Tribe Asks Governor To Start Negotiations For Casino Compact

MASHPEE- The Mashpee Wampanoag Tribal Council on Wednesday requested to meet with Governor Deval L. Patrick and legislative leaders “at the earliest mutually convenient date” to formally begin negotiations over the tribe’s proposed casino resort in Middleborough.
According to a copy of the letter from Tribal Council Chairman Shawn W. Hendricks Sr. hand-delivered to the governor, planning for the casino project is in an “advanced stage” and the tribal council expects its land-into-trust application, which includes property in Mashpee, to be approved by the middle of next year. The time frame could be accelerated with state support, the letter states.
“Our expectation of a fast track decision is grounded in reality and precedent. The [federal Bureau of Indian Affairs] has concluded its local scoping hearings in the [Environmental Impact Statement] process and the tribe has submitted extensive documentation prepared by a nationally respected anthropologist substantiating its cultural and historic ties with the Town of Middleborough. Most importantly, the BIA has never rejected an application for an Initial Reservation,” according to the letter.
Beginning formal negotiations before the land-into-trust application is approved, however, may prove a risky move for the state.
With the onset of formal negotiations, even if the tribe’s land application has not yet been approved, a 180-day time frame begins during which the two governments must come to an agreement, or the tribe can file a federal appeal to force a decision, according to Dennis J. Whittelsey, a gaming law expert based in Washington, DC, who consulted for Middleborough during its negotiations with the tribe.
Kathryn R.L. Rand, co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota, however, said whether the 180-day window would indeed begin if the land is not yet in trust is open to interpretation.
“I would guess that the state’s attorneys are weighing that,” she said. “The bottom line is that it is highly unpredictable and politics is going to matter just as much as the law.”
The tribal council is seeking a compact with the state allowing it to offer full-scale, “class three” gaming at its proposed casino, including the slot machines and table games offered at casinos in Las Vegas and Connecticut. Without express approval through a compact or a lengthy federal appeal process of state opposition, the tribal council cannot offer class three games.
It could, however, offer “bingo slot” machines and certain card games that some tribes have used to establish significant casino operations. The scaled-back gaming offerings would not require the tribe to provide payments to the state.
According to a press release from the tribal council’s Boston-based public relations firm, “As the letter states, the tribe is planning to develop a Class II gaming facility, which requires no commonwealth approval or payments to the commonwealth. The tribe however, believes it would be better for both it and the commonwealth to develop a Class III facility, which requires a compact.”
Representatives of and consultants for the tribal council and Mr. Patrick have met several times over the past few months to discuss specific concerns about the project raised by the governor in a February letter to the BIA opposing the project, including traffic and environmental concerns, but both governments have emphasized that the meetings were preliminary in nature and did not represent the formal “compact negotiation” process.
Earlier this summer Governor Patrick indicated an interest in initiating negotiations, but then pulled back on his statement and clarified that they would begin later at the request of the tribal council and possibly not until the land-into-trust application is approved.
A spokesman for Secretary of Housing and Economic Development Daniel O’Connell said, “Secretary O’Connell and our team continue to review the letter, and he will determine in the upcoming days what the appropriate response will be.”
According to a report in The Boston Globe, Mr. Hendricks said, “We’d like to start the negotiations and get the ball rolling ... I see no reason why the state wouldn’t sit and talk with us.”
In previous interviews gaming law and policy experts said a compact with the state would likely not make or break the tribe’s land-into-trust application, but beginning the negotiations earlier would shift up the time frame for the tribal council to get full-scale gaming. Only if the application is approved or the negotiations begin earlier will the state be required to negotiate a compact.
One potential issue, however, is a Supreme Court case filed by Rhode Island Governor Donald Carcieri against US Secretary of Interior Dirk Kempthorne and scheduled to be heard this fall on the federal government’s fundamental right to take land into trust for tribes recognized after the Indian Reorganization Act was passed in 1934.
The tribe’s 140-acre Mashpee reservation application is tied directly to the 539-acre Middleborough one, and the two will likely be decided together.
Mr. Hendricks’s recent letter notes the agreements the tribal council has signed with Mashpee and Middleborough, indicating the two towns’ support for the land-into-trust applications.
It also cites the development agreement with international casino magnates Kerzner International and the Waterford Group, as well as capital investment firm Starwood Capital.
“The tribe has already publicly committed to substantive matters of importance to the citizens of Massachusetts including developing a project of sufficient scope to create a positive economic development impact for our commonwealth, thousands of well-paying construction and permanent jobs, union labor, infrastructure improvements, mitigation of environmental impacts, local community approval and high standards of operational integrity,” according to the letter.
“No matter what ultimately happens with the negotiations, please know that it is the tribe’s intent to operate America’s most successful casino resort in Middleborough. We hope that we can do so in a manner which benefits all of us to the fullest extent possible,” Mr. Hendricks wrote.
Mr. Hendricks wrote that he “expects” that Middleborough will be sending a letter supporting the tribe’s request to initiate the negotiations, though the tribal council’s contract with Middleborough states that the two would make the request jointly.
Mr. Hendricks also noted that there are several non-gaming issues that he would like to discuss with the governor, including Native American child custody cases and police, fire, and emergency medical services on tribal lands.