Is Cedric Cromwell being truthful about even having an active application for lands-in-trust?

If an elusive Act of Congress materializes to changes current laws which prohibit the Mashpee Wampanaog tribe from opening a casino in Taunton, then the tribe still needs U.S. Department of Interior, Bureau for Indian Affairs approval.  This approval involves submitting a formal application and defining under what specific criteria the tribe qualifies for land in trust.  Details can be found on the Indian Affairs Bureau website here: http://www.bia.gov/WhatWeDo/ServiceOverview/Gaming/index.htm


Mashpee Wampanoag tribal council chair Cedric Cromwell’s last application for land in trust was rejected for being “incomplete” although the good chairman failed to disclose this rejection to his current “partners” in Taunton, former “partners” in Middleboro or even to members of his own tribe.  Tribe members, Taunton and Middleboro officials only learned in news reports this March, three months after the Department of the Interior informed the tribe that their application had been rejected.  When confronted this past March by local reporters Cromwell dismissed concerns about the failed application and simply said he intended to re-file the tribe’s application and update it with their new plans for the Tribe’s reservation casino resort complex in Taunton.    Cromwell told Indian Country Today’s Gale Courey Toensing this April that the tribe had filed that application and that it was “pending with the Interior Department.”  Further, Cromwell claims the tribe is seeking an exception to the current prohibition preventing his tribe from taking land into trust for gaming purposes. ICT reported:



The Indian Gaming Regulatory Act (IGRA) generally prohibits the federal government from taking land into trust for gaming after IGRA’s passage in 1988, but provides for “equal footing” exceptions to allow tribes to build their nations. Interior Secretary Ken Salazar delineated the exceptions in a June 2010 memo to Assistant Secretary-Indian Affairs Larry Echo Hawk. They include “[l]ands that are taken into trust for settlement of a land claim, as part of an initial reservation, or as restoration of lands for a tribe that is restored to federal recognition . . . in order to place certain tribes on equal footing.”
 

Cromwell said the tribe’s land into trust application had been updated and that an Environmental Impact Statement—a requirement for trust land under the National Environmental Policy Act—is underway. Further, Cromwell claimed, “We know we don’t have to have the land into trust by August 1 [a day after the deadline for the tribal-state compact]. We’re moving down that path very well and we’re confident about the outcome.”

How does Cromwell know he doesn't need his LIT in place?  Did Stan McGee, the state's Indian gaming negotiator in chief, tell him not to worry?  State legislators who voted last year to put in place the July 31, 2012 deadline were certainly led to believe a LIT application approval would be a sure-thing or else the Gaming Commission would have to open up the application process in Southeastern Massachusetts to commercial, non-Indian, applicants.

All the claims aside, Cromwell has declined to make this supposed updated application, environmental impact study plans or any corresponding evidence of their proper and timely filings available for public inspection.  The Bureau of Indian Affairs website, where other tribes’ applications are posted and available for public review, makes no mention of a new Mashpee Wampanoag filing.  The Massachusetts Gaming Commission is supposed to make a determination whether or not to move forward with the Mashpee Tribe in fewer than 50 work days based on their assessment and determination that the application will be successful.  Given the Commissions current record and delays a full review and honest vetting of a document they have not even seen is suspect at best.

Without public review of this supposedly renewed and refiled Mashpee Wampanoag land in trust application, the people of Taunton will not see what claims for their City the Tribe has before being asked to vote for or against allowing an Indian reservation casino as their neighbor.  The people of Taunton will have little recourse by which they can remedy future concerns – and good reasons to believe that concerns will arise.  When the Wampanoag filed their last application for land in trust, the Town of Mashpee was compelled to file formal complaints opposing the application as the Tribe had made multiple misrepresentations with regards to their agreements with the town in their filing.

As reported here in April:

Even the tribe’s own hometown of Mashpee has had to enlist and pay lawyers to prevent this reservation casino-bent gang from violating agreements with them.  The Town of Mashpee had to have their lawyers write to the U.S. Bureau for Indian Affairs (BIA) on January 25, 2008 to oppose the Tribe’s application for land in trust claiming the Tribe misrepresented and made false claims about agreements with the town in their federal filings.  The town wrote:

“Contrary to the Tribe’s assertions in its application, the Town has not yet agreed to transfer to the Tribe any of the Town’s right, title, or interest in and to any of these parcels….” Adding, “The relationship between the Tribe and the Town with respect to land and development has been controversial… while many residents of the Town have expressed concerns to Town officials regarding the Tribe’s proposed and potential future acquisitions of trust land and how the Tribe’s proposed development may affect the region…”

The Mashpee lawyers added, “Although the Tribe has stated that it does not intend to develop any of the Mashpee lands for gaming purposes, it has nonetheless requested on page 2 of the trust land request a determination by the Secretary that all the lands identified in the application constitute the initial reservation of a newly-recognized tribe on which gaming may be conducted… The Tribe’s application indicates that the Town will transfer its title to certain parcels of land…   This is an inaccurate and presumptive assertion by the Tribe…” 

If the tribe made inaccurate claims and mis-characterizations in their last application about the town in which they live, it should be a requirement that they allow the people of Taunton time to review their new application – which Chairman Cedric Cromwell has publicly claimed has been filed with BIA – well before being asked to vote on these reservation casino resort plans on June 9^th.  It appears the tribe's deal with the State precludes any inconvenient requirements that the Massachusetts Gaming Commission actually review the LIT according to Mr. Cromwell, which leaves only the people of Taunton to do so.

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.

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!

Please answer three simple questions before finalizing gaming legislation.

There are many critical questions members of the Joint Committee and our elected officials need to ask and get credibly answered before a finalized Massachusetts casino legislation package is presented as a done deal in September.  For those who are going to vote for such legislation this includes asking who benefits from any special interest carve outs, such as the tribal preference scheme desired by Governor Patrick, Therese Murray and the lobbyists for slot machine companies and foreign investors behind Indian casinos.  In 2010 these groups spent $3 million lobbying Massachusetts politicians and another $1.3 million in the first half of 2011 – of which they funneled $254,000 in campaign contributions to our elected officials so they must have something big at stake which they want included in this legislation.

To keep it simple, let’s just ask them to answer three basic questions.  Questions apparently Governor Patrick’s casino henchmen Greg Bialecki and Stan McGee aren’t asking (or simply don't want asked).  Perhaps State Treasurer Steve Grossman will give this an honest look?

1.     What are the economic differences to the state and local communities of Indian versus non-Indian gaming operations?  How does the Commonwealth’s budget coffers and those of impacted local communities benefit from a tribal preference which sets aside any region or site specifically for the purposes of Indian gaming versus a conventional non-Indian gaming operation?

Hints:

·        Indian gaming operations cannot be taxed or controlled vis-à-vis their finances, size or operations in any manner by a state or localities (Sample references: 2011 Duluth-Fond du Lac casino contract ruling by IGRA and 2011 Rincon California court ruling)

·        Indian gaming operations pay no licensing fees or real property taxes for slot machines or other equipment (Reference: Wampanoag chairman Cedric Cromwell pledge to “crush the competition” by paying no fees or taxes.)

·        Indian gaming complexes  pay no state sales taxes for food, liquor, tobacco or other goods sold and create unfair competition for existing local businesses.  Indian gaming complexes pay no hotel taxes or fees.   Indian gaming “reservations” land and buildings are taken off the local rolls for real estate taxes and do not have to comply with local zoning laws (i.e., no building codes or permit fees) and cannot be forced to contribute towards costs for local services (i.e., additional emergency services, health or other costs which typically rise in localities neighboring casinos)  (Reference: Valley Journal and Indian Gaming Commission)

·        Studies show all new gaming, specifically those which include slot machines, have a negative impact on state lottery revenues.  Further, the studies show Indian gaming operations have a higher negative impact on state lotteries given their tax-free, high ratio of slots and no-limitation operations.  This means fewer lottery players and new costs required to compete with casino advertising for their market share of gamers. (Reference: Impact of Indian Casinos on State Lotteries, Siegel & Anders, Public Finance Review, March 2001)

2.     What are the job creation-related differences?  Many supporters of Massachusetts casinos say it’s all about jobs needed now, so what is the litigation, administrative and other corresponding delay risk for shovels-in-the ground jobs associated with including a tribal preference legislative carve out?  What are the long-term employment differences of having unregulated "reservations" where state and federal labor laws don't apply?

            Hints:

·        The land-in-trust qualification delay issue.  Indian gaming requires that tribes have lands set-aside into trust on which they operate their casino complexes.   Tribes with federally recognized reservations have lands-in-trust; no such reservations exist in Massachusetts other than the Aquinnah reservation on Martha’s Vineyard.  Based on current federal regulations, as recently defined by the U.S. Supreme Court in Carcieri v. Salazar, no Massachusetts tribe qualifies for nor may be granted new land-in-trust by the federal government.  To change this requires an act of Congress, which has tried and failed to pass such legislation in the past three sessions.

·        The land-in-trust administrative delay issue. If federal legislation is passed and signed into law to “fix Carcieri,” the Department of Interior (DoI) may then begin the process of reviewing new applications from tribes requesting lands be put into trust for their reservation, casino gaming and other purposes.  The current review time for such reviews is between six and 15 years and requires multiple economic, environment and other impact studies and public comment periods before DoI will approve any new land-in-trust reservation.

3.     What are the local community impact and control differences between an Indian gaming operation and a non-Indian gaming operation for the localities in which they are located and their neighboring towns compared with non-Indian gaming operations?

         Hints:

 

A Time Magazine investigation revealed foreign backers, like the Malaysian gambling syndicate Genting which is backing the Wampanoag deal in Massachusetts runs the show.  Tax-exempt cash flows into these foreign investors overseas bank accounts while local communities suffer.  Local law enforcement, zoning and other rules are no longer allowed once a reservation casino is established in your back yard. Only the FBI can intervene and only when specific tribal constitution rules are broken when it comes to dealing with crime and other problems localities have with Indian casinos - which were never envisioned for non-reservation type settings like Raynham, Fall River or Mashpee.

Governor Deval Patrick and Greg Bialecki – masters of misdirection and deceit

Greg Bialecki says Indian gaming is inevitable in Massachusetts if the state legalizes gambling.  Governor Deval Patrick insists carving out the Southeastern corner of the Commonwealth is the only way to protect the state from this inevitability.  Really?    

Let’s put aside the fact the Mr. Bialecki has now defined “inevitable” as Mashpee Wampanoag-only gaming (by his and the governor’s initial rationale for including his set-aside preference language  to legislators this bill should cover all the federally recognized tribes with any potential to someday get land in trust for a casino).  And, let’s put aside the fact that current law, defined by a Supreme Court case (Carcieri v. Salazar) prohibits this from happening absent an act of Congress changing said law. 

With all the Harvard law degrees in the Patrick Administration one would think they might at least have a cursory familiarity with the headline making news in other gaming states where Indian casino applications from federally recognized and eligible tribe are being summarily rejected by the Department of Interior.  A minor legal impediment called the Indian Gaming Regulatory Act (IGRA) and those administering it at the Department of Interior’s Bureau of Indian Affairs will determine whether or not any tribe will be granted land in trust for the purposes of casino and other developments. 

A key provision under IGRA is that the governor of a state has veto power over the land into trust acquisition.  If Governor Patrick or any future governor views Indian gaming as a risk from which we need to be protected he has the power to prevent it in Massachusetts. 

Sec. 2719. Gaming on lands acquired after October 17, 1988: The Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination.

The Governor clearly has some other agenda in mind and it doesn’t include the people’s interest.  Legislators from Southeastern Massachusetts “the surrounding community” oppose an unregulated, tax-exempt Indian casino complex and other regional tribes oppose the Mashpee-only plan.  Other IGRA requirements for allowing new lands in trust for Indian gaming include having BOTH a modern and historical connection to proposed casino site.

Let’s see how BIA and the courts have dealt with a few recent applications, after years of review and administrative procedures that our local band of would be casino kingpins in Mashpee will just begin if the Governor’s legislation is passed:

·        September 2011 – Guidiville Pomono Tribe casino plans for Richmond, CA – REJECTED. (Reasons: lack of support of the California Governor, lack of both historical AND MODERN connection to proposed site, opposition from other tribes.)

·        September 2011 – Jemez Pueblo Tribe casino plans for Anthony, NM – REJECTED. (Reasons: distance from tribe and opposition from other tribes in proximity)

·        August 2011 – Tenth Circuit affirms BIA rejection of Miami Tribe casino plans for Kansas City, MO – REJECTED. (Reasons: concerns over fractionation of land and long range interests of landowners.)

·        February 2011 – Stockbridge-Munsee Mohegan Tribe casino plan for Bridgeville, NY – REJECTED (Reasons: viability of proposal and lack of ability to legally take land in trust under current law)

How do we think the administrators at IGRA will feel about the Masphee Wampanoag tribe application?

·        Ability to govern? Hmm, history of tribal leadership convictions on fraud, corruption and other nefarious charges.   Financial backing from a foreign gambling syndicate with ties to Chinese Triad organized crime.  Might not be a good resume for good government.

·        Modern connection to proposed site?  Even the current Mashpee tribe chairman Cedric Cromwell lacks a modern connection to Mashpee, what possible current day connections can the Mashpee claim to Raynham, Middleboro, Foxboro, Fall River or the other “off reservation” (if they even had a reservation) sites they have planned?

·        Economic impact on and support of other tribes?  We already know the Rhode Island Narragansett tribe has plans for neighboring Twin Rivers and will oppose.  The Aquinnah Wampanoag are asserting their rights (and they are the only federally recognized tribe in Massachusetts with land in trust on which they could legitimately argue for a right to gaming).  Of course the Mohegan’s who want another casino in Palmer, MA will not want Mashpee competition.  The Pequots at Foxwoods will have their say.   Doesn’t look good on that front either. 

Greg Bialecki: Indian gaming liar, stooge or both?

State House News Service is reporting today that Governor Deval Patrick’s point man on gambling legislation Gregory Bialecki is on the march to mislead lawmakers about a “Tribal Gaming Reality” in an attempt to push the Governor’s agenda of including an Indian casino preference in pending Massachusetts gambling legislation.  Bialecki has written lawmakers making blatantly misleading and false statements about the Wampanoag’s status and legal ability to engage in Indian gaming.  

Is Bialecki just a liar?  Is he an ignorant stooge working on behalf of the Governor’s lobbyist cronies like Doug Rubin?  Regardless, he’s either a very dumb lawyer or dumb politician, because people in his position tend to get in big trouble when they mislead the legislature through deceit or ignorance.

We know about Bialecki’s history of inconsistencies, contradictions and misleading statements to legislators and the public on casino gaming issues, but this latest round of blatant lies and misdirection takes the cake.  Here’s what State House News reports the Governor’s gaming henchman is telling legislators:

BIALECKI: GAMBLING LEGISLATION MUST ADDRESS ‘TRIBAL GAMING REALITY’
If Massachusetts lawmakers and Gov. Deval Patrick legalize casino gambling, Native American tribes will be “legally entitled to conduct gaming” as soon as they obtain land, Patrick’s economic development chief said Friday in a letter to lawmakers. “Governor Patrick believes that limiting the number of destination resort casinos to no more than three distributed throughout defined regions of the state is the best way to maintain valuable market capacity and maximize short and long-term job creation and economic development opportunities for the entire commonwealth,” wrote Greg Bialecki, secretary of housing and economic development, in a letter to members of the state’s southeastern legislative delegation. “The federally recognized Mashpee Wampanoag tribe in Southeastern Massachusetts will be legally entitled to conduct gaming on their tribal lands upon successful resolution of their land-in-trust application with the Federal government. We believe it is important that any gaming legislation account for and address this tribal gaming reality.” Lawmakers from New Bedford, Fall River and other southeastern Massachusetts communities are urging the administration and legislative leaders to ensure that the tribes receive no favorable treatment in long-anticipated gambling legislation. They argued that favoring the tribes would disadvantage interested developers in other parts of the region and that a tribal casino could get bogged down in litigation, delaying any potential benefits.

What’s so deceitful and absurd about Bialecki’s statements on behalf of Governor “I don’t count every check” Patrick is the suggestion that Indian tribes like the Wampanoag will have the right and will start setting up casinos the minute Massachusetts makes them legal.  The fact is, current federal law and the Supreme Court Carcieri Decision make it illegal for an Indian tribe like the Mashpee Wampanoag to establish necessary lands in trust to set up an Indian casino.

This is not some simple matter of “resolving their land in trust application issue” and Bialecki and the Governor know this.  There is no current resolution pending anywhere for the Wampanoag – just ask the Department of the Interior.  The United States Congress must FIRST draft and pass legislation which would make it legal for the newly recognized tribes like the Wampanoag to take lands into trust for the purposes of creating a reservation on which they could then apply for permission to create a casino. 

Such legislative “fixes” to the Carcieri Decision have been attempted multiple times over multiple years and have failed.  The chances of such legislation passing anytime soon are slim to none as Senators and Representatives from states with established Indian and other gaming operations which would suffer from the new competition have successfully prevented this in the past and have pledged to do so in the future.  Do Bialecki and Patrick really believe New York, Rhode Island and Connecticut lawmakers have any interest whatsoever in helping move legislation that will create economic harm to their states?  The Governor of Rhode Island recent commissioned a study on the economic impact a casino located in Southeast Massachusetts will have on that state’s Twin Rivers casino - specifically for the purpose of having the evidence ready for required Department of Interior reviews to block the Wampanoag's plans. 

Let’s say the Wampanoag’s lobbyists, like Bill Delahunt, are somehow able to magically get this legislation passed and signed into law.  Once that happens the Wampanoag then need to BEGIN (not resolve some existing application in process) the process of securing lands in trust.  There are nearly 2,000 existing applications already ahead of the Wampanoag’s for this purpose at the Department of the Interior.  Further, the tribe would also need to secure a gaming license with significant regulatory hurdles and requirements, one of which is addressing potentially negative economic impact such a license might have on existing business.  On this one point alone, the Governor of Massachusetts (or Rhode Island or Connecticut for example) would be able to block such a gaming operation if it threatened to take jobs or business away from an existing operation.  This land in trust application and gaming license process at best is a 3-5 year process to resolution – with many tribes not receiving permission and others taking 15 years or more to resolve.

The facts are clear.  Bialecki and the Governor are twisting the facts and manipulating the truth when they make representations to legislators that there is an Indian gaming reality pending for Massachusetts.  In fact, the best way to ensure Massachusetts sees no jobs or economic benefits in the near term from approved gaming is to include a tribal preference.   Indian gaming offers no benefits to the state even if after years of legislative haggling and administrative processes the Wampanoag’s are allowed to build their reservation casino complex.   If this very unlikely series of events happens, then the state cannot regulate or influence what happens on Indian reservations in any manner whatsoever.

1.      The state cannot tax or share in their profits (less money for the state). 

2.      The state cannot secure license fees or sales taxes on slot machines sold (again, less money for the state). 

3.      The state cannot tax liquor, food, clothing, hotel rooms or other items sold on Indian reservation casino shopping malls and resorts (less money for the state, lost tax money from existing business and unfair competition resulting in lost jobs and income for local business). 

Why Governor Patrick and his crack casino team think this is a good outcome for the people of Massachusetts is beyond imagination.  Our elected officials understand that non-competitive special interest carves outs like this are bad for the state.  As we truly cannot believe the Governor and Bialecki are simply ignorant of these facts?  Or are they just lying stooges for their Indian gaming and slot machine industry pals and campaign contributors?

Taunton casino dreaming, is it just that?

Taunton Mayor Tom Hoye joined the stage yesterday with Mashpee Wampanoag chairman Cedric "We will crush the competition by paying no taxes" Cromwell and proclaimed that a proposed Indian casino approval process would mark the most important period in the City's history!  Our city historians may find the Mayor's juxtaposition of an Indian casino resort development in the same historical context as Taunton's American Revolution legacy or role in bringing about the industrial era in the United States with skepticism, but the Mayor's intentions of bringing needed prosperity to the City are good.  But good intentions are just that if not coupled with reality.  And, press conference promises and theater from a Tribe known for reneging on such promises to other communities do not equal reality.


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.