Indian Community School of Milwaukee 

3134 W. State Street 

Milwaukee, Wisconsin 53208 

January 14, 1996 

John Burke, Jr. 

Omni Bingo of Wisconsin, Inc. 

N81 W12920 Leon Road 

Menomonee, Wisconsin 53051 

Re: The Appeal of the Disapproval of the Amendment to the 

Management Contract Between the Forest County Potawatomi 

Community, the Indian Community School of Wisconsin, Inc., and 

Omni Bingo of Wisconsin, Inc. 

INTRODUCTION 

The Indian Community School of Milwaukee, Inc. (School) and Omni 

Bingo of isc cons in, Inc. (0mni) appeal the decision of the 

Chairman of the National Indian Gaming commission (Commission) 

disapproving an amendment to a management contract between the 

Gaming Commission of the Forest County Potawatomi Indian 

Community (on behalf of the Community), the School, and Omni. 

The amendment to the management contract was signed by the 

parties on August 17, 1993, and submitted to the Commission on 

November 17, 1993. The Chairman disapproved the amendment on 

November 17, 1995, because the thirty (30)-day period in which 

amendments must be acted upon by the Chairman had expired and the 

amendment was deemed disapproved. See 25 C.F.R. § 535.1(d)(2). 

Pursuant to section 539.2, the parties had thirty (30) days from 

the date of the Chairman's decision to appeal to the full 

Commission. Appeals were to be filed no later than December 17, 

1995. The appeal of the School was received by the Commission on 

December 15, 1995. The appeal of Omni was received by the 

Commission on December 17, 1995, via facsimile. That 

transmission was only partially received due to a transmission 

failure. The balance of the submission was received on December 

18, 1995. Because the transmission was begun on December 17, 

Omni's appeal is considered by the Commission to have been timely 

filed. Neither the Community or the Community's Gaming 

Commission appeals the Chairman's decision. 

OPINION 

The attorneys for the School argue that the deadline for appeal 

should be extended because they did not receive the Chairman's 

decision until November 21, 1995. They argue that the Chairman's 

decision was addressed to Loretta Ford who is no longer President 

of the School. The Chairman's decision was sent to the School 

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144i - C ST~~EET, N W 9Tti FLOOR _WASWINGT~N, bC 20005- TEL 202-632-7003 ~FAX.-202-~7066 
using the latest information the School had provided the 

Commission. If Ms. Loretta Ford was no longer the President of 

the School, the School failed to notify the Commission. In any * 1- event, the Commission has received the School's timely appeal and 

the issue is moot. 

The School also argues that their attorney were advised by a 

Commission attorney that the appeal deadline was December 18, 

1995. The regulations are clear that a decision of the Chairman 

may be appealed within thirty (30) days after the Chairman serves 

his decision and that failure to file an appeal within the thirty 

(30)-period shall result in a waiver of the opportunity to 

appeal. 25 C.F.R. 5 539.2. The regulations control, not the 

statement of a Commission attorney. Again, the issue is moot; 

the ~ommission has received the School's timely appeal. 

The School argues that the Commission has no jurisdiction to 

disapprove the amendment two years after its submission to the 

Commission. The ~ommission disagrees. Nothing in the Indian 

Gaming Regulatory Act (IGRA) mandates a loss of authority to 

disapprove an amendment to a management contract for failing to , 

take action within a specified period of time. The IGRA 

authorizes the ~ommission to promulgate regulations to implement 

the provisions of the IGRA. 25 U.S.C. § 2706(b)(10). The 

Commission has done so with respect to management contract and 

amendments to management contracts. Section 535.1(d)(2) clearly 

requires disapproval of amendments to management contracts when 

the Chairman has not acted within thirty (30) days. Requiring I' the disapproval of an amendment to a management contract for 

failure by the Chairman to take action within a thirty (30)-day 

period is well within the authority of the Commission. 

Both the School and Omni argue that the Commission is estopped 

from disapproving the amendment because the parties have been 

operating under the amendment for two years and the Community 

will lose revenue and the School will suffer some unspecified tax 

consequences. The Commission disagrees. The parties implemented 

the amendment at their own risk. The regulations are clear that 

modifications to management contracts are void in the absence of 

approval by the Chairman. 25 C.F.R. § 535.1(f). 

The School argues that its constitutional right to due process 

has been violated by the statutes and regulations relied on by 

the Commission to disapprove the amendment citing Mathews v. 

Eldridqe, 424 U.S. 319, 332 (1975). The ~ommission disagrees 

that the regulation requiring an amendment to be deemed 

disapproved for failure by the chairman to take action within a 

specified period of time denies the parties due process. The 

School is not being deprived of a property or liberty interest 

within the meaning of either the Fifth or Fourteenth Amendments. 

The parties knew or should have known that the amendment was not 

valid until approved by the Chairman. 
The Commission also disagrees with the parties argument that the 

appeal procedures promulgated by the commission pursuant to the 

IGRA violate due process standards. The parties have exercised 

- their right to appeal the Chairman's decision to the commission 

and have submitted briefs and other relevant information for 

consideration by the Commission. The Commission finds that the 

parties have not been denied due process. 

Omni argues that the Commission is taking a different position 

here than it did in Great Western Casinos v. Monteau, No. CV-95- 

1465 (C.D. Cal. 1995). Great Western concerned the review of a 

management contract, not an amendment to a management contract. 

The time frames for reviewing management contracts are different 

than for reviewing amendments to management contracts. See 25 

C.F.R. Parts 533 and 535. 

Both the School and Omni suggest that Commission should withdraw 

the disapproval of the amendment because there is substantial 

evidence of taint in the proceedings. In the alternative, the 

parties assert that the Commission should conduct a hearing to 

determine if Chairman Monteau, Commissioner Foley, and certain 

staff attorneys should recused themselves from the proceedings 

because of prior contacts with the Community. The Commission 

strongly rejects the assertion by the parties that the 

proceedings have been tainted or that Chairman Monteau, 

Commissioner Foley or certain staff attorneys are biased against 

the parties to this appeal. While there were contacts with the 

Tribe, none concerned the amendment. Furthermore, communications 

'I mcp ir 

with the tribe is insufficient evidence establishing that 

Commission members or staff are incapable of rendering an 

impartial decision. 

In summary, the issue before the Commission is a narrow one. Did 

the Chairman err in disapproving the amendment? The regulations 

of the Commission are very clear. The Chairman was required to 

deem the amendment disapproved pursuant to 25 C.F.R. 

§ 535.1(d) (2). 

For all the foregoing reasons, the decision of the Chairman is 

affirmed. 

, 

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Harold A. Monteau, Chairman 

mu&-- 

Tom Foley, commissioner 

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Phil Hogen, Commissioner