SouthCoast seeks deadline for federal action on tribal casino
The SouthCoast's legislative delegation wants the deal the governor is negotiating with the Mashpee Wampanoag to include a deadline for federal approval of the plan. They say the deadline will be a safeguard against the chance the region will lose out on casino development.
"The issue of whether the compact includes a time limit for the federal government to act one way or another in taking land into trust is very important to SouthCoast members of the Legislature," said Rep. William M. Straus, D-Mattapoisett. "Next to transportation, that is essentially the companion issue that people are looking for in any compact that might result from the government's negotiations."
Gov. Deval Patrick must present the Legislature with a compact by July 31.
By law, the Mashpee Wampanoag can only open a tribal casino if the federal government agrees to take their land into trust — a course of action that the Supreme Court appeared to block in 2009 when it ruled that tribes must have fallen under federal jurisdiction by 1934 to qualify for land set-asides.
The Mashpee won recognition in 2007.
"Who knows if land will be taken into trust?" said Rep. Antonio F.D. Cabral D-New Bedford, who put forward an amendment during the initial casino debate that would have set a deadline for federal action. His proposal failed without administration support, he said. "Why should we be the only region without the opportunity to pursue a casino?"
The so-called Carcieri decision sparked a second round of lawsuits because the Bureau of Indian Affairs continued to take land into trust for tribes recognized after 1934.
The Carcieri decision also sparked talk of a congressional "Carcieri fix" that would allow tribes recognized after 1934 to qualify. The fix, however, might open states to the prospect of many more casinos and hurt established gaming interests.
Fourth District U.S. Rep. Barney Frank said there is no possibility that Congress will act on the Carcieri fix in the foreseeable future.
"I think there is zero chance of any congressional action," he said. "I don't know why people thought it was moving. There's no committee moving on it that I know of."
A spokeswoman for Sen. John Kerry said the state's senior senator supports addressing the Carcieri problem, while a spokesman for Sen. Scott Brown has declined to take a position.
Kerry supports a "Carcieri fix" as a matter of "fairness and ensuring that all tribes have the same opportunity to place lands in trust," according to his spokeswoman, Whitney Smith.
A spokesman for Brown said the matter is not currently before the Senate or his committees and he would "begin a full review when it comes forward."
In June, the Bureau of Indian Affairs began hearings to determine if the tribe has legitimate ties to the Taunton area, where the Mashpee Wampanoag have proposed the casino.
In June, the Bureau of Indian Affairs conducted an environmental review of the proposed site.
If the Bureau determines the ties extend back before 1934, that could provide a way around the 2009 decision, said Steve Light, a co-director of the Institute for the Study of Tribal Gaming Law & Policy at the University of North Dakota.
The tribe has to "demonstrate a tie all the way through that would allow it to be under federal jurisdiction," said Light, adding, "That process of proof can take a heck of a long time, ordinarily."
Even if the Bureau of Indian Affairs decides in favor of the Mashpee, the tribe could still lose in court, said Matthew Fletcher, a professor of indigenous law at Michigan State University.
"The Bureau of Indian Affairs barely wins 50 percent of its cases — compare that to most other federal agencies that win 70-90 percent of cases. Federal courts rarely defer to Interior decisions in Indian affairs," Fletcher wrote in an email.
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