A no-win situation

Tough call on southeast gambling

THE MASSACHUSETTS GAMING COMMISSION has been threatening for months to open the state’s southeastern region to commercial casino developers. The commission was scheduled to debate the matter today, but the five-person board has no easy out. Every scenario for casino gambling in the southeast is fraught with uncertainty and packs of indignant lawyers.
One commercial casino developer has already sued  the state for giving the Mashpee Wampanoag Tribe a head start  at opening up a casino in the southeast; now the tribe is threatening to sue  the state if the gaming commission revokes the tribe’s exclusive gambling rights. The gaming commission, charged with licensing three full casinos and one slot machine parlor, essentially has to decide whether it prefers the risk of a long-delayed tribal casino over the risk of an unregulated, untaxed tribal gambling hall. The tribe, up to its eyeballs in debt  from its gambling partner, borrowed at a steep 15 percent interest rate and lacking any clear means of paying any it back, is far from sitting pretty, either.
The gaming commission has been inching toward opening up the state’s southeastern region to commercial casino bidders for months. The commission was scheduled to debate the matter again Thursday, and outside observers believed the five-person board looked poised to open the southeast to commercial casino developers.
This promoted the unusually public backlash from the Mashpee. The federally recognized tribe issued the normal dose of denunciations and legal threats, with the tribe’s lawyer insisting it would be “premature for the Commission to even consider a request” for commercial competition, and arguing that the commission “lacks lawful authority … to even consider opening” the region to commercial developers. Counsel for the city of Taunton, where the Mashpee are trying to open a federally-sanctioned tribal casino, added that the commission “would be subjecting itself to a substantial likelihood of litigation by the tribe.” But the Mashpee also launched an unprecedented public lobbying push at the commission, airing a television commercial urging residents to call the commission in advance of Thursday’s meeting. “Tell them to protect jobs and revenue” by standing with the Mashpee, the commercial urged.
The tribe and the commission are both standing in muddy legal waters. As CommonWealth has previously noted, a 2009 Supreme Court ruling suspended the federal government’s ability to take land into federal trust for any tribe not under federal jurisdiction in 1934. The Mashpee, which received federal recognition in 2007, has argued that an agreement it struck with King George III 250 years ago meets the federal jurisdiction test, but the fact that the Mashpee have to reach back before the Revolution indicates that their efforts to make an end-run around the 2009 Supreme Court ruling face long odds. The Department of the Interior has taken the stance that the court didn’t really mean what it said about federal jurisdiction and continued to process tribal land trust applications; those trust takings have invited lawsuits that will take years to sort out.
South Coast lawmakers were well aware of the Mashpee tribe’s long legal odds. They objected to a clause in the state’s 2011 gambling law that gave the Mashpee a head start in constructing a southeastern casino, and sought to impose a hard timeline on the Mashpee’s tribal casino quest last year. Neither effort succeeded.
The state’s casino law gives the commission leeway to put the southeastern casino region out to bid if it determines that the Mashpee can’t secure federal tribal gaming rights. That call isn’t the least bit clear, and the gaming commission has been wrestling with its competing obligations – to the Mashpee, and to the region’s residents – since last year. The commission has considered splitting the difference, opening up a nonbinding commercial bidding process in the southeast, while letting the Mashpee federal gaming application play out. That isn’t a long-term solution, though.
The commission is already facing one lawsuit, from a prospective New Bedford casino developer who has argued that any legal preference for the Mashpee is unconstitutional. A federal appeals ruling in the New Bedford case indicated that a temporary head-start for the Mashpee could stand, but an indefinite hold on commercial casino development in the southeast would likely be illegal.
If the gaming commission backs the Mashpee over a commercial bidder, it’s likely facing an uphill fight in the existing New Bedford case, as well as years of lawsuits from Taunton residents challenging a tribal casino on the grounds of the disputed 2009 Supreme Court ruling. Lawsuits could tie up a Taunton casino for years, and that’s the best-case scenario. However, the Mashpee have already telegraphed their intention to sue if the commission puts the southeast out to bid commercially. Even if the Mashpee failed to stop a commercial developer, their television blitz hints at a nuclear option: opening a sovereign tribal gambling hall beyond the state’s reach. This isn’t an immediate possibility, given the doubt the Supreme Court has cast over tribal land takings. But it’s not impossible, either, over the long term. Tribal sovereignty, even from an entity drowning in debt and lacking any immediate shot at an untaxable casino, creates just enough uncertainty to put the gaming commission in a no-win situation.