Tribe touts federal OK of compact
January 04, 2014
The Mashpee Wampanoag Tribe is declaring victory and vowing to have shovels in the ground by the end of this year for its Taunton casino now that the federal Bureau of Indian Affairs has approved its state compact, essentially by default.
The deadline for the BIA to either approve or reject the compact within 45 days passed at midnight Friday with no action by the federal agency. Under the Indian Gaming Regulatory Act, that makes the agreement between tribe leaders and Gov. Deval Patrick a binding deal.
"This is a huge, huge day," Mashpee Wampanoag tribal council Chairman Cedric Cromwell said Friday. "It's a historical day for the tribe, for the state of Massachusetts and for the city of Taunton. We're very excited."
The compact is a contract between the state and tribe detailing how the tribe will operate a federal Indian casino within the state. Among the things outlined is how much the tribe will pay the state in gross gambling revenue. That ranges from zero to 21 percent based on the level of competition the tribe has from commercial casinos.
The most likely scenario is that the tribe will pay the state 17 percent, based on two commercial casinos and a slot parlor in other regions. If the slot parlor is in Region C, the amount would drop to 15 percent, and if a commercial casino is licensed in Southeastern Massachusetts, the tribe wouldn't pay anything.
"To get this far in the process is monumental," Cromwell said.
A spokesman for KG Urban Enterprises, the lone commercial applicant in Region C thus far, disagreed with Cromwell's perspective and noted that the tribe does not yet have land in trust for the casino — another requirement. KG Urban is suing the state over its preferential treatment of the tribe in Southeastern Massachusetts and a judge is considering motions for summary judgment.
"Chairman Cromwell's statement that the Mashpee have received a 'license' to open a casino is false," said Jeff Harris, counsel to KG Urban. "The Mashpee tribe has no license to do anything in the commonwealth of Massachusetts related to gaming that it did not have yesterday. Under the Indian Gaming Regulatory Act and the United States Constitution, Indian casinos (and gambling of any kind) are illegal except on Indian lands. ... The Mashpee tribe has no Indian lands."
The compact, Harris said, is "thus legally irrelevant and is nothing more than a distraction. The notion that the tribe will 'break ground on a casino by the end of 2014' is nothing short of absurd."
Patrick issued a statement praising the compact's approval. The first compact he negotiated with the tribe was rejected by the BIA, which said the state offered too little in return for the tribe paying 21 percent of gross gambling revenue.
"I'm pleased that the commonwealth's compact with the Mashpee Wampanoag Tribe has been given final approval under federal law," he said. "This is another important step toward growing jobs and opportunity in the southeast region and a good deal for both the commonwealth and the tribe."
Not everyone is happy with the outcome. Allin Frawley, a Middleboro selectman and casino critic, questioned the logic of entering into a compact before the tribe has the casino land into federal trust.
"I have an issue with a process that gives approval by not rendering a decision, especially considering the first compact was rejected," Frawley said. "The timing of this was clearly orchestrated with this type of 'default decision' in mind. Our state and federal government has failed the people of the state of Massachusetts and especially Region C."
Nedra Darling, a spokeswoman for the BIA, said Friday she had no new information on the compact status. On Thursday, she said in an email the compact was still under review, but acknowledged that once the deadline passed without a formal decision, it is considered approved so long as it meets the provisions of Indian gaming law.
The state paid $2.3 million out of $5 million authorized by the Legislature to negotiate the two compacts with the tribe. Mashpee Wampanoag leaders have declined to say how much compact negotiations cost.
The tribe still needs to get a separate favorable BIA decision on its application to have 155 acres in Taunton and 170 acres in Mashpee taken into trust for its initial reservation.
But Cromwell said the compact decision means "when we have land into trust, we can game on that land."
The land application for what the tribe calls Project First Light is in the final stages of consideration, Cromwell said Friday, noting that the environmental review should be complete within a couple months.
Casino opponents have said despite the compact, the tribe's federal hurdles are insurmountable. The tribe must overcome a 2009 ruling by the U.S. Supreme Court, known as the Carcieri decision, that calls into question the federal government's ability to take land into trust for tribe's recognized after 1934. The Mashpee tribe gained federal recognition in 2007.
"We don't have a Carcieri problem," Cromwell said. The tribe has filed the necessary paperwork to show it was under federal jurisdiction before 1934 and to demonstrate its ties to Taunton, he said.
"People have said we wouldn't get this far, and we have," Cromwell said.
The tribe looks forward to a final record of decision this year, he said. "I believe in the process and where we are at, we will have land in trust in 2014, and we'll be able to put a shovel in the ground by the end of the year," Cromwell said.
Taunton Mayor Thomas Hoye Jr. was more cautious, but no less enthusiastic about the compact approval.
"It's exciting," he said. "It's a long process to say the least. I think it's one where we are starting to see light at the end of the tunnel. We're confident we'll be able to move forward."
Michelle Littlefield, a casino opponent in Taunton, said she remains convinced the casino will never be built and is skeptical the tribe's land application is even complete.
"I'm not fazed by it," Littlefield said. "This has been going on for how long now — seven years?"
The key phrase, Littlefield said, is the compact must not violate Indian gaming law, which opponents believe it does.
Both the governor's office and Cromwell said the BIA was consulted before the deal was struck. The Legislature approved the compact in November.
Tribe, guv claim compact has been okayed
Estimated pay-off to state is $2.1 billion over next 20 years - Tribe claims it's the first license for a resort casino in Massachusetts - Construction may begin before year's end
Estimated pay-off to state is $2.1 billion over next 20 years.
Mashpee Wampanoags, Governor Patrick claim Taunton Casino Compact gets federal approval
Estimated pay-off to state is $2.1 billion over next 20 years
The second tribal gaming compact negotiated between the Patrick administration and the Mashpee Wampanoag tribe worth an estimated $2.1 billion in revenue to the state over 20 years has been effectively approved by the federal government.
The sign-off from the U.S. Department of the Interior and the Bureau of Indian Affairs clears the path for the tribe to build a casino in southeastern Massachusetts if it is successful in its bid to have land taken into trust in Taunton.
After a setback more than a year ago when the federal government rejected the first agreement between the state and the tribe for a casino in Taunton, the Bureau of Indian Affairs effectively approved the new compact on Friday when it let a deadline of midnight on Thursday pass without responding.
Cromwell says D.O.I. approval letter is on its way
Tribe Chairman Cedric Cromwell told the News Service on Friday that he spoke to someone in the U.S. Department of Interior and was informed that a "deemed approved" letter would be arriving within the next couple of weeks when the compact would be officially posted in the federal register.
"It's essentially the first license for a resort casino in Massachusetts," Cromwell told the News Service on Friday. "This is a monumental and historic day for the tribe."
The compact, which was ratified by the Legislature in November, authorizes casino gambling on tribal land, and grants the state 21 percent of gaming revenue if Taunton is the only licensed casino in the state, or 17 percent if the tribal casino is the only casino in the southeastern region. Should the Gaming Commission grow tired of waiting for the tribe to have land taken into trust and issue a commercial casino license in the region, the tribe would not have to share any revenue with the state from a casino.
"I'm pleased that the Commonwealth's Compact with the Mashpee Wampanoag Tribe has been given final approval under federal law. This is another important step toward growing jobs and opportunity in the Southeast region, and a good deal for both the Commonwealth and the Tribe," Gov. Patrick said in a statement.
Following the Legislature's approval and the compact's signing by Patrick in November, the Bureau of Indian Affairs had 45 days to review the deal. Without an affirmative or negative ruling from the bureau by midnight Thursday, the compact was deemed approved.
"We're very excited that the contract was deemed approved, and there's no other way to look at it. I know we have a compact now and it's very exciting," Cromwell said.
First compact was rejected by Feds
The first compact negotiated between Patrick and the tribe was rejected in October 2012 when the federal government objected to the balance of concessions made by the state to justify a revenue-sharing agreement that would have sent 21.5 percent of net casino revenue back to Massachusetts.
The government also ruled the administration overstepped its bounds in seeking to include hunting and fishing rights in the compact, and for trying to exert authority over issues such as regulation of suppliers and entertainment services.
Some lawmakers, including Rep. Antonio Cabral of New Bedford, feared a similar fate for the revised compact, despite the administration's collaboration with Interior Department during the second negotiating process.
Tribe still awaits "Land in trust" approval by B.I.A.
Rep. Robert Koczera, another New Bedford Democrat who opposed the compact, said there was no reason to ratify the compact until the tribe is able to resolve the land-in-trust issues with the federal government. Other states have ratified compacts after land has already been taken in trust, he said during the House debate.
Koczera and other lawmakers argued the Mashpee face many hurdles in their quest to get the federal government to grant them land-in-trust to build a casino, including a U.S. Supreme Court decision that would make the tribe ineligible because it received federal recognition in 2007, long after a 1934 cutoff date.
Cromwell said he was confident that the tribe would have federal approval for the land to be taken into trust in 2014, citing the recent completion in early December of two final environmental impact hearings in Taunton and Mashpee. The Bureau of Indian Affairs is now going through a 45 day public comment period on the environmental review, according to Cromwell.
Construction may begin before year's end
The tribe has also been going through the state environmental permitting process for a casino, and Cromwell said it's possible that construction on a casino in Taunton could begin before the end of the year.
"Everything folks have said we can't do, we've been doing," Cromwell said. "We're talking 2014 we'll have land in trust and be able to put a shovel into the ground."
The Massachusetts Gaming Commission, which expects to issue resort casino licenses in the east and west by May, reserves the right to issue a commercial casino license in the southeast should it decide that the Wampanoag's land in trust application is unlikely to be approved, or resolved, in a timely manner.
The 2011 expanded gaming law gave the commission that discretion, while also setting aside the southeast region for the Mashpee tribe in hopes of limiting casino construction in the state to three.
KG Urban Enterprises, a group of developers seeking to build a casino along the New Bedford waterfront, is suing the state and arguing the 2011 gaming law is discriminatory, favoring Indian tribes.
http://www.capecodtoday.com/article/2014/01/04/23451-tribe-guv-claim-compact-has-been-okayed
From the Boston Herald, lean on facts and comprehension:
Feds OK Mashpee pact with Mass. on casino
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