Middleborough Lawsuit Could Delay Mashpee Tribe Casino Hopes
By: Geoff Spillane
As the Mashpee Wampanoag Tribal Council looks ahead toward a new casino plan to fit under the proposed gaming legislation on Beacon Hill, the repercussions of an old plan may prove to be a significant obstacle.
A member of the Middleborough Board of Selectmen said this week that, if the tribe continues to pursue a casino in another town, the former site of the tribe’s casino plans will bring a challenge in court.
The two parties are in disagreement as to whether the Intergovernmental Agreement (IGA), signed during negotiations to build a casino in Middleborough, is still valid. Middleborough is still seeking payments promised to the town under that 2007 contract, while the tribe claims the agreement is now void.
Middleborough’s opposition is one of several points of resistance that have emerged in response to the release of a gaming bill on Beacon Hill last month, a proposal that would effectively set aside a casino license in southeastern Massachusetts for the Mashpee tribe, at least until the end of next July. Other commercial casino developers have questioned the legality of the state giving preferential treatment to the tribe.
At the very least, the legal challenges could create a significant delay for the tribe, a loss of time that the tribe cannot afford under the tight timeline set out in the state gaming proposal.
Meanwhile, Rhode Island is preparing to analyze the impact on its two casinos of new gaming in Massachusetts, a move that clarifies the regional consequences of the proposed Bay State casinos.
Middleborough Legal Threat
In Middleborough, the issue is a fight over the continuing validity of the landmark agreement signed by the tribal council and the Middleborough Board of Selectmen, following one of the largest Town Meetings in New England history.
Under terms of the contract, the tribe was to pay the town $250,000 per year in mitigation and planning fees before the planned casino opened.
But in 2010, soon before the tribe announced plans to pursue a casino in Fall River, the tribe notified Middleborough that it was no longer interested in that town as a potential site for a casino.
The tribe has not yet rescinded its application to place land into trust for a gaming complex.
Allin Frawley, a Middleborough selectman and former candidate for state representative from the 12th Bristol District, said that as long as the application for placing land into trust is active, the contract is valid. Nothing has changed for Middleborough, Mr. Frawley said.
“They have missed payments of mitigation funds two years in a row. They owe us $500,000,” Mr. Frawley said.
The IGA sets out a precise process by which the tribe and the town are meant to settle disputes, but that process has reportedly not been followed.
The town sent the tribe a letter demanding payment in July.
In a late-August response Mashpee Wampanoag Tribe Chairman Cedric Cromwell wrote, “As we informed you last year, the Tribe has no further obligations under the IGA, and, therefore, disagrees that it is obligated to make additional mitigation payments to the Town or that the Town has any right or basis to continue to demand, expend, or commit mitigation funds previously provided by the Tribe.”
Mr. Cromwell further demanded that the town not spend the $500,000 in previous mitigation money provided to Middleborough on legal costs to fight the tribe.
Chairman Cromwell was not available for comment.
In a telephone interview with the Enterprise this week, Mr. Frawley said that there will be litigation if the dispute is not settled, or if the tribe should move toward building the casino in another city or town.
“It’s disgraceful the way the Tribe has treated Middleborough. We’re all fed up. They’re tearing our community in half, but it doesn’t bother them. They haven’t delivered anything they promised,” Mr. Frawley said.
Reached by telephone yesterday, Middleborough Selectmen Scott McKinnon declined to comment, citing the pending litigation.
Middleborough Town Manager Charles J. Cristello did not return a call seeking comment.
Ownership of the property remains unclear, as the land was purchased with the financial backing of the tribe’s gaming investors at the time, a group with which the tribal council has since severed ties.
Competitor’s Legal Challenge
A potential competitor for the tribe—KG Urban Enterprises, which has proposed redeveloping blighted waterfront property in New Bedford into a resort casino—has called into question whether the special treatment the tribe receives in the bill is legal.
A legal analysis solicited by the development firm and written by prominent Indian gaming attorney Marsha A. Sajer argues that the state cannot treat tribes differently than commercial businesses under state law.
“A state gaming law that provides a tribal preference in a state licensing process is facially unconstitutional as race-based discrimination that violates the Equal Protection clause of the Fourteenth Amendment of the US Constitution,” Ms. Sajer wrote.
Such a law would create two groups, “tribes (favored) and all others (disfavored),” based solely on race, she wrote. Under state law, Native American tribes are a racial group to be treated like any other.
While Congress can legally treat tribes differently, states cannot, she wrote.
According to news reports, other potential competitors have also questioned the legality of the preferential treatment.
The tribe has maintained that, due to its federal gaming rights, it will eventually get a casino, so the state must treat it differently than commercial gaming operations. Gaming experts have said the tribe’s position may devalue the southeastern license if the tribe were not accounted for, because if a commercial firm builds a casino in the southeastern district, and the tribe is later able to build a casino eventually, it would compete directly with the existing facility but with the considerable advantage of avoiding state and local taxes.
Out Of State
Rhode Island has not indicated that it will fight an Indian casino, but it is clearly interested in what is going on north of its border.
Claire Richards, chief legal officer for Rhode Island Governor Lincoln Chafee, said this week that the Ocean State has begun the process of selecting a firm to study the impacts of expanded gaming in Massachusetts on its two state-operated gaming parlors.
Gov. Chafee has stated that Rhode Island will seek to maintain or enhance the revenue it receives from Twin River and Newport Grand in the face of a gaming expansion elsewhere, she said.
However, she said the state has not taken a position about whether it will challenge a federally sanctioned Indian casino in Massachusetts. “To me, a [federal Indian Gaming Regulatory Act] casino is far, far away. The Carcieri fix would need to be passed and then the Indian tribe would need to go through the whole trust process, which is a very long process,” she said.
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