KG Urban objects to tribe's motion
Not surprisingly, KG Urban Enterprises, the developer hoping to build a New Bedford casino, is objecting to the Mashpee Wampanoag Tribe's attempt to torpedo its federal lawsuit.
KG Urban filed suit in November, on the same day that Massachusetts' Expanded Gaming Act was signed into law. The New York-based developer objects to what it calls a "race-based set aside" for the state's two federally recognized tribes and says the law violates the Equal Protection Clause of the U.S. Constitution.
The tribe's interests can be represented by the state, KG Urban contends.
"From its very first filings in this case, the commonwealth has vigorously defended the constitutionality of the act in its entirety, including the race-based regional monopoly that extends far beyond any actual or potential Indian lands," KG Urban lawyers wrote.
In an official objection filed Friday in U.S. District Court, they argue that the Mashpee Wampanoag Tribe is attempting to invoke a "pocket-veto" of the suit. The tribe is proposing a $500 million casino in Taunton and has a deal in place with Patrick to pay the state 21.5 percent of gross gambling revenue in exchange for the administration's help in getting federal land approvals needed for the casino project.
A federal ruling on the Mashpee deal with Patrick is expected by mid-October, but in the interim the state has said it will not consider any commercial casino proposals in Southeastern Massachusetts, known as Region C in the legislation.
Two weeks ago, the tribe filed its motion seeking to protect its interests by intervening in the lawsuit. In an interesting twist, the tribe's attorneys argued that if the court allows them to intervene, the suit must be dismissed because of the tribe's sovereign immunity to federal court action.
"The Mashpee's motion is remarkable for its sheer audacity," KG Urban's objection states. "This heads-I-win-tails-you-lose assertion is not and cannot be the law for multiple independent reasons."
Tribe leaders and attorneys declined to comment, spokeswoman Brooke Scannell said.
KG Urban lawyers say the company is not attempting to block the compact or the land-in-trust process. They also contend that if Mashpee is added to the suit, it should be tribe leaders who would not have sovereign immunity.
The Wampanoag Tribe of Gay Head (Aquinnah) is also attempting to intervene in the case. In a back-and-forth of court documents, KG Urban has objected, saying the Vineyard tribe is attempting to "litigate complex and wholly unrelated issues."
But in a court filing dated Sept. 26, Aquinnah lawyers argue that the tribe has a substantial interest in "defending the act's tribal compacting provisions."
The Aquinnah and the state are at odds over whether the Vineyard-based tribe has any rights to an Indian casino. The state contends that the Aquinnah waived those rights in its land settlement agreement approved in the mid-1980s and has refused to negotiate with tribe leaders.
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