Mashpee Wampanoag Tribe Completes First Step in Casino Process as Office of Indian Gaming …

Massachusetts Gaming

By Robert Crawford and Eleanor C. Simon

The Mashpee Wampanoag Tribe has released a Feb. 7, 2013 letter from Assistant Secretary for Indian Affairs Kevin Washburn commenting on the status of the Tribe’s application with the Office of Indian Gaming.

The Tribe’s application, relating to 146 acres of land in Taunton and 170 acres of land in Mashpee, consists of two parts: (i) the Tribe’s request to acquire land in trust pursuant to Section 5 of the Indian Reorganization Act, and (ii) the Tribe’s request that the lands qualify as the Tribe’s “initial reservation” pursuant to Section 20 of the Indian Gaming Regulatory Act, which is one of the few exceptions to the prohibition of gaming on lands taken into trust after Oct. 17, 1988.

The letter released by the Tribe stated that the Office of Indian Gaming had completed its review on the “initial reservation” question and had found that the lands will qualify as the Tribe’s “initial reservation” if they are acquired in trust and proclaimed a reservation pursuant to Sections 5 and 7 of the Indian Reorganization Act.

The Chairman of the Tribe, Chairman Cromwell, stated that the news is “another huge step forward toward the development of a first class destination resort casino in Taunton.”

While the determination on the “initial reservation” question is an important step forward in the Tribe’s quest to build a casino in Southeastern Massachusetts, as it allows the possibility of gaming to take place on such land, significant hurdles remain.

The Office of Indian Gaming still needs to determine whether the federal government will take the requested lands into trust for the Tribe.  The land-in-trust application process includes a determination by the Office of Indian Gaming on whether the federal government even has the authority to do so, given the 2009 Supreme Court case Carcieri v. Salazar.  Under Carcieri, the Supreme Court ruled that the federal government does not have the authority to take land in trust for tribes that were not under federal jurisdiction at the time of the Indian Reorganization Act of 1934.  The Mashpee were only formally recognized in 2007, but argue that they have a long history with the federal government that dates back before 1934.  In addition, in order to successfully complete the land-in-trust process, among other requirements, the Tribe must comply with the National Environmental Policy Act, which mandates an environmental review to address the potential environmental impacts of taking land into trust for the construction of a casino.

Apart from the land-in-trust application process, the Tribe must also enter into a valid compact with the Commonwealth of Massachusetts.  The U.S. Department of Interior rejected a previous compact between the Tribe and the Commonwealth.

The Massachusetts Gaming Commission, which has been subject to pressure from other parties interested in building a casino in Southwestern Massachusetts, has indicated that it will re-evaluate the progress of the Mashpee in mid-March.

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