Could Connecticut authorize the East Windsor tribal casino, or open the door to sports betting, without the federal Department of the Interior's approval of compact amendments?
Plain-English summary
Speaker of the House Joe Aresimowicz asked AG George Jepsen three connected gaming questions in spring 2018. They came at a tense moment in Connecticut tribal-gaming policy. The legislature had passed Public Act 17-89 in 2017 authorizing MMCT Venture (jointly owned by the Mashantucket Pequot Tribe and the Mohegan Tribe) to operate a casino in East Windsor, but only on the condition that the federal Department of the Interior approve amendments to the gaming compacts. Interior simply refused to act on the amendments within the 45-day window the Indian Gaming Regulatory Act gave it, neither approving nor disapproving and never publishing a notice in the Federal Register. The State and the Tribes sued.
Jepsen concluded that the federal-approval condition had not been satisfied, so MMCT was not yet authorized to operate. Stripping the federal-approval condition out of the statute would, in his view, expose Connecticut to the risk that the existing compacts' moratoriums on video facsimile gaming and the related revenue-sharing obligations would unravel. On sports betting, he concluded that if the Supreme Court struck down PASPA in Christie v. NCAA, the Tribes would not automatically inherit an exclusive right to run sports books, because sports betting was not on the list of authorized games in either compact. Whether sports wagering counted as a "commercial casino game" under the MOUs (which would suspend the Tribes' revenue-sharing obligations) was an open question he declined to predict. Finally, a request-for-proposal statute that did not actually authorize any gaming, only studied it, would not break the existing arrangement, just as Special Act 15-7 had not.
Currency note
This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The Supreme Court did strike down PASPA in Murphy v. NCAA, 584 U.S. 453 (2018), and Connecticut subsequently authorized sports betting through Public Act 21-23 in 2021, with the Tribes and the Connecticut Lottery Corporation as the licensed operators. The East Windsor casino project was not built. Anyone working on Connecticut tribal-gaming questions today should look at the post-2021 statutory framework, the 2021 amendments to the gaming agreements that Interior eventually approved, and the federal litigation that has since closed.
Common questions
Q: What is a "deemed-approved" amendment under IGRA?
A: When a state and a tribe negotiate amendments to a gaming compact, the Indian Gaming Regulatory Act gives the U.S. Department of the Interior 45 days to either approve or disapprove. If Interior does nothing in that window, the amendments are "deemed approved" by operation of law. But the regulations also say approval becomes effective only when published in the Federal Register, which gave Interior a way to stall by neither acting nor publishing.
Q: Why did Connecticut sue the federal government over compact amendments?
A: The State and the Tribes filed Connecticut v. Zinke in the D.C. federal district court arguing that Interior's silence had to count as deemed approval and that Interior was required to publish that approval in the Federal Register. Without publication, the East Windsor casino could not legally open. The lawsuit was the only realistic way to force the issue.
Q: Did the Tribes have an exclusive right to sports betting?
A: Per the AG, no. The compacts listed authorized games (slot machines, table games, pari-mutuel wagering on racing and jai alai) and did not list sports betting. Connecticut courts apply the canon that listing items by name implies excluding items not listed (citing Mayer v. Historic Dist. Comm'n, 325 Conn. 765 (2017)). To give the Tribes sports betting, the compacts would have to be amended under their own section 17.
Q: What was at stake in the "commercial casino game" question?
A: The MOUs between the State and the Tribes pay the State a slice of slot revenue. That obligation drops away if Connecticut law changes to permit "video facsimiles or other commercial casino games." If a court treated sports betting as a commercial casino game, the Tribes could stop paying the State, and the slot moratoriums in the compacts would also be back in question. Hundreds of millions of dollars a year turned on that one undefined phrase.
Q: Did the AG block all gaming legislation, or just casino expansion?
A: Just expansion. He confirmed that an RFP-style statute, like Special Act 15-7 (which had asked operators for proposals without authorizing any new gaming), did not implicate the compact moratoriums or the MOU revenue-sharing duties. The trigger was actual authorization of new gaming, not the study of it.
Q: Why was the AG so cautious?
A: Because if a court ever ruled that Connecticut had broken the compacts, the cost would be the loss of one of the largest non-tax revenue streams in the state budget, plus litigation with sovereign tribal governments. The downside dwarfed the upside of moving fast on East Windsor.
Background and statutory framework
Connecticut's tribal-gaming arrangements rest on three layers. The Mashantucket Pequot Procedures (1991) and the Mohegan Compact (1994) are negotiated agreements that authorize specific Class III gaming on tribal land. The Memoranda of Understanding (MOUs) are the side-deals under which the Tribes pay the State a share of slot revenue in exchange for the State leaving the slot market closed to anyone else. Public Act 17-89 was the legislature's first effort to break that closed-market structure by authorizing a tribally-owned commercial casino off-reservation, in East Windsor. The statute conditioned that authorization on amendments to the compacts and MOUs that would preserve the revenue-sharing arrangement.
Under IGRA, 25 U.S.C. § 2710(d)(8)(C) and 25 C.F.R. § 293.12, Interior has 45 days to approve or disapprove a compact amendment. Inaction triggers automatic approval, but 25 C.F.R. § 293.15 makes that approval effective only when published in the Federal Register. Interior used the gap between automatic approval and required publication to keep the East Windsor amendments in limbo, prompting Connecticut and the Tribes to sue.
Sports betting in 2018 was governed federally by PASPA, which barred most states from authorizing sports wagering. New Jersey's challenge in Christie v. NCAA was pending at the Supreme Court when this opinion issued; the Court ruled later that year in Murphy v. NCAA that PASPA violated the Tenth Amendment's anti-commandeering doctrine, opening the door to state-by-state legalization.
Citations and references
Statutes and regulations:
- Public Act 17-89 (East Windsor casino authorization)
- Special Act 15-7 (RFP-only gaming study)
- Conn. Gen. Stat. § 3-6c (legislative approval of compact amendments)
- Indian Gaming Regulatory Act, 25 U.S.C. § 2710(d)(3)(B), (d)(8)(C)
- 25 C.F.R. §§ 293.12, 293.15
Cases:
- Connecticut, et al. v. Zinke, et al., No. 1:17-cv-2564-RC (D.D.C.) (pending suit over Interior inaction)
- Christie v. NCAA, Nos. 16-476, 16-477 (U.S.) (PASPA constitutionality)
- Mayer v. Historic Dist. Comm'n, 325 Conn. 765 (2017) (negative-implication canon)
Prior AG materials:
- A.G. Op. No. 2017-02, 2017 WL 1052342 (2017)
- Letter to Legislative Leadership dated April 15, 2015
- Letter to Speaker Brendan Sharkey dated May 27, 2015
Source
- Landing page: https://portal.ct.gov/AG/Opinions
- Original PDF: https://portal.ct.gov/-/media/ag/opinions/2018/2018-01_casino_issues_speaker.pdf?rev=50b34d1d85714d4da5537b0f3474f9bd
Original opinion text
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
GEORGE JEPSEN
ATTORNEY GENERAL
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.
(860 ) 808-5319
The Honorable Joe Aresimowicz
Page 2
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-2564RC. 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
The Honorable Joe Aresimowicz
Page 3
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
1
We have evaluated possible alternative approaches the Tribes have proposed to help mitigate the
risks of removing the federal approval condition, including most recently a proposal to enter a new
agreement the Tribes contend would not require Interior approval under IGRA. However, because
of the inherent legal uncertainty and novelty associated with such a course of action, we remain of
the view that, in the absence of federal approval of the amendments to the Compacts and the
MOUs, the State would remain at substantial risk of the termination of the Compacts' moratoria
and the MOUs' revenue sharing arrangements. See Letter to Legislative Leadership dated April
15, 2015.
The Honorable Joe Aresimowicz
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Jersey that the prohibitions of the federal Professional and Amateur Sports
Protection Act (PASPA) on state-sanctioned sports gambling violates the anticommandeering 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 to become lawful in
Connecticut, the Tribes would not have an exclusive right under the existing
Compacts and MOUs to offer it. The Compacts set out a list of authorized games.
Mashantucket Procedures, § 3; Mohegan Compact, § 3. Sports betting is not
listed as an authorized game. By contrast, for example, pari-mutuel betting on
horse and dog racing and jai alai games are authorized games. Id. The exclusion
of sports betting from the specific list of authorized games is compelling evidence
that the Compacts do not presently authorize it. See Mayer v. Historic Dist.
Comm'n, 325 Conn. 765, 776 (2017) (when items expressed are of an associated
group, it can be inferred that items not mentioned were deliberately excluded).
Amendments to the Compacts would be necessary to authorize the Tribe's sports
betting, as contemplated under section 17 of the Compacts. Thus, our opinion is
that the Compacts do not presently authorize the Tribes to conduct sports betting
on their reservations. Nor are we aware of any other federal or state law that
would be a basis for the Tribes to assert an exclusive right over sports betting.
The Tribes may argue, however, that a state law permitting sports
wagering in Connecticut would violate the exclusivity provisions of the MOUs.
Those provisions state that the Tribes are relieved of their obligation to pay the
State a portion of the gross operating revenues from the operation of video
facsimiles of games of chance on their reservations if state law is changed to
permit "video facsimiles or other commercial casino games." E.g., Mohegan
MOU, at 2. Although it is our view that sports wagering is not a video facsimile,
The Honorable Joe Aresimowicz
Page 5
whether it is a "commercial casino game" is an open question. That term is not
defined in the MOUs or Compacts. How a court might resolve that question is
uncertain.
If the state passed a law permitting sports wagering and a court concluded
that it does constitute a commercial casino game, the Tribes could cease making
payments to the State under the MOUs. In that event, however, the Tribes and the
State would be restored to their respective rights under the Compact moratoria.
Under those moratoria, the Tribe's authority to operate slot machines and other
video facsimiles of games of chance on their respective reservations would
remain an unresolved legal question, as it was prior to the time the MOUs were
entered.
Request for Proposal Legislation
Your final question is about the legal effect of a law, similar to Special
Act 15-7, which would establish a request for proposal process for sports betting
or casino gaming but would not authorize such gaming until a subsequent act of
the legislature. It was our view that the request for proposal process established
under Special Act 15-7 did not implicate the Compact moratoriums or the revenue
sharing obligations under the MOUs. 2 See Letter to Speaker Brendan Sharkey
dated May 27, 2015. The reasoning set forth there applies equally here.
The pertinent provisions of both the Compacts and the MOUs speak only
to laws that authorize the operation of commercial casino games or video
facsimiles of games of chance. Section 15(a) of the Compacts provides that the
moratoria on the operation of video facsimile games by the Tribes terminates if
"the existing laws or regulations of the State are amended to expressly authorize
the operation of any video games of chance for any purpose by any person,
organization or entity." E.g., Mohegan Compact, § 15(a) (emphasis added.) The
MOUs, in turn, provide that the Tribes' obligation to make payments to the State
shall continue "so long as no change in State law is enacted to permit the
operation of video facsimiles or other commercial casino games by any other
person and no other person within the State lawfully operates video facsimile
games or other commercial games…." E.g., Mohegan MOU, at 2 (emphasis
added). Because the contemplated legislation would not itself authorize any
gaming but rather just a preliminary process that would remain contingent on
further legislative action, we take the same view as we did for Special Act 15-7
2
The process under Special Act 15-7 did ultimately culminate in the subsequent enactment of
Public Act 17-89.
The Honorable Joe Aresimowicz
Page 6
that the existing arrangements under the Compacts and MOUs would not be
affected. If the legislature were to consider in this or subsequent legislation the
actual authorization of gaming, such authorization would raise very serious
concerns of the sort we expressed prior to the enactment of Public Act 17-89. 3
See Letter to Legislative Leadership dated April 15, 2015.
We trust this is responsive to your questions.
Very truly yours,
GEORGE JEPSEN
ATTORNEY GENERAL
3
The Tribes have suggested that Special Act 15-7 is distinguishable because it could only lead to
the operation of a facility operated by an entity jointly owned by them and thus posed no risk to
the revenue-sharing provisions of the MOU. See Letter to Governor Malloy dated March 23,
2018, at 2. That is not our view, and we expressly advised that gaming authorization of a jointly
owned entity did pose risks to the Compacts and the MOUs. Letter to Legislative Leaders dated
April 15, 2015.