Put aside whether or not the people of Taunton can trust the Mashpee Wampanog and Cedric Cromwell to keep their promises. Let's be clear about some critical and real hurdles which need to be cleared before this casino dream of historical proportions becomes more than a laundry list of promises from the Tribe for which the City of Taunton will have no recourse or ability to enforce. The Massachusetts gaming law spells out that a federally recognized tribe, like the Mashpee Wampanoag, must have a deal in place and overcome specific barriers they face by July 31, 2012 or the state must open up the casino application process to non-Indian commercial gaming interests. What are those barriers?
1. An Act of Congress. An Act of Congress is required to change current law which prohibits the Mashpee Wampanoag and other recently recognized tribes from taking lands into trust. Having a land in trust reservation is a requirement for establishing an Indian casino. This is based on the 2009 Supreme Court Carcieri v. Salazar Decision which makes it illegal for the U.S. government to turn over lands in trust to Indians who were not federally recognized prior to 1934. The Mashpee Wampanoag only became a federally recognized tribe in 2007.
This required legislative change is called the "Carcieri Fix" and has been unsuccessfully introduced in Congress each year since the 2009 ruling. The Carcieri Fix legislation faces strong opposition from elected officials with existing recognized tribes who have established gaming operations. And states neighboring Massachusetts, like Rhode Island, Connecticut and New York, which have existing gaming that will suffer from Massachusetts Indian gaming competition, can also be counted on to now oppose this fix as well. Several U.S. Senators, including Diane Feinstein, John McCain and Jon Kyle have openly stated their opposition to this legislation (hint: it only takes one senator to block a bill). Further, these Senators have introduced counter legislation called the "Off Reservation Land Acquisition Guidance Act" and the "Tribal Gaming Eligibility Act" which will make the Mashpee casino bid even less likely to get approved if a fix to Carcieri is ever passed. No "Carcieri Fix" legislation is currently scheduled for consideration in 2012 and the chances of it passing in an election year is non-existent. No new law, no Indian casino for Taunton.
2. Approval from the Department of the Interior. The Department of the Interior has an application process which can take up to 15 years and for which less than half of applications are approved. The Mashpee Wampanog's last application filed was rejected. The application process includes requirements that the land in trust have the support of Members of Congress and state elected officials - and not just in Massachusetts.
Neighboring Rhode Island and Connecticut have sufficient proximity with existing Indian reservations and gaming to claim another Indian casino will have a negative economic impact on them - which is grounds to block approval. Casino proponents, in announcing studies showing that Massachusetts residents spend hundreds of millions at Connecticut and Rhode Island casinos, have already made the case for these states to oppose any new Indian casino in Massachusetts. These states have no recourse to block a non-Indian gaming operation, but all they need do to prevent a new Indian reservation casino is show that it will take business away from their Indian casinos - which the recent Massachusetts studies do for them.
Rhode Island has already commissioned their own study and is preparing their case to block any Massachusetts Indian casino project on the South Shore. Governor Chafee has publicly pledged to oppose any fix to Carcieri and to block any application within 50 miles of his state's Twin Rivers complex The Taunton casino site is closer to Twin Rivers than it is to the Mashpee Tribe's headquarters (Twin Rivers is about 20 miles from Taunton, while the Mashpee's existing reservation is more than 50 miles away).
This Department of Interior application process also requires that the interests of other tribes be considered. Any recognized tribe with cause may intervene to protest a new application for land in trust. The Pocasset Wampanog are disputing the Mashpee's territorial claims to the Taunton site and the Aquinnah have announced they will file a lawsuit to block them as well. Given that the Mashpee Tribe's own enrollment ordinance states that you cannot qualify for membership in the tribe if you live further than 20 miles from Mashpee, MA they are going to have a hard time defending a territorial claim to Taunton. Either of these tribes or opposition from the Narraganset Tribe in Rhode Island or Mohegan in Connecticut will be enough to derail the Mashpee's application process.
All the other lawsuits and opposition aside, these two requirements - which must be addressed by July 31, 2012 - make the proposed Indian reservation casino resort complex for Taunton more dream than reality.