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Casino provision for tribe sparks debate

Gaming interests oppose proposal for Wampanoag

By Noah Bierman
Globe Staff / August 26, 2011

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The bill released this week to legalize casinos in Massachusetts is gaining broad support on Beacon Hill. But a special provision that gives a Native American tribe an inside track on a casino license is already the subject of intense lobbying, potential lawsuits from rival developers, and widespread confusion stemming from a US Supreme Court decision that complicated the efforts of tribes to open new casinos.

Expected to benefit the Mashpee Wampanoag, the provision would give the tribe a year to find land, schedule a community referendum, and sign a compact with Governor Deval Patrick to build a casino in Southeastern Massachusetts.

If the tribe meets those requirements, it would probably get one of three casino licenses without having to bid against commercial developers. If not, the license would go to bid on the open market like those slated for Western Massachusetts and Northeastern Massachusetts.

Specialists in Native American gambling law and lawmakers involved in the debate on Beacon Hill say the special provision for the tribe is unusual, if not unprecedented, on the national level.

It has the backing of the Patrick administration and legislative leaders who worry that the tribe could otherwise win eligibility to build a casino on its own, without state approval, using its federal status as a sovereign nation. If that happens, the state would lose the ability to impose high taxes or start-up fees and would have a fourth casino competing against the three state-licensed facilities.

“It’s based on just the practical reality that this is a group that appears to have a substantial federal right’’ to open a casino, said Gregory Bialecki, the state’s economic development secretary. “It is a question of judgment that there’s a significant risk [that the tribe would proceed on its own under federal law] if we do not provide this opportunity.’’

But casino critics liken the provision to a no-bid contract for a special interest. And developers, eager to build their own casinos in Southeastern Massachusetts, have already hired lawyers. They warn that the state is creating an unfair and unnecessary provision that may be vulnerable to legal challenge.

Tribal leaders, meanwhile, welcome the special recognition the legislation offers Native Americans. Cedric Cromwell, chairman of the Mashpee Wampanoag, said he is eager to work with his development partner, Malaysia-based Genting, to find land and strike a deal with the state.

“When I look at the time-frame, while it’s aggressive, it’s very positive because we obviously want to get moving,’’ he said.

The tribe, which was federally recognized in 2007 after a legal fight of more than three decades, currently has no reservation, and Cromwell is adamant that his tribe will have no trouble amending its application to establish land that would include space for a resort casino.

But a 2009 US Supreme Court ruling has complicated that issue and could add delays.

That case originated in Rhode Island and pitted Governor Donald L. Carcieri against the US Department of the Interior, which is in charge of putting Native American land under federal protection, a first step toward allowing a casino. The ruling said the Narragansett Tribe could not incorporate new land because the law only allows tribes “under federal jurisdiction’’ before 1934 to bring new “land into trust.’’

The case has added a layer of uncertainty to the process of bringing Native American lands under federal jurisdiction and prompted debate over whether tribes that gained recognition after 1934 can legally incorporate new sovereign territory.

Tribes are now waiting for a polarized Congress to pass a new law clarifying their land rights. In the meantime, the Department of the Interior said in an e-mail to the Globe yesterday that it will continue to designate new lands under federal jurisdiction on a case-by-case basis, even as it defends lawsuits attempting to stop a tribe in Washington State from designating land to build a casino.

A lawyer who argued the Carcieri case on behalf of Rhode Island has been hired by the owner of the Plainridge Race Track to argue against the special provision.

“The notion that the tribe must be included in any Massachusetts gaming bill or it will possess gaming rights under federal law is unfounded,’’ Joseph S. Larisa Jr. wrote in a memo for Plainridge.

Larisa said in an interview that even if the tribe eventually secures land, the federal and state government could put restrictions on how that land could be used. “It’s not as easy as the tribes make it out to be,’’ he said.

Another lawyer hired by developer KG Enterprises, Marsha A. Sajer, argued in a separate legal memo that the special provision for the tribe could also amount to illegal race-based discrimination.

But several legal specialists not affiliated with the debate in Massachusetts said the Constitution treats tribes as a nation, not a race, and therefore allows state governments to negotiate with them as a special class. Those specialists also said the Mashpee should eventually get a right to a reservation, because a homeland is a fundamental right for tribes.

Even if that process takes more than a year, the state may be wise to grant them a license, or risk the tribe securing federal permission to start their own casino, the legal specialists said.

“Sooner or later, the state won’t have much of a choice on whether or not the tribe has a right to open a casino,’’ said Kathryn R.L. Rand, codirector of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota.

Kevin K. Washburn, dean of the University of New Mexico law school and a former general council to the National Indian Gaming Commission, added that if the tribe gets its own permission “it could upset the apple cart.’’

A House official who worked on drafting the bill said the strict timeline was included in the casino bill released this week to address that concern.

“This is a legitimate attempt to try to come to resolution, to give both the Indians and us a path to certainty,’’ the official said.

But the bill as written so far is vague on whether the tribe has to win federal approval for a reservation within a year, or just show that it is on track to do so.

And this week yet another tribe, the Wampanoag Tribe of Gay Head (Aquinnah), said it, too, would like to open a casino. State officials, including Bialecki, have said they do not believe that tribe has a legal right to do so, because when it received federal recognition in 1987, it agreed to make its lands subject to state and local laws.

But the tribe’s leader, chairwoman Cheryl Andrews-Maltais, said in an e-mail that the tribe has been working on and off with the state for more than a decade on a compact that would allow casinos.

“Just because we are . . . not attending social gatherings and paying all over again for more or new lobbyists,’’ she said she hopes that legislators still recognize that “the first federally recognized tribe in the Commonwealth of Massachusetts, the Wampanoag Tribe of Gay Head (Aquinnah), has rights.’’

Noah Bierman can be reached at nbierman@globe.com. Follow him on Twitter @noahbierman.