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‘We Have a Deal!’ BIA Approves Mashpee Wampanoag Casino

The recent BIA decision to take land into trust for the Mashpee Wampanoag Tribe has altered the landscape for gaming in Massachusetts.

The BIA's September 18 decision to take land into trust for the Mashpee Wampanoag Tribe for projects including a resort casino has altered the landscape for gaming in Massachusetts. State regulators have approved two casino projects so far, but whether the market will bear a third, much less a fourth, is an open question.

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That uncertainty has reduced the number of competitors for the state’s Region C (Southeastern Massachusetts) commercial gaming license to one, with Rush Street Gaming subsidiary Mass Gaming and Entertainment the only contender left.

Just days before Interior Department Assistant Secretary-Indian Affairs Kevin K. Washburn announced the land-into-trust decision, MGE had asked the Massachusetts Gaming Commission to commit itself to issuing a commercial license for Region C whether or not the BIA decided in favor of the Mashpee Wampanoags’ application.

On September 24, after the BIA had announced its decision, which explicitly stated that the land being taken into trust for the tribe met IGRA’s (Indian Gaming Regulatory Act) requirements for gaming, the commission rejected MGE’s request, saying it would proceed with its usual process for evaluating applications, should it receive any final applications for Region C.

On September 30, MGE submitted its application for a license for a proposed $650-million casino-resort project in Brockton. And on October 1, the commission announced that it was reviewing the application for completeness, the first step in the evaluation process.

Nonetheless, the 2,500-member Mashpee Wampanoag Tribe is moving forward with its plans to build First Light Resort & Casino, a $500-million destination gaming complex, in Taunton, 15 miles south of Brockton. It has negotiated a tribal-state gaming compact with Massachusetts, which would give the state 17 percent of revenues, and an agreement with the town of Taunton. The final state Environmental Impact Report for the project was approved in 2014.

Under the 2011 state gaming law, the MGC may, but is not required to, approve up to three licenses for Category I (casino, as opposed to just slot machines) gaming in Massachusetts. The law divided the state into three regions. The MGC issued licenses for Regions A (east) and Region B (west) in 2014.

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Originally, the commission held off accepting commercial applications for Region C, intending to “reserve” the area for a tribal gaming facility if the federal government approved the Mashpee Wampanoag’s 321-acre land-into-trust application. The tribe filed the application in 2007, just months after it received federal recognition. In 2014, the MGC opened Region C to commercial gaming applicants when the fate of the tribe’s land-into-trust application remained uncertain.

After the commission’s decision not to guarantee it would issue a commercial license for Region C, MGE officials stated, “We thank the Gaming Commission for its consideration of our request and are gratified that the Commission confirmed that it will continue with the Region C process. We believe both casinos can be successful and we intend to make a strong case for why our proposed casino resort in Brockton is in the best interests of the Commonwealth.”

The commission has been clear that it will base its decision on whether to approve a commercial Region C casino on what it believes is in the best interests of the Commonwealth. One factor is that the MGE Brockton casino would pay 25 percent of its revenues in taxes to the state, compared with the 17 percent a tribal casino would contribute. The tribal contribution would go to zero, however, if another casino is built in Region C.

A market analysis performed by Spectrum Group for the state in 2008 found that “a tribal Class III casino and perhaps even a Class II casino in Massachusetts could have a significantly negative effect on commercial casinos in the state, especially if a commercial casino is located near the tribal casino.” MGE says it would be able to run a successful casino operation in Region C even if a tribal casino were built nearby. (A Class III tribal casino is the equivalent of a Category I Massachusetts commercial casino.)

Another consideration is how soon the tribe could complete its project, given that casino opponents have threatened to sue based, in part, on the tribe’s not having received formal federal recognition until 2007. The Supreme Court’s 2009 Carcieri v. Salazar ruling states that the BIA may not take into trust land for any tribe that was not under federal jurisdiction in 1934.

RELATED: Mashpee Leader Says the Carcieri Ruling is ‘the Modern-Day Dawes Act’

In its record of decision granting the tribe’s land-into-trust application, the BIA determined that tribal members were living on a reservation in 1934 and therefore were under federal jurisdiction. "The historical record demonstrates that a reservation was set aside for the Mashpee Indians via colonial land deeds that were under the protection of the colonial court and government. The record further shows that the reservation continued to exist in 1934 and at that time, Mashpee members were residing within its boundaries."

So, for the moment, both the tribe’s First Light Project and the MGC’s application process for a commercial casino within a stone’s throw of the tribal casino continue on a collision course.

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