In a strongly worded ruling, the US Department of the Interior rejected an agreement Friday between Governor Deval Patrick and the Mashpee Wampanoag for a tribal casino planned for Taunton, concluding that the deal takes unfair advantage of the tribe.
The department cited “a number of provisions that did not comply with the law,” including its assessment that the state is not providing enough concessions in exchange for receiving a proposed 21.5 percent share of the tribe’s gambling revenue.
The tribe, which wants to build a casino at the junction of Routes 24 and 140, is seeking to immediately begin renegotiating the deal, known as a compact.
“While disappointing, this possibility was anticipated
in our agreement with the Commonwealth, which requires that we return to the negotiating table immediately . . . and come to a revised agreement,” Mashpee Wampanoag chairman Cedric Cromwell said in a statement. “We believe that these issues can be resolved quickly and cooperatively, and the compact can be resubmitted to the [Bureau of Indian Affairs] for swift action.”
In a new round of negotiations, the state will probably have to accept a far lower share of tribal gambling revenue in order to win federal approval.
The governor called the rejection “deeply disappointing,” and criticized the federal government for “substituting its judgment for the tribe’s.”
“I believe Interior’s approach is outdated and does not adequately take into account our unique circumstances here in Massachusetts,” Patrick said.
But the Department of the Interior has a long history of looking with skepticism on compacts that take a large cut of tribal revenues for the state, and has rejected deals that proposed a lower percentage than the Mashpee had agreed to pay.
Tribes are often strongly tempted to agree to unfavorable terms out of “political expediency to obtain the state’s agreement,” the department wrote in its rejection letter, dated Friday and addressed to Patrick.
Federally recognized tribes have the right under federal law to pursue tribal gambling as a means of self-support, and states are not allowed to tax tribal gambling profits.
Tribes may, however, trade revenue for something of tangible value from the state, normally an exclusive zone to run a gambling business without competition from a commercial casino.
As the Globe reported in July, a 21.5 percent payment is very high compared with the rates approved in recent compacts, and the deal granted only limited protection from commercial competition in Southeastern Massachusetts.
If a commercial gambling resort were licensed in the southeast, the compact would still require the tribe to pay a 15 percent cut. In other tribal compacts reviewed by the Globe from other states, payments fall to zero if the state allows a commercial competitor nearby. The Mashpee Wampanoag’s compact also offered the tribe no protection from the establishment of a slot machine parlor in the region.
“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 or” federal law, the department wrote.
The department also said that the compact inappropriately addressed issues beyond gambling, such as the tribe’s hunting and fishing rights, and that the state had used the compact to infringe on the tribe’s right to self-governance.
“Congress expressly sought to prevent states from using gaming compacts to leverage power over sovereign tribes about matters unrelated to gaming,” the department wrote.
The department was also unimpressed with assertions by the Patrick administration that its support of the tribe’s efforts to have the Taunton casino site placed into federal trust, a needed step before the tribe may open a casino, is a meaningful concession that justifies a share of revenue.
“It is not a concession at all,” the department said, since only the federal government can take land into trust for a tribe. “Thus, this offer constitutes an illusory concession to the tribe and is not meaningful for purposes of this analysis.”
Two Massachusetts congressmen criticized the decision.
“This was an agreement reached in good faith between the Bay State and the Mashpee Wampanoag Tribe, and it should have been respected, not dismissed,” said Representative Edward J. Markey, a Malden Democrat and ranking member of the House Natural Resources Committee, which has jurisdiction over Indian affairs. “This is the kind of partnership between states and tribes that the department should be encouraging, not discouraging.”
Representative William R. Keating, Democrat of Bourne, said “it was my hope that the Department of the Interior would have recognized that this compact was the product of painstaking negotiations between Governor Patrick, the Massachusetts Legislature, and the tribe. It also represented a balance of interest for all parties involved.”
Indian Affairs spokeswoman Nedra Darling said that the Department of the Interior appreciated the cooperation between the tribe and state government, but “the gaming compact unfortunately contained a number of provisions that did not comply with the law and could not be approved as proposed.”