The Food Fight Begins!

Prospective New Bedford casino developer files suit against Gov. Patrick
By Kyle Cheney
State House News Service


NEW BEDFORD — A prospective casino developer eyeing a site in New Bedford filed a lawsuit Tuesday against Gov. Deval Patrick, contending that an expanded gambling law he signed hours earlier was unconstitutionally tilted in favor of Native American tribes seeking a casino in the southeast region of Massachusetts.

“The casino gaming law signed by the Governor today denies us the opportunity to compete for the Southeast license in a fair, open and competitive licensing application process,” argued Andrew Stern, managing director of KG Urban Enterprises, in a statement accompanying the lawsuit.

“More importantly, the law illegally denies the people of New Bedford and southeastern Massachusetts an opportunity equal to the one afforded citizens living in western Massachusetts and in the Greater Boston region. Accordingly, we have been left with no choice but to challenge the legality of the law’s Tribal carve-out provisions in Federal court.”

The suit, filed in U.S. District Court on Tuesday afternoon, contends that the new law violates the equal protection clause of the U.S. Constitution. KG Urban Enterprises is seeking an injunction to delay the law’s implementation while the suit is in progress.

“The Act is riddled with explicit, race-based set-asides that give federally recognized Indian tribes a categorical advantage over all other applicants in seeking a gaming license in Southeastern Massachusetts,” according to the company’s complaint. “There is no Indian gaming exception to the Equal Protection Clause.”

The new law temporarily reserves a casino license marked for the southeastern region of the state for a Native American tribe. Lawmakers had included those provisions because they feared that a tribe might otherwise obtain land from the federal government and build a casino without state approval and without guaranteeing any casino revenues to the state.

Eight members of the 11-member New Bedford City Council signed a statement sympathizing with the arguments put forward by KG Urban Enterprises, contending that the new law “deprives the local officials and citizens of that region of the opportunity to support the best gaming proposal on the merits.”

The lawsuit provides an immediate test for the new expanded gambling legislation, which sanctions up to three, regionally disbursed casinos in Massachusetts, as well as a competitively bid slot parlor. The administration has argued previously that the bill “does not create an exclusive licensing process for federally recognized Native American tribes in the state's Southeast region.”

“The legislation describes the federal process for federally recognized Native American tribes who are legally entitled to conduct tribal gaming on tribal lands,” a spokesman for the Executive Office of Housing and Economic Development said last week. “Any casino built under this process would be a tribal facility, subject to a compact between the tribe and the Commonwealth which would include revenue sharing along with jurisdictional and regulatory rules determined as part of the compact negotiations, and would not be subject to the jurisdiction of the newly created Massachusetts Gaming Commission.”

Similarly, Cedric Cromwell, chairman of the Mashpee Wampanoag Tribe, has rejected the contention that the casino bill gives the tribe an unfair, unconstitutional advantage.

“We applaud the care with which the legislature and Governor Patrick's administration has approached this legislation. They understand that, as a federally recognized Indian Tribe, we are treated as a sovereign political entity by the United States of America,” Cromwell said in a statement to the News Service. “Constitutional and Indian law experts nationwide agree that this treatment does nothing to violate the Constitution, and is fully in line with federal law. The legislation respects these facts and creates a process through which the Tribe and the Commonwealth will be treated fairly. We look forward to working with the Commonwealth to build a first-class destination resort casino that will bring thousands of jobs to southeastern Massachusetts.”