Legal ambiguities face Mashpee Wampanoags
Rep. Koczera pushes for hard casino deadline
July 16, 2012
When Massachusetts lawmakers legalized casino gambling last year, they put the Mashpee Wampanoag tribe in a legally tenuous position: Lawmakers gave the tribe first crack at opening a casino in the state’s southeastern region, but on the condition that the tribe work through a federal approval process that had been shut down by the Supreme Court.
Now, with a legislative deadline looming, the legal ambiguities the Legislature created for the Mashpee are exploding into view. A key South Coast lawmaker is pushing to open the region to commercial casino operators if the Mashpee fail to meet a hard deadline for building a tribal casino , but Mashpee tribal officials are balking, saying they’d view such a performance deadline as an incursion on tribal sovereignty.
The state’s new gaming law anticipates the Mashpee operating a tribal casino somewhere in southeastern Massachusetts. The tribe has secured 152 acres in Taunton, and recently won a nonbinding gambling referendum in the city. However, the state law pushes the Mashpee into the federal tribal gaming bureaucracy that was upended by a 2009 Supreme Court ruling.
The 2009 decision held that the federal government could only convert private land to tribal land, a process known as taking land into trust, for tribes that were in the federal regulatory system prior to 1934. The ruling would seem to preempt a Mashpee casino in Taunton: Under state law, the casino would have to operate on tribal land, but according to the 2009 Supreme Court decision, the Department of the Interior has no legal authority to take tribal land for the Mashpee since they weren’t federally recognized until 2007.
Under the state’s gaming law, the new Massachusetts Gaming Commission may put the southeastern casino region out to bid if it determines that the Mashpee won’t be able to secure land in trust from Interior. There’s no firm timeline for the commission to make such a determination, and, on Monday, New Bedford Rep. Robert Koczera pushed hard for creating one.
At a legislative hearing on the Mashpee gaming compact Gov. Deval Patrick announced last week, Patrick’s chief of staff, Mo Cowan, said a deadline for putting the Mashpee land into trust “was very much part of” compact negotiations, but it “was not an issue we were successfully able to bring into the compact.” He said the governor “couldn’t compel the tribe to get a date certain if it was not so inclined.”
Koczera said Monday he will push to amend the compact by putting the Mashpee under a two-year deadline to secure land in federal trust. Koczera had previously lobbied to immediately open the southeastern Massachusetts casino license to competitive bidding because he feared the consequences of legal wrangling over tribal gaming. He said on Monday that without a firm deadline for advancing the proposed Mashpee casino in Taunton the region could be left behind in the casino sweepstakes. “It’s my area where jobs are going to be in limbo, in purgatory,” he said.
Koczera’s push for a tribal gaming deadline creates a new flashpoint at a critical time for the Mashpee. The Legislature has to approve the gaming compact by July 31. Any changes to the document would have to be approved by both Patrick and the Mashpee. And on Monday, the tribe pushed back hard against the notion of a deadline. Howard Cooper, a lawyer for the Mashpee, flatly rejected “the idea of putting a deadline on sovereign rights.”
Concerns about the Mashpee’s ability to secure federal land in trust dominated the legislative hearing. The compact commits the governor’s office to lobby Interior on the Mashpee’s behalf – a point Cowan said could help the state overcome the Supreme Court ruling. “We’ve already been in contact with Interior,” he said. “They’re eager to review [the land application]. That’s a positive sign. We take it as a signal the issue is not foreclosed.” Cooper argued that doubts about the tribe’s ability to secure land in trust “are the types of issues that people who want to see projects fail raise.”
The administration and the Mashpee both hinted that their strategy for overcoming the 2009 Supreme Court ruling rests on proving that the Mashpee interacted with the federal government prior to 1934, since the court said Interior can only take land in trust for tribes that fell under federal jurisdiction before 1934. “Just because the tribe was not recognized before 1934 doesn’t mean they weren’t under federal jurisdiction,” argued Abim Thomas, Patrick’s deputy chief counsel. “The tribe will have to make that case.”
In that context, it’s notable that in 2009, when the Supreme Court was weighing the land-in-trust case, Attorney General Martha Coakley signed on to a multi-state amicus brief that argued the opposite – that federal jurisdiction equals federal recognition. The court sided with the states, creating the legal quagmire the Mashpee are now in the middle of.
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