New Bedford group challenges tribal exception
By STEVE DeCOSTA
September 11, 2012
BOSTON — Not surprisingly, KG Urban Enterprises and the state have starkly different views of how the legal challenge to the state's Expanded Gaming Act should play out.
KG, which is fighting the advantage the act gives to federally recognized Indian tribes for a casino in Southeastern Massachusetts, wants to launch an ambitious court schedule that would see its lawsuit against Massachusetts decided by spring.
The state, meanwhile, would like U.S. District Court Judge Nathaniel Gorton to do nothing for a month or so while the federal Bureau of Indian Affairs considers whether to approve a compact that would allow the Mashpee Wampanoag Tribe to operate a resort casino under federal authority in Taunton.
Gorton gave both parties until Sept. 19 to submit memoranda outlining their respective positions and to express how they feel about a motion by the Wampanoag Tribe of Gay Head (Aquinnah) to become a party to the proceedings.
"We need to be sure our rights are protected," said Aquinnah tribal Chairwoman Cheryl Andrews-Maltais, who observed Monday's legal proceedings. "We're the only ones looking out for our interests."
Arguing the state's case, Daniel Hammond said the critical issues of compact approval and the taking of land into trust for the casino should be decided before the case proceeds. Those decisions — particularly whether the Bureau of Indian Affairs would approve a compact for a tribe that does not already have land in trust — "will give all of us insight into what the agency believes," Hammond said.
But KG lead counsel Paul Clement argued that was irrelevant.
"We did not file a challenge to a federal administrator. We filed an equal protection challenge, a challenge to state law," he said.
Clement also spilled some of KG's legal strategy. He proposed filing an amended complaint that "takes into account the changed circumstances" of the proposed Mashpee Wampanoag casino. He also suggested "a brief period of discovery" in which KG would seek to learn "the basis for the Mashpee to think they can get around Carcieri."
Carcieri is the name for a Supreme Court ruling that prevents land from being taken into trust for tribes not recognized before 1934.
"What is the commonwealth's position if this process drags out?" Clement asked.
He wants to learn in the discovery process about any state discussions to grant the Mashpee Wampanoag a commercial casino license if the tribe can't gain the necessary federal approvals to operate a sovereign facility, he said.
Gorton is rehearing the case after a federal appeals court panel of three judges ruled he should not have dismissed it in February, when he rejected KG's claim that the tribal preference in the state's Expanded Gaming Act was race-based.
KG, which has been laying the groundwork for a casino development at an abandoned waterfront power plant in New Bedford for four years, will not get an opportunity to seek a gaming license unless the Mashpee Wampanoag fail to receive all the necessary federal approvals.
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