Gambling bill could end up in court

The last time casino gambling legislation looked like a sure thing in Massachusetts, the gambling push devolved into back-biting and chest-thumping among the state’s top political leaders. That’s unlikely this time, as the leaders have agreed on everything behind closed doors. But a potentially messy court fight is looming, a fight that centers around the legally murky world of Native American gambling.

House and Senate leaders unveiled a gambling bill this week that would license three resort-style casinos and one slots parlor. Like the gambling bill that fizzled out last summer, it would carve the state up into regions, with one casino license ticketed for the state’s western counties, one license for the southeast, and one license for the area north of a line from Boston to Worcester, including Quincy and Norfolk County. The slots parlor could be located anywhere.

After last summer’s debacle, House Speaker Robert DeLeo, Gov. Deval Patrick, and Senate President Therese Murray all committed to agreeing on the details of a bill before reporting it out of committee. So the legislative language House and Senate leaders unveiled this week represents a compromise on a range of issues. Patrick, for instance, has moved off his opposition to stand-alone slots parlors, but DeLeo has backed off his demand that slots be earmarked for struggling racetracks.

The bill’s section on Native American tribal casinos was intended to be such a compromise. It gives tribes the first crack at a resort casino in southeast Massachusetts – a priority of both Patrick and the Senate. In a nod toward the region’s lawmakers, who are wary of tribal politics slowing a casino the region has long sought, the bill provides a short window in which a tribe can negotiate a deal with the state. 

According to the bill’s current language, if the Legislature doesn’t approve a Native American gaming compact before July 31, 2012, the state will open the region’s casino license to commercial bidders. The bill would also allow the state to solicit commercial bids if gambling commissioners doubted the ability of a tribe to secure federal land in trust.

The deal on a possible Native American casino masks the complexities surrounding tribal gambling, and it could open the state to a years-long legal fight.

Two weeks ago, a group of South Coast lawmakers, led by Rep. Antonio Cabral, issued a public letter calling for a southeastern casino with “no strings attached.” They feared a tribal preference would invite messy litigation from would-be commercial developers that would tie up the region’s casino license “for years and years, while other casinos were up and running,” Cabral told CommonWealth. “It would put us at a disadvantage to other regions.” Cabral pointed to a case in Rhode Island, where the state fought a local tribe in court for 11 years.

That Rhode Island case, named after then-Gov. Donald Carcieri, has thrown Native American tribes across the country into muddy legal waters. A 2009 Supreme Court ruling in the Carcieri case held that federal officials only had the power to take land into trust for tribes that enjoyed federal recognition prior to 1934; the court said Congress hadn’t empowered the government to establish sovereign reservations for more recently recognized tribes. Massachusetts’s Aquinnah Wampanoag tribe won federal recognition in 1987; the Mashpee Wampanoag were recognized in 2007.

The Supreme Court curtailed the Department of the Interior’s practice of granting gaming reservations for tribes, especially on land outside traditional tribal territory. But last December Interior tested the Supreme Court’s reach. It approved a gaming reservation for a Washington State tribe, the Cowlitz, that had won federal recognition in 2000. “This administration is open to every effort to support economic development for Native American tribes,” said former US Rep. Bill Delahunt, who now lobbies for the Mashpee. “They’re sensitive to the plight of landless tribes, and will act accordingly.”

However, it’s not clear that the Department of the Interior has the authority to sidestep the Supreme Court’s Carcieri ruling. Its Cowlitz decision prompted two lawsuits, one from the proposed casino’s host county, and a second from a neighboring tribe. Both suits alleged that Interior had overstepped the constraints the Supreme Court handed down in the Carcieri case. The suits could take years to litigate, and may wind up before the Supreme Court. These are the types of lawsuits Cabral fears could derail a South Coast casino. 

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Paul McMorrow

Associate Editor, CommonWealth

About Paul McMorrow

Paul McMorrow comes to CommonWealth from Banker & Tradesman, where he covered commercial real estate and development. He previously worked as a contributing editor to Boston magazine, where he covered local politics in print and online. He got his start at the Weekly Dig, where he worked as a staff writer, and later news and features editor. Paul writes a frequent column about real estate for the Boston Globe’s Op-Ed page, and is a regular contributor to BeerAdvocate magazine. His work has been recognized by the City and Regional Magazine Association, the New England Press Association, and the Association of Alternative Newsweeklies. He is a Boston University graduate and a lifelong New Englander.

About Paul McMorrow

Paul McMorrow comes to CommonWealth from Banker & Tradesman, where he covered commercial real estate and development. He previously worked as a contributing editor to Boston magazine, where he covered local politics in print and online. He got his start at the Weekly Dig, where he worked as a staff writer, and later news and features editor. Paul writes a frequent column about real estate for the Boston Globe’s Op-Ed page, and is a regular contributor to BeerAdvocate magazine. His work has been recognized by the City and Regional Magazine Association, the New England Press Association, and the Association of Alternative Newsweeklies. He is a Boston University graduate and a lifelong New Englander.

The issue of taking land into federal trust is crucial, since it brings tribal gaming under the federal regulatory umbrella. And if a tribe lacks sovereign land on which to host a casino, it’s unclear whether preferential treatment, like the pending State House gambling bill includes, would withstand a legal challenge on equal protection grounds. Hill casino watchers have been speculating for months that a tribal set-aside could invite an equal-protection lawsuit from would-be developers cut out of the action.

Cabral, who represents New Bedford, calls the current tribal set-aside “a very short string, and one I can live with.” He adds, “I’m not sure the tribes will be able to meet that deadline, and I’m not sure they can get land into trust if Congress doesn’t change the law.”

But if Congress does change the law, the gambling scene in Massachusetts could get crowded. If Congress gives Interior the power to establish sovereign reservations for tribes recognized after 1934, Massachusetts could theoretically end up with more than three casinos.