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Lawsuit Roundup

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BRIDGEPORT, Conn. - Gaming powers Penn National Gaming and Donald Trump
beat back tribal challenges but the Mashantucket Pequot Tribal Nation made
progress in protecting its Internet domain in an active two weeks in New
England courts.

A state judge in Maine frustrated the attempt of the Penobscot and
Passamaquoddy Indians to bid for the state's one available racino license,
at Bangor's harness track. A federal judge in Connecticut turned over
Donald Trump's breach of contract suit against the Eastern Pequot Tribal
Nation to a state court, where Trump seems to think he will fare better.
But the Mashantucket Pequots received a go-ahead from the U.S. District
Court in Bridgeport to pursue a "cyber-squatting" case against an
out-of-state Web site using the name of their Foxwoods Casino Resort.

BANGOR DOUBLE WHAMMY

With an irony that left the Maine tribes twice frustrated, Penobscot County
Superior Court Judge Andrew W. Mead refused to let them push their bid for
the harness racing license at the Bangor Raceway. The Penobscot and
Passamaquoddy tribes have partnered with Connecticut's Mashantucket Pequots
to seek control of the racetrack, which is the only one in the state
authorized to add slot machines and operate as a racino. Judge Mead said
the tribal application came too late in the process, even though it
preceded a change in ownership of Bangor Historic Track, Inc. The Maine
Harness Racing Commission brushed aside the tribal bid in March and granted
a conditional license to the track's new owners Penn National. Judge Mead
said he rushed the judicial process to avoid disrupting the harness racing
season.

But the judge went further, in an aside that left the tribes and their
attorneys in a state of controlled indignation. The tribal brief invoked
the controversial Maine Settlement Act in arguing that the Penobscots in
particular had the automatic right to intervene with the Commission that
Maine law grants its municipalities. The state Implementing Act defining
the status of the Penobscot and Passamaquoddy governments said they should
have all the rights and privileges of a municipality as well as the duties
and obligations. This provision was used harshly against the tribes when
paper company adversaries in a lawsuit demanded access to tribal documents
under the state Freedom of Access Law. But, observed the tribe's attorney
Kaighn Smith Jr., it apparently didn't apply when it might help them.

Wrote Judge Mead, "Clearly the tribes are concerned about competition by
the [racino 's] slot machine operation with their own existing gambling
operations. Under this circumstance, this court cannot conclude that the
tribes' interests and roles here are anything other than that of a business
entity. As such they not [sic] invoke the Title 30 municipality status."

Smith said the tribal partnership had not yet decided how to respond.

TRUMP'S BREACHES

Donald Trump's breach of contract suit against the Eastern Pequot Tribal
Nation bounced back to the state Superior Court after Federal Judge Robert
N. Chatigny once again showed the First Circuit's reluctance to assert
jurisdiction in Indian cases. In a March 31 ruling in Hartford, Conn.,
Chatigny invoked the "well pleaded complaint" rule, which has constantly
bedeviled tribes in New England. He said the federal court would not take
jurisdiction away from a state court just because federal issues, such as
the special status of tribal governments, might be used as a defense. He
ruled out a possible exception, that the Indian Gaming Regulatory Act
(IGRA) completely pre-empted the field.

While admitting that IGRA "has been held to completely preempt the field of
regulating Indian gaming," Chatigny turned to a bit of hair-splitting.
Trump had signed a contract to back the recognition petition of the
Paucatuck Eastern Pequots in return for their promise to sign a "management
agreement" if they became federally acknowledged. But the BIA merged their
petition with the larger Eastern Pequots in giving the reunified tribe
recognition. A new tribal council repudiated Trump's contract, going with
the Eastern Pequot backers David Rosow and William Koch. If the issue
involved a "management contract" outright, wrote Chatigny, it would fall
under IGRA and belong in federal court.

But, he wrote, "The Trump ... is not a management contract within the
meaning of IGRA. It is an agreement to execute such a management contract
in the future contingent on the Paucatucks gaining federal recognition."
Hence no federal jurisdiction.

Contrary to some reports, the decision did not turn on the state
government's appeal of Eastern Pequot recognition. Whether the appeal
"renders the Pequot's status merely provisional and therefore denies it the
protections of IGRA," wrote the judge, "need not be decided." He did call
the question "apparently an issue of first impression," meaning that it has
not yet come up in any court.

CYBERSQUATTING ON FOXWOODS

The Mashantucket Pequot Tribal Nation received a substantial boost from the
U.S. District Court in Bridgeport in its effort to protect the Internet
domain of its Foxwoods Casino Resort. Federal Judge Janet C. Hall gave it
the go-ahead March 18 to sue a Lowell, Mass. resident Raymond Redican Jr.
under the federal Anticybersquatting Consumer Privacy Act. (Cybersquatting,
said Judge Hall, "involves the registration as domain names of well-known
trademarks by non-trademark holders who then try to sell the names back to
the trademark holders.") Redican, said her opinion, had registered the
domain names Foxwood.org and Foxwood.com in 1997. In 2001, he traveled to
Mashantucket and tried to arrange meetings with tribal officials to sell
back the names. His legal gamble didn't pay off since the tribe sued him in
state court for trademark violations.

Redican tried to argue that he lived outside of Connecticut jurisdiction,
but Judge Hall ruled against him on the basis of the developing case law on
the Internet. She noted the distinction between a "passive" Internet site
where outside purchasers have to use another medium to reach the seller and
which don't subject a company to long-distance jurisdiction, and
"interactive" sites, where transactions occur over the computer. Redican's
sites, she said, offered links to on-line gambling and required a
subscription fee. Finally, his "more traditional contacts" in Connecticut
sealed the issue.