Mashpee tribe goes on the offensive
The Mashpee Wampanoag Tribe is taking off the gloves in its battle to keep Southeastern Massachusetts free from casino competition.
In a letter to the Massachusetts Gaming Commission delivered Thursday morning, an attorney for the tribe says the commission "lacks the lawful authority" to seek competitive bids in Southeastern Massachusetts, known as Region C in the Expanded Gaming Act of 2011.
The initial compact reached between the tribe and Gov. Deval Patrick, and approved by the
Legislature last July, states the commission "will not issue a request for Category 1 license applications in Region C unless and until it determines that the tribe will not have land into trust for it by the United States Secretary of the Interior," Howard Cooper, the tribe's attorney, wrote.
Though that compact was ultimately rejected by the federal Bureau of Indian Affairs, the same language is in the renegotiated deal between the tribe and the governor, Cooper wrote.
Because the tribe's application to have land taken into trust is under active review, it would be premature for the commission to open the region to competitive bids, he said.
That's a legal opinion in sharp contrast to what commissioners said in December when the agency first considered opening the region to competitive bids.
At the commission's meeting Thursday afternoon, Commissioner James McHugh, a retired judge, reiterated an opinion he offered the commission in December that there is nothing in the state law that prohibits the gaming commission from seeking bids in Southeastern Massachusetts.
"I believe that the commission's powers were not limited in that fashion because of the plain language of the statute and because of the absence of language specifying that," he said. "That's just the view of one commissioner. We have not adopted that view. We have not come to any coalescence around that."
The law gives the commission the authority to move on with commercial bids if it determines "the tribe will not have land taken into trust."
State Rep. Robert Koczera, D-New Bedford, a proponent of opening the region, said it's the legislation and not the compact that empowers the commission.
"I really think this letter is a bunch of smoke," Koczera said. "I see it as an affront. They're trying to respond to opponents. They're matter-of-factly saying to the gaming commission they can't do it. If I was a member of the gaming commission, I would take exception to it."
New Bedford has a developer, KG Urban Enterprises, waiting in the wings with a proposal to build a casino on the waterfront. KG Urban has a federal lawsuit pending that alleges the tribe's exclusive window is a "race-based set-aside." A spokesman for the company declined to comment on the tribe's letter.
The letter comes a week after the commission held a meeting at Bristol Community College in Fall River where it heard from a parade of legislators, developers and casino opponents urging commissioners to move ahead with commercial bids.
The commission did not make a decision at the March 21 meeting, but will discuss it at next Thursday's meeting in Boston, McHugh said. The meeting is scheduled to begin at 9 a.m.
Under the terms of the new compact, the tribe would pay nothing to the state if a commercial casino is located in the same region.
The compact still needs the approval of the state Legislature and the federal Bureau of Indian Affairs.
The compact was filed Wednesday and was sent to the Joint Committee on Economic Development and Emerging Technologies for review, Seth Gitell, a spokesman for House Speaker Robert DeLeo, said in an email Thursday.
The committee has not yet scheduled a hearing.
In the tribe's letter, Cooper also takes issue with "specific misstatements" made in testimony to the commission by opponents of the project.
Opponents often cite a 2009 U.S. Supreme Court ruling known as the Carcieri decision as an insurmountable hurdle for the tribe. That ruling called into question the Department of the Interior's authority to take land into trust for tribes federally recognized after 1934. Those critics misread the high court ruling, Cooper wrote.
The tribe has submitted documentation why it believes it was under federal jurisdiction in 1934 and a bureau decision is expected in "early 2013," Cooper wrote. He offered to share the documentation with commission members.
Casino opponents have produced letters written in 1899 and 1937 they say show the tribe was under state jurisdiction, but Cooper said those issues are addressed in the tribe's submission to the bureau.
In his letter, Cooper indicates it was common for the federal government to "disclaim its responsibilities" to tribes. That won't determine how the bureau rules now on whether the tribe was under federal jurisdiction, he wrote.
"Geez, you would think for all the money the tribe is paying him, he could come up with something better than, 'Oh yeah, we knew about that, the Feds made a mistake,'" said Allin Frawley, the Middleboro selectman who testified about those historic letters.
In the letter, Cooper also seeks to counter claims that the environmental review process is stalled. He outlines a timeline that would have that process, which falls under the National Environmental Protection Act, completed by early 2014.
Another oft-cited Supreme Court ruling, the so-called Patchak decision, which allows opponents of tribal casinos to sue up to six years after land is taken into trust, would actually speed up the process, Cooper contends.
Previously, the bureau would delay final decisions until all legal challenges were exhausted, Cooper wrote.
"The department is no longer compelled to 'self-stay' all acquisitions, confident that the courts can sort out the need, if any, to enjoin acquisitions," he wrote.
State Rep. Keiko Orrall, R-Lakeville, said the decision on opening the region is clearly the commission's to make. "The question is whether or not the tribe's progress is significant enough to delay others from entering the bidding process," she said.
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