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?

BEST CASE SCENARIOS MASSACHUSETTS' CASINO JOBS TIMELINE

Which legislative plan for casino gaming  offers the best return on investment (ROI) to the taxpayers?  Here are the best case scenarios for delivering value to the taxpayers of Massachusetts: 

State legislation without special carve outs for Indian Gaming (5 steps)  1. Legislative approval (state lobbyist jobs - now) => 2. State required impact studies and approvals (consultant jobs – 2011-2012) IF APPROVED  => 3. Approved projects move forward (local construction jobs – 2013) => 4. Gaming operations open (local employment and economic benefits – 2014) => 5. First casino, sales and local income tax revenues to state budget 2015

State legislation with special carve outs for Indian Gaming (8-plus steps) => 1. Legislative approval ( state lobbyist jobs – now) => 2. Legal challenge to 'carve outs' (lawyer jobs – 2011-2012+)  =>  3. Act of Congress to “fix Carcieri” (federal lobbyist jobs – 2011 – 2012+) IF APPROVED[1] => 4. Appeals of any state legal findings (appeals lawyer jobs – 2012-2013+) IF APPEALS SUCCESSFUL => 5. Required Department of Interior Indian gaming and state required impact studies and approvals (consultant jobs and federal lobbyist jobs – 2013-2019+) IF APPROVED[2] => 6. Federally approved Indian gaming projects move forward (local construction jobs – 2020+) => 7. Indian gaming operations open (local employment and economic benefits – 2021+) => 8. First tax revenues to state budget (only from non-tribe income taxes and “off reservation” local economic benefits) 2022+

The best possible, but highly unlikely, case for economic benefits for Massachusetts for a legislative approval of state gaming which includes an Indian gaming carve out is 2022 – eleven years away.  The likelihood of Massachusetts Wampanoag gaming approvals and legal challenges meeting this “best case” scenario timeline is slim to none.  No tribe with similar background challenges such as the Wampanoag history of fraud and corruption convictions has received federal approval for gaming.  No Indian gaming operation which has regional political opposition due to negative employment impact studies (Rhode Island) has ever been approved.  Typical approvals with the current backlog of over 20 pending applications, not taking into consideration the added applicants IF the Congress enacts legislation to “fix Carcieri” is typically 10-15 years. 

Massachusetts legislators have the opportunity to choose between near term local construction jobs, local employment and economic impact with real tax revenues for the state coffers over more dollars for lobbyists and lawyers.  Unfortunately the lobbyists and lawyers are the ones who have been funneling hundreds of thousands of dollars in campaign contributions to state elected officials like Governor Deval Patrick and Senate President Therese Murray. 

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[1] Attempts to “fix Carcieri” (Carcieri v. Salazar Supreme Court Decision which  states the Department of Interior may NOT grant land into trust for Indian gaming to tribes not recognized prior to 1934,i.e., Wampanoag and Narragansett)  have met with opposition from states with existing Indian gaming. http://en.wikipedia.com/Carcieri_v_Salazar

[2] Currently there are more than 20 applications pending before DOI and with the approval times for any prior application being six (6) years to fifteen (15) years.

Rhode Island takes steps to block Massachusetts Indian gaming

The Chafee Administration in Rhode Island knows what's coming and they are laying the groundwork to protect existing gaming interest in the region.  The Rhode Island Governor is commissioning a study on the regional impact of expanded gaming, i.e., Massachusetts, on the Rhode Island economy.  The study proposal says the results “will demonstrate the economic impact on [Twin River and Newport Grand] from the establishment of an IGRA casino within a 50 mile radius of Twin River.”

This study proposal request specifically asks for respondents to address “Indian Gaming Regulatory Act (IGRA) Casino Study" which currently prevents tribes like Rhode Island's Narragansett and the Massachusetts Wampanoag from engaging in Indian gaming.   Why should Massachusetts take note of this Rhode Island economic impact study?  Because, among many other requirements, before any Indian gaming operation can meet required approvals by the U.S. Department of the Interior, local economic impact evaluations must be considered.  Any negative impact the creation of an Indian casino may have on existing jobs can be used as a reason to deny approval for an individual project.  What economic effect on the existing Rhode Island casinos do we think a Massachusetts Indian gaming operation will have?

Hint: It won’t be positive.

Of course Rhode Island gaming will be influenced by any Massachusetts casino; however, they can only seek to block such efforts if Massachusetts includes Indian gaming in its legislation.  In fact, should there be a special interest carve out for Indian gaming in Massachusetts, neighboring states could move to block and delay all gaming in Massachusetts from moving forward.  The odds of that happening are much better than you’ll get playing the slots at Foxwoods.

Rhode Island clearly knew about the challenges, potential delays and additional federal legal burdens associated with including Indian gaming when they legalized state gambling.  Governor Chafee continues to move more cautiously in Rhode Island on the issue of Indian gaming - an approach which Massachusetts legislators should pay heed.  (Of course, Governor Chafee didn’t get as many campaign contributions from Indian gaming interests as have the elected state leadership in Massachusetts.)  Rhode Island approved general casino gaming first, and is now exploring ways to integrate the Narragansett tribe while legislation allowing such activity moves its way through the U.S. Congress.  This is why Rhode Island has operating casinos today and not just court cases.

This pending federal legislation, known as the "Carcieri Fix," addresses the Supreme Court's findings in Carcier v. Salazar that tribes like the Wampanoag and Narragansett cannot be allowed Indian gaming rights by the Department of the Interior under current law.  As such, legislation changing the existing Indian Gaming Regulatory Act (IGRA) would be required to pass before any tribe not recognized prior to 1934 (the Wampanoag's were recognized in 1987) can be allowed to take lands into trust for the purposes of casino gaming operations; however, this Carcieri Fix legislation faces strong opposition from elected officials with existing recognized tribes and states, like Rhode Island, Connecticut and New York, which have existing gaming which would suffer from Massachusetts Indian gaming competition.

Other elected officials oppose bringing new "tribes" (like the Wampanoag which appear to have been "re-organized" by genetic ancestors after essentially going out of existence as organized tribes largely for the purposes of entering the lucrative casino gaming business) based on the requirement that such Indian gaming operations require taking of land outside their reservations into federal trust status, which would exempt the property from most state and local taxes and laws.  For these politicians, local issues associated with new “reservations” where local law enforcement has no authority coupled with taking lucrative tax income off the table negates the benefit of supporting such Indian gaming deals.

Against this backdrop, the Chafee administration is seeking, from its consultant, “an estimate of the present and future value to a tribe of an IGRA casino within 50 miles of Twin River, assuming passage of the “Carcieri fix” at the federal level.”  Conveniently, all the current proposed Wampanoag sites (Raynham and Middleborough) are less than 50 miles away from the Twin Rivers operation.  Rhode Island's 50 mile impact study would hit any proposed Indian gaming operation in the Southeast quadrant of Massachusetts - just draw a line from Springfield to Lynn to figure out the area they will cover seeking to block a new Indian casino.  Don't be surprised to see Connecticut and New York follow suit covering land for any currently conceived Indian gaming operation in Massachusetts

The Supreme Insult - Carcieri Decision crushes Wampanoag casino dreams

In February of 2009 the Supreme Court delivered what should be a final blow to the Mashpee Wampanoag attempts to create an Indian gaming operation and tax exempt income for their deep pocketed Asian gaming syndicate financial backers.  It's doubtful that even Genting's billions can't buy off enough Members of Congress to fix this one.

The Carcieri v. Salazar Decision states that the Secretary of the Interior lacks the authority to take land into trust for any Indian tribe that was not federally recognized prior to 1934.   As such, it now requires an act of Congress with the signature of the President of the United States for any tribe not recognized prior to 1934 to be granted land into trust required for an Indian gaming operation.


Lest the Wampanoag and Genting incorrectly think Congress will act on their behalf, they need look no father than their own back yard.  Congressman Barney Frank (D-MA) opposes the Wampanoag's on this and has written his constituents and specifically stated:  "I do not think that a proposal to circumvent the Court’s interpretation of the 1934 Indian law is likely to be considered on the House floor for a vote. Should that occur, however, I will not be supportive of passage..."


If lacking support from your own Member of Congress isn't enough, neighboring, according to Gale Courey Toensing, Rhode Island representatives will fight this tooth and nail to protect their casino campaign money piggy banks.  As will influential senators from other western tribes who have already said they will block any efforts to dilute their established tribes hold on this lucrative space.


Finally, 17 states attorney's general have written Congress to say they oppose and will litigate attempts to enact legislation.  It's clear, should this Wampanoag project continue to be part of Massachusetts gaming  plans it's a guaranteed lengthy legislative and legal delay against any hopes for jobs and income for the people of Massachusetts.