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Last May a lawyer told the town of Middleboro that an Indian casino within their borders was “a done deal”.
Governor Patrick and others have since signed onto that assertion, and now want to head Indian gaming off at the pass by establishing a trio of commercial, state-run casinos.
Further obscuring the issue are the morass of Indian Gaming laws, the subject of Land into Trust, statutes, rulings, precedent and acts of Congress which make the matter difficult to understand.
If we look to Connecticut, our neighbor to the south, and home to two of the world’s largest casinos, it might appear that tribal casinos are holding the cards.
It’s not the easiest thing to explain, but in the end, the real answer is, no - casinos are not inevitable in Massachusetts. It is absolutely NOT a done deal. And here’s proof.
1.) Myth - Tribal casinos can offer slots even if they’re not legal in the host State
The Johnson Act 0f 1951 prohibits slot machines on federal land including Indian Reservations and supports states which refuse to legalize slot machines. The Indian Regulatory Gaming Act of 1988 does not repeal this Act. So, in order for a state to circumvent the Johnson Act, the State legislature must legalize level III gambling (Vegas style slot machines).
Florida had consistently managed to keep the Seminole tribe from winning their bid to bring slots to the state. The Tribe was allowed to offer level II gambling (the much less lucrative bingo slots) which managed to attract gamblers in Florida mainly because it was the only game in town. But Vegas-style slots are where the big money is. The courts, however, consistently backed Florida by ruling that the State did not have to sign a compact for expanded gambling with the Tribe.
But then… Florida went and allowed slots at the racetracks. Ba Da Bing. Florida had to deal and Seminole Slot parlors got the green light.
It should be noted that Massachusetts currently has 2 recognized Indian Tribes. There are 6 other Tribes which could seek recognition. Approving slots at the racetracks could open the door to 8 Massachusetts casinos.
No Slots = No Casinos
2.) Myth – States must sign a compact for gaming with recognized Tribes
The Kikapoo Tribe of Texas wanted to open casinos offering Vegas-style slots despite the fact that level three gambling was illegal in Texas. Like Massachusetts.
A compact is necessary for a recognized sovereign nation to operate gambling operations. The State refused to sign a compact with the Tribe . So, the Department of the Interior created the compact, anyway. The State balked at this affront to its own sovereign status, and the 5th Circuit court of Appeals agreed.
“The Secretary may not decide the state’s good faith; may not require or name a mediator, and may not pull out of thin air the compact provisions that he is empowered to enforce. ”
Two Texas tribes opened Class III casinos anyway, and were ordered to shut down.
"To infer from this limited authority that the Secretary was implicitly delegated the ability to promulgate a wholesale substitute for the judicial process amounts to logical alchemy."
Standing Your Ground = No Casinos
3.) Myth – States with charity ‘Vegas Nights” open the door to slots at tribal casinos
Texas, like Massachusetts, has a lottery and Vegas Nights (one night licenses to operate slot machines for charity) but slots are illegal. Tribes there tried to prove that this created precedent for allowing tribal there casinos to offer slots. But courts disagreed that this wasn’t a compelling argument since Texas has shown a consistent history of opposing level III gambling. Like Massachusetts,
Consistent Opposition to Legalized Gambling = No Casinos
4.) Myth – A casino can go up anywhere
The Supreme Court has agreed to hear the case of Carcieri v. Kempthorne. The case argues that the Federal government cannot take land into trust (thereby removing it from the tax roles) for Indian Tribes in the original colonies because, due to settlement acts in those colonies which predated the Indian Reorganization Act of 1934, Tribes in those States have extinguished their claims to such land - even if they were to become federally recognized at a later date.
Massachusetts has signed on to this case and so, if the court rules for Carcieri – land in Massachusetts cannot be taken into trust. A decision will probably not be forthcoming until next year.
Continuing to Toss Tea in the Harbor = No Casinos
5.) Myth – What happened in Connecticut will happen in Massachusetts
In 1992 the Pequot Indian Tribe of Connecticut wanted to install slot machines at its Foxwoods bingo hall. They promised Governor Weicker, who was facing a severe budget shortfall, the exact amount of the shortfall or 25% of the slot revenue, whichever was greater.
The Tribe claimed that Connecticut would eventually be required to negotiate a gaming compact anyway (which as you have seen here is not true) so it would be in the States best interest to accept the deal.
Does this sound familiar?
The Legislature would not legalize slots, so the Governor, determined to get his budget money anyway, sidestepped them and signed a pact with the Pequots to give them exclusive rights to slots.
Of course, this later opened the door for the Mohegans.
Connecticut is now dependent on slot revenue, tribal influence is a strong factor in state affairs, state run gambling addiction centers have increased in number from 1 to 16, and taxes are still higher than in Massachusetts.
Governor Opposes Level III Gambling = No casinos
6.) Myth - A Tribe’s application for Land–into–Trust automatically results in a casino
Each application for Land into Trust is reviewed independently. And each case is different.
Opposition from surrounding communities has been able to prevent Indian casinos. There is currently opposition in the communities surrounding Middleboro, and seven towns have voted to oppose a Middleboro casino.
Inability to prove a historical connection to the land will prevent off-reservation land from being taken into trust. The Mashpee Wampanoag’s historical connection to the land in Middleboro is tenuous at best, and in fact their application for recognition didn’t even mention a connection to Middleboro.
In addition, their application is requesting two initial reservations. A highly unusual action which should send up a red flag.
An extensive Environmental Impact Study is required before land can be taken into trust, and there are cases of these studies taking many years and still holding up casinos.
Members of the legislature, local officials, citizens and environmental groups, and even concerned individuals from the host and surrounding communities can write letters to the Department of the Interior opposing applications for land into trust.
Recently the Secretary of the Department of Interior has made it more difficult for Tribes to take land into Trust. Newly issued regulations led to the rejection of 11 tribal applications for land into trust. The practice of ‘Reservation Shopping’ finally may be coming under fire. A closer inspection of the new guidelines reveals that there will be “greater scrutiny” of benefits and “greater weight” to state and local governments.
Also, contrary to popular belief, the land in Middleboro is not even owned by the Tribe. It is owned by their investors.
The intent of Indian gaming laws were to provide needed remedy and relief for remote and impoverished tribes. Not to help wealthy casino investors fill suburbia with the world's biggest casinos.
No Land into Trust = No Casinos
7.) Myth – Commercial casinos will prevent Indian casinos
Commercial casinos may provide the State with more money than Indian casinos, but they won’t prevent Indian casinos. If fact, they’ll make Indian casinos all the more likely because the door to legalizing level III gambling will have been opened, therefore making the State's refusal to negotiate a tribal gaming compact more difficult to defend.
For instance, Michigan, which has commercial casinos, also has Indian Tribes competing to build off-reservation casinos, like the Mashpee Wampanoags, closer to more lucrative markets.
A Governor can refuse to allow Indian casinos in Massachusetts by refusing to negotiate a compact with the Tribe. He or she does not need to establish commercial casinos in order to do this. Doing so is an artificial and inaccurate rationalization used to justify establishing a permanent statewide casino-based economy for the purpose of bolstering attempts to fill a temporary budget shortfall.
No Commercial Casinos = No Casinos (Period.)
Legalizing Slots Anywhere = Casinos everywhere
Getting suckered into thinking casinos are inevitable = Casinos
Letting your guard down = Casinos
Letting the Federal Government tell the State what to do = Casinos
Governor gets greedy = Casinos
No Opposition to Land Into Trust = Casinos
Commercial Casinos = Casinos (Period.)
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