The Taunton residents who are suing to prevent the Mashpee Wampanoag from building a billion casino in their town have asked a federal judge for a temporary injunction to half construction on First Light Resort and Casino, which is scheduled to open a little more than a year from now.
The tribe broke ground in April on the 151 acres that was formerly an office park. The plan is to open the first phase in April with 3,000 slot machines, 150 gaming tables and 40 poker tables. and then immediately begin phase 2, which would include three 15-story hotel buildings with 300 rooms and an entertainment space.
The filing in the U.S. District Court in Boston in the case of Littlefield v. U.S. Department of the Interior claims that the injunction is needed to prevent the casino from becoming a fait accompli. Michelle and David Littlefield are a couple living near the casino site. “The tribe has demolished buildings, clear cut trees and used heavy equipment for grading,” say the court documents. “The property is now fairly described as a moonscape.” It claims the construction is causing “irreparable harm” to the property owners living nearby.
The lawsuit, which was filed three months ago, was a “complaint for declaratory and injunctive relief.” It claims that the Bureau of Indian Affairs acted wrongly when it put the 150 acres into trust. It cites the U.S. Supreme Court’s 2009 decision in Carcieri v Salazar in which the court ruled that a tribe recognized after 1934 can’t put land into trust. The federal government in 2007 recognized the Mashpees.
In the Carcieri decision the High Court reversed a lower appeals ruling that had upheld a BIA decision to put 31 acres into trust for the Narragansett Indian tribe, which in 1991 bought land to use for senior housing. The court referred to language in the 1934 Indian Reorganization Act, which said that the Secretary of the Interior could only take land into trust for tribes “now under federal jurisdiction,” that is, under jurisdiction in 1934.
According to Adam Bond, the attorney representing the Taunton residents, the cases are similar. “The federal government grossly overstepped its authority.” He added, “We are prepared to take our case all the way” to the Supreme Court if necessary.”
Bond told the Taunton Gazette that he thinks the First Circuit U.S. Court of Appeals will hear the case before the end of this year and impose a temporary restraining order that will give the U.S. Supreme Court time to rule on his suit’s central point, whether the tribe’s land was legally put into trust.
The Mashpees say they aren’t overly concerned about the lawsuit and that their financial backers, the Genting Group, is confident that the tribe will prevail. They point out that the Justice Department will be defending the BIA in the case. They note that in no instance has a court ever granted an injunction to halt the construction of a tribal casino.
Tribal Chairman Cedric Cromwell said last week that he didn’t see the lawsuit “as having any impact on our progress.’’ He added that the project “is moving forward and focused on getting the first phase up and running by next summer.”
Last month the last obstacle to the tribe’s monopoly of the southeastern casino market was removed when the Massachusetts Gaming Commission rejected a license for a casino in Brockton, which is about 20 miles from Taunton.
The current lawsuit remains the only other roadblock for the tribe to negotiate.
The tribal casino is a major investment for the Genting Group, the world’s largest casino developer, which is reportedly valued at about $25 billion. It has already spent about $250 million through “interest-bearing promissory notes” issued by the tribe. In return, Genting will be paid 40 percent of the casino’s revenue for managing the casino for its first seven years of operation.
Genting has a history of investing in tribal enterprises. It was one of the earliest investors in both Indian casinos in Connecticut, Foxwoods and the Mohegan Sun. In 2002 it helped finance the Seneca tribe of New York when it built a casino in Niagara Falls but at a very hefty interest rate.
Genting’s history of charging its tribal customers high interest rates has prompted some financial experts to speculate that the tribe may not be able to carry out its plans to build what one member of the Massachusetts Gaming Commission called the “Taj Mahal of casinos.”
Cromwell dismisses such concerns. He told the Boston Globe recently, “Our financial house is in order and we have a solid financial plan moving forward. We have come too far to turn back—or scale back—now.”
Even though the Taunton casino won’t be facing competition 20 miles down the road, it may be entering a crowded field
Steve Cochrane, an economist for Moody’s Analytics based in Boston told the Globe, “There’s a limited amount of demand for gambling and you have to wonder about market saturation with all the casinos going up in the Northeast.”
John Knott, head of global gaming for the California-based real estate consulting firm CBRE, disagrees. He told the Globe, “Does this tribal casino make good business sense? Absolutely. The Northeast is obviously a mature market, but has it hit the saturation point? No. There’s still market share out there for the right casino.” He envisions the Taunton casino draining players from Connecticut and from the Twin River Casino in Rhode Island.
Other consultants concede that the Taunton property won’t be on the same scale as the Wynn Boston Harbor, but it will be able to hold it’s own against it and compete very effectively against Foxwoods, the Mohegan Sun and Twin River.
This fits in with the original vision that state lawmakers had in mind when they authorized gaming in 2011. That vision made them require a $500 minimum investment from potential developers, to ensure that they were creating not just casinos but destination resorts. As a counterbalance to such a large investment, the legislature adopted a 25 percent tax, which was lower than most casinos in the region.
That’s true even though the tribe is operating outside of the casino structure established by the state. Its an Indian casino, and so did not need to spend a minimum amount. Also, its tax rate is 17 percent.
Martha’s Vineyard Casino
The Wampanoag Tribe of Gay Head (Aquinnah) is refusing to give up its dream for a Class II casino on Martha’s Vineyard, despite being slapped down in the first legal round with a U.S. District court.
It has taken its challenge of the judge’s ruling to the 1st Circuit Court of Appeals. It will examine the tribe’s contention that the judge erred when he ruled that the tribe was bound by an agreement it signed by the town of Aquinnah and the state. That agreement, which was ratified by Congress in 1987 gave the tribe control over 400 acres. Under that agreement the tribe agreed not to build a casino on its reservation and to abide by city land use regulations.
The tribe contends that the Indian Gaming Regulatory Act that was passed the following year by the same Congress superseded this agreement.
According to the tribe’s filing, The District Court erred when it ruled that the (settlement) rather than IGRA, governs the tribe’s gaming activities on the tribe’s Indian lands in Dukes County (often referred to as the ‘settlement lands’).” It continues, “As a federally-recognized Indian tribe subject to the plenary authority of the United States Congress, Aquinnah is entitled to benefit from subsequent acts of Congress in its legislation of Indian affairs.”
The tribe wants to operate a Class II casino since it has no compact with the state, required for it to operate a Class III operation.
It claims that the state was discriminatory in its dealings with the tribe. “The Commonwealth does not object to one Indian tribe, the Wampanoag Mashpee, conducting gaming within the exterior boundaries of the Commonwealth, while simultaneously and vigorously opposing Aquinnah conducting gaming within its exterior state boundaries, just as the State of Texas does not object to one Indian tribe, the Traditional Kickapoo, conducting gaming within the exterior boundaries of Texas, while simultaneously and vigorously opposing the Texas Tribes conducting,” says the brief.
