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Taunton casino vote is not binding

Special rules to apply on tribal proposal

Taunton residents will vote in early June on development plans for a Mashpee Wampanoag tribal casino that could forever change their city. But what many residents do not realize is that even if a majority were to vote against the casino, it could still be built.

In Taunton, where the Mashpee are proposing a tribal casino on what would be sovereign Indian land, the June 9 referendum is a nonbinding measure of public opinion. That is in contrast to communities such as East Boston, Palmer, and Springfield, where commercial casinos have been proposed but cannot go forward without approval by voters.

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Taunton resident and casino opponent Frank Lagace said local officials and casino proponents should make it clear the results are not legally binding. “My goal had been to defeat this thing at referendum,’’ he said. “If the vote is a red herring, why even have it?’’

As legislators drafted the casino bill in 2011, a key consideration was ensuring that communities would not have a casino imposed on them. The final legislation authorizes up to three gambling resorts and one slot parlor, with a presumption that one of the casinos would be developed by a tribe under federal law.

The law requires that all commercial proposals receive local approval, and mandates that any tribe seeking a casino must schedule a referendum as a condition of entering negotiations with the governor.

But state legislators were unable to put the force of law behind the referendum because tribal casinos - unlike those run by commercial developers - are outside their jurisdiction. Tribal gambling is governed by a federal law, the 1988 Indian Gaming Regulatory Act, which extends significant rights to tribes to host gambling on Indian land.

Other than mandating a vote be scheduled, the 50-page Massachusetts casino act never again mentions the requirement for tribes and does not say what happens if the vote fails.

The Mashpee, who received federal recognition in 2007, hold an option to buy land in Taunton near the junction of routes 24 and 140. The tribe has asked the US secretary of the interior to put the land into federal trust on its behalf, which would remove the parcel from local tax rolls and essentially convert it to Indian land.

Getting land into trust is expected to be a long and difficult road for the tribe - a process that could take years and require an act of Congress.

A nonbinding vote by Taunton residents could eventually be taken into account in the federal process, but local officials and communities do not have a veto, said Kathryn Rand, codirector of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota.

“Their input is going to be taken seriously by the secretary in the land-in-trust process, but the statute is intended to be sure that federally recognized tribes have access to gaming as a tool for economic development where appropriate,’’ said Rand.

Tribes have enjoyed wide success developing casinos on sovereign land. The National Indian Gaming Commission currently regulates 462 gambling facilities, either casinos or high-stakes bingo halls, on tribal lands in the United States, according to the commission.

But though lacking in legal authority, the June referendum could have important political effects.

The tribe will fight hard to win the vote to avoid a public relations setback that could discourage state and local officials from cooperating with the casino project. The tribe has said it wants to build where it is welcome.

“This process includes a referendum for voters to have a say on whether our destination resort and the jobs and revenue it will bring are right for Taunton’s future, and we think this step is an important one,’’ the tribe’s chairman, Cedric Cromwell, said in a statement. He did not address whether the tribe would voluntarily give up its dreams of a Taunton casino if it loses the nonbinding vote.

Taunton’s mayor, Thomas Hoye, said the tribe “could proceed [despite a negative vote] but as a practical matter I don’t think it would be in their best interest to do so.’’

A failed vote could also be a headache for Governor Deval Patrick, who is negotiating with the Mashpee over the operating terms for a casino in Taunton. A negotiated agreement, known in law as a compact, is a key step along the federal approval process. Compacts generally spell out how tribal casinos are regulated and what portion of their revenue, if any, goes to the state.

The governor has been outspoken in support of local voter control over casino development. Should Taunton’s nonbinding vote fail in June, it could be politically difficult for him to continue negotiations.

“We’re taking this one step at a time,’’ said Patrick spokesman Brendan Ryan. “If the town were to vote against it, we’d have to reevaluate.’’

States must negotiate in good faith when a federally recognized tribe wants to open a casino on Indian land, but court rulings on tribal gambling suggest the state can put off negotiations until the tribe successfully has land taken into trust, according to Rand.

Patrick apparently would have the right to end negotiations if the Taunton vote fails, with the understanding that talks would resume if the tribe gets the land into trust.

Such an end to compact negotiations would have significant ramifications for the state gambling commission and for the casino market in Massachusetts.

State law requires the commission to solicit bids for a commercial casino in Southeastern Massachusetts by the end of October if the tribe’s compact is not completed by July 31.

The commission’s chairman, Stephen Crosby, has said an October deadline would be hard to meet.

If the commission then goes ahead and approves a commercial casino in the southeast, the tribe could still exercise its federal rights if it gets land into trust. The southeast region would then have two casinos.

“It would be unimaginable that this newly federally recognized tribe will never get land,’’ said Rand. “They’re going to be assigned land sooner or later.’’

Votes planned in Freetown and Lakeville on casino proposals by another tribe, the Wampanoag of Aquinnah, are similarly nonbinding. The Aquinnah’s legal right to pursue tribal gambling is also in dispute, due to a 1980s land settlement that state officials have long said subjects their land to state law.

Mark Arsenault can be reached at marsenault@globe.com. Follow him on Twitter @bostonglobemark
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