OUR OPINION: State loses risky bet on casino compact
The Patriot Ledger
Posted Oct 26, 2012
Based upon the number of significant concerns the federal government had with the compact between the commonwealth and the Mashpee Wampanoag Tribe, it looks like either no one in Massachusetts did their homework on Indian gambling law, or state and tribal officials simply expected the federal government to permit an extraordinary number of exceptions to the law.
Massachusetts and the city of Taunton were dealt a significant setback last week when the federal Bureau of Indian Affairs rejected the compact between the state and the tribe that would have begun the federal approval process for a tribal casino in Taunton.
Based upon the reasoning in the 18-page letter to Gov. Deval Patrick from the Bureau of Indian Affairs rejecting the compact, the denial should have been an expected outcome since the compact went well beyond the scope of gambling and the intent of the Indian gambling law. It offered an unprecedented amount of control and revenue to the commonwealth, while offering the tribe a single, but unnecessary, “meaningful” concession: the right to exclusivity in Gaming Region C.
The Interior Department indicated in its rejection that the state’s cut should have a ceiling of 6.5 percent of revenue-sharing, , well below the pact’s lucrative 21.5 percent share to the state. The Bureau of Indian Affairs said the revenue-sharing agreement and other stipulations in the compact are “undermining the central premise of IGRA (Indian Gaming Rights Act) that gaming should primarily benefit tribes.”
But that’s just the beginning of the federal bureau’s concerns. The commonwealth and the tribe also muddied the legal waters, according to the decision, by using the compact process to “address a host of other issues” that go well beyond the limited scope of gambling, which is the singular issue the compact and the bureau’s approval were to address. “Congress expressly sought to prevent states from using gaming compacts to leverage power over sovereign tribes about matters unrelated to gaming,” the decision said. “This is especially important because a tribe may be strongly tempted to agree to such terms for political expediency to obtain the state’s agreement.”
While the tribe and the state plan to renegotiate the compact and have been encouraged to do so by the Bureau of Indian Affairs, it’s troubling that it even came down to this when the clock is ticking and many other layers of regulatory steps follow the compact approval. Gov. Deval Patrick blasted the bureau’s decision as an “outdated” approach that “does not adequately take into account our unique circumstances here in Massachusetts.”
Massachusetts and the city of Taunton were dealt a significant setback last week when the federal Bureau of Indian Affairs rejected the compact between the state and the tribe that would have begun the federal approval process for a tribal casino in Taunton.
Based upon the reasoning in the 18-page letter to Gov. Deval Patrick from the Bureau of Indian Affairs rejecting the compact, the denial should have been an expected outcome since the compact went well beyond the scope of gambling and the intent of the Indian gambling law. It offered an unprecedented amount of control and revenue to the commonwealth, while offering the tribe a single, but unnecessary, “meaningful” concession: the right to exclusivity in Gaming Region C.
The Interior Department indicated in its rejection that the state’s cut should have a ceiling of 6.5 percent of revenue-sharing, , well below the pact’s lucrative 21.5 percent share to the state. The Bureau of Indian Affairs said the revenue-sharing agreement and other stipulations in the compact are “undermining the central premise of IGRA (Indian Gaming Rights Act) that gaming should primarily benefit tribes.”
But that’s just the beginning of the federal bureau’s concerns. The commonwealth and the tribe also muddied the legal waters, according to the decision, by using the compact process to “address a host of other issues” that go well beyond the limited scope of gambling, which is the singular issue the compact and the bureau’s approval were to address. “Congress expressly sought to prevent states from using gaming compacts to leverage power over sovereign tribes about matters unrelated to gaming,” the decision said. “This is especially important because a tribe may be strongly tempted to agree to such terms for political expediency to obtain the state’s agreement.”
While the tribe and the state plan to renegotiate the compact and have been encouraged to do so by the Bureau of Indian Affairs, it’s troubling that it even came down to this when the clock is ticking and many other layers of regulatory steps follow the compact approval. Gov. Deval Patrick blasted the bureau’s decision as an “outdated” approach that “does not adequately take into account our unique circumstances here in Massachusetts.”
Based upon the number of significant concerns the federal government had with the compact between the commonwealth and the Mashpee Wampanoag Tribe, it looks like either no one in Massachusetts did their homework on Indian gambling law, or state and tribal officials simply expected the federal government to permit an extraordinary number of exceptions to the law.
Massachusetts and the city of Taunton were dealt a significant setback last week when the federal Bureau of Indian Affairs rejected the compact between the state and the tribe that would have begun the federal approval process for a tribal casino in Taunton.
Based upon the reasoning in the 18-page letter to Gov. Deval Patrick from the Bureau of Indian Affairs rejecting the compact, the denial should have been an expected outcome since the compact went well beyond the scope of gambling and the intent of the Indian gambling law. It offered an unprecedented amount of control and revenue to the commonwealth, while offering the tribe a single, but unnecessary, “meaningful” concession: the right to exclusivity in Gaming Region C.
The Interior Department indicated in its rejection that the state’s cut should have a ceiling of 6.5 percent of revenue-sharing, , well below the pact’s lucrative 21.5 percent share to the state. The Bureau of Indian Affairs said the revenue-sharing agreement and other stipulations in the compact are “undermining the central premise of IGRA (Indian Gaming Rights Act) that gaming should primarily benefit tribes.”
But that’s just the beginning of the federal bureau’s concerns. The commonwealth and the tribe also muddied the legal waters, according to the decision, by using the compact process to “address a host of other issues” that go well beyond the limited scope of gambling, which is the singular issue the compact and the bureau’s approval were to address. “Congress expressly sought to prevent states from using gaming compacts to leverage power over sovereign tribes about matters unrelated to gaming,” the decision said. “This is especially important because a tribe may be strongly tempted to agree to such terms for political expediency to obtain the state’s agreement.”
While the tribe and the state plan to renegotiate the compact and have been encouraged to do so by the Bureau of Indian Affairs, it’s troubling that it even came down to this when the clock is ticking and many other layers of regulatory steps follow the compact approval. Gov. Deval Patrick blasted the bureau’s decision as an “outdated” approach that “does not adequately take into account our unique circumstances here in Massachusetts.”
But the law is the law, and particularly given the complexity of this process that could delay or derail the casino plan altogether, this is not the time for experimentation.
The tribe and state now have a responsibility to fully understand the intent of the gaming law and negotiate a deal that is more likely to gain the crucial support of the Bureau of Indian Affairs, while not sacrificing the interests of the city and the state. That may not even be possible.
Tribal Chairman Cedric Cromwell said the Mashpee Wampanoag Tribe “has the inevitable right to conduct gaming in our ancestral homeland.” However, it may prove to be a very long road to get there. State officials – including legislators – who must approve a new compact before it goes to the Bureau of Indian Affairs should seriously consider whether there is any hope of creating a deal with the tribe that could meet the conflicting interests of the federal government, the state, the city and surrounding region and the tribe.
Given the wide scope of the federal bureau’s concerns and its strict adherence to the law, it appears that the Massachusetts gambling legislation’s intent to exclusively offer a casino license to an Indian tribe may be fatally flawed under the existing approval framework.
Posts
No comments:
Post a Comment