CASINOS AND CRIME
THE TRUTH ABOUT TRIBAL CASINOS IN MASSACHUSETTS
Doesn't the fact that Massachusetts has federally recognized Indian tribes make casinos inevitable here?
No. But this hasn't stopped some people from purposely using this misinformation to promote expanded gambling in the Commonwealth.
Tribal gambling enterprises must be established on tribal lands - sovereign territory - property that has been removed from state tax rolls and taken in trust for the tribe by the federal government. This is a long, complex process.
Tribes must submit a detailed application to the government to put any land into trust, and get permission from the National Indian Gaming Commission to 'game' on that land. None of these processes are a 'sure thing'. In recent years regulations regarding the taking of land into trust, especially for 'gaming' have become more restrictive.
The Mashpee Wampanoag tribe currently has an incomplete application in with the Bureau of Indian Affairs to have the land in East Taunton deemed their “initial reservation”.
But doesn't the Mashpee Wampanoag tribe have a “right” to a casino?The Tribe has no “right” to land in trust or the “right” to game in Massachusetts. The Tribe does however, have the “right” to ask for a Reservation Proclamation by the Secretary of the Interior.
In order to get this, the Tribe must prove significant historical ties to East Taunton. The Tribe must also prove that they were under federal jurisdiction in 1934, a decision that will be made again, by the Secretary of the Interior. The Tribe must then get permission to game on trust land from the National Indian Gaming Commission, of which one of the requirements is to have land in trust, and a compact with the State for Class III gaming.
This is all part of a federal process in which the Tribe must prove certain key elements to gain “permission” to game. Not an automatic right.
But couldn't the Tribe operate a Class II casino?
Yes. However, unless it is very small, a Class II casino is unlikely here in Massachusetts.
Class II gaming, in which games are played against other players and not against the house includes various types of electronic bingo. Class II specifically excludes slot machines or electronic versions of games of chance.
But slot machines account for the majority of all casino revenue. So is unlikely that a Class II casino in Massachusetts would attract an investor or compete successfully with full-fledged casinos in Connecticut and Rhode that offer thousands of slot machines.
Even the Class III casinos in Connecticut are experiencing double digit drops in slot revenue, closing gaming floors and laying off employees.
Where Class II casinos do succeed, there is a lack of competition from Class III casinos.
Can a Federally Recognized Indian tribe open a casino if the casino law is repealed?
No. A tribe can offer only the same type of gambling that is permitted in a State. A repeal of the casino law would once again make Class III – casino style gaming – illegal.
Three casinos and a slots parlor seem like a lot. What if the State only allowed one commercial casino or slots parlor?
Even one commercial casino or slots parlor in Massachusetts would make tribal casinos more likely, because Class III gambling would then be permitted in the State.
There are two federally recognized tribes in Massachusetts, The Mashpee Wampanoag Tribe and the Aquinnah Tribe. Several other tribes across the state have also applied for federal recognition.
Then why does the Tribe continue to insist that they are close to getting a casino?
Because it works.
Federal Indian policy can be confusing, and so people tend to believe what the legal professionals tell them, often not realizing that many of these people stand to benefit from the expansion of the gambling industry in Massachusetts.
Others want to believe the myth of inevitability because it forwards their personal agenda.
Governor Patrick frequently pointed to the Mashpee Tribe's pursuit of a casino as the reason to build commercial casinos. After signing the 2011 gambling bill, he would go on to write a letter of support to the Secretary of the Interior on the Tribe's behalf, and sanction millions of dollars paid to attorneys and financial consultants to negotiate two different tribal compacts – all despite the 2009 testimony of his own Attorney General, Martha Coakley, who stated that:
"The Supreme Court's decision this past February in the Carcieri case effectively puts the Wampanoags and other tribes in Massachusetts on the same footing as any other private party because the Secretary of the Interior's ability to acquire land for Native Americans is limited to those already under Federal Jurisdiction at the time the Indian Reorganization Act was enacted in 1934. Massachusetts' Native American tribes each came under Federal Jurisdiction after 1934. As a result, they are entitled to make an application and bid for a gaming license like anyone else, but do not have special entitlement to conduct gaming under the federal Indian Gaming Regulatory Act or the Indian Reorganization Act."
Where does the Aquinnah tribe stand as far as a casino?
The federally recognized Aquinnah Tribe of Gay Head (Martha's Vineyard) signed a settlement agreement in 1983 stipulating that their Tribal lands were subject to local and state zoning laws. This agreement was later ratified by both the state Legislature and Congress. However, tribal leadership has since claimed that a 2013 legal analysis from the National Indian Gaming Commission (NIGC) determined that the Indian Gaming Regulatory Act (IGRA) supersedes the Settlement Agreement, and that the Tribe can move forward with a plan to convert their community center into a Class II casino.
According to the Chairwoman of the Tribe:
“The U.S. Department of the Interior and the National Indian Gaming Commission have each provided formal legal opinions in support of our rights. We now have all of the federal approvals required to proceed with gaming on our existing trust lands, and we are confident, in light of this decision, that the federal court will confirm Aquinnah’s sovereign and federal statutory rights to do so.”
The Patrick administration contends that the Tribe gave up their rights to tribal gaming with this settlement and filed a lawsuit in State court - but the Tribe argued that the case belonged in Federal court, and a U.S. District Court Judge agreed. The town of Aquinnah and the Aquinnah/Gay Head Community Association also support Patrick's suit.
The Tribe has since requested that the Governor negotiate a compact with them for a Class III casino. Some have speculated that this may force the State to negotiate a compact for a Class III casino on the mainland.
What are the different classes of gaming?
The Indian Gaming Regulatory Act defines three classes of 'gaming' that apply only to tribal entities, not to the commercial gambling industry.
Class I gaming would be traditional Indian gaming as part of tribal ceremonies and celebrations, and social gaming for small prizes.
Class II gaming includes all forms of bingo and games similar to bingo, pull tabs, punch board, tip jars and non-banked card games. It is limited to games that are played against other players and not against the house or a player acting as a bank. Class II does not included slot machines or electronic games of chance.
Class III gaming, often referred to as 'casino style gaming', includes slot machines, blackjack, craps, roulette, wagering games and electronic versions of games of chance.