Mashpees Go Off Patrick’s Reservation

When it comes to bidding on one of the potential state gaming licenses, it looks like the Mashpee Wampanoag tribe is all out.

Tribe spokesman Scott Ferson told us today that the Mashpees—the Cape Cod Indians whose plans for a resort casino prompted Governor Deval Patrick to propose the state get into the casino business by auctioning off state gaming permits—do not intend to bid for one of those state licenses. Instead, the Mashpees, who earned federal recognition as a sovereign tribe earlier this year, will continue with their original plan to build their casino on Indian land, where they’d be free to operate without paying state taxes.

By opting for the federal route, the Mashpees save a bundle of money ($350,000 to bid, $200 mil for the license and at least $100 mil annually in taxes). But on the other hand, the federal option puts the tribe on what could be a much dicier path to big time gaming. The major hang up right now being that the plot of land in Middleborough where they’d build has yet to be designated Indian land by the federal government. And though the tribe has petitioned the feds for such recognition, the Bureau of Indian of Affairs hasn’t indicated when it will consider the request.

Ferson says that timing was a big factor in the decision. Originally, questions concerning how long the fedral process could take prompted speculation that Gov. Patrick’s plan would tempt the tribe to forgo the uncertainty of the federal application path and simply bid for the quicker, easier state permit. But Ferson says the tribe now believes that the Federal process could take about two years, which, given all the confusion over when Beacon Hill will even consider Patrick’s casino bill, could mean a shorter wait than bidding on a state license.

“We think the value of the state process is speed to market, and the governor is not able to provide that right now,” Ferson says. “I know he would if he could, but we need the legislature to act.”

He acknowledged, though, that even if the state were able to expedite the process, all the financial signs point toward the federal option.

“The tribe is in a unique position,” he says. “The other players must wait for a commercial opportunity. The tribe does not have to wait for a commercial OK from the state. They have rights under the federal law that don’t call for a $300 million payment or put restrictions on the site or require a filing fee.”

Tribe Chairman Shawn Hendricks has met multiple times over the last few months with the Bureau, but that’s hardly a guarantee of success. The process, for instance, could be delayed indefinitely if Secretary of the Interior Dick Kempthorne simply decides not to grant the Mashpees a reservation.

“Congress is very concerned about what is sometimes called reservation shopping and the idea that there are newly recognized tribes that are most interested in opening a casino,” says Kathryn Rand, Co-Director Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota Law School. She added that those sentiments could very well have seeped into the Bureau, which could lead to years of stonewalling.

Ferson admits, “Everything we hear is that Secretary Kempthorne is not a fan of native gaming, but if we’re talking about a two year process, he wont be secretary anymore.” As for what happens if the next guy isn’t a fan, either “We’ll have to cross that bridge when we get there,” Ferson says.

The tribe, however, is not completely shutting the door on the state. Ferson indicated that if the state process were to somehow become more “attractive” to the Mashpees, then they’d be happy to take another look. He went on to note a few of the benefits the state could offer: “Speed to market, exclusivity to market, streamline approval process.”

So would those factors alone be enough to convince the Mashpees to fork over the $300 mil?

“Well, no,” he says with a laugh.