Casinos: More Legislative Questions

Of all the aspects of the state’s casino legislation, the most curious may be the clause that offers preferential treatment for federally recognized Indian tribes from Massachusetts. As of yet, nobody has offered much of an explanation for what exactly preferential treatment means, and frankly, it’s anybody’s guess as to what it could.

The guessing game got a little more complicated yesterday when the Aquinnah Wampanoags of Martha’s Vineyard announced that they’ll be partnering with the Seneca Nation of Indians from Western New York to pursue a casino. The Aquinnahs had been flying under the radar, but by buddying up with the Senecas–experienced gaming operators already running casinos in Niagara Falls and Salamanca, NY–they’ve moved front and center.

Of the three regions where Gov. Deval Patrick has proposed issuing gaming licenses, the newly-aligned tribes say they would prefer to pursue a casino in western Massachusetts, but they’ve also indicated that they’ll be competitive in the southeastern part of the state. That sets up a potential conflict with the Mashpee Wampanoags, who have long had their sights set on southeastern Mass.

Which brings us back to the question of what exactly constitutes preferential treatment, and, perhaps more importantly, does each tribe enjoy the same benefits?

The state’s Secretary of Housing and Economic Development Daniel O’Connell drafted the legislation, so we called up his spokesperson, Kofi Jones, hoping for a clarification on how the preference will work. She explained that based on the current draft of legislation, weighing the Indian factor will be left completely up to the seven-member board of the Massachusetts Gaming Control Authority.

Ticking off a list of criteria that will be considered in the bid process, she mentioned economic benefit, number of jobs created, environmental impact, marketing plan, access to transportation, and whether or not the developer is partnered with a federally recognized tribe.

“In the legislation,” she said, “there is no numerical weighting system for any of those criteria and the authority will have to determine exactly how much weight each of those criteria is given.

“Partnering with a Native American community is indeed a favorable condition for a proposal,” she continued, reiterating, though, that “there is no numeric or dollar value attached to that, and it will be up to the authority to determine how much weight that adds to a proposal.”

However subjective that sounds, things only get murkier when you consider the possibility that two different Indian tribes–the Mashpees and Aquinnahs–could be vying for a license in the same region. In that case, the obvious question becomes: Who gets preference? Jones said that the two tribes would receive equal consideration, noting “they’re both federally recognized tribes.”

To be blunt, that seems unlikely. The state’s motivation for providing Indian tribes preference in the first place is that it wants to limit the commonwealth to three casinos. Plus, it would rather have tribes operating with state gaming licenses, from which Massachusetts can collect heavy taxes, than on tribal lands put into federal trust. (This is the more traditional route for Indian gaming–it means less control and tax loot for the state).

The Mashpee Wampanoags have the ability to pursue either the state license or the federal land route. There are pros and cons to both, but the important point is, if spurned by the state, the Mashpees could still pursue a casino by petitioning the Department of the Interior to place land into federal trust for them. On top of the three potential state licensed casinos, that process could easily lead to four.

The Aquinnah Wampanoags, on the other hand, may not have the same luxury. Under the terms of a 1987 land settlement with the commonwealth, they gave up some of their gaming rights. It is currently a very open question as to whether they’d be able to pursue a casino via the federal land trust route.

“Their status is materially different than the Mashpees,” Jones said.

So, we know that the Patrick administration wants to limit the number of in-state casinos to three. We also know that the Mashpees are a much greater threat than the Aquinnahs to push that number to four. And finally, we know that the bid awarding process will be highly subjective.

It seems pretty clear then, that it’s in the state’s interest, all things being equal, to grant the Mashpees a bid over the Aquinnahs. We still have no real idea what preference actually means, and maybe that’s the point.