Every week, it seems another company lands in Western Massachusetts to join in the fight over the casino license that will be up for grabs in that region.
The race for the Greater Boston license generates headlines almost every day, as Bob Kraft and Steve Wynn try to charm the reluctant folks in Foxboro while outmaneuvering proposals in East Boston and Milford.
But it sure has been quiet lately in the Southeastern Massachusetts area where a third resort casino could be built under the state’s new gambling law.
The reason? The state Legislature gave the Mashpee Wampanoag tribe a head start for the region – which includes Bristol and Plymouth counties, and Cape Cod and the Islands – in front of any would-be commercial developers. A casino built with a tribal compact would give the tribe far more autonomy than it could get under a commercial license.
The tribe, however, may not hold its head start for long. A rival developer sued the state over the tribal provision as soon as Gov. Deval Patrick signed the law in November. A federal judge just scheduled a hearing for Jan. 31 to consider the injunction request.
If the tribal provision survives the court challenge, the tribe still doesn’t have much time. The law gives the tribe until July 31 to find a casino property and sign a tribal compact with Patrick. The tribe would also presumably need to get local support, as it’s hard to imagine the governor endorsing a casino where it’s not wanted. After the deadline passes, state officials can start seeking bids for the region’s commercial license.
That’s still too much for KG Urban Enterprises, which wants to build a casino on the New Bedford waterfront. KG claims in its suit that the tribal provision represents reverse racial discrimination and improperly applies federal law to a tribe that doesn’t yet have formal reservation land for a casino. The measure, KG argues, has had a chilling effect on finding partners for a state-licensed casino in the region – even if this head start only stretches until August.
KG also claims that it doesn’t make sense to give the tribe this advantage when a 2009 Supreme Court decision could prevent the tribe from ever putting a property into trust for a casino compact. The Carcieri ruling essentially states that a tribe would need to demonstrate it was under federal jurisdiction before 1934 to put land into trust. The Mashpee Wampanog tribe didn’t gain formal federal recognition until 2007.
The state attorney general’s office fought back in a rebuttal in federal court before Christmas. The AG claims KG’s lawsuit is premature, partly because only one member of the state’s new five-member gaming commission has been appointed so far. It will be a while, most likely after July 31, before the commission can actually award casino licenses.
The state’s lawyers also argue that the Legislature had a good reason to give the tribe a head start: The measure could prevent the tribe from returning at a later date with reservation land in trust and opening its own casino in direct competition with a state-licensed casino in the area.
KG argues that the federal land-in-trust process has been paralyzed by the Carcieri ruling, but the attorney general’s rebuttal doesn’t even bother to mention Carcieri.
The Carcieri ruling already has been under attack by the Obama administration. Obama’s Department of the Interior approved a land-in-trust application for the Cowlitz tribe in Washington about a year ago, even though the tribe didn’t become federally recognized until 2000. That decision, unsurprisingly, is now the subject of a fierce legal challenge – one that could set the tone for how the Carcieri ruling will affect other tribes.
There’s been talk of a “Carcieri fix” in Congress to clear up the confusion. But the bills haven’t gone far, partly because of opposition from various groups who want to protect the status quo for the casino industry.
UMass Dartmouth gambling expert Clyde Barrow says the Mashpee Wampanoag tribe could successfully argue that it was under federal jurisdiction before 1934, even though it technically wasn’t federally recognized at the time. However, Barrow says that doesn’t mean a casino is guaranteed, especially since the tribe hasn’t identified a site yet.
The tribe is backed by an affiliate of Genting Group, a giant Malaysian casino company. Genting’s attention in the U.S., at least publicly, has been on plans for casino complexes at high-profile sites in New York and Miami. As for Southeastern Massachusetts, it’s still a guessing game.
The tribe initially courted Middleboro, but that marriage ended in a bitter divorce. The Fall River mayor temporarily shelved plans for a biotech park to lure the tribe to his city. But that didn’t work out, either.
The Mashpee Wampanoag tribe isn’t saying much about its search for potential reservation land. Cedric Cromwell, the tribe’s chairman, issued a statement Thursday saying the tribe is still diligently reviewing sites and “will have an announcement very soon.”
The new state law granted the tribe a major victory in its longstanding quest for a casino, to some extent offsetting the setback that the Carcieri ruling posed. But the tribe’s leaders could end up squandering that advantage. Regardless of how the judge rules on the KG lawsuit, they’re simply running out of time.