As gaming expands rapidly in Massachusetts the Mashpee Wampanoag tribe—that lawmakers deliberately created a spot for—has been left suspended without either a casino or a final decision as to whether it will ever have one.
The delay has caused a casino applicant that was turned down several years ago by the Massachusetts Gaming Commission because the tribal casino was expected to go forward in the southwest gaming region to resurrect its proposal—a proposal the commission rejected on a 4-1 vote.
If opponents in Taunton had not filed a successful lawsuit against the Bureau of Indian Affairs challenging the process by which it put land into trust for the tribe, the $1 billion First Light Resort and Casino would have been operating for a year by now.
Instead it’s the state’s two commercial casino resorts, the $960 million MGM Springfield that will open in August and Wynn Resorts’ $2.5 billion Encore Boston Harbor is scheduled to open next summer.
The lawsuit that challenged the tribe’s status stalled the casino while the BIA searched for a way that it might put the 151 acres in Taunton into trust that would satisfy the judge’s criteria. So far, without success.
In July 2016, U.S. District Court Judge William Young ruled that the BIA’s action violated the 2009 Supreme Court ruling in Carcieri v. Salazar, which says tribes must have been recognized or under federal jurisdiction before the Indian Reorganization Act of1934. The Mashpee Wampanoag tribe was recognized in 2007.
The fact that the Mashpees are still unable to proceed has prompted Illinois-based Rush Street Gaming LLC to approach the MGC to revive its proposal for a $677 million casino. This, in and off itself would not prevent the tribe from moving forward, but it would obviate the requirement in the tribal state gaming compact that the tribe share 17 percent of its revenues with the state.
The commission acknowledged receiving the letter from Rush Street. In the original proposal Rush Street created a subsidiary called Mass Gaming and Entertainment and partnered with Brockton Fairgrounds owner George Carney.
The 13-page letter begins, “Despite the setback of the commission’s April 2016 vote, Rush Street and MG&E remain interested in pursuing a casino and hotel development in Brockton.”
It asks for a rehearing of its proposal, “We respectfully request that you agree to hold a public hearing regarding the short and long-term best interest of Southeastern Massachusetts, and also agree to reconsider MG&E’s application without re-opening the (application hearing process) more broadly.” It adds, “The course of action that is in the ‘short and long-term best interests’ of both the southeast region and the commonwealth as a whole would be for the commission to reconsider MG&E’s Brockton proposal without further delay.”
The letter noted that the Bay State has lost millions in tax revenues and said it is prepared to immediately pay a $96 million license fee and to pay at least $70 million each year in taxes, as well as $13 million to the city of Brockton.
MGC spokesman Elaine Driscoll in answer to a press inquiry wrote, “Our legal department is in the process of reviewing it. I respectfully decline further comment at this time.”
When the commission denied the Brockton proposal in 2016 it was definitely taking into account what appeared to be the pending opening of the Taunton casino, which would have been within 20 miles of Brockton.
MGC Chairman Stephen Crosby has said previously that the commission could always revisit its previous vote. In 2016 he told the Enterprise that his board could reopen the entire process to new applications. “That’s a hypothetical case … but if that ever happened we could always open it up again for competition”
He added, “The law doesn’t require (a commercial casino) in Southeastern Mass. The law says that we may have a commercial casino. … We’ve always said that Region C, Southeastern Mass, is particularly complicated because of the tribal status, and because of the competition in the area. … We are trying to figure out what’s fair, what’s right to all the different interests.”
Meanwhile two bills are moving forward in Congress that would put the Taunton land into trust. The Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.5244 | S.2628), which is supported by most of the Bay State’s congressional delegation, would also dismiss the lawsuit against the tribe. It is similar in wording to the Gun Lake Trust Land Reaffirmation Act, which protected a particular reservation from lawsuit.
One of the bills is sponsored by Rep. William Keating.
David Tennant, the attorney who represents the East Taunton residents, dismisses Keating’s bill as a “Hail Mary on top of a Hail Mary.”
