Tribe intervenes in lawsuit to sink it
Add the Mashpee Wampanoag Tribe to a growing list of groups seeking to protect their own interests by intervening in a lawsuit filed by a developer who wants to build a New Bedford casino.
In a motion filed Friday in U.S. District Court, the Mashpee tribe seeks to become a party to the suit to protect its interests in the state's Expanded Gaming Act and, if successful, to have the developer's case dismissed.
"The Tribe has an undeniable, protected, and weighty interest in this case and the issues implicated by it, but cannot be joined due to its sovereign immunity," the tribe states in its filing. "This case must be dismissed because it cannot proceed 'in equity and good conscience' without the tribe."
KG Urban Enterprises, a New York-based developer, filed its suit on the same day the gaming legislation was enacted. The law gives the Mashpee Wampanoag and the Wampanoag Tribe of Gay Head (Aquinnah), the state's two federally recognized tribes, the right to exclusively seek a casino in Southeastern Massachusetts.
KG Urban wants to know how the Mashpee tribe is going to get around a 2009 U.S. Supreme Court ruling known as the Carcieri decision, which called into question the ability of tribes recognized after 1934 to have land taken into federal trust. The Mashpee tribe was federally recognized in 2007, but tribe leaders argue the Wampanoag were under federal jurisdiction before 1934.
"If these issues are adjudicated without the tribe, it will be prejudiced because its substantive rights under the (state law) and compact will be affected based on speculation about what (the Department of the Interior) might do as opposed to on what the DOI actually does," the motion states.
In their motion, attorneys for the tribe dispute that the Carcieri decision will be a significant hurdle. "KG's conclusions about the tribe's rights and facts surrounding those rights are without merit," the motion states.
KG Urban also claims a provision of the law giving tribes exclusivity amounts to a "race-based set aside" violating the Equal Protection Clause of the U.S. Constitution.
KG Urban officials declined comment on the Mashpee tribe's motion, but the company has already filed its objections to a motion by the Aquinnah to intervene. KG Urban attorneys claim the Vineyard-based tribe is attempting to hijack the suit.
"The Aquinnah tribe now seeks to divert KG's suit in order to litigate complex and wholly unrelated issues involving whether the Aquinnah waived their right to engage in gaming as part of a settlement of land claims in the mid-1980s," the company's attorney wrote.
The Vineyard-based tribe is battling on two fronts — KG Urban's premise that no tribe should be provided exclusive rights and Gov. Deval Patrick's unwillingness to even negotiate with the tribe.
The Mashpee tribe has proposed building a $500 million casino in Taunton and has a deal in place with Patrick to pay the state 21.5 percent of gross gambling revenues in exchange for the administration's help in getting federal land approvals needed for the casino project.
That deal is currently under review and the Interior Department is expected to rule on it by mid-October.
Last week, Harold Monteau, the former chairman of the National Indian Gaming Commission, which oversees Indian casinos, criticized the deal between the tribe and state in a letter published by Indian Country Today, calling it "the worst tribal-state gaming compact in Indian Country" and akin to "extortion" by the state.
"It is as if the state believes that if it says exclusivity enough times in the compact that it starts to be real," he wrote.
Monteau could not be reached for further comment Monday.
Cedric Cromwell, chairman of the Mashpee Wampanoag Tribal Council, responded to Monteau's comments with a letter of his own to Indian Country Today defending the tribe's negotiated agreement with Patrick.
Patrick has agreed to lobby the federal government to support the tribe's efforts to have 170 acres in Mashpee and 146 acres in Taunton taken into trust, an unprecedented move.
"As a landless tribe, without the legislation authorizing the governor to negotiate the compact in recognition of our inevitable rights and the Commonwealth's support for our gaming efforts, we would have first been expected to acquire lands eligible for gaming and only then could have required the Commonwealth to enter compact negotiations under the Indian Gaming Regulatory Act," Cromwell wrote.
The state could have also allowed a developer like KG Urban to bid on a license in the region, shutting the tribe out of the game, Cromwell wrote.
Through a spokeswoman, Cromwell declined to comment on the back-and-forth, letting his letter speak for itself.
The governor's office issued a statement defending the deal and pointing out that the tribe supports it.
"The compact reflects our respectful and cooperative partnership with the Mashpee tribe," said Jason Lefferts, a spokesman for the Executive Office of Housing and Economic Development. "It includes a number of meaningful concessions from the commonwealth, including legislation that called for early and expedited compact negotiations, the completion of a compact before the tribe possesses gaming-qualified land, geographic gaming exclusivity for the tribe, and state support and advocacy for compact and land-in-trust application approvals."
Monteau has already been critical of the Bay State legislation. In June, he spoke out about Patrick's unwillingness to negotiate with the Aquinnah tribe, saying the federal government would have no choice but to treat the two tribes equally.
The state has argued that the Aquinnah tribe waived its rights to a casino by agreeing to a land settlement in 1987, but the tribe and its attorneys argue that federal law, which allows for Indian casinos, supersedes land deals.
Besides the Mashpee and Aquinnah tribes, the Aquinnah/Gay Head Community Association also has moved to intervene in KG Urban's suit, according to court records. The association, which is made up of property owners in the island's tiny town, seeks to intervene only if the Aquinnah tribe is allowed as a party to the suit to "maintain the integrity of the settlement agreement," records show.
Aquinnah leaders have threatened to open a gambling facility in the tribe's community center if the state won't allow them to build a casino on the mainland.
Material from The Standard-Times was used in this report.
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