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Big Hurdles Remain For Mashpee Wampanoag Taunton Casino

Although Gov. Deval Patrick has signed a casino agreement with the Mashpee Wampanoag tribe, an actual casino in Taunton way be a long way off.

WBUR’s Curt Nickisch has been the following the story and joined Morning Edition’s Deborah Becker to discuss what could significantly slow the process.

Deborah Becker: Curt, where could go this deal possibly go wrong?

Curt Nickisch: Well, it’s easy to see a really big stumbling block when you actually look at the gaming compact, which we first got to read through [Thursday]. Under the deal, the state is promising to lobby federal regulators.

When the governor signed the compact, he said he’d already picked up the phone to Washington, to call the Bureau of Indian Affairs:

Just to let them know that we had reached agreement on the terms and that the compact would be coming. And I’m going to be working with the tribe to try to get prompt resolution in the Department of the Interior and in the [Bureau of Indian Affairs].

And the reason that he’s on the phone to D.C. is because officials down there are looking at an application the tribe has filed. They bought land in Taunton, the tribe, but the feds have to designate it tribal land first and that’s really the giant stumbling block.

So if the tribe wants it, and the state wants it, city of Taunton wants it, why wouldn’t the feds just give the tribe the go-ahead?

Ironically, the answer is about 10 miles down Route 44 from Taunton, and that’s the state of Rhode Island. There was a case there that went to the U.S. Supreme Court and the court ruled that tribes cannot make land tribal outside of their formal reservation if they weren’t tribes back in 1934, when this certain law was passed.

And you’ll remember that the Masphee became federally recognized as at tribe, officially, a few years ago. So thanks to Rhode Island, right now, the Mashpee can’t turn that land in Taunton into tribal land, which means they can’t build a casino on it.

I spoke with Gabe Galanda, he’s an expert in tribal law:

I think the situation they’re in is tragic. The state and local support of the tribe certainly does not hurt them. But the secretary of the Interior remains without legal authority to take that land into trust.

That sounds pretty definitive. So why is the state working out a gambling deal with a tribe that doesn’t have a chance of building a casino?

They must be thinking that there’s another way. Some members of the Massachusetts congressional delegation have been pushing for legislation to update that law from 1934. It doesn’t look like that’s going to happen because there are a lot of tribes around the country trying to build casinos far away from their reservations, closer to population centers. Congress probably isn’t going to go there.

But there’s also little bit of wiggle room in the Supreme Court ruling, and the Department of the Interior is working on a legal opinion that might open the door. Of course that’s the sort of thing that’s likely to get challenged in court if it goes through.

So what happens if this drags on for years?

Well, the gaming commission here has the discretion to say that, “It’s just taking too long, it doesn’t look like this is going to happen. We need to solicit bids from non-tribal developers.” But the way the state legislature and the Patrick administration have given the tribe preference in getting a casino, they seem optimistic that it’s not going to get to that point.

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