Commission hears arguments on Taunton tribal casino

FALL RIVER — Mashpee Wampanoag chairman Cedric Cromwell boldly predicted Thursday that his tribe will overcome legal obstacles this year to building a Taunton tribal casino and urged the state gambling commission to extend a ban on commercial casino development in Southeastern Massachusetts.

Moments later, state Representative Robert Koczera, a New Bedford Democrat, said the tribe faces “insurmountable obstacles” and passionately urged the commission to immediately open the region to commercial bidders.

“Delay . . . is costing the Commonwealth revenue and the region jobs,” said Koczera.


The commission heard sharp arguments on both sides Thursday afternoon at a hearing at Bristol Community College on ending or extending a ban on commercial casino development in the southeastern region. With no middle ground between the oppo­nents, the commission must decide which side it believes.

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“This is a situation where there are conflicting interests,” commission chairman Stephen Crosby said, in a bit of understatement.

The tribe and its supporters said the Mashpee Wampanoag are on track to win federal approv­als needed to host a gambling business, while those who want the region opened to commercial development were equally adamant that the tribe is many years away from ­approvals and may never get them.

The commission has wrestled for months about what to do about casino development in Southeastern Massachusetts.

The 2011 state gambling law authorized three resort-style ­casinos in Massachusetts, no more than one in each of three regions of the state.


Private casino companies are bidding for state licenses in Greater Boston and in Western Massachusetts. But the law ­delays commercial bidding in the southeast to give the Mashpee Wampanoag the opportunity to make progress on a tribal casino. Tribal casinos do not need state licenses; they are ­approved through a federal process.

Lawmakers gave the commission the authority to accept bids for a commercial casino in the southeast if the panel concludes the tribe will be unable to overcome legal obstacles to opening a casino.

The biggest legal issue facing the Mashpee tribe is getting eligible land to host a gambling business. Whether they can is the major unanswered question hanging over the debate.

The tribe can buy land like anyone else, but a tribal casino can only be built on Indian reservations or land held in trust by the federal government on behalf of the tribe.

The Mashpee have no land that qualifies. They have asked the US Department of the ­Interior to take the site of its proposed Taunton casino into trust for the tribe.


Cromwell said the tribe has made “historic progress” toward getting land taken into trust. “We believe the department’s decision will be favorable and will be soon,” said Cromwell. He said he expects the tribe to have land taken into trust this year.

The land in trust process ­became extremely complicated in 2009, when the US Supreme Court ruled that the Department of the Interior could only take land into trust for tribes that were under the jurisdiction of the federal government in 1934, the date of the passage of the Indian Reorganization Act. The Mashpee Wampanoag were not federally recognized until 2007.

Marsha Sajer, a lawyer for KG Urban, a developer that wants to build a casino in New Bedford, said that any progress the tribe has claimed toward approval of a casino is meaningless until it has trust land.

“They’ve created the cart, but without the horse, the land in trust, the cart cannot move,” she said.

Since the Supreme Court ruling, tribes have pushed for Congress to pass a law clarifying the authority of the Department of the Interior to take land into trust for tribes. None of those bills has passed.

With no legislative fix, some tribes and the Interior Department have tried to get around the Supreme Court ruling by taking a broad view of what it means to be under the jurisdiction of the federal government.

They argue that a long, ongoing relationship with some federal branch should be good enough, even if a tribe’s name does not appear on any official list of recognized tribes in 1934. It is the argument used by a Washington tribe, the Cowlitz, to pursue trust land, and the method the Mashpee Wampanoag are following in Taunton.

One problem: The Cowlitz land-in-trust procedure is being challenged in federal court in an important test case, and a ­final decision after appeals could be years away. It is possible the case could make it back to the Supreme Court for a clarification of its 2009 ruling.

Neighbors of the Mashpee’s proposed casino site in Taunton have pledged to sue if the ­Interior Department grants the tribe trust land.

After the three-hour hearing ended, Crosby said, the panel was left unsure about how long it will take for the tribe to accom­plish its goals.

“That’s a huge hole here,” he said.

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