By First Class Mail

June 5, 2017

George Jepsen, Esq.
Attorney General
State of Connecticut
55 Elm Street
Hartford, CT 06106
Re: Serious Constitutional Questions Raised by Senate Bill 957
Dear Attorney General Jepsen:
I wrote to you in 2015 to express concerns about Special Act 15-7 and write now as to Senate
Bill 957. Like you, I have “serious questions” regarding the legality of S.B. 957, which, as you know,
would grant the Mashantucket Pequot and Mohegan Tribes a license to operate a commercial casino
in the State, while barring all others from competing for that opportunity. Your March 2017 and April
2015 letters note the risk that S.B. 957’s discriminatory scheme violates the Commerce Clause and the
Fourteenth Amendment of the Constitution. I urge you to counsel the Governor and the General
Assembly further about these serious risks. S.B. 957 is in fact unconstitutional for precisely the
reasons given in your letters.
The bill presents a violation of the Commerce Clause because it awards a valuable economic
opportunity exclusively to two in-state entities—the Tribes—while shutting out all out-of-state
competitors. The Commerce Clause “abhors” such “economic protectionism.” Dep’t of Revenue of
Ky. v. Davis, 553 U.S. 328, 341 (2008). As I am sure you are aware, in C & A Carbone, Inc. v. Town
of Clarkstown, the U.S. Supreme Court struck down as “per se invalid” a law prohibiting “everyone
except [a] favored local operator” from processing solid waste—“thus depriv[ing] out-of-state
businesses of access to” the city’s “market.” 511 U.S. 383, 389 (1994). S.B. 957 suffers from the same
fundamental defect.
S.B. 957 also violates the Equal Protection Clause. The bill is a state-law preference
unauthorized by federal law, and so it is “quite doubtful” that the State has authority to implement
it. KG Urban Enterprises, LLC v. Patrick, 693 F.3d 1, 19 (1st Cir. 2012); see also Washington v.
Confederated Bands & Tribes of Yakima Nation, 439 U.S. 463, 500-01 (1979) (“States do not enjoy
this same unique relationship with Indians” that allows the “Federal Government to enact legislation
singling out tribal Indians”).
The bottom line remains the same as when I wrote in 2015: Although Connecticut has the
responsibility to ameliorate the historical inequities visited upon Native Americans and to secure
job opportunities for its residents, the laws it enacts to achieve those goals must comply with the
United States Constitution and be consistent with principles of non-discrimination and equal
opportunity that underlie it.
Sincerely,

Eric H. Holder, Jr.