BOSTON — The Mashpee Wampanoag can overcome their substantial legal hurdles and open a resort casino in Taunton within two years, the tribe’s lawyer told a judge in U.S. District Court Monday.
The tribe needs to renegotiate its compact with the state, then get it approved by the state Legislature and the federal Bureau of Indian Affairs. In addition, the federal Department of the Interior must take the tribe’s land into trust, a process now blocked by a Supreme Court decision.
First, attorney Howard Cooper predicted the compact, rejected by the BIA in October, will be renegotiated “prior to the commencement of the new legislative session in mid-January.”
Then “our expectation … is that tribal land will be taken into trust in 2013. My expectation is that it will be by spring or summer.
“I expect the casino will be up and running in 2014,” Cooper said.
by Steve Decosta
The prediction, which came during a status hearing on KG Urban Enterprise’s challenge of the preference given to tribes in the state’s Expanded Gaming Act, raised eyebrows in the courtroom.
“I do have a different take on it,” said Paul Clement, KG’s lead attorney. “It sounds to me like it could take forever. The nub of the problem is that land into trust is a time-consuming process, even without the Carcieri (Supreme Court decision) problem.”
The Carcieri reference is to a 2009 U.S. Supreme Court ruling questioning the federal government’s authority to take land into trust for tribes recognized after 1934, the year of the Indian Reorganization Act. The Mashpee Wampanoag was recognized in 2007.
Monday’s hearing also addressed motions of the Mashpee Wampanoag and Wampanoag Tribe of Gay Head (Aquinnah) to intervene in KG’s suit against the state.
Cooper argued that the Mashpee should be party to the suit that “impermissibly asks the court to ignore the tribe’s rights.”
Clement countered that the state “is more than capable of defending its own statute. It’s certainly true that the Mashpee are interested but that’s true in every case in which there’s a (race-based) set-aside” that violates the U.S. Constitution.
The Aquinnah “have a vested interest in seeing Region C (Southeastern Massachusetts) is a tribal zone” and not opened to commercial casino bidders, said attorney Scott Crowell, indicating the tribe will resurrect its failed efforts to develop a casino of its own.
“There is nothing about the act that says there can only be one tribal casino,” Crowell said. “We’re taking the position that there should be two tribal casinos in Region C and no commercial casinos. The Aquinnah fully support the Mashpee, but not to the exclusion of the Aquinnah.”
At Judge Nathaniel Gorton’s prodding, Clement said he would amend KG’s complaint to focus specifically on the tribal preference rather than on the entire act.
That’s due by Jan. 7, with the judge asking the tribes to respond two weeks after that. The next status hearing in the case is scheduled for March 20.
KG, a New York-based development firm that hopes to build a commercial casino on the New Bedford waterfront, challenged the Expanded Gaming Act on the day Gov. Deval Patrick signed it. Gorton threw out the case in February but, five months later, a federal appeals court panel of three judges ruled the dismissal was improper and ordered him to reconsider the case.