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April 19, 2014

The Massachusetts Muddle: What Does it Mean for the Mashpee Wampanoag?

The Mashpee Wampanoag casino project planned for the town of Taunton in southeastern Massachusetts received a major setback when the state Gaming Commission voted recently to suspend the legislated tribal priority for a license in that portion of the state. The priority was part of a statewide casino plan enacted by the state legislature two years ago authorizing three casinos in the state with a preference giving an Indian tribe the rights to the license designated for the southeastern part of the state. That preference clearly was intended to benefit the Mashpee Wampanoag, which was federally recognized in the spring of 2007 through a Department of the Interior administrative process. Non-tribal casinos were authorized for two other areas of the state, and those licenses are the subject of competition among casino development teams.

The Gaming Commission action was a predictable consequence of the legislative priority itself, in that the law established timelines for the Tribe that many believed would be virtually impossible to meet. Indeed, the Tribe’s deadline to get the gaming into trust status in a timely manner has been extended to give Interior additional time in which to accept the proposed casino site into trust status for gaming.

The Mashpee propose to operate a $500 million destination resort casino in Taunton, although it must be noted that the Taunton site is the third identified during six years of the tribal efforts to develop a casino. The other sites were within the Town of Middleborough and New Bedford. In addition to changing proposed gaming sites, the Tribe also replaced its original development team after it had executed a comprehensive local services agreement with Middleborough in July 2007. The peripatetic search for a gaming site has consumed money and a considerable amount of time, causing delay that was cited by the Commission in its unanimous vote to allow commercial casino developers to apply for the license. Such applications will constitute competition for a license that Mashpee has viewed as its legislated entitlement.

At a recent hearing, Gaming Commission Chairman Stephen Crosby declared that the law provided for opening up the competition to non-Indian entities if it appears that Mashpee will be unlikely to obtain the federal trust status necessary for tribal gaming. While Interior officials have declared that they are “expediting” consideration of the trust application and expect a final decision sometime during 2013, the continuing delays led to the Commission’s invocation of the law’s requirement that it “must” seek commercial bids for the license if it decides that the Tribe will not get land into trust for an Indian casino.

Mashpee Chairman Cedric Cromwell urged the Commission to not approve commercial casino applications, noting that the Tribe is proposing to pay “hundreds of millions of dollars” to the state in return for the exclusive right to conduct casino gaming in the designated region. He asserted that the Tribe will continue to develop and operate its project even if the third license goes elsewhere, meaning that the Tribe will develop a fourth casino in the state pursuant to the federal Indian Gaming Regulatory Act. Part of that assertion included the statement that a federal Indian casino would make no payments into the state’s treasury. Commission Chairman Crosby responded that if the Tribe does not obtain status for the land and the third license is not issued, then the state would lose the $85 million license fee and annual tax revenue of approximately $100 million.

The Massachusetts Muddle seems to have a life of its own. Whether and how the Mashpee Wampanoag casino project will be affected by these latest developments is unknown, but events are moving quickly on Beacon Hill. It is safe to say that the overall picture is constantly changing and is likely to continue doing so.

© Copyright 2014 Dickinson Wright PLLC

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Expertise in development of economic projects, including casinos, for Indian tribes in America and Canada

Served as legal counsel to both unrecognized and federally recognized Indian tribes, providing counsel on Indian gaming law and Indian lands as well as a wide range of state and federal taxation issues unique to Indian tribes, individuals and lands

Served as Special Counsel for Gaming to the cities of Detroit; Buffalo, NY; Battle Creek, MI; Lima, OH; Middleborough, MA; and Barstow, CA as well as Calhoun County, MI, DeKalb County, IL, and seven...

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