The demise of state gambling legislation this summer was a blow to Gov. Deval Patrick and many legislators, but no one was more disappointed when the deal fell apart than members of two Massachusetts Indian tribes, the 2,200-member Mashpee Wampanoag and the 1,200-member Wampanoag Tribe of Gay Head (Aquinnah). For years, both tribes have eyed jealously the millions in casino revenue earned by Connecticut’s Mohegan and Mashantucket Pequot tribes, who run the Mohegan Sun and Foxwoods casinos, respectively. The Massachusetts tribes believe that casinos they would like to build could bring them similar riches.
So both are now hoping that the Obama administration and Congress will come to their rescue. Both tribes believe they can significantly strengthen their position in the gambling debate on Beacon Hill, which is likely to begin again next year, by convincing the Interior Department in Washington to take land into trust for them in Fall River. That would create a reservation there for the Mashpee Wampanoags, and expand one for the Aquinnah Wampanoags, who have an existing 485-acre reservation on Martha’s Vineyard.
With land in trust, the tribes could offer limited gambling—such as bingo, bingo-style slot machines, and poker—without state permission and without sharing any revenue with the state or local government. To avoid that type of situation, Indian officials believe the state would grant at least one of the tribes a full-fledged gambling license to operate a casino in exchange for a share of the proceeds. In essence, the tribes are racing each other to see who can be the first to get land into trust.
Cedric Cromwell, the chairman of the Mashpee Wampanoags, says that he would prefer to work with state officials, but plans to move ahead regardless. “I would love to see economic development and revenue sharing for the Commonwealth,” he says. “But we’re going to move forward.”
Yet moving forward won’t be easy without action in Washington. Last year, the Supreme Court ruled that the Interior Department cannot take land into trust for tribes recognized by the federal government after 1934, when Congress passed a law creating the land-into-trust process. Both Wampanoag tribes are affected. The Mashpee Wampanoags were recognized by the federal government in 2007, the Aquinnah in 1987.
There is hope for the tribes, though. The Supreme Court indicated that Congress could act to alter the 1934 law to open the door for newer tribes to take land into trust. The Wampanoags are lobbying hard to see that Congress does that this year. Both Massachusetts tribes have joined a broad coalition, led by lobbying groups such as the National Congress of American Indians and the United South and Eastern Tribes, to try to convince Congress to change the 1934 law. The Mashpee Wampanoags have also hired two lobbying firms to press their case in Washington.
“Entire tribal communities are at risk and entire regional economies are also at risk if this doesn’t get fixed,” says Cheryl Andrews-Maltais, chairwoman of the Aquinnah Wampanoags.
Like Andrews-Maltais, the coalition members insist that their lobbying campaign is about more than just gambling. In fact, the Supreme Court case was about real estate development. Rhode Island’s Narragansett tribe asserted that its housing development adjacent to a reservation in Rhode Island need not meet local building codes—especially once the Interior Department agreed in 1998 to take land for the development into trust. But Gov. Donald Carcieri sued, contending that since the tribe wasn’t recognized at the time of the 1934 law, it could not benefit from that statute. Two lower courts sided with the tribe, but in February 2009, the Supreme Court sided with the Republican governor in a 6-3 decision.
Tribal leaders view the decision as an overly technical reading of the 1934 law, and insist that it violates congressional intent. But winning passage of the so-called “Carcieri fix” from Congress hasn’t been as easy as the tribes expected. Last year, Sen. Byron Dorgan, the North Dakota Democrat who is chairman of the Senate Indian Affairs Committee, wrote a bill to grant all tribes the right to take land into trust, regardless of when they were recognized. His committee approved the bill in December, but it has foundered since, as have two bills introduced in the House. In July, Rep. Tom Cole of Oklahoma, the only American Indian member in Congress, gave the tribes their best hope when he got comparable language written into the House version of the fiscal 2011 appropriations bill that covers the Interior Department. But the fate of the Republican’s amendment is still unclear, since Congress failed to pass the bill before members left to campaign for reelection in early October. It is expected that the measure will be rolled into a catch-all spending bill drafted during a lame duck session later this fall.
The issue has split the Democrats who are in charge of both the House and the Senate, including those in the Massachusetts delegation. Sen. John Kerry and Reps. Stephen Lynch of South Boston, Michael Capuano of Somerville, John Olver of Amherst, and Bill Delahunt of Quincy, who is retiring, favor the change. Delahunt’s district, which includes the South Shore and Cape Cod and the Islands, is the home base of both of the tribes.
Proponents like Lynch say it’s only fair to treat all Indian tribes the same. The court decision, he says, was a “slap in the face” to American Indians, threatening “tribal sovereignty, self-sufficiency, and self-determination.”
But Rep. Barney Frank of Newton, whose district would be home to both of the proposed Indian casinos in Fall River, opposes the so-called Carcieri fix because it would potentially allow tribes to open gambling facilities on trust land even if local officials opposed them. He insists that decisions on gambling should be made at the state and local level, not by the federal government in cooperation with the tribes. He nevertheless supports the Massachusetts tribes’ efforts to acquire reservation land in Fall River for a casino because the local community strongly supports the effort.
Other members of the delegation declined to state a position on the Carcieri fix, and they will likely never have to if the measure passes as part of a broader spending bill. Olver is the only representative from Massachusetts on the House Appropriations Committee. Neither Kerry nor his Republican counterpart in the Senate, Scott Brown, have a seat on the Senate Appropriations panel.
Outside Massachusetts, opposition to the Carcieri fix is strong. “There are a lot of very powerful interests who were pleased by the Carcieri decision, such as the commercial gaming industry that doesn’t want competition from Indian casinos,” says Clyde Barrow, a gambling expert who directs the Center for Policy Analysis at the University of Massachusetts Dartmouth. Senate Majority Leader Harry Reid of Nevada, for instance, opposes the legislation, as do state officials in California, where tribes have clashed with local governments over gambling.
Interior Department Secretary Ken Salazar sympathizes with the tribes. He has loosened rules for approving land-into-trust deals and continues to process applications from tribes for new reservation land, even as he awaits Congress’s verdict on the Carcieri decision to determine whether he can grant them final approval. In June, Salazar ordered the department’s legal officials to begin considering whether the Mashpee Wampanoags’ application to take land into trust, pending for three years, could move forward. The department declined to comment on its inquiry.
Even if the Indians are able to win a majority for the change in Congress, the Massachusetts tribes face further hurdles. To win approval from Interior, the tribes must demonstrate that the land they want to take into trust was part of their historic land before white settlement. And the Interior Department has been reluctant in the past to grant tribes trust land more than 50 miles from their home base. Fall River is slightly more than 50 miles from Mashpee, farther still from Martha’s Vineyard.
If it fails to win trust land in Fall River, the Vineyard tribe says that it believes it could win approval for a gambling facility on its existing reservation on the island. But that’s not assured because of a 1983 deal between the tribe and local officials that created the reservation. According to a 2004 Massachusetts Supreme Judicial Court decision, that agreement allows local officials to veto development projects on the reservation. Even if the tribe was able to get around that hurdle, Martha’s Vineyard would be far from an ideal location for a casino, since it would be hard to draw customers except in the summer.
Both tribes are counting on federal help to give them leverage in the gambling debate in Massachusetts. “We are supposed to be self-governing, to take care of our own people, and keep our Indian ways intact,” says Cromwell. “We are saying to our federal government, ‘Let us take land into trust so we can sustain ourselves and live within our own country.’”
Unless Congress act it is done.