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.

Mashpee Wampanoag Casino Plan

Now that state-sanctioned casinos are (temporarily) off the table in Massachusetts, the Mashpee have shared a plan for a casino that would operate under IGRA, should the tribe be successful in its efforts to have land taken into trust.

The casino would be located off of Route 44 in Middleboro. At 240,000 square feet, the casino would include a retail area and event center, as well as an attached 1,200 room hotel. An 18-hole golf course would be added later.

Read more here: Tribe Offers Peek at Casino Plans

Mass. Votes Against Legalizing Casino Gambling, at Least for Now

Breaking news:

Instead of approving Gov. Deval Patrick's proposal for three casinos, the state House voted 106-48 to form a commission to study the issue further, effectively killing Patrick's plan for the year. The Mashpee Wampanoag will continue to pursue their land-into-trust application, with plans of opening at least a Class II facility and perhaps negotiating a Class III compact with the state.

Kathryn's quoted in this article on the likely issues to come. Read more here in the Cape Cod Times.

“Bingo Slots" and Indian Gaming in Massachusetts

The National Indian Gaming Commission's proposed Class II regulations are impacting debates over Indian gaming across the country, including in Massachusetts, where casino gaming is very much a hot topic.

The proposed regulations are the NIGC's latest effort to clarify the distinction between a Class II machine (which is regulated by the tribe with NIGC oversight) and a Class III machine (which requires a tribal-state compact). Class II machines play Class II games, such as bingo or pull-tabs, but resemble slot machines with spinning reels. Though the underlying game played by a Class II machine is clearly different -- a live bingo draw with multiple players rather than the internal random number generator of a slot machine -- its superficial similarity to a slot machine is troubling to some federal and state policymakers. The challenge for the NIGC is to respond to increasing political pressure to create a "bright-line" rule while staying true to Congress's intent in IGRA to allow tribes to use technology to enhance the play of Class II games.

In Massachusetts, the debate centers on casino-style gaming, including Class III machines. As the Mashpee Wampanoag Tribe and the state continue to struggle over the issue of casinos, the NIGC's proposed regulations may have the effect of lessening the tribe's bargaining power. Because the Class II machines don't require a compact, the tribe can operate them without state consent. As it stands, that's a powerful argument for the tribe in a market like Massachusetts, where even a Class II "casino" is likely to be extraordinarily lucrative -- perhaps rivaling the Seminoles' financial success in Florida with Class II machines. But if the NIGC's proposed regulations require slower play and less superficial similarity to slot machines, then those requirements may make the Class II machines less attractive or exciting to customers -- and that may make the Mashpee Wampanoag's "chip" of a Class II casino worth less, both in terms of potential profits and in terms of the tribe's ongoing negotiations with Massachusetts officials.

Read more here in the Cape Cod Times.

An Active Interior Department

In prior posts, we've mentioned the recent activity of the Interior Department. We've also talked about the prospects for Indian gaming in Massachusetts.

Here's a link to an article in the Cape Cod Times where Kathryn is quoted on the implications of Interior's recent decisions on other tribes' efforts to conduct gaming on newly acquired lands. Click on this: Decision Could Sour Mashpee Wampanoag's Casino Plans.

The Indian Gaming Debate in Massachusetts

If you're interested in following the complex debate over Indian gaming in Massachusetts, here are some useful links:

"The State's Big Bet: Is Gambling Good for Massachusetts?" This page, on CapeCodTimes.com, provides links to a three-part series on casino gambling, covering economic and social impacts and the state's political climate, as well as links to recent articles.

Boston Magazine's coverage of the casino debate in Massachusetts: "The Smart Money on Casinos" and "The Gambling Man."

Social Law Library links related to casino gaming in Massachusetts.