Judge dismisses tribe's efforts to intervene in casino suit
A federal judge has rejected requests from two local, federally recognized tribes to intervene in a lawsuit brought by KG Urban Enterprises, a developer that wants to build a commercial casino on the New Bedford waterfront.
Judge Nathaniel Gorton, in a 22-page decision filed Thursday, rejected both motions to intervene. Gorton said that the state can adequately protect the interests of the Wampanoag Tribe of Gay Head (Aquinnah). He said the Mashpee Wampanoag Tribe's interests are protected by the state, as well as federal Indian gaming law.
KG Urban filed the lawsuit on the day the state Expanded Gaming Act was signed into law in 2011. The company objected to a provision of the law that granted federally recognized tribes a window of exclusivity in Southeastern Massachusetts, known as Region C in the legislation. KG Urban called it a "race-based, set aside" that violated the U.S. Constitution.
Tribes were given until July 31, 2012, to successfully negotiate a compact with the state. The Mashpee tribe's initial compact was subsequently rejected by the federal Bureau of Indian Affairs. A second tribal-state compact is currently before the state Legislature.
Because of federal legal hurdles facing the tribe's $500 million casino proposal in Taunton, the Massachusetts Gaming Commission has agreed to seek applications for commercial casinos in the region. The deadline for submitting the $400,000 nonrefundable check and application is Sept. 30.
State lawyers have filed a motion saying KG Urban's lawsuit is no longer necessary because the region is open, but the company has until Tuesday to dispute that in a written motion.
"We are pleased with the court's decision, which rejects efforts to inject unrelated disputes into a case that has always been about KG's effort to be allowed an opportunity to compete on a level playing field and to ensure that the Southeast is treated like the rest of the commonwealth," Paul Clement, a lawyer for KG Urban, said.
For the Aquinnah tribe, Gorton's decision is a blow. The Martha's Vineyard-based tribe was hoping to get a court resolution to its ongoing dispute with the state over whether it waived federal rights to a casino in a 1987 land agreement.
The tribe argues it could not waive a federal right not yet granted to tribes. The Indian Gaming Regulatory Act was approved in 1988.
Gorton did leave the window open for the Aquinnah tribe to assert its position through an amicus brief.
Cheryl Andrews-Maltais, chairman of the Aquinnah tribal council, did not return a call or email seeking comment. An attorney did not respond to a phone message.
Attempts by the town of Aquinnah and the Aquinnah Gay Head Community Association to intervene were also denied by Gorton because they are considered moot. Both the town and the association only sought to be parties to the lawsuit to protect their rights if the Aquinnah tribe were involved.
In the case of the Mashpee tribe, Gorton ruled that the tribe's exclusivity in the region is not "legally protected," that the lawsuit presents "no possible threat" to the tribal-state compact and does not affect the tribe's ongoing application before the BIA to have 151 acres in Taunton land taken into trust for a casino.
"In sum, the Mashpee's purported interests in this litigation are either not 'legally protected' or not impaired by a successful challenge to (the state law)," Gorton wrote.
Financial interests aren't enough to make the two tribes parties to the lawsuit, he wrote. The Mashpee tribe's motion was denied without prejudice, meaning it can be brought up again.
In an email, Mashpee Wampanoag spokeswoman Paula Gates said the court addressed the tribe's concerns even without making them interveners.
"This is very positive for the tribe," Cedric Cromwell, chairman of the Mashpee Wampanoag Tribal Council, said.
"Our concern was that KG Urban not be allowed to use its lawsuit to, in any way, affect our rights as a sovereign nation or to interfere with the incredible progress we are making to finalize a deal with the state and have our land taken into trust.
The court has now made it clear that KG Urban cannot do so, and there is no need for us to participate in the case. We are moving forward."
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