The Boston area will likely be home to one of the regional gaming facilities planned for Massachusetts.

Legal precedent, politics give tribe inside edge for regional casino license

If Massachusetts is to have a tribal casino, Gov. Deval Patrick has signaled his preference for the Mashpee Wampanoag Tribe.

The Bay State is presently considering legislation that would provide for three new regional resort casinos, including one tribal operation in the southeast portion of the state. Gov. Patrick was sent a letter in August from five Democratic state representatives and copied to Senate president Therese Murray asking that no special preference be created for any tribe. In response, Gregory Bialecki, state secretary of Housing and Economic Development, noted that if the Mashpee Wampanoags are able to resolve its land-in-trust issue with the federal government, it would be able to operate a casino.

“We believe it is important that any gaming legislation account for and address this tribal gaming reality,” wrote Bialecki.

In their letter to Gov. Patrick, the state representatives expressed concern that any designation involving a casino to be developed on land taken into trust could be mired in litigation, citing, among other issues, the Supreme Court ruling in Carcieri v. Salazar, known as the Carcieri decision, which limits the ability of the U.S. Department of Interior to take land into trust for tribes recognized after 1934. The Mashpee Wampanoag Tribe was recognized by the federal government in 2007.

“Providing for a Native American preference for obtaining a casino license would incur significant risk for the Commonwealth,” the letter states. “This decision would likely entangle that process in years of litigation.”

Since the 2009 ruling, the U.S. Congress has considered legislation that would supersede the Supreme Court ruling, known as a “clean Carcieri fix.” After failing to make it to the floor in either chamber in the last Congress, “clean fix” measures have been introduced this year in both the House and the Senate.

In his letter, Bialecki stated that the Mashpee Wampanoag, “will be legally entitled to conduct gaming on their tribal lands upon successful resolution of their land-in-trust application with the federal government.” In a statement, tribal chairman Cedric Cromwell thanked the Patrick administration for recognizing the Mashpee Wampanoag’s “inevitable right.”

The pending gaming legalization legislation, which has been approved by Gov. Patrick and the leaders of the State House and Senate but not yet introduced, will give the Mashpee Wampanoag a year to find a site for a regional casino in Southeastern Massachusetts, receive local approvals and sign a compact with Patrick. The legislation call for developers of regional casinos to pay an $85 million license fee, invest at least $500 million in the property and pay a tax of 25 percent on revenue.

This will be the third attempt in as many years to pass casino enabling legislation in Massachusetts.