Wisconsin tribe fears last-minute rejection of casino

Law | Politics

Tuesday, December 9, 2008

The clock is ticking on the Bush administration and one Wisconsin tribe is still worried its off-reservation casino proposal will be rejected by outgoing Interior Secretary Dirk Kempthorne.

The Menominee Nation, whose reservation was recently rated the least healthy place in the state, wants to convert a dog track into a Class III facility. The tribe says the project, which has the support of the local community, will improve its way of life.

"Menominee ranks last in the state in terms of mortality, general health status, unemployment, children living in poverty and other factors that have a devastating impact on the health of our community," Chair Lisa Waukau said. "In addition to creating thousands of good jobs and providing major economic benefits to Kenosha and the state of Wisconsin, the project will generate the revenue our tribe needs to emerge from this dangerous downward spiral and build a better future for the Menominee people."

Despite the potential benefits of the $808 million Kenosha casino, it faces rejection under a "guidance memorandum" the Bush administration issued in January. The policy requires tribes who seek land away from existing reservations to prove that the acquisition won't hurt their home communities.

The new standard, which includes a "commutability" test for driving back and forth from the reservation, was developed without tribal consultation and without going through the rule-making process. But so far, it has survived one legal challenge in a lawsuit involving another Wisconsin off-reservation casino.

The Menominees filed their own suit last month in hopes of preventing the project from suffering the same fate as 11 other tribes whose casinos were rejected in January under the memorandum. A motion for a temporary restraining order claimed the denial from the Interior Department was imminent.

"The tribe would be irreparably harmed if DOI were allowed to proceed with the denial it now threatens to issue," the November 24 brief stated.

But after a 10-minute telephone hearing two days later, Judge William C. Griesbach, a Bush nominee, rejected the tribe's request to block Interior from proceeding. He said the tribe "failed to establish a likelihood of success on the merits" because there was no "final agency action" to review.

"It is doubtful that the claim is ripe or that the tribe has standing at this stage of the proceeding," Griesbach wrote on November 26.

The tribe asked the Bureau of Indian Affairs back in October to stop processing its application. George Skibine, a career employee who has been assigned the duties of the assistant secretary for Indian affairs, said he wouldn't agree to the request.

Skibine, who normally serves as director of the Office of Indian Gaming Management at the BIA, is likely to be the decision-maker on the Menominee casino, if one is made at all before the end of the Bush administration. He has not made similar rulings on off-reservation casinos since former assistant secretary Carl Artman resigned in May.

Artman, before he stepped down, told Congress that Secretary Kempthorne did not develop the January memorandum. But it is widely known that Kempthorne, the former governor of Idaho, opposes off-reservation gaming.

Since Kempthorne came on board in May 2006, it has become increasingly harder for tribes to acquire land away from existing reservations. Officials have made critical changes to their review of land-into-trust applications and gaming compacts without consulting tribes and without going through the rule-making process.

The Bush administration recently finalized two rules affecting land-into-trust applications and gaming compacts. But neither of them address the guidance memorandum or other changes that were made without consulting tribes.

Tribes and their advocates hope president-elect Barack Obama will rescind the changes after he is inaugurated on January 20, 2009. His transition team, which includes three prominent Indian attorneys, has been busy reviewing the Interior Department with an eye at putting his stamp on Indian policies.

Court Decision:
Menominee Nation v. Kempthorne (November 26, 2008)