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A schematic drawing of the Mashpee Wampanoag Tribe's proposed casino in Taunton, Massachusetts

Massachusetts Gaming Commission Opens Mashpee’s Exclusivity Region to Commercial Gaming

Gale Courey Toensing
4/22/13

The Massachusetts Gaming Commission has decided to allow a commercial casino development in the southeastern part of the state where the Mashpee Wampanoag Tribe expected an exclusive right to operate a $500 million destination resort casino.

The five-member commission voted unanimously to seek bids from commercial casino developers at a meeting on Friday, April 18. Mashpee Wampanoag Tribe Chairman Cedric Cromwell, who attended the meeting, urged the commission to reconsider its decision, saying that a commercial casino in the southeastern region would risk the loss of hundreds of millions of dollars in revenue for Massachusetts.

It is not clear, however, if the commission has the legal authority to license what would be a fourth casino for the state. The tribe’s expectation of exclusivity in the area derives from the Enhanced Gaming Act (EGA), a  2011 bill passed by the Massachusetts legislature that allows the development of three casinos in three distinct areas of the state, including the Mashpee Tribe’s Indian gaming casino in the southeastern area.

The law guarantees the tribe exclusive rights in the southeastern area, known as Region C, but the commission “must” seek bids for a commercial casino if it decides that the tribe will not get land in trust for an Indian casino. The commission has not made that determination, nor can it since the Bureau of Indian Affairs has determined  that the land in Taunton where the tribe plans to build its facility will qualify as the tribe’s “initial reservation” under the Indian Gaming Regulatory Act once the land  into trust and the Interior Department’s solicitor  has made the land into trust process a top priority. The federal agency said it expects to make decision on the tribe’s trust land application this year.

Cromwell asked the commission not to move forward with a fourth casino.  “We believe we have trusted partners in the governor and the legislature who have worked with us to ensure hundreds of millions of dollars to the Commonwealth [in a revenue-sharing agreement] while respecting our tribal rights,” Cromwell said. He read from report by the Spectrum Gaming Group, a consulting firm hired by the state to analyze the prospects or gaming in the state, which warned that a commercial casino in Region C would potentially lead to no shared revenue from the tribal casino.

Cromwell also referenced a letter to the commission from  Las Vegas-based MGM Resorts International, which is vying for commercial casino license in the western part of the state, that said a fourth resort casino  in Massachusetts could  "significantly alter" the state's gambling market. "The potential for a fourth license . . . was not a possibility that any applicant considered when they balanced the significant capital expenditure expected from them and the scope of the market based on the statute," William Hornbuckle, president and chief marketing officer of MGM Resorts, wrote.

Cromwell said the tribe continues to believe the commission does not have the legal authority to override the gaming legislation. “But again I ask you, do not interfere with the compacting process. Do not undermine the governor and the legislature. Do not interfere with our federal rights. Do not pave the way for four casinos. Do not put at risk hundreds of millions of dollars and thousands of jobs. Do not rush this decision today,” Cromwell said.

James F. McHugh, a commission, said that in a public comment period the public’s  “overwhelming” response was “give the tribe more time.”

Stephen P. Crosby, the commission chairman, claimed that the legislature had not given the commission “clear signals on this.” He said his fundamental issue is the inability to determine when the land into trust will be issued. If the tribe’s doesn’t get trust land, the state will lose the $85 million license fee from a commercial casino and approximately $100 million a year in casino taxes. “If the land into trust happens in time then the commercial developers will have misled us,” Crosby said. “If the tribe does what the tribe says it’s going to do it has by far the best chance to end up getting what it wants.”

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