Holdups Continue To Be The Story For Land-Based Casino Developers In Massachusetts
Back in 2011, Massachusetts passed a law that allowed for up to three commercial casinos and a single slots casino to be built in the state.
Five years later, only the slots parlor has opened, and the commercial casinos are still two to three years away from being completed.
Delays and denials the story so far
The MGM Springfield and Wynn Everett projects have dealt with a number of delays, ranging from the 2014 effort to repeal the casino expansion, to arbitration hearings, and even lawsuits largely stemming from payments to surrounding communities.
These delays have pushed back the openings of these casinos by several years — Wynn Everett is now planning to open its doors in the spring of 2019 (eight years after the casino expansion law was passed in Massachusetts) and MGM in the fall of 2018.
They also left the door open for the Mashpee Wampanoag tribe to beat the two commercial casinos to the punch, despite the project being green lit several years after Wynn and MGM.
The Mashpee Wampanoag had its land put into trust earlier this year, paving the way for the federally recognized tribe to begin construction on a tribal casino.
This contributed to the Massachusetts Gaming Commission’s decision to deny a proposal by Mass Gaming & Entertainment for a commercial casino in Brockton.
First Light Casino
After breaking ground in April, the tribe planned on opening its First Light Casino in Taunton, Mass., in 2017, with a hotel to follow in 2018. But the tribe has now hit a snag of its own.
A lawsuit filed by Taunton resident Michelle Littlefield, who lives adjacent to land where the proposed casino will be built, challenged the Department of the Interior’s authority to take land into trust for tribes that were federally recognized after 1934. The Mashpee Wampanoag tribe was federally recognized in 2007.
On July 28, US District Court Judge William Young ruled in favor of Littlefield.
The ruling by Judge Young states:
“In light of the Supreme Court’s interpretation of ‘now under Federal jurisdiction’ to mean under federal jurisdiction in June 1934, the Secretary (of the Interior) lacked the authority to acquire the land in trust for the Mashpee, as they were not then under federal jurisdiction.”
Supreme Court ruling at
the center of discussion
As Judge Young noted in his ruling, the challenge stems from a 2009 Supreme Court case,Carcieri v Salazar, where the Supreme Court ruled against the Narragansett tribe and the Bureau of Indian Affairs, nullifying the decision to put 31 acres into trust for the tribe.
The opinion was written by Justice Clarence Thomas who wrote that the case hinged on the phrase “now under Federal jurisdiction,” and precisely when “now” is.
According to Thomas, the BIA is only able to take land into trust if the tribe was federally recognized in 1934 (his definition of now). The Narragansett tribe was federally recognized in 1983.
However, there seems to be some judicial wiggle room, dependent on your definition of the word “now.”
In their concurrence, Justices David Souter and Stephen Breyer noted that prior treaties or agreements could override the 1934 bright line for federal recognition.
Furthermore, Souter and Justice Ruth Bader Ginsburg also issued a concurrence in part and a dissent in part, where they argued “under federal jurisdiction” and being “federally recognized” were not one in the same, allowing for tribes recognized after 1934 to still have land put in trust provided they were under federal jurisdiction prior to 1934.
If your head isn’t spinning yet, there are also two definitions of the word “Indian” that seem to allow for even more wiggle room.
Alternative ruling favors
Mashpee Wampanoag tribe
It only took a day before evidence emerged that shows this matter is far from settled.
A day after Judge Young’s ruling against the Mashpee Wampanoag tribe, the US Court of Appeals for the District of Columbia issued a ruling in favor of the Cowlitz tribe of Washington state, which was facing the same challenge on the same grounds.
Even to a layperson, the two rulings are obviously incompatible.
What to expect going forward
First, the Mashpee Wampanoag tribe is expected to appeal the decision. According to the Boston Globe, Cedric Cromwell, chairman of the Mashpee’s tribal council, said the tribe was reviewing the decision, and that an appeal is likely.
The larger question is whether the tribe will halt construction of its casino.
A delay could cost the tribe its first-mover advantage in Massachusetts
And considering it planned on opening a casino with hotel to follow, it would appear the Mashpee Wampanoag tribe was putting a lot of stock into being first: The name of the casino, First Light, would fit well with being the first full casino in Massachusetts.
Before the lights truly went dark on 
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