Feds reject state gaming deal with Mashpee Tribe

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The federal government has rejected the state’s gaming compact with the Mashpee Wampanoag Tribe that would have helped clear the way for the tribe to pursue a casino in Taunton, forcing Gov. Deval Patrick and tribal leaders back to the negotiating table.

The Bureau of Indian Affairs, in a letter to both the governor and the tribe received Friday, October 12, objected to the balance of concessions made by the state to justify a revenue-sharing agreement that would have sent 21.5 percent of net casino revenue back to Massachusetts. The government also ruled that the administration overstepped its bounds in seeking to include hunting and fishing rights in the gaming compact, and for trying to exert authority over non-gaming issues, such as the regulation of suppliers and entertainment services.

Mr. Patrick, in a statement released late Friday afternoon, called the Department of Interior’s approach to the compact “outdated” and charged that the government was substituting its judgment for that of the tribe.

“Today’s decision by the U.S. Department of Interior is deeply disappointing on a number of levels,” said Mr. Patrick, who was in North Carolina Friday afternoon campaigning for President Barack Obama. “For starters, we negotiated in good faith with the Tribe, and the carefully bargained Compact was extraordinarily fair to both sides. Its terms rightly recognized and respected the sovereign rights of the Mashpee Wampanoag Tribe while remaining consistent with the goals and principles of the Expanded Gaming Act — namely bringing jobs and economic development to every region of the state.”

The Interior Department and Bureau of Indian Affairs, which also control the tribe’s application for land in-trust necessary for a casino, said its ruling was based on the need to keep the compact focused solely on gaming to prevent tribes from being forced into agreements for “political expediency.”

Both Mr. Patrick and the tribe have lauded the compact as fair for both sides, but the bureau said it considers the exclusive casino rights for the region to be the only “meaningful concession” made by the state, discounting the administration’s pledged political support for the tribe’s land in-trust application and other agreements as outside the scope of gaming.

“While we have approved varying revenue sharing schemes in exchange for tangible benefits to tribes for over 20 years, the revenue sharing provisions in this Compact go beyond those permitted by the Department and (Indian Gaming Regulatory Act),” read the letter.

As he heads back to the negotiating table with the Mashpee tribe to redraft a gaming compact, Gov. Deval Patrick said Monday that the agreement was “not without dissenters” in the Legislature.

When lawmakers debated the gaming compact this summer, several opponents expressed concerns that a deal with the tribe would be tied up in the federal government approval process for years, preventing the southeastern part of the state from benefitting from expanded gambling.

Under the state’s expanded gaming law, the window of exclusivity for the tribe to negotiate a compact closed on July 31, giving the power to the Gaming Commission to seek commercial bids in the southeast region if it wants.

Mr. Patrick said his administration was examining the analysis of the Bureau of Indian Affairs decision and did not yet have a timeline for resubmitting a compact. “We have to work our way through the analysis,” he said. “We as a commonwealth, the tribe with their advisors, and then we come back to the table.”

Mr. Patrick would not commit to lowering the state’s revenue share. “I am not forecasting any position,” he said. “I will tell you again that both we and the tribe think the bureau was wrong to substitute their judgment for that of well-informed and well-supported parties.”

Still on the outside looking in is the Wampanoag Tribe of Gay Head (Aquinnah). From the outset of the casino effort, Gov. Deval Patrick set his sights on the Mashpee tribe.

The administration has taken the position that the Gay Head tribe waived it rights to a casino when it signed the Settlement Act in 1983 that led to federal recognition.

Last month, the Gay Head tribe asked the court for permission to intervene as a defendant in a suit brought by KG Urban, a private casino developer that would build a casino in New Bedford. The developer sued the state over legislative language that allowed the Mashpee tribe to put a lock on the one commercial casino license designated for Southeastern Massachusetts.

Last November, in a lawsuit filed in U.S. District Court. KG Urban said language in the state casino law that blocked some casino developers in favor of federally recognized tribes was race-based and violates the equal protection clause of the U.S. Constitution.

KG Urban has asked the court to toss out the advantage the law gave the Mashpees. The Mashpee tribe has plans to construct a $500 million resort casino in the Liberty and Union Industrial Park, at the intersection of Routes 24 and 140 in Taunton.

What federal rejection of the compact will mean for KG Urban or the Gay Head tribe, which has said it would build a boutique casino in Aquinnah on tribal land held in trust, remains unclear.

Gay Head tribe chairman Cheryl Andrews Maltais did not respond to a request from The Times for comment.

The State House News Service contributed to this report.