Tribal compact is a bad bet for the Southeast

Guest View: Tribal compact is a bad bet for the Southeast
By Paul D. Clement

Paul D. Clement is a partner at Bancroft PLLC in Washington, D.C. He served as the 43rd solicitor general of the U.S. from June 2005 until June 2008. He represents KG Urban Enterprises, which hopes to develop a casino in New Bedford.

The Mashpee Wampanoag tribe recently announced plans to enter into negotiations with Gov. Deval Patrick for a gaming "compact" for a casino in Taunton. The Aquinnah tribe has also expressed an interest in negotiating such a compact with the governor. Both proposals are being touted as economic development measures that will bring much-needed jobs to the Southeast Region. But the reality is that such a tribal compact — if signed by the governor and approved by the Legislature — would virtually guarantee that there will be no casino in the Southeast for years to come, while commercial gaming moves forward in the rest of the commonwealth.

A bit of background: the Gaming Act enacted last November opened the rest of the commonwealth to commercial gaming through a competitive licensing process. But the act treats the Southeast Region differently. In the Southeast, federally recognized Indian tribes — the Mashpee and Aquinnah — have an exclusive opportunity to negotiate a "compact" with the governor. The requirements for such a compact are not onerous: A tribe has to enter an agreement to purchase land and schedule a vote in the host community before it can negotiate with the governor. The tribe must then reach agreement with the governor and have the resulting compact approved by the Legislature before July 31. If a compact is not negotiated and approved by the deadline, the Southeast will see a competition for a commercial license just like the rest of the commonwealth.

At first glance, it may appear that a tribal compact would speed up the arrival of casino gaming in the Southeast. But it will actually have the exact opposite effect. Both Attorney General Martha Coakley and a federal judge have now clarified that a compact will not entitle the tribe to a commercial gaming license. Indeed, a compact will ensure that no commercial license is issued in the Southeast. The compact will merely authorize the tribe to seek federal approval for a non-commercial tribal casino on Indian land.

But the federal approval process can take years, especially in light of a recent Supreme Court case that substantially complicates the process. The Supreme Court's Carcieri decision in 2009 means that an act of Congress may be necessary to enable the Mashpee or Aquinnah to convert off-reservation land into Indian trust lands on which federal Indian gaming may take place. And even apart from the "Caricieri problem," the federal application process is a grueling ordeal that can take a decade or longer, and often draws fierce opposition from nearby residents, government entities and environmental groups. In fact, the Patrick administration took the position that a Federal process was not in Massachusetts' interest in 2008 when the Mashpee Wampanoag filed its land in trust application for its Middleboro proposal. Even in a best-case scenario, there will be years of delay before there could be tribal gaming in the Southeast. At worst, in light of Carcieri, a compact may give a "successful" tribe a ticket to a window that remains closed. Either way, a tribal compact will essentially guarantee that there will be no gaming in the Southeast any time soon.

There is a better way forward. If the governor fails to reach agreement on a compact with an Indian tribe by July 31st, or if the Legislature rejects a proposed compact, then the Southeast will have an open, competitive process like the rest of the commonwealth. That process will award a commercial gaming license that will not require any federal approvals or federal delays. The tribes will be able to submit applications in that process, either alone or with non-tribal partners, and compete on a level playing field. The Gaming Commission can evaluate all of those projects on the merits and determine which is best for the Southeast. And whoever submits the best proposal — whether a tribe or not — could begin construction on a casino without delay. In short, a compact is no short cut; it will only guarantee that the region of Massachusetts arguably most in need of economic development will be the last to see any.