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Tribes Worried About Getting Squeezed Out of Next Massachusetts Casino

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While the Mashpee Wampanoag Tribe awaits the Interior Department’s decision on its land-into-trust application, commercial applicants for Massachusetts’ third casino-resort license met with the state’s gaming commission on Feb. 5.

The Mashpee Wampanoag have proposed building a $500-million casino-resort on a 150-acre site in the town of Taunton under provisions of the Indian Gaming Regulatory Act. The tribe has an approved gaming compact with the state, and on Jan. 30, the state approved the Final Environmental Impact Report for Project First Light, consistent with the BIA’s recommendation in its Final EIS released in September.

Massachusetts voters approved licensing up to three Category I (slots and table games) resort-casinos in 2011 and affirmed that decision in a referendum last November. Two of the licenses have been awarded, with Region B going to MGM Resorts International for a project in Springfield and Wynn Resorts winning Region A over a project proposed by the Mohegan Tribal Gaming Authority.

Region C, comprised of the southeastern part of the state, including Cape Cod, was initially expected to be reserved for the Mashpee Wampanoag Tribe, but as DOI’s decision on the land application dragged on, the Massachusetts Gaming Commission opened the region to commercial applicants in 2013, creating the possibility that the state would issue all three licenses regardless of what the tribe ends up doing.

Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell last week told ICTMN, "We continue to make significant progress toward our First Light Resort Destination Casino in Taunton. Regardless of the number of applications, there is widespread concern over the gaming commission's process to establish four casinos in the state, and the loss of more than $2 billion in revenue to the Commonwealth. We agree with outgoing Gov. Deval Patrick, who made it very clear that there is no need for the commission to pursue a fourth casino, with two in southeastern Massachusetts."

Four of the five commercial applicants for the Region C license failed to meet all of the commission’s requirements for first-phase applications by the Jan. 30 deadline and asked for extensions. Those requests were the focus of the Feb. 5 hearings.

Mass Gaming and Entertainment, which has proposed a project in Brockton, did file a complete application and the $400,000 application fee. Attorney John Donnelly said he was there to oppose any extensions because MGE has all of the pieces in place to move forward. “The other groups have not been able to put those pieces together. We want to [begin as soon as possible because] any delay fraught with danger” that the deal will fall apart.

KG Urban consultant David Stern said the company has paid the application fee and filed a “substantially complete” application, but needed more time to identify an operator for the project and to put the financing together. He said that this project is proposed for a contaminated site on New Bedford’s waterfront requiring a $50-million environmental cleanup that no one else can afford. The casino project would bring 4,500 construction jobs and 8,000 operational jobs to the area. Stern said the company was discussing a partnership with Foxwoods, owned by the Mashantucket Pequot tribe. Foxwoods had competed for the Region A license and earlier expressed interest in a run at Region C with a project in Fall River. Foxwoods would be pursuing a commercial gaming license for Region C, not a project under IGRA.

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Here, it gets complicated. Two groups, Somerset on the Move and Crossroads, filed paperwork with the commission. The Somerset project did not file an application fee, but did go through the scoping process and filed an application. Crossroad paid the application fee back when it was competing for Region A, but did not file an application for Region C, nor had either company informed the commission in writing that they intended, as they announced at the hearing, to partner in competing for Region C.

Nonetheless, the commission granted all three (or two, if Somerset and Crossroads are one applicant) requests for extensions.

The request they denied was from Seafan Trust, which has proposed a $4-billion project that would be more resort than casino and that would operate for the benefit of the Nipmuc Tribe and other tribes in Massachusetts, according to the sole trustee, Kathryn Wheaton, Nipmuc. No tribes are involved in the non-profit, which is registered with the IRS as a 501(c)(3).

Seafan participated in the scoping process and filed an application, but did not pay the application fee. Despite Wheaton’s assurances that the fee was pending with the bank and the funding for the project is in place, the commission denied her request for an extension on the grounds that “the [Jan. 30] deadline for the fee was the deadline.” Wheaton told ICTMN she will challenge that decision in court.

Where American Indians Stand

So at this point, American Indian participation in a Region C casino depends the BIA’s ruling in the Mashpee Wampanoag Tribe’s land-into-trust application, whether or not KG Urban and Foxwoods can come up with a partnership agreement and whether an individual American Indian files a lawsuit against the commission and wins.

The Mashpee Wampanoag application may end up benefiting from a recent federal court ruling in a case brought by opponents of a casino proposed in Washington state by the Cowlitz Tribe. The court sided with the BIA in its decision to grant the Cowlitz Tribe’s land-into-trust application even though the tribe did not receive federal recognition until 2000.

The decision supports the BIA’s decision to work around the 2009 U.S. Supreme Court decision in Carcieri v. Salazar, which restricted the land-into-trust process for tribes that were not “under federal jurisdiction” in 1934. The Mashpee Wampanoag Tribe was recognized in 2007.