Tribe's casino bid faces new obstacle
BOSTON — The Mashpee Wampanoag Tribe's plan for a $500 million casino in Taunton could soon face competition from commercial bidders.
The Massachusetts Gaming Commission stopped short of opening Southeastern Massachusetts to commercial casino bids Thursday, but that's clearly how a majority of commissioners are leaning.
After a nearly two-hour discussion, retracing well-worn paths over the question of timelines and potential legal tangles for a tribal casino, the commission agreed by consensus to put its plan to accept bids out for public comment over the next two weeks.
"I do understand that we don't want to drag this out, and it's important that the region not fall behind," Commissioner Gayle Cameron said.
But because the plan is different from what's been talked about, Cameron said it's important to hear from the public.
Vote scheduled
Unless new dramatic information "comes out of the woodwork," commission Chairman Stephen Crosby said the commission will vote April 18 to begin seeking bids in the region with an eye toward licensing a casino by December of 2014.
If the region is opened up, the tribe could still pursue the federal process or could even apply for a commercial license while they leave the door open to clear federal hurdles, Crosby said.
"All these choices are lousy, but among lousy choices, the tribe has more options than anybody else," Crosby said.
Commercial applicants would have to decide if it's worth the risk of plunking down the $400,000 nonrefundable application fee while there is a potential for a tribal casino in the region.
KG Urban Enterprises, a developer with hopes of building a New Bedford casino, declined to comment on the commission's leanings through spokesman Andy Paven. KG Urban has a pending lawsuit that seeks to end the tribe's exclusive hold on the region. A hearing on that case is scheduled for Thursday.
Thursday's commission meeting drew a contingent of stakeholders, including tribal lobbyist and former U.S. Rep. William Delahunt and tribe lawyer Howard Cooper, who was scribbling notes on a legal pad throughout the discussion.
From: Wampaleaks
Cezar Froelich, a lawyer for the city of Taunton, where the tribe plans to build a casino, wrote a sharply worded letter to the commission Monday, saying the action contemplated by the agency would subject it to "significant time-consuming and expensive litigation."
Compact vs. legislation
Outside the meeting, Cooper reiterated what he said in his letter to the commission last week, that commissioners lack the lawful authority to open Southeastern Massachusetts, known as Region C in the legislation that opened the state to gaming, to competitive bid.
"All too often in our history there has been a tendency, and worse, to ignore the rights of Native Americans, and the complete absence of discussion about those rights this afternoon by the commission members is highly disappointing," Cooper said. "More importantly, the failure to appreciate the government-to-government relationship between the Mashpee Wampanoag and the commonwealth of Massachusetts is somewhat astonishing."
At issue is language in the compact that prohibits the commission from seeking commercial bids in the region unless the tribe is deemed unable to have land taken into federal trust. The tribe has an application to have land in Taunton and Mashpee taken into trust that's under active review by the federal Bureau of Indian Affairs.
The compact has been signed by Gov. Deval Patrick and tribal council Chairman Cedric Cromwell, but still requires Legislative approval to become law. Whether the compact would supersede the language of the Expanded Gaming Act, which lacks that strong language, remains unclear.
An initial compact approved by the Legislature was rejected by the bureau, sending Patrick and Cromwell back to the negotiating table. The new compact has been filed by Patrick, but was sent to committee and is not yet scheduled for a vote.
What remains unclear is if any portion of the original compact remains law. "That's an interesting legal question," Cooper said, a strong indication that this is headed for a legal showdown.
Commissioner James McHugh, a retired judge, offered a different view during the meeting. "It strikes me as unlikely that it can do so," he said of the compact overriding the state gambling law.
In a follow-up interview, Crosby said it may require the courts to decide whether the compact trumps the Expanded Gaming Act.
"The only person who can resolve this ultimately is the courts," Crosby said. "We have read (the law), asked for advice, we talked to legislators and know what they meant, but if somebody wants to sue us, they can sue us."
Under the terms of the newly negotiated compact, if the commission licensed a commercial casino in Region C and the tribe ultimately got land in trust for an Indian casino, the tribe would not have to pay the state a penny.
"The scenario that the commission is talking about going forward with today risks leading to that result," Cooper said.
The state would get 17 percent of gross gambling revenue if the tribe's exclusive rights to Region C remain intact.
The Mashpee Wampanoag presented letters from the bureau that its application is a "top priority" and that a key decision will come in early 2013, but in the end, the commission was unmoved by the tribe's optimistic outlook.
In his opening remarks, McHugh painted a scenario that would tie up the region for four years, even if the tribe were successful in getting land in trust because of legal challenges.
"There's the likelihood there would be no construction or gaming revenue in Region C for some considerable time, though the length is impossible to determine with the information we have now," he said.
That's something legislators from the New Bedford and Fall River area have been pleading with the commission to avoid because of double-digit unemployment in the two cities.
"I thought they were going to pull the plug today," state Rep. Antonio Cabral, D-New Bedford, said Thursday. "I think the decision is inevitable. I'm optimistic that in two weeks they'll actually make a decision to open up the region."
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