Attorney General's Opinion
Attorney General, Richard Blumenthal
February 11, 1993
Honorable Thomas D. Ritter
Speaker of the House
House of Representatives
Hartford, Connecticut 06106
Honorable Edward C. Krawiecki, Jr.
House of Representatives
Hartford, Connecticut 06106
Dear Representative Ritter and Representative Krawiecki:
We are replying to your letters of January 14, 1993 and January 22, 1993 in which you ask whether the Governor has the constitutional and statutory authority to execute without legislative approval a Memorandum of Understanding between the State and the Mashantucket Pequot Tribe regarding the installation and operation of video slot machines (i.e., video facsimile games as defined in that Memorandum and the Federal Procedures to which it refers) at Foxwoods Casino at Ledyard, and whether the Secretary of the Interior has to approve the agreement or take any action relating to it.
We conclude that the Governor's execution of the Memorandum of Understanding did not abridge the constitutional powers of the General Assembly. The Governor's action was within his executive authority because it did not bind the State to a Tribal-State Compact and did not enact new laws or amend existing laws. Instead, the Memorandum of Understanding represents the resolution of a dispute through the implementation of a procedure set forth in federal law--namely the "Procedures," Final Mashantucket Pequot Gaming Procedures, 56 Fed.Reg. 24996 (May 31, 1991)--governing the operation of a casino by the Mashantucket Pequot Tribe (the "Tribe"), which were validly issued by the Secretary of the Interior. Additionally, we conclude that the agreement does not require the approval of the Secretary of the Interior.
In order to respond to your requests, we must first review the history of the Tribe's casino. The State of Connecticut has consistently opposed casino gambling anywhere in the State. Accordingly, when this Tribe first sought negotiations under the Indian Gaming and Regulatory Act ("IGRA") (25 U.S.C. §§ 2701, et seq.) in early 1989, the State refused to negotiate regarding casino gambling. This position was consistently advocated through litigation in the Federal District Court, the Second Circuit Court of Appeals, and finally in the United States Supreme Court, which denied Connecticut's Petition for Certiorari. See Mashantucket Pequot Tribe v. State of Connecticut, 737 F.Supp. 169 (D.Conn.) aff'd, 913 F.2d 1024 (2nd Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1620 (1991).
The result of this litigation was that the federal courts ruled that the Connecticut statutory scheme permitting Las Vegas Nights (Conn.Gen.Stat. §§ 7-186a, et seq.) was sufficiently similar to casino type gambling so as to constitute "such gaming" as that term was used in IGRA. Consequently, the State was ordered to negotiate with the Tribe concerning the operation of a casino on its reservation in Ledyard. Moreover, the State was compelled to submit a draft compact to a court appointed mediator, who eventually chose the State's version rather than the draft presented by the Tribe. Under the federal scheme, the State was given the option of "accepting" the draft compact it had submitted to the mediator. It chose not to do so because the Supreme Court had not yet ruled on the State's Petition for Certiorari. Thereafter, the mediator transmitted the unsigned "Compact" to the Secretary of the Interior who, in turn, formally promulgated it with minor changes as federal Procedures--officially and authoritatively published in the Federal Register--governing the operation of a casino on the reservation. (Final Mashantucket Pequot Gaming Procedures, 56 Fed.Reg. 24996 [May 31, 1991]).
Simply stated, there is no Compact between Connecticut and the Tribe. The gambling activity on the Ledyard reservation is governed exclusively by the Procedures promulgated by the Secretary of the Interior pursuant to IGRA. These Procedures are a regulatory enactment of the United States government and are specifically authorized by 25 U.S.C. § 2710(d)(7)(B)(vii). The only authority to conduct gambling at this reservation is this regulatory enactment of the United States Government.
These Procedures, which have the full force and effect of federal law, provide that certain specified games of chance may be conducted at the casino (§ 3(a)). At the time those Federal Procedures were issued, there was an ongoing dispute between the Tribe and the State as to whether the Tribe had a right under IGRA to operate video facsimile games. The State claimed that the Tribe could not operate these games because they were not permitted under State law, while the Tribe claimed that the various types of Class III games permitted by State laws were sufficient to give the Tribe the right under IGRA to have video facsimiles as well. A moratorium was therefore imposed on video facsimile operations until any of the conditions set forth in Section 15(a) of the Procedures was met. Section 15(a) provides:
Moratorium on Class III video facsimile gaming:
Notwithstanding the provisions of section 3(a)(ix), the Tribe shall have no authority under this Compact to conduct Class III video facsimile games as defined pursuant to section 3(a)(ix) unless and until either: (a) it is determined by agreement between the Tribe and the State, or by a court of competent jurisdiction, that by virtue of the existing laws and regulations of the State the operation of video facsimiles of games of chance would not be unlawful on the ground that the Tribe is not located in a State that permits such gaming for any purpose by any person, organization, or entity within the meaning of 25 U.S.C. § 2710(d)(1)(B) (it being understood and agreed that there is a present controversy between the Tribe and the State in which the Tribe takes the position that such gaming is permitted under the existing laws of the State and the State takes the position that such gaming is not permitted under the existing laws of the State); or (ii) 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. Upon such determination the operation by the Tribe of video facsimiles of games of chance shall be subject to the applicable provisions of the Standards of Operation and Maintenance for Games of Chance adopted pursuant to section 7 of this Compact.
Final Mashantucket Pequot Gaming Procedures, 56 Fed.Reg. 24996, Section 15(a), pp. 53-54.
According to Section 15(a) of the Procedures, there are thus three ways that video facsimile games may be made permissible at the casino: by an agreement between the State and the Tribe; by a court order; or by a change in State law to allow video facsimiles in the State. In effect, the Procedures provide for three separate and distinct means of resolving the video facsimile dispute between the State and the Tribe. The first is within the power of the executive. The second is a resolution by judicial decision. The third is a legislative prerogative to determine the issue.
On January 13, 1993, Governor Weicker, on behalf of the State of Connecticut, executed a Memorandum of Understanding with the Tribe (copy attached). The stated purpose of this agreement was "to set forth certain matters regarding implementation of the final Mashantucket Pequot Gaming Procedures ..." (Memorandum, p. 1). The Memorandum of Understanding provides that the moratorium on video facsimile games imposed by the Procedures is suspended if the Tribe complies with the terms and conditions of the Memorandum. These terms include payments to the State by the Tribe so long as Connecticut law is not changed so as to permit video facsimiles elsewhere within the State. (Mem. of Understanding, 1 and 3.)
Your question as to whether the Governor has the authority to execute the Memorandum of Understanding without legislative approval is narrow and unique, turning on a specific detailed analysis of the Procedures, IGRA, federal court rulings and State law. As previously stated, according to Section 15(a) of the Procedures, one way that the moratorium may be lifted and the Tribe may conduct video facsimile games is for the State and the Tribe to reach agreement on this issue. The question is whether concluding this agreement is a function that is essentially executive in nature, or one that falls within the province of the legislature.
We recognize that a contract within the province only of the legislative department will not bind the State without legislative approval. See 38 Am.Jur.2d Governor, § 4 (1968). We note in this regard that the Kansas Supreme Court recently held that legislative approval for a Tribal gaming compact under IGRA was necessary where the compact would create a State Gaming Agency which did not previously exist and which had never been authorized by the legislature. State ex rel. Stephan v. Finney, 836 P.2d 1169, 1183 (1992). There, the Court stated that the Governor through the compact was creating a new and separate function for a legislatively established agency, requiring new personnel, policies and procedures. Id. In the circumstances of the present case, however, the executive is not seeking to bind the State to a Tribal-State compact or "to perform a new function of ... government which was never authorized by the legislature." Id. at 1184. No new governmental functions, agencies or appropriations are authorized by the Memorandum of Understanding. Thus, in sharp contrast to the situation in State ex rel. Stephan v. Finney, supra, we are not presented with a usurpation of traditional legislative powers by the executive branch.
It should be emphasized that the Memorandum of Understanding does not "operate as the enactment of new laws and the amendment of existing laws." Id. at 1185. The agreement does not alter the State law prohibition on video facsimile games or any State law on gaming. Rather, pursuant to Section 15(a) of the federal Procedures, the agreement resolves a dispute as to whether, based on "existing" State law, video facsimile operations are authorized as a matter of federal law under IGRA. The question turns not on State but rather federal law--as did the original question of whether the Tribe could operate a casino. Connecticut law clearly did not allow casino gaming when the Tribe sought a Compact permitting it to operate a casino. However, as interpreted by the federal courts, existing Connecticut law nonetheless provided a sufficient basis--"such gaming," under IGRA--for the authorization of the Tribe's casino under federal law.
Similarly, there has long been a dispute between the State and Tribe, as recognized in Section 15(a) of the Procedures, over the Tribe's right to operate video facsimile games. The Tribe has maintained that the types of gaming already authorized by State law are sufficient as a matter of federal law under IGRA to allow the Tribe to operate video facsimile games, and the Tribe has raised the prospect of pursuing this claim through litigation. While the State has consistently rejected the Tribe's legal assertion, at least one federal court has held that, under IGRA, if a state allows any Class III gaming, it must negotiate a compact to allow a tribe to conduct all types of Class III gaming. See Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F.Supp. 480 (W.D.Wis.1991), appeal dismissed on other grounds, 957 F.2d 515 (7th Cir.1992). The agreement between the State and the Tribe under Section 15(a) of the Procedures, therefore, concerns the resolution of the dispute as to whether the Tribe has a right under federal law to operate video facsimile games. It does not involve the creation or amendment of State law. The Governor is not authorizing video facsimile games generally in the state, and thereby in effect legalizing them everywhere. He is executing an agreement, specifically authorized by valid federal regulations, which serves to resolve a conflict with the clear potential for litigation. This type of agreement is fundamentally executive, rather than legislative, in nature.1
Section 15(a) of the Procedures plainly was intended to provide the Executive Branch with a mechanism for resolving the dispute over the Tribe's right to operate video facsimile games in its casino. As noted above, Section 15(a) is structured to provide a legislative, judicial, and executive means of resolving this issue. The executive may reach an agreement with the Tribe that resolves the conflict without litigation, as the Governor has done here, sparing the State the risk of loss in court, as well as the expense and time involved in a lawsuit.
In executing the Memorandum of Understanding, the Governor is acting as the chief executive, in effect, interpreting, implementing and executing the law--namely, the federal Procedures, a federal statute (IGRA), federal court rulings on the subject and state law. While there is no statute specifically authorizing the Governor to sign this agreement, his power to do so clearly emanates from his Constitutional power to see "that the laws be faithfully executed." Section 12 of Article IV of the Connecticut Constitution.2 "Interpreting a law ... to implement" legislation "is the very essence of 'execution' of the law." Bowsher v. Sysnar, 478 U.S. 714, 733 (1986). Exercising judgment concerning the application of a statute or regulations and interpreting provisions of the law are "decisions ... typically made by officers charged with executing a statute." 478 U.S. at 773. The agreement, which settles a dispute and resolves complex issues involving the interaction of State and federal law, is within the Governor's power to execute. The Governor has "broad discretion to select the means he will use in executing a constitutional duty.... Like the Legislature and the Judiciary, the Governor possesses incidental powers which he can exercise in aid of his primary responsibility." Opinion of the Justices to the Council, Mass., 334 N.E.2d 604, 609 (1975). See also Pytko v. State of Connecticut, 28 Conn.Sup. 173, 175 (1969) (authority of governmental agency to enter into an agreement to arbitrate, absent specific statutory authority, "may be implied from duties imposed on a governmental officer"). In exercising the "supreme executive power of the state" (Article IV, § 5), the Governor is acting here within the scope of his constitutional powers and authority, and is an "authorized official" of the State of Connecticut within the meaning of Sections 2(v) and 15(a) of the Procedures. See also Conn.Gen.Stat. § 3-1.
Finally, we should note that the Memorandum of Understanding in no way bars the legislature from enacting laws to allow others in the state to operate video facsimile games under the Procedures. The legislature remains free to amend the statutes to that end. According to the Memorandum of Understanding, if such legislation is enacted, the Tribe will no longer be bound by the Memorandum. In other words, the Tribe would not be obligated to make its monetary contributions to the State, and could not, in turn, claim the right to operate the games by virtue of the Memorandum. If such legislation is enacted, however, the Tribe could continue to conduct video facsimile games. Pursuant to Section 15(a) of the Procedures, one of the express conditions for lifting the moratorium on video facsimile games is the amendment of State law to authorize the operation of video facsimile games by any person. Thus, under the Procedures themselves, such a change in State law would enable the Tribe to operate such games, notwithstanding the Memorandum of Understanding.3
In short, an agreement of this nature does not create or alter any laws, usurp any traditional legislative functions, or foreclose legislative action. It is authorized by the Procedures and is within the Governor's constitutional power to execute the law. Hence, we conclude that the Governor has the requisite authority to execute the Memorandum of Understanding.
The next question is whether the Secretary of the Interior is required to approve the agreement or take any action relating to it. The Procedures provide that any amendment, modification or alteration of the terms and conditions of the document must be approved by the Secretary of the Interior (§§ 17(a) and (d)). However, Section 15(a) of the "Procedures" has already been approved by the Secretary. That section and Section 3(a)(ix), taken together, specify that video facsimile gaming may be conducted if an agreement is reached between the State and the Tribe. Section 15(a) is a self-executing provision, which already authorizes the agreement. The Memorandum of Understanding alters no provisions or terms of the Procedures, and therefore is not an amendment to the Procedures that would require approval by the Secretary of the Interior.
Thus, our opinion is that no further approval of the Memorandum of Understanding or action by the Secretary of the Interior is required.
You have also asked whether legislative approval is expressly needed for the Memorandum of Understanding to be officially recognized. The Memorandum, in our opinion, does not require any further recognition than it already has been accorded. It is authorized by the final Mashantucket Pequot Gaming Procedures, 56 Fed.Reg. 24996, which are in turn authorized by Federal law, for reasons stated previously. Our answer to the first question, in short, answers the last question.
In summary, Procedures have been issued that have the force of a federal requirement issued pursuant to federal law, 25 U.S.C. § 2710(d)(7)(B)(vii), and federal court decisions. The Memorandum of Understanding is authorized by those Procedures as a means of resolving a dispute between the State and the Tribe without litigation. The Governor, in turn, is authorized to sign the Memorandum. In doing so, he is executing and implementing existing law, not creating new law. Legislative approval is not required under the facts and circumstances of this case. The General Assembly is free to legislate, even if this has the effect of nullifying the Memorandum and any benefits perceived to flow from it. No further approval is required by the Secretary of the Interior, in our opinion.
In closing, we wish to emphasize three additional points. First, in respect to the Procedures and the Memorandum of Understanding, nothing in this opinion authorizes the Tribe to engage in any gambling activity other than what is specifically provided for in the Procedures and that Memorandum. Nor is this opinion intended to vary or alter the terms of the Procedures and that Memorandum in any way.
Second, the Mashantucket Pequot Tribe has been specifically acknowledged as a Federal Indian Tribe by Act of Congress. 25 U.S.C. § 1758(a). The rights that it has do not apply to groups not recognized as Indian tribes by the Secretary of the Interior. See 25 U.S.C. § 2703(5); see also Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 764-65 (1985); Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 85 (1977); Morton v. Mancari, 417 U.S. 535, 551 (1974); United States v. Sandoval, 231 U.S. 28, 46 (1913).
Finally, this opinion is issued with profound respect and regard for the powers of the legislative branch, and with recognition that individual members of the General Assembly may have a different point of view. We believe unequivocally that the legal issue here--narrow and unique, because of the unusual facts and law involved--is correctly resolved by our opinion. Whatever public policy merits there may have been to submitting this agreement to the legislature for approval--and we do not comment on them--there is, very simply, no legal requirement to do so.
We trust this opinion answers your questions.
Very truly yours,
1 We note that the Memorandum of Understanding is not a "compromise" of a "disputed claim", under Conn.Gen.Stat. § 3-7. The plain words of Section 3-7 indicate that its purpose is to serve as a mechanism for resolving monetary disputes between the State and other entities. In the present circumstances, no monetary claim between the State and the Tribe is being compromised.
2 "[T]he power of the Executive Branch 'must stem either from an act of Congress or from the Constitution itself.' " United States v. Sitka, 666 F.Supp. 19, 23 (D.Conn.1987), aff'd, 845 F.2d 43 (2nd Cir.), cert. denied, 488 U.S. 827 (1988) (quoting Youngstown v. Sawyer, 343 U.S. 579, 585 (1952).) The Governor's authority to execute the federal and State laws involved here plainly and necessarily flows from his constitutional mandate.
3 The Memorandum also states that the Tribe must provide detailed reporting to the State which shall be subject to audit by the State in accordance with the provisions of the Procedures. This provision does not create a new State agency as did the compact in the Kansas case. The provisions for audit, in accordance with the Memorandum, are already in place by virtue of the preexisting federally authorized and mandated Procedures.