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Tribe chairman says new Indiana law violates US law

May 14, 2015

The chairman for the Pokagon Band of Potawatomi Indians who are seeking to build a casino in South Bend said Wednesday a new law approved by the General Assembly prevents Gov. Mike Pence from negotiating in good faith with the tribe on a compact, voiding the need for such an agreement.

Tribal Chairman John Warren said the law specifying the process for the state to enter into a compact violates the Indian Gaming Regulatory Act because it includes stipulations on what the compact must include.

"They just passed legislation that tied the governor's hands in negotiating with us in good faith and everything they had in their bill is against federal law. So we don't have to negotiate with them to open," he said.

Gov. Mike Pence was in China on a business trip Wednesday. Spokeswoman Kara Brooks said the administration "is currently reviewing our options both at the federal and state level as they relate to a new casino being built in South Bend."

The tribe's proposal to build a tribal village, casino, 500-room hotel and medical facility is under review by the federal Bureau of Indiana Affairs. The tribe already runs three casinos in Michigan.

BIA spokeswoman Nedra Darling said no one at the agency could comment on the law that went into effect last week until they had an opportunity to review the language.

Rep. David Niezgodski, D-South Bend, spoke against the bill in the House and said he was concerned the law would make it difficult for the governor to negotiate. He said he could see how the Pokagons could view it as a tactic "to simply slow the process down."

"They have a right to build a casino if they want and we should do everything we can to show we accept them with open arms," he said.

Kathryn Rand, dean of the University of North Dakota School of Law and co-director of the Institute for the Study of Tribal Gaming Law and Policy, said she doesn't see a significant problem with the state law. She said she doesn't believe the state law is trying to replace federal requirements, but is in addition to those.

Warren said he believes the state law violates federal law because it specifies the compact must include terms about who manages the tribe's gaming operation, the types of games offered, the administration and regulations of those games, infrastructure and site improvements and revenue sharing with state and local governments. It also states the compact must be approved by the General Assembly.

A potential problem, Rand said, is that revenue sharing must be included in the compact and that the state must provide the tribe something in exchange. In some states, that has meant exclusivity or allowing a tribe to operate a game in a potentially desirable location or the number or kinds of games that are offered.

"Just something above and beyond," she said.

She also said what the state gives to the tribe has to be in line with the revenue the tribe has agreed to provide to the state and can't be simply as a sort of tax. She said the Interior Department will review the compact to make sure "the value of what the state is giving up is roughly comparable to what the state receives through the revenue sharing."

Warren predicts if the law isn't changed, the BIA will draw up a compact defining the gaming relationship between the tribe and the state.

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