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Massachusetts gambling delay could give tribe upper hand

By Lyle Moran
Boston, Massachusetts (AP) August 2010

With efforts to legalize casino gambling in Massachusetts on the verge of dying, casino supporters say Massachusetts is in danger of letting the Mashpee Wampanoags have the upper hand in potential casino negotiations.

The Mashpees, one of the state’s two federally recognized Indian tribes, have already filed an application with the U.S. Department of Interior to secure land in southeastern Massachusetts that could be used for gambling.

If the tribe receives trust land from the Interior, it could negotiate with the state to open a full-scale casino with table games and slot machines and offer the state a portion of the gambling revenues. In such negotiations, tribes often seek regional exclusivity from the state, which could mean asking to be the sole entity allowed to offer table games and slots.

“We want to work with the Commonwealth to guarantee a revenue stream to them,” said Mashpee Tribal Council Chairman Cedric Cromwell.

The state could agree to regional exclusivity as part of a revenue sharing agreement to avoid the possibility of the tribe arguing under the state’s charity gaming laws for permission to offer casino gambling without sharing any revenue with the state. Connecticut’s two tribal casinos have exclusivity as a result of agreements with the state.

State Sen. Stanley Rosenberg, a casino supporter, said if the state granted the Mashpees casino exclusivity it would drastically limit the size of the state’s gambling market. Casino supporters have estimated that three resort-style casinos and two race track casinos spread throughout the state could bring in $400 million to state coffers and create up to 15,000 jobs.

“Exclusivity would have a large economic benefit for southeastern Massachusetts, but would leave out the rest of the state,” Rosenberg said.

The Secretary of Interior has to approve any agreement reached between tribes and states and would make sure any compact that included a revenue sharing provision for the state would also provide a new benefit to the tribe like exclusivity, said Kathryn Rand, co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota.

Besides seeking full-scale gambling on potential tribal land, the Mashpees could also open an electronic bingo parlor – virtually indistinguishable from a slots parlor and known as “class 2” gaming – without state regulation or taxation under the federal Indian Gaming Regulatory Act, known as IGRA.

“In Massachusetts, class 2 gaming would be pretty lucrative,” Rand said.

But there remains a major hurdle to the Mashpees gaining land in trust: The U.S. Supreme Court’s 2009 Carcieri vs. Salazar decision. The court ruled that tribes have to have been recognized by the federal government in 1934 or prior to be able to secure trust land.

The Mashpees were federally recognized in 2007, so their land in trust application is now in limbo until a clear decision on how to implement the decision is reached, said Rand.

The Mashpees contend they would be able to prove a connection with the federal government prior to 1934. The tribe also highlights a memo Interior Secretary Ken Salazar circulated in June saying his department was still processing land in trust applications.

“The Department of the Interior is clear that they are saying they want to move forward,” Cromwell said.

Land in trust applications can take the Interior anywhere from months to years to process.

Rosenberg, D-Amherst, says the state should legalize casino gambling before the tribe gets land in trust so Massachusetts can negotiate an agreement on solid footing without being forced to accept provisions that would limit the state’s gambling market and potential casino jobs.

“You want the state to drive the development of market, not the proposals of Native Americans,” he said.

However, the state’s efforts to authorize casino gambling have stalled following Gov. Deval Patrick’s refusal to approve a bill the state Legislature passed on July 31 to license three resort-style casinos and two race track casinos. Patrick sent an amended version of the bill that stripped out the two racinos back to the Legislature.

Legislative leaders have said it is unlikely lawmakers will come back to address the bill during informal sessions, which allow any member present to object to proposed legislation.

For now the tribe has proposed that the state offer it a commercial casino license, which could then be morphed into an agreement under IGRA if the tribe receives land in trust.

As part of those plans, the Mashpees reached an agreement with Fall River in May to develop a $500 million resort-style casino on a 300-acre parcel along Route 24. The tribe also has secured the financial backing of Arkana Ltd., a Malaysian investment group that financed the creation of Foxwoods Resort and Casino in Connecticut.

“We want a win for the Commonwealth and for the tribe,” Cromwell said.