Mashpee tribe ruling raises ante
BOSTON — The Mashpee Wampanoag Tribe has a three-month reprieve from competition for a casino in Southeastern Massachusetts.
The Massachusetts Gaming Commission voted unanimously Tuesday to delay opening Southeastern Massachusetts, known as Region C in the Expanded Gaming Act, to commercial casino developers until after March 15.
It was an unexpected twist in the complicated tangle of state and federal gambling laws.
"It's basically to give them a last shot and to make it clear that we have gone as far as we can go to give them a shot to be successful," commission Chairman Stephen Crosby said during Tuesday's meeting.
The commission is attempting to balance the Mashpee tribe's federal rights to a casino with the Legislature's goal to license only one in each region as designated by state law, Crosby said.
"What we are wrestling with is, what is the fairest way to accommodate these (competing) interests, and it's not easy," Crosby said during the nearly 30 minutes of discussion.
The commission does not expect the tribe to have settled its issues about getting land into trust for a casino within three months, but will look for progress on a compact with the state, commissioner James McHugh said.
The tribe has an application before the federal Bureau of Indian Affairs to have 146 acres in Taunton and 170 acres in Mashpee taken into trust as an initial reservation. That process is complicated by a 2009 U.S. Supreme Court ruling that calls into question the government's ability to take land into trust for tribes recognized after 1934. The Mashpee tribe was recognized in 2007.
A week ago, the commission was leaning heavily toward implementing a so-called parallel process — accepting initial applications from commercial developers while the tribe seeks federal approvals.
In the last week, commissioners accepted written comments, and commissioners Crosby and McHugh sat down with tribe leaders.
"Their preferred position would be that we simply do nothing on a commercial license for however long it takes for them to meet the various hurdles they have to get over," Crosby said after the commission's meeting Tuesday. Ultimately, the tribe agreed to the three months, he said.
"They thought it was a reasonable, focused request to give them time since they're trying to negotiate a new compact without prejudicing their case," Crosby said.
Tribal council Chairman Cedric Cromwell issued a statement praising Tuesday's reprieve.
"We are pleased that the gaming commission has acknowledged our progress, our unique federal rights, and the fact that we have met every requirement under the Expanded Gaming Act. We look forward to continuing a cooperative relationship with the commission," Cromwell said. "Today the gaming commission also acknowledged the risks and complications of adopting a backup plan.
However, we still contend that having one is not really necessary since we are so much further along than any other project in the state."
Crosby raised the concern that allowing a commercial casino could result in a second casino in the region if the tribe gets land into trust. The tribe could open a Class II casino, provide no revenue to the state and compete with a state-licensed casino in the region, Crosby said.
At least one commissioner appeared ready to pull the trigger on allowing commercial bids.
Commissioner Gayle Cameron suggested making March 15 a firm deadline, similar to the one in the legislation that required an approved compact by July 31. The tribe met that deadline, but the compact was ultimately rejected by the Bureau of Indian Affairs and is being reworked.
The March 15 deadline comes just before a March 20 status hearing in the federal lawsuit filed by KG Urban Enterprises objecting to what it calls a "race-based, set-aside" for the tribe that violates the U.S. Constitution.
KG Urban would like to build a commercial casino on the New Bedford waterfront.
Written comments by the company criticized the parallel process because it would require developers to spend $400,000 on an application and thousands more in other costs with no guarantee the project would be judged on its merits.
Crosby conceded that creating a parallel process provides "serious uncertainty" for commercial developers.
"I'm encouraged," state Rep. Robert Koczera, D-New Bedford said.
He and state Rep. Antonio Cabral, D-New Bedford, have been calling for action by the commission to keep Southeastern Massachusetts from falling behind other regions of the state.
"I very much think that the time has come to make a decision in the coming year and in the first half of it to approve commercial bidding for the region," he said in a phone interview.
Cabral said during a separate interview that it's clear the commission is moving closer to a final determination.
"At least they're discussing that Region C should not be disadvantaged," he said. "It's a good thing. It's positive."
Switching gears
The Massachusetts Gaming Commission had been leaning toward a parallel process for commercial bidders to apply for a license at the same time the Mashpee Wampanoag tribe seeks its federal approvals. Here's what entered into the abrupt change of heart:
- The potential of adversely affecting the ongoing negotiations between the Mashpee Wampanoag and Gov. Deval Patrick and legislative approval of that deal.
- Risk that the tribe could someday have a Class II casino that wouldn't have a benefit to the state.
- Uncertainty for commercial bidders who would spend money with no guarantee their projects would be considered on their merits.
Source: Chairman Stephen Crosby's memo to the gaming commission
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See more of the Times' continuing coverage of the Mashpee tribe's quest to build a casino: www.capecodonline.com/casino
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