Opinion: War games in Wisconsin over off-reservation casino

Wisconsin is home to 11 recognized Indian tribes. It is a fact that 11 tribes will not unanimously agree on all issues. It also is a fact that not all issues require unanimous agreement. However, Governor Scott Walker has created a unique situation regarding off-reservation approvals by stating his own rule which states that any proposed off-reservation casino project must be supported by every tribe in the state.

The "Walker Rule" is a major modification of the statutory process established by Section 20(b)(1)(A) of the Indian Gaming Regulatory Act ("IGRA"). The law states that the Governor has an unrestricted power to approve or veto any off-reservation tribal casino. There is no standard of reasonableness imposed by the law and, indeed, the prevailing interpretation of that provision is that the Governor's decision can even be arbitrary and capricious, no matter how unfair.

The issue is red hot because the Menominee Indian Tribe wants to develop a casino on land in Kenosha, which is both off-reservation and conveniently located near Milwaukee. And it is of current interest throughout Indian Country because the Governor has stated that he will veto the project if the Menominee Tribe cannot secure tribal unanimity by this Friday. (The date was previously set for Tuesday of this week, but was deferred for three days only last Monday.)