Facts standing in the way of a Mashpee Wampanoag casino in Taunton

Governor Deval “I don’t count every check”Patrick with the help of his casino point man Stan “no comment” McGee, along with Mashpee Wampanoag Chairman Cedric “crush the competition” Cromwell and Taunton Mayor Tom “no due diligence required” Hoye are all publicly pushing the inevitability of an Indian casino in Taunton, Massachusetts.   Much news with glowing headlines is being promoted by the Tribe claiming “wins” and momentum behind their campaign for a reservation casino complex.  

Here are a few facts to keep in mind before anybody starts cashing Wampanoag-Genting casino checks:

1.    Land in Trust (LIT) – the Mashpee Wampanoag Tribe’s application to create an “off reservation” casino in Taunton for the purposes of gaming must first be approved by the Department of Interior, Bureau for Indian Affairs (BIA).  Federal law (Title 25 part CFR 151.3) specifically notes:

“Land not held in trust or restricted status may only be acquired for an individual Indian or a tribe in trust status when such acquisition is authorized by an act of Congress. No acquisition of land in trust status, including a transfer of land already held in trust or restricted status, shall be valid unless the acquisition is approved by the Secretary.”

The recent “win” proclaimed by the Tribe for NICG approval of their amended tribal gaming ordinance specifically noted (something Mr. Cromwell failed to include in his proclamation) that the approval was moot absent the Tribe’s success in getting LIT approved.  Requirements from BIA are not simple and failure on any single item can cause the Tribe’s LIT application to be rejected.  Just a few of the hurdles for the Mashpee Wampanoag LIT application include:

a.    Carcieri v. Salazar – this Supreme Court decision requires that an Act of Congress change current law to allow for tribes, like the Wampanoag, which weren’t recognized prior to 1934 to get land-in-trust reservations.  No such bill to “fix Carcieri” is up for consideration in 2012 and multiple-influential sitting U.S. senators have publicly stated they will block any attempt to pass such legislation. 

BIA allows for very limited exceptions to the Carcieri ruling in approving applications for land in trust for the purposes of gaming.  These include “off reservation” and “equal footing” exceptions.  The Wampanoag Tribe is seeking an “equal footing exemption” to the Carcieri ruling with their off reservation site.   According to a recent notification by the Secretary of the Interior, both exceptions application processes are “lengthy and deliberate,” are “granted rarely” and required additional scrutiny.  Fewer than half of such applications are approved.  Never has an “off reservation” location been granted solely under the “equal footing” exemption being sought by the Mashpee Wampanoag.

b.    Ability to self-govern – the BIA will review and make a determination as to the Tribe and tribal leadership’s ability to effectively self-govern prior to granting them land in trust for gaming purposes.  The Tribe is hampered here on multiple fronts.  The City of Taunton’s IGA with the Tribe calls for payments-in-lieu-of-taxes (PILOT) tied to net casino slot revenues.  Such payments tied to income of a casino have been determined to convey a propriety interest and violate the governing sovereignty of a tribe by the BIA and federal courts.  BIA will not approve a LIT based on an IGA which infringes on a tribe’s ability to self-govern.   Further, the Tribe commissioned a study from Harvard University to assess their ability to govern.  While Cedric Cromwell has tried to hide this study (along with his own personal history of loan, utility bill and tax defaults), the Harvard study results released this year found that the current leadership and tribal government lacked systems and transparency to convey legitimacy in their governance. 

c.    Environmental impact study – this allows for bordering communities and others with a stake in the Taunton River watershed to oppose the casino’s impact - including the conveyance of “super water rights” to the Mashpee Wampanoag who will use an estimated 250 million gallons of water per year for their resort complex – to weigh in and block BIA approval.

d.   Economic impact report – BIA requires impact on any state or local political subdivisions be addressed.  BIA has never approved an exception to Carcieri LIT application opposed by an impacted state or local government.  The State of Rhode Island started conducting economic impact studies as soon as Massachusetts legislation authorizing and giving exclusive rights to an Indian casino for Southeastern Massachusetts was being considered.  The results of the first of the Rhode Island studies were published last week and found significant negative impacts to existing employment and Rhode Island’s Narragansett Indian Tribe economic opportunities.  Elected officials in communities surrounding Taunton who requested to be included in the impact and review process and were shut out of IGA negotiations between the City and Tribe will now be able to submit concerns to BIA.

e.    Surrounding community impact – the Secretary will review and ensure that any proposed gaming establishment will not be detrimental to surrounding communities.  Any impact on social structure, infrastructure, services, housing, community character and land use in surrounding communities must be addressed including costs and corresponding revenue sources to mitigate them.  A study on the impact to Taunton schools alone shows the IGA having a $500,000 annual deficit in mitigating increased cost to public schools associated with the Wampanoag casino proposal.

f.     Off reservation acquisitions – for off reservation LIT applications the secretary must consider conflicts of land use restrictions (i.e., the current deed restriction for the proposed casino property) and distance from the Tribe’s reservation (Town of Mashpee) with greater scrutiny given the further from the Tribe’s boundaries (as noted, Taunton is over 50 miles from the Tribe’s Mashpee core governmental function offices). 

g.    Significant historical & current ties requirement – the Mashpee Wampanoag’s historical ties to Taunton have been challenged by the Pocasset Wampanoag Tribe and expert historians.  The Tribe has provided no evidence of historical ties other than alluding to “secret” documents held by the current Tribal Council, but not available to other Tribe members.  As to current ties, the Mashpee Tribe’s own federal recognition application and current tribal enrollment ordinances specifically delineate the tribe’s boundaries as within 25 miles of the Town of Mashpee.  The proposed Taunton site is more than 50 miles from Mashpee.

h.   Other Tribes’ historical connection to the land – BIA has never granted a LIT application where other tribes have territorial claim to the land being sought.  The Pocasset Wampanoag Tribe has already announced their opposition citing their historical ties and claims to Taunton.

i.     Town of Mashpee opposition – The Town of Mashpee, where the main tribal reservation and offices are located, must also submit a letter of approval and consent.  Mashpee officials opposed the last LIT application by the tribe after reviewing and finding the Tribe had made false statements about agreements with the town.   The Tribe currently has tax related disputes with the Town of Mashpee and other concerns about their local plans.

j.     State of Rhode Island opposition –  Rhode Island elected officials, including the Governor and state's two U.S. senators have started the process of research gathering to block the BIA approval by demonstrating negative economic impact to existing casinos and development at Twin Rivers and to the Narragansett Tribe.

k.    Concurrence of the Governor (of Massachusetts) -  Once all of this lengthy process – estimated to be a minimum of three to five years and taking as many as 15 years  - is completed with a favorable determination, the Governor of the state must then concur.  Since this request for concurrence can only come with a final determination by the Secretary of the Interior and after the affirmative vote by Congress, the likelihood that friend of the Tribe Governor Deval Patrick will still be serving is nil.  By the time this hits, existing state commercial casino interests will certainly have padded the campaign payrolls sufficiently to ensure no competition crushing Indian casino which pays no taxes or fees will be approved by the next sitting governor.

2.    Deed restrictions for property in Taunton -  A group of Taunton taxpayers are suing to block the deal based on the covenant deed restrictions for the proposed site which require the land be used only for "corporate headquarters, manufacturing, processing, wholesaling, distribution and jobbing or warehousing." Retail outlets and cafeterias are only permitted as "accessory uses."

3.    Commonwealth of Massachusetts Indian Casino Compact with the Tribe – This compact must be negotiated and approved by the legislature prior to July 31, 2012.   Several legislators are already unhappy with how the Governor is managing diligence with the Gaming Commission regarding the Stan McGee child sex scandal – yet, McGee remains the Governor’s Indian gaming point man who is the chief architect of the Wampanoag compact.  The longer legislators are forced to wait to see this back room cut deal, the greater likelihood it will face opposition and delays.

4.    Massachusetts Gaming Commission July 31, 2012 deadline – The commission must determine that the Tribe has a reasonable likelihood of getting federal approval for land in trust.  The Boston Globe has characterized this noting “the Tribe has immense obstacles to overcome to win federal approval for a tribal casino.”  Given the above noted hurdles and clearly articulated challenges, such a determination by the Commission would be viewed as highly unreasonable by any independent review and subject to legal challenge. 

5.      Other delaying legal actions:

a.    Town of Middleborough – Middleboro officials have sent letters of opposition to the Commonwealth and BIA opposing the Mashpee Wampanoag proposal, and they have announced they are preparing to pursue legal options to block the Tribe’s casino development efforts claiming a breach of contract with the Town.

b.    KG Urban Enterprises – This competing commercial casino developer has filed suit with an appeal pending claiming the regional tribal preference is unconstitutional.

c.    Aquinnah Wampanoag – The Martha’s Vineyard based tribe is planning multiple lawsuits to block the state from moving forward with any gaming after being shut-out of casino compact negotiations by Governor Patrick.

So what does this all mean?  Voting yes on Saturday simply dooms Taunton to a protracted march alongside the fated Mashpee Wampanoag, tying up City resources and locking in lands which could otherwise be used to generate taxes for the city and real jobs for area residents.  Vote no.