BOSTON – In the midst of a contentious hearing on Gov. Deval Patrick;s proposal to authorize three commercial casinos in the state, Massachusetts lawmakers learned that the Mashpee Wampanoag Tribe could move forward on a profitable casino operation without legislative approval, jurisdiction or profit-sharing.
Attorney Judith Shapiro, who has practiced Indian law since 1985, presented an overview of the Indian Gaming Regulatory Act and how tribes can conduct Class II gaming without state involvement at a hearing of the Joint Committee on Economic Development and Emerging Technologies March 18.
”A well-run Class II facility can give a patron an experience much like a Las Vegas casino, and can produce major revenues for the tribe. It requires no permission from the state, and involves no concessions or revenue share,” Shapiro told the lawmakers.
The long-awaited hearing drew both pro- and anti-casino forces to the Statehouse, where a standing-room-only audience listened to hours of testimony on the proposed casino legislation.
Patrick’s proposal, which has been on the table since last fall, would allow for state-licensed commercial casinos in southeastern Massachusetts, greater Boston and the western part of the state. The plan would involve a competitive auction process with a minimum fee of $200 million per license and annual operating fees of at least 27 percent of gross gaming revenues.
The state proposal was driven by the Mashpee Wampanoag’s plans to develop a $1 billion casino resort destination modeled after the hugely successful Foxwoods Resort and Casino and Mohegan Sun facilities in Connecticut. But the tribe is seeking a casino under IGRA, not state oversight, and has asked the Interior Department to take more than 500 acres in Middleborough into trust for the facility.
IGRA was enacted in 1988 in an attempt to balance the conflicting interests of the federal government, the states and Indian tribes following the U.S. Supreme Court’s Cabazon decision, Shapiro said.
”That case affirmed that Indian tribes, even in states to which they had ceded criminal jurisdiction, had a sovereign right to conduct bingo games in any state that permitted such games for any person – without regard to any regulatory limits a state might wish to impose.”
Shapiro related the successful story of the Seminole Tribe of Florida, which opened the first tribal bingo games in 1979 and ran an expanding operation independent of state oversight for nearly 30 years.
”The revenues were significant, and provided the basis for the tribe’s recent acquisition of the Hard Rock Entertainment company,” she said.
Shapiro, who represented the Seminoles in several legal battles with Florida, said the state refused to enter a Class III compact with the tribe and tried to shut down its tribal operations, ”but its lawsuit was dismissed because states lack such power.”
Florida finally entered into a Class III compact late last year after the Secretary of the Interior threatened to allow the tribe Class III gaming without a compact.
Shapiro was invited to testify by the Office of Housing and Economic Development, she told Indian Country Today in an interview after the hearing.
Asked if the legislators were receptive to her testimony, Shapiro said, ”There were comments that seemed to indicate they didn’t understand. They knew about Class II, but they seemed to think they have some way to stop it – and they’re wrong.”
She said her mission was not to support or criticize the proposed legislation.
”I just wanted them to understand they’ve got to play nice with the tribes and if they don’t play nice, then fine: the tribes can play without them.”
Patrick’s plan has met with fierce opposition, which he acknowledged in his address to the committee.
”I have no illusions about the plans in the House for this legislation. But I am here anyway, because what you do in this committee will determine whether that full and open debate is even possible. I am simply asking that an open debate begin – rather than end – today.”
House Speaker Salvatore DiMasi, the casinos’ archopponent, virtually declared the proposal dead in a speech at a breakfast meeting of the Greater Boston Chamber of Commerce before the hearing. He challenged the governor’s projections of 20,000 jobs created and $400 million in annual revenue, and also attacked the casino proposal on moral grounds.
”Casinos will absolutely cause human damage on a grand scale. After six months of debate on this bill, I believe this evidence is not there, the case has not been made, and time is running out,” DiMasi said.
He did not comment on the morality of the state’s current gaming operations, which include a Class III state lottery, casino nights and horse racing.
The committee was expected to vote on the bill March 19 and send it to the House.
Editor’s note: On March 20, the Massachusetts House of Representatives voted 108 — 46 against Gov. Deval Patrick’s bill to authorize three commerical casino resorts in the state. After defeating the bill, the House voted to establish a five-member committee of its own members to study the bill and report its findings by Dec. 31. Meanwhile, the BIA will hold a public hearing March 25 in Middleborough to gather comments on the Mashpee Wampanoag’s proposal to open a casino there on 500-plus acres of land. The tribe can operate a Class II casino without state approval.
