Mashpee Wampanoag Tribe Chairman Cedric Cromwell

Mashpee Wampanoag, Massachusetts Signed New Improved Gaming Compact

Gale Courey Toensing
March 23, 2013


Mashpee Wampanoag Tribe Chairman Cedric Cromwell and Massachusetts Gov. Deval Patrick have signed a new, improved tribal-state gaming compact that will provide the sovereign indigenous nation with a fairer share of profits from its proposed $500 million casino in the southeastern part of the state.

The new 20-year compact was signed Wednesday, March 20, and replaces an earlier agreement that was rejected last fall by the Department of Interior because it gave the state too much money and unwarranted authority over tribal matters, and so threatened the tribe’s sovereignty. The new agreement will now go to the state legislature for approval and, once approved, will go to the Bureau of Indian Affairs, which has 45 days to consider and act on it.

Cromwell and Patrick issued prepared statements in a press release from Mashpee. “We are pleased to see this next step in expanded gaming take place and I urge the legislature to ratify the agreement quickly,” Patrick said. “A gaming facility will bring needed jobs and economic opportunity to the region. I look forward to our continued partnership with the tribe as we go forward.”

Cromwell thanked Patrick “for his strong and steadfast partnership in working with us to reach an agreement that we believe will be approved by the federal government.” He said the casino project – called Project First Light – in the city of Taunton has moved quickly during the compact negotiations. “We look forward to breaking ground in the next year on a development that will bring thousands of jobs and significant economic benefits to our tribe, the people of Taunton and the entire southeastern Massachusetts region,” Cromwell said.

The new compact sets the state’s share of revenue at 21 percent of gross gaming revenue. Although that’s only .5 percent less than the amount in the previous contract rejected by Interior, other provisions are vastly more beneficial to the tribe. For example, the 21 percent will continue to be paid as long as the tribe’s casino is the only one operating in the state.

In late 2011 the Massachusetts legislature approved a bill to license three resort-style casinos, including one Indian casino, in three different areas of the state and a single slots parlor in the state. But licenses have not yet been issued for the two commercial casinos or the slot parlor and it is likely to take three years or more before those casinos are licensed, built and up and running.

Under the new Mashpee-state agreement, when a commercial facility opens in one of the other two gaming regions, the state’s share of revenue from the Mashpee casino will fall to 17 percent. The state’s revenue share will be reduced by an additional 2 percent bringing the rate to 15 percent if a slot parlor opens in the southeast region of the state near Taunton where the tribe plans to develop Project First Light on 145 acres of land. The tribe has asked the Interior Department to take that property into trust as part of its initial reservation.

In a March 20 letter to Cromwell, Interior Solicitor Hilary Tompkins told the Mashpee leader that her office “is making substantial progress on its review [of Mashpee’s land into trust application] and will continue to actively consider the matter.” An intensive review is required apropos the U.S. Supreme Court’s 2009 ruling in Carcieri v. Salazar, which said the Interior Secretary was authorized to take land into trust only for tribes “under federal jurisdiction” in 1934. “The court did not elucidate this phrase and, accordingly, the Department has utilized its expertise in interpreting and applying the temporal qualification,” Tomkins wrote. That means the Interior Department performs a detailed analysis of each land into trust application to make sure it’s on solid challenge-proof legal ground before taking land into trust. More than a dozen Carcieri-based legal challenges have been filed against Interior since the high court ruling, but at the same time, the Department has taken more than 202,000 acres of land into trust since 2009. “Each land into trust application has required the Department, based on advice provided by the Office of the Solicitor, to conduct an individualized legal analysis based on Carcieri,” Tompkins wrote. “The Office of the Solicitor considers the Mashpee Carcieri determination a top priority.”

Other changes in the compact are in line with the Indian Gaming Regulatory Act (IGRA). The new compact removes previous provisions regarding hunting and fishing rights and other land claims, which Assistant Secretary for Indian Affairs Kevin Washburn had deemed “inappropriate” and “a legal violation” of IGRA, which deals only with Indian gaming.