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Already the subject of one federal lawsuit, the preference given to tribes threatens to tie up the Southeastern Massachusetts casino license in a legal quagmire.
“I think Southeastern Mass. ends up in court one way or the other,” said Clyde W. Barrow, director of the UMass Dartmouth Center for Policy, which has been studying the New England gaming landscape for more than 15 years.
Richard McGowan, a Boston College economist who studies gaming, agreed. “The number of lawsuits will increase exponentially as decisions (are made by) regulators of Native American gaming as well as the Massachusetts Gaming Commission,” he said.
While potential bidders abound for licenses in greater Boston and Western Massachusetts, there’s hardly a ripple of activity in the southeastern corner of the state other than the competing efforts of the Masphee Wampanoag and Wampanoag Tribe of Gay Head (Aquinnah) to win the state’s blessing to operate an Indian casino on sovereign tribal land.
And observers agree that the spectre of the tribal preference for the license could dampen the interest of commercial investors, especially if the tribes decide to seek legal recourse.
While legal action “doesn’t stop you from going with a commercial license,” Barrow said, “it might put a damper on the amount someone is willing to invest in Southeastern Mass.”
Under the state’s new Expanded Gaming Act, a federally recognized tribe has an advantage over commercial developers in seeking the area’s casino license until July 31. If, by that deadline, either tribe is able to obtain property, hold a referendum in the host community, negotiate a compact with the governor and have it approved by the Legislature and convince the State Gaming Commission that the land can be taken into trust by the federal government, it could be allowed to operate a sovereign Indian casino and no commercial casino license would be issued. The commission could only seek commercial bidders for the Southeastern Massachusetts casino license — one of three across the state — if a tribe fails to meet the deadline.
Several different scenarios could develop, any of which could lead to litigation:
- While the governor has given an indication he is willing to negotiate with the Aquinnah, his office has claimed in the past that the tribe gave up its right to gaming in a 1994 land deal. If the governor decides that to be the case and chooses not to negotiate with the tribe, it could sue.
- If both tribes meet all of their deadlines, the governor presumably would negotiate with both, choosing one to develop a casino. In that case, the spurned tribe could sue, claiming the governor’s choice was arbitrary.
- The governor decides that a tribe has met all of the conditions to operate an Indian casino but the Gaming Commission decides there’s no evidence that tribe can get the land taken into trust. The tribe could sue.
“Those scenarios seem to be on target,” McGowan said.
The tribes did not comment when asked if they would consider legal action under those scenarios.
The law’s tribal preference already has been upheld by the U.S. District Court, which dismissed a lawsuit by KG Urban Enterprises in February.
The New-York-based firm, which hopes to develop a casino at the site of the abandoned Cannon Street power plant in New Bedford, argued that the head start given to tribes was a “race-based set-aside” that violated the Equal Protection Clause of the Constitution, but Judge Nathaniel M. Gorton ruled that the tribal preference was based on a political distinction and not race. He also rejected KG’s argument that the state law conflicts with the federal Indian Gaming Regulatory Act.
KG has appealed that decision, and a hearing on the appeal is expected in June.
The Aquinnah have asked Gov. Deval Patrick to negotiate compacts for land it has under control in Freetown, Lakeville and Fall River and referenda have been scheduled in Freetown on May 29 and Lakeville on June 2 to gauge residents’ feelings about hosting a casino. The Aquinnah also have asked the governor to negotiate a compact for a casino on its tribal lands on Martha’s Vineyard. Patrick has requested more information, specifically about the locations of their properties, before agreeing to negotiate.
The governor has agreed to begin negotiating with the Mashpee tribe on plans to build a casino on 135 acres in an industrial park near the junction of Routes 24 and 140 in Taunton. A vote in that city is set for June 9.
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