split in two, who applies for recognition?
      en.wikipedia.org/wiki/Schaghticoke_tribe

  • charlie

    Judicial deference should not now or ever include the option for discrimination or due process. I hope nobody believes Bridgeport is the exclusive territory of the Schaghticoke who have no territorial claims at all. The Golden Hill Paugussetts have not nor will they abandon Bridgeport as their ancestral home.

  • Frank Gyure

    Okay, well let’s keep on playing games. Eenie, meenie, minie, moe?

  • Jeff Kohut

    Joel: The potential for intrigue in Bridgeport is as limitless as PT Barnum’s imagination. And it is the nature of successful gamblers to play things close to the vest. I would be shocked if there weren’t an iceberg of maneuvering under the icicle of casino-related discussion at the Capitol that we’ve seen covered by the media.

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