Mass Gaming Commission chair Crosby thumbs nose at requirements under Expanded Gaming Act of 2011 (MGL Chapter 194)

Mass Gaming Commission
continues to ignore legislature

The Cape Code Times’ George Brennan reports (Patrick expects casino deal next week, June 13, 2012) that The Massachusetts Gaming Commissioner Steven Crosby plans to ignore requirements set forth by the Massachusetts Legislature in the Massachusetts General Law, Chapter 194 “AN ACT ESTABLISHING EXPANDED GAMING IN THE COMMONWEALTH.”  According to the article, Crosby stated that the “Commission would presume the tribe has the ability to get land into trust if it reaches a deal with the state and it's approved by the Legislature.”  Crosby added, "We'll give the tribe whatever the appropriate amount of time is to get that decision made.”

Crosby’s statement suggesting a State compact with Massachusetts Legislative approval represents sufficient evidence for the Commission that the Tribe will likely gain federal approval for their required land-in-trust application for an Indian casino shows a complete ignorance of current federal law and the application requirements.  

Current federal law, reinforced by two Supreme Court decisions (Carcieri v. Salarz & Hawaii v. Office of Hawaiian Affairs), and guidance from the U.S. Department of the Interior’s Bureau for Indian Affairs (BIA) clearly states the Mashpee Wampanoag do not currently qualify for land in trust. 

Mashpee Wampanoag tribe Chairman Cedric Cromwell claims he is pursuing an “equal footing exception” to current law; however, BIA clearly states that such exceptions are extremely rare, require extensive and lengthy review, and the Mashpee Tribe, by all current independent expert reviews, fails to meet the minimum standards for such exceptions.  In fact, only one such equal footing exception has been granted in May 2012 by BIA since 2008 before the Carcieri ruling, and this was granted only after a seven year review process.  During this same time BIA has denied other applications from tribes with more qualifications for exemption than those offered by the Mashpee Wampanoag.

In addition, even if BIA were to grant the Mashpee Wampanoag an unlikely exception – the review process for which takes at least five to seven years with an existing backlog of more than 30 applications in front of the Mashpee’s– then this exception, if granted, still requires a supportive vote by the U.S. Congress to enact the land-in-trust transfer to the Tribe. Various influential Members of Congress, including Taunton and the Mashpee Tribe’s own representative Barney Frank, have publicly stated they would oppose any such votes.  Rhode Island’s legislators, including their Governor, are already moving to block the Mashpee Wampanoag application directly with BIA to protect their existing casino and Narraganset tribes’ interests located less than 25 miles away from the proposed Taunton casino.

Further, the Commissioner’s statement demonstrates that Crosby and his fellow commissioners are planning to ignore the state legislature’s intent and refuse to meet the Commission’s obligations under MGL Chapter 194, sections 67 and 91.

MGL 194, Sec. 67 clearly states:

The commission shall continue to evaluate the status of Indian tribes in the commonwealth including, without limitation, gaining federal recognition or taking land into trust for tribal economic development.

Crosby and the Commission have done no evaluation of the Mashpee Wampanoag application status and have received no expert opinions or evaluations of the likelihood of their application moving forward.  No records of any such evaluation, contracting for expert advice or reporting on this issue are found in any of the Commission’s published agendas.  By all accounts, the Gaming Commission has not even seen the elusive Mashpee Wampanoag full application Cedric Cromwell claims has been submitted to BIA.  

Yet, Mr. Crosby now states the Commission will use the successful negotiation of the Commonwealth’s Compact with the Tribe – a compact developed and negotiated for the Governor by the Gaming Commissions’ 48 hour tenure director Stan McGee before he was forced to resign his post following renewed claims about his 2007 arrest for sexually molesting a child in Florida. 

Unlike Mr. McGee’s problems - cited as an irrelevant and inconvenient distraction by Mr. Crosby -Massachusetts’ gaming law and the legislature’s intent are neither and must be addressed.  Crosby and the Governor tried to circumvent the General Court's will with regards to background checks for the likes of Mr. McGee (returning him to his high ranking policy post where he still works on casino issues for the Governor), only to be rejoined with a resounding veto override by both the Massachusetts House and Senate.  Mr. Crosby should have gotten the message then that the Legislature means business with regards to diligence and appropriate review for casino development issues in the Commonwealth.

Take note, MGL 194, Sec. 71 states that the Commission must conduct:

 (2) comprehensive legal and factual studies of the social and economic impacts of gambling in the commonwealth on: (a) state, local and Indian tribal governments; and (b) communities and social institutions generally, including individuals, families and businesses within such communities and institutions; provided, however, that the matters to be examined in such studies shall include, but not be limited to: (i) a review of existing federal, state, local and Indian tribal government policies and practices with respect to the legalization or prohibition of gambling, including a review of the costs of such policies and practices;

Apparently Mr. Crosby needs no comprehensive, legal or factual studies.  He simply wants to put the cart before the horse when it comes to granting the Mashpee Wampanoag Indian Tribe a casino, before the Commission conducts any legal or factual studies or reviews existing federal policies on this matter.  Were he to conduct such legal or factual research, the Commission would find the Mashpee Wampanoag Tribe would fail to meet the requirements for acquiring lands into Trust in Taunton under the law even without the current Carcieri roadblocks.

And, most importantly, MGL 194, Sec. 91 states if the requirements, which include the determination of a tribe’s ability to successfully secure the required federal approvals for their application for lands-in-trust:

That the Commission must open up and request applications from commercial licenses “not later than October 31, 2012; provided, however, that if, at any time on or after August 1, 2012, the commission determines that the tribe will not have land taken into trust by the United States Secretary of the Interior, the commission shall consider bids for a category 1 license in Region C under said chapter 23K.”

Mr. Crosby now suggests he’s ceding all responsibility for oversight of an Indian casino approval to Governor Patrick while giving an open-ended, non-defined window of time to the Mashpee Wampanoag Tribe to find a way around current law which prevents them from taking land into trust.  “We will give the Tribe whatever amount of time to get that decision” ensures years of litigation and delays in Southeastern Massachusetts which were NEVER intended nor anticipated by the legislators who voted for this law.

This will completely circumvent the intention of the legislature establishing the Commission to make casino approval decisions and in placing a one year timeline an Indian tribe to overcome any land-in-trust issues so as to avoid multi-year delays.  

The Mashpee Wampanoag Tribe has failed to overcome these challenges in the time allowed.  The Commission’s job now should be to move forward as prescribed by the law.  Taunton and the South Shore will otherwise be left mucking about the Wampanoag's administrative and litigation quagmire for years and years to come.  Those “urgently needed” jobs for which this legislation’s proponents claimed to be so desperately needed will never happen.  To ignore this is to admit the entire process and urgency of passing legalized gambling in Massachusetts was nothing more than a sham.

Given that the Governor and Mr. Crosby now clearly intend to thwart the intention as well as letter of the law voted on by the Massachusetts General Court, legislators should simply reject the Governor’s Tribal Compact, and demand Mr. Crosby appear before them to address why he thinks the gaming law as written is open to his whim and interpretation.  Then everyone, including the Mashpee Wampanoag people, can move on!