The Massachusetts House and Senate have passed legislation that Governor Deval Patrick may have signed into law by the time of this publication's distribution. If signed, the law would authorize three casinos in regionally designated locations within the state, with a preference for the southeastern regional license to be issued to a federally recognized Indian tribe. The license preference was written for what unquestionably is Mashpee Wampanoag, the tribe that met the Mayflower in 1620 but was not federally recognized until the spring of 2007.
While the identity of the intended beneficiary tribe is clear, what the tribe would be getting with the preference is not.
At the outset, it should be noted that as of this writing, the author has reviewed the final bill that went to the Governor, and the provisions quoted below are contained therein.
Many critical provisions are ambiguous, but they clearly suggest that the tribal casino would have to operate as a state-licensed and stateregulated casino at the outset. For example, preconditions of the tribal casino licensure would include (1) a local community vote of approval and (2) a successful gaming compact negotiation between the Governor and the tribe, resulting in a compact that is subsequently approved by the state Legislature (known as the "general court"). Both must be completed by July 31, 2012.
The critical language from the final House bill (H.3807) is worth reviewing:
The governor shall only enter into negotiations under this section with a tribe that has purchased, or entered into an agreement to purchase, a parcel of land for the proposed tribal gaming development and scheduled a vote in the host communities for approval of the proposed tribal gaming development. The governing body in the host community shall coordinate with the tribe to schedule a vote for approval of the proposed gaming establishment upon receipt of a request from the tribe. The governing body of the host community shall call for the election to be held not less than 60 days but not more than 90 days from the date the request was received. (Emphasis added.)
Thus, the tribe cannot commence compact negotiations until it has secured at least a purchase agreement interest in its proposed gaming site and scheduled a local community vote of approval. However, that vote cannot be conducted until at least 60 days from the date of the tribal request for the vote. Anyone with knowledge of the federal compact negotiation process under the Indian Gaming Regulatory Act ("IGRA") knows that these documents can be complicated and negotiations often take time, so time is critical for meeting the July 31 drop dead date for having the deal done and securing Legislative approval.
The bright side to this compact process is that the proposed law does not require the tribe to obtain compact approval from the Secretary of the Interior by July 31, although any compact for Indian gaming pursuant to IGRA does require Interior Secretary approval prior to the commencement of gaming activities. The dimmer side to this compact process is that nothing in the law requires – or even seems to contemplate – that the negotiated compact would ever be submitted to the Secretary. To the contrary, the act would require compact approval by the Legislature – also known as the "general court" – while ignoring any Interior review and approval/disapproval.
Again, H.3807 is informative:
A compact negotiated and agreed to by the governor and tribe shall be submitted to the general court for approval. The compact shall include a statement of the financial investment rights of any individual or entity which has made an investment to the tribe, its affiliates or predecessor applicants of the tribe for the purpose of securing a gaming license for that tribe under its name or any subsidiary or affiliate since 2005. (Emphasis added.)
Thus, if the general court/Legislature does not approve the state compact by the July 31 deadline or if the state gaming commission at any time after August 1 determines that the tribe will not have land taken into trust by the Secretary, then the license would be withdrawn and opened for bids from all interested parties:
Notwithstanding any general or special law or rule or regulation to the contrary, if a mutually agreed-upon compact has not been negotiated by the governor and Indian tribe or if such compact has not been approved by the general court before July 31, 2012, the [state gaming] commission shall issue a request for applications for a category 1 license in Region C pursuant to chapter 23K of the General Laws not later than October 31, 2012; provided, however, that if, at any time on or after August 1, 2012, the commission determines that the tribe will not have land taken into trust by the United States Secretary of the Interior, the commission shall consider bids for a category 1 license in Region C under said chapter 23K. (Emphasis added.)
Although informative, the foregoing language is also puzzling. While it calls for the commission to determine whether the tribe will have "land" taken into trust by the Secretary, nowhere is the gaming site itself required to be taken into trust. The act envisions a commission review of trust applications for land being acquired for "economic development" but that does not necessarily pertain to the casino site itself. Again, the language is informative:
The commission shall continue to evaluate the status of Indian tribes in the commonwealth including, without limitation, gaining federal recognition or taking land into trust for tribal economic development. The commission shall evaluate and make a recommendation to the governor and the chairs of the joint committee on economic development and emerging technologies as to whether it would be in the best interest of the commonwealth to enter into any negotiations with those tribes for the purpose of establishing Class III gaming on tribal land.
While "Class III gaming" is a term defined in IGRA, the term "tribal land" is not. Nor is "tribal land" defined in the proposed Massachusetts act. In fact, it seems that "tribal land" in this case merely means land owned by the tribe. Ownership of land in fee appears to satisfy the statutory standard. Moreover, since there is no requirement that the tribal gaming (also an undefined term) be conducted on land accepted into trust for gaming and otherwise in accordance with IGRA, the inclusion of an independent Legislature review of any (a) trust application or (b) proposed "Class III gaming on tribal land" almost seems to be some kind of weapon with which the state can control future land acquisitions by the tribe.
As for the notion that the law really meant to say "trust land," any analysis of the statute would require some assessment as to why the act did not clearly say so. Fee land is easy and quick to acquire, but the fee-to-trust process is a complicated and time-consuming process. The delay in trust acceptance is in large part the product of the fact that trust acceptance is a "major agency action" that triggers the National Environmental Policy Act ("NEPA"). Compliance with the NEPA process is comprehensive, time-consuming, and expensive. At the present time, trust approvals generally are not rendered for several years. And, nobody can predict the final outcome until a trust decision is actually rendered.
So, the final House bill raises a number of provocative questions.
- Does "tribal land" mean "trust land"?
- Can the tribal casino offer gaming on tribally owned land not in trust?
- If the tribe commences gaming on non-trust land, could it ever convert the facility to a federally regulated casino under IGRA?
- Does the open-ended commission review ("at any time on or after August 1, 2012") of any application for trust acceptance give the state an effective veto of any tribal land action – including an attempt to convert the casino into an Indian casino under IGRA – by arbitrarily "determining" that the land will never go into trust and invoking the provisions for cancelling the "tribal casino" license and submitting it to public bid?
There are other questions, but these demonstrate that the current bill leaves much uncertainty. Their answers cannot be gleaned from the legislation before the Governor.
NOTE: The author represented the Town of Middleborough, Massachusetts, in 2007 in the Town's negotiations with the Mashpee Wampanoag in developing an Intergovernmental Agreement for a federally regulated tribal casino within the Town's boundaries. That Agreement was approved by a Town Meeting on July 28, 2007.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
