Sometimes, A Tribal Agreement Isn't

For what it's worth: Too many of Indian Gambling disputes have taken many years to resolve and require major investments in legal expenses and appeals.

Our view: City, band both benefit from casino cooperation

The Fond du Lac Band may have prevailed this week, mostly, in the latest twist of the ongoing tussle with the city over tribal-run gambling in downtown Duluth. But the issue remains far from resolved, and that’s good.

The Fond du Lac Band may have prevailed this week, mostly, in the latest twist of the ongoing tussle with the city over tribal-run gambling in downtown Duluth. But the issue remains far from resolved, and that’s good. That means there’s still time — plenty of it, in fact — for both sides to see and to embrace the mutual benefit of working together rather than butting heads, with millions of dollars at stake.

A federal judge ruled this week the band no longer has to make payments to the city for the right to operate the downtown Fond-du-Luth Casino. The band had been making the annual, multimillion-dollar payments since striking a deal with the city in 1986. The deal allowed the casino to open. But the band stopped making the payments in 2009, taking advantage of a window of renegotiations to argue the deal was unlawful.

The judge also ruled that the band must pay the city for those missed payments since 2009, so there’s the band’s “mostly prevailed.”

And here’s the “far from resolved.”

First, another court will decide just how much the band owes in missed payments since 2009. Thrown around has been $14 million, but the court will settle “an accounting dispute,” in the words of Duluth Mayor Don Ness, that could change the number.

Second, watch for both the city and the band to appeal this week’s decision, the city to the 8th District Court of Appeals.

“We have to appeal,” Ness said in a meeting with News Tribune editorial board members this week (Tribal Chairwoman Karen Diver declined to comment for this editorial). “It doesn’t make sense that a political appointee can invalidate a contract approved by the federal courts. There had been 10 other (prior) decisions by the federal courts (and) we prevailed on all 10.”

Before this week.

“It’s very confusing to us,” the mayor continued. “The court put a tremendous amount of weight on an opinion by a political appointee.”

It’s easy to see why the city would fight this week’s ruling and why it’s eager to negotiate a compromise and a new deal. The city has been receiving 19 percent of revenues from Fond-du-Luth Casino, totaling about $6 million a year, money it has been using mostly to fix streets.

But the band should want to negotiate, too. If the 1986 agreement becomes null and void what would stop the city and state from negotiating with another tribe to put a casino at the bayfront or at the Duluth Entertainment Convention Center. Either location would promise to be a huge draw — and hugely detrimental to the bottom line of Fond-du-Luth Casino.

The band and city both stand to benefit from working together.

“I’ve always been open to that, to finding a true win-win,” Ness said. “We’ve demonstrated our willingness to be flexible and creative and to think outside the box. I haven’t seen a similar willingness from Fond du Lac.

“I don’t want to take a punitive approach to this,” the mayor continued. “We need to protect the interests of taxpayers. And we need to protect the interests of the city.”

The band, it would seem, has similar interests to protect.