Think of it as decision by inaction. The Bureau of Indian Affairs has not acted on the tribal gaming compact between the state of Massachusetts and the Mashpee Wampanoag Tribe.
The BIA had 45 days to respond to the compact, or else it goes into effect. A spokesman for the Bureau, while insisting that the BIA has made no decision, acknowledged that by not making a decision that legally the compact is considered approved.
The BIA rejected the first compact negotiated by Governor Deval Patrick and the tribe, saying that its percentage of profits paid to the state was too high and that it strayed into territory inappropriate for a gaming compact.
Under the new pact, the tribe commits to pay the state 21 percent of casino revenue if there are no commercial casinos in the state and 17 percent if there are, but the tribe’s is the only casino the southeastern zone.
The tribe this week hailed the bureau’s “action” and predicted that it will break ground in Taunton by the end of the year on its Project First Light casino resort. However, the BIA has yet to approve the tribe’s application to put the land in Taunton into trust.
“This is a huge, huge day,” declared Tribal Chairman Cedric Cromwell last week. “It’s a historical day for the tribe, for the state of Massachusetts and for the city of Taunton. We’re very excited.” He added, “When we have land into trust, we can game on that land.”
KG Urban, which is competing with the tribe for the gaming license for the southeastern gaming zone, and wants to build in New Bedford, disagrees with Cromwell’s assessment.
KG spokesman Jeff Harris declared, “Chairman Cromwell’s statement that the Mashpee have received a ‘license’ to open a casino is false The Mashpee tribe has no license to do anything in the commonwealth of Massachusetts related to gaming that it did not have yesterday. Under the Indian Gaming Regulatory Act and the United States Constitution, Indian casinos (and gambling of any kind) are illegal except on Indian lands. … The Mashpee tribe has no Indian lands.”
Harris added, “The notion that the tribe will ‘break ground on a casino by the end of 2014’ is nothing short of absurd.”
Opponents of the Taunton casino, including KG, point out that the tribe has a problem with the Carcieri v. Salazar ruling by the U.S. Supreme Court, which in 2009 said that no tribe recognized by the federal government after 1934 can put land into trust. The tribe was recognized in 2007.
Cromwell says that is no problem because the tribe can demonstrate that it was under federal jurisdiction before 1934.
Originally the southeastern zone was set aside for the tribe by state law, which KG Urban challenged in federal court as unconstitutional.
Because it took the tribe so long to get a compact and because of persistent doubts about its application to put land into trust, the Massachusetts Gaming Commission opened the zone to bidding by commercial developers, although retaining the option to eventually award the license to the tribe.
