The Big Gamble

By Jason Schwartz | Boston Magazine |

On top of the land hunt and the possible Middleborough lawsuit, there will be other legal challenges. Rival developers — such as KG Urban Enterprises, which has drawn up detailed plans for a casino in New Bedford — are likely to sue once the casino bill becomes law, challenging the constitutionality of giving the Mashpee such preference. How those suits would affect the law and the tribe’s ability to move forward with their plans is anybody’s guess.

Considering the time it will take to charm and comfort local officials and then the voting populace, it’s in the tribe’s interest to find a piece of land as quickly as possible. According to Denis Hanks, executive director of the Plymouth Area Chamber of Commerce, a town like his would need at least six to eight months to pass the zoning and work through the issue. That gets awfully close to July 31.    

And then there’s the matter of Genting, the tribe’s big-money backer, growing antsy. “I think they’ll put pressure on them to pick a spot,” says Clyde Barrow, a UMass Dartmouth gaming expert. Massachusetts is viewed as one of the last great untapped gaming markets in America, and the last thing Genting wants, after sinking as much as $17 million into the Mashpee, is to lose out on the state’s casino bonanza.

Assuming the Mashpee do acquire the land, there will be the matter of a compact with the state. Mohegan Sun and Foxwoods currently turn over 25 percent of their slot revenue to Connecticut, so that’s likely what the Mashpee will consider fair. (Cromwell declined to comment on the issue.) On the other hand, the Massachusetts casino bill calls for the non-Indian casinos operating in the state to pay a tax of 25 percent on all revenues. Closing the gap between those two figures will be no easy task.

Finally, the casino land must be “taken into trust” by the U.S. government to become an official reservation. The Mashpee can’t operate their casino until the federal government decides to grant them a reservation, according to state Senator Stanley Rosenberg, one of the primary lawmakers behind the bill. That could be a problem, thanks to a 2009 U.S. Supreme Court ruling in a case called Carcieri v. Salazar. The court decided that the federal government did not have the authority to designate reservations for any tribe federally recognized after 1934, due to a quirk of language in a law from that year.

So the Mashpees could have their casino built, the cards shuffled, and the bars stocked, but if there’s no land into trust — no federally recognized reservation — the doors can’t open. The Mashpee and state officials are confident that won’t be a problem: The Bureau of Indian Affairs has indicated that granting reservations to landless tribes is a high priority, and has shown a willingness to work around the Carcieri ruling, Rosenberg says. Cromwell, for his part, believes some solution could be negotiated into the tribe’s compact with Massachusetts. Even if the land-into-trust process has not been completed, he thinks he would still start construction on a casino, betting that everything would work out.