Starts and Stops in Massachusetts

In early September, the Mashpee Wampanoag Tribe sent a formal request to Massachusetts Governor Deval Patrick to initiate Class III compact negotiations. The request relates to the Tribe's proposal for a $1 billion resort casino in Middleborough, where the tribe currently is working to have land placed in trust by the U.S. Secretary of the Interior.

Ordinarily, such a request would trigger IGRA's requirement that the state negotiate in good faith -- and if no compact is reached after 180 days, then the tribe could sue the state in federal court. But IGRA also says that a tribe "having jurisdiction over the Indian lands upon which a class III gaming activity . . . is to be conducted" can request compact negotiations with the state. And at least one court, the U.S. Court of Appeals for the Sixth Circuit, has held that before the state's good faith duty will be triggered, the tribe requesting compact negotiations must actually possess qualifying "Indian lands."

So, were the Mashpee trying to trigger IGRA's good faith duty?

Without "Indian lands" in hand, so to speak, it seems pretty clear that the state doesn't have to negotiate with the Tribe. The Tribe pointed out that it would rather have even a preliminary agreement with the state for Class III gaming, but in any event, would exercise its right to conduct Class II gaming if Class III were still up in the air when (and if) the Interior Department approved its land-into-trust application.

But if the state did agree to negotiate when it wasn't required to, would it have a duty to negotiate in good faith? And would starting negotiations trigger IGRA's 180-day time line? As Kathryn said in the Mashpee Enterprise story, these are questions that the state's attorneys likely were -- or should have been -- weighing. The only answer we have so far is the state's "thanks, but no thanks" response to the Tribe's request. Patrick's camp responded that any negotiations "would be purely hypothetical," making formal negotiations unproductive from the state's perspective.

Read the articles in which Kathryn is quoted in the Cape Cod Times, and in the Mashpee Enterprise.