The Big Gamble

The Mashpee Wampanoag and their leader Cedric Cromwell are in a race against time to open a casino in Massachusetts but the question isn’t just whether the Mashpees will beat the clock it’s whether the tribe will survive the ordeal.

The Mashpee have  been on the hunt for a casino location going all the way back to 2007, the first time Governor Patrick proposed a casino bill. Glenn Marshall struck a deal with the town of Middleborough back then to build the Mashpee resort there. The agreement called for the tribe to pay the town $250,000 per year in mitigation and planning costs. But upon taking office in 2009, Cromwell decided he didn’t like it. He says he can’t discuss the matter — Middleborough and the Mashpee are tied up in legal wrangling — but the speculation is that he was turned off by the cost of improving the town’s infrastructure.

In any case, Cromwell started snooping around Fall River. Middleborough officials claim he kept stringing them along even as he was scouting other locations, and when the Mashpee finally decided in May 2010 to shack up with Fall River instead, Middleborough officials claim they heard about it on the news. The $250,000 payments stopped and, not surprisingly, the bitterness remains: Middleborough selectman Allin Frawley says he plans to push his fellow selectmen to file a lawsuit the second the Mashpee strike a deal with some other place.

The Fall River deal fell apart in just five months, after a deed restriction on the proposed site of the casino and a lawsuit brought by a group of locals proved too much to overcome. So just months from the July 31 deadline, the tribe still doesn’t seem to have found a home for its casino. Cromwell will say only that he’s looking into sites across the area.

The problem is that there are only so many places in southeastern Massachusetts with the space for a casino and residents willing to accept one. It’s possible Fall River could come back into play — the town’s top economic development officer says he’s still very much in touch with the tribe — but several other potential locations seem to be out. The Mashpee had been in talks with Raynham Park owner George Carney to locate at his track, but those negotiations fell through in the fall. “I’m going to go in my own direction,” Carney says. “I’m not that crazy to get myself tied up with a lot of headaches that I don’t need.” There doesn’t seem to be much doing in Plymouth or Taunton, either, as development officers in those towns say they’ve heard nothing from the tribe. Outgoing New Bedford Mayor Scott Lang also said he’s had no recent formal contact with the Mashpee. Bridgewater was mentioned as a rumor in one report, but that was news to everyone in town hall. And considering that the tribe absolutely scorched its bridges in Middleborough, that’s no longer an option either.

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.

That’s a surprising level of confidence from someone who says, “I’m not a gambling man.” Casinos aren’t really Cromwell’s thing — actually, risk isn’t his thing. “When I walk across the street, I try to make sure that there are not too many cars,” he says. “I’m a business person and a leader of a tribal nation.” And the casino, as Cromwell and most of the tribe believe, is a good deal for the Mashpee.

The big question is whether Cromwell will be able to get his tribe solidly enough behind him so that he doesn’t have to worry about making political decisions related to a casino — just business ones. The question looms large, since the Mashpee will need to set up a corporate governance for their gaming enterprise, which would be entirely separate from their tribal government. They will also have to wrestle with how casino profits will be allocated. How much to social services? How much to their lenders? How much straight to individuals?

“You’re not going to be able to tell 100 percent of the people to line up and do this, it just doesn’t happen in America,” Cromwell says. “We have a strong circle of people and we’re all connected as being Mashpee Wampanoag, so that’s never going to change.”

As Barrow, the UMass Dartmouth expert, points out, division within a tribe can sometimes lead to problems in casino endeavors. Just look to the south. “In Foxwoods, tribal politics is the casino. It’s made it much more difficult to manage,” he says. “They’ve made political decisions instead of business decisions.” In the middle of an economic downturn, Foxwoods pledged to its Pequot tribe members that their per capita dividend payments would under no circumstance be cut. Angry creditors freaked out. “Financial markets went nuts,” Barrow says. The payments were soon eliminated anyway. Foxwoods also opened its new MGM Grand during the recession. “That was part of the policy of the tribe: build, build, build,” Barrow says. “It was really a political idea, not a business idea.” Mohegan Sun, on the other hand, has better separated politics from business. As a result, Barrow says, the Mohegans have weathered the recession more cleanly than their neighbors.

That all these questions are even on the table is more than a little astounding to longtime tribe members, who can recall the days — and they weren’t that long ago — when maintaining fishing and hunting rights were the tribe’s main concern. Paula Peters is as deeply entwined in the tribe’s history as anyone around: Her father was the original tribal chair, and he served, with a few gaps, from 1972 to 1999. She once served on the tribal council herself, and in 2005 she ran unsuccessfully against Glenn Marshall. She’s also married to Mark Harding, the current tribe treasurer, and counts herself as a supporter of Cromwell. According to her, everything in the tribe started to change in the bitter Marshall years. “I’ve been a part of it since I was 12 years old,” she says. “I can recall that, politically, people would disagree, but it didn’t split families, it didn’t split the town, it didn’t split the tribe. And now, that’s the difference.”

But it wasn’t just Marshall that was the problem: It was the casino. The prospect of those bright, glitzy lights and a steady cash flow has done more than any one person could to change the tribe. “Absolutely, it’s the money!” Peters says. She originally opposed the idea of a casino, but has since come to grips with it being the will of the majority of the tribe. “When people asked me, ‘Why did you vote against it?’ I would say, ‘It’s gonna be ugly, it’s gonna bring out the worst in us.’ And there it is.”