THE CLOCK is ticking on the eight-month head start granted the Mashpee Wampanoag tribe to complete a plan for a casino in southeastern Massachusetts. Under the new casino law, if the tribe can acquire land and reach an agreement with the state by the end of July, and the Gaming Commission determines the tribe has clear sailing toward converting that land into a reservation, it automatically wins a casino license. If not, the commission can open up the license to other bidders.
For the Mashpee Wampanoag, a resort casino promises to be an economic boon after centuries of poverty. But there are signs the tribe may not be able to meet all the state’s requirements by this summer, mostly for reasons outside its control.
If that happens, the state and the commission should be prepared to give their blessing to an agreement with the tribe anyway. It’s not just for the tribe’s sake - it’s also in the state’s long-term interests to work cooperatively with the Mashpee Wampanaog to ensure that any tribal casinos stay within the state’s gambling framework.
The central obstacle is that the tribe does not yet have a reservation and lacks a clear path to getting one. In 2009, the Supreme Court ruled that, by statute, the federal government could only designate new reservation land for tribes that were under federal jurisdiction in 1934. Courts are still sorting through the implications of the decision, but the ruling could make it nearly impossible for tribes like the Mashpee Wampanoag, who were federally recognized in 2007, to have any land they purchase designated as a reservation, which is a requirement for a tribal license under the state casino law.
The impact of the Supreme Court’s decision has rippled far beyond casinos, and is hurting tribes nationwide. Land is the key element of tribal sovereignty, and Congress should restore some mechanism for the government to designate new reservation lands for all tribes.
Realistically, though, it could be years before Congress or the courts clarify the rights of recently recognized tribes. And that means that, depending on how strictly they interpret their powers, the Gaming Commission could reject a Mashpee Wampanoag bid. That would be the wrong move.
A more flexible approach would serve the state’s purposes by preventing a worst-case scenario: two casinos in the same corner of Massachusetts, including one outside the state’s jurisdiction. That could happen if the state bypasses the tribe now, only for Congress to later restore the government’s reservation-making power. That would potentially allow the Mashpee Wampanoag to open up their own gambling facility outside the state’s licensing process.
The benefits of giving some extra consideration to the Mashpee Wampanoag aren’t solely practical; there’s some economic justice, too. The tribe struggled to maintain its identity through decades of dispersal and discrimination. More recently, it went through an arduous process of obtaining federal recognition for gambling purposes. The Indian Gaming Law is a mixed blessing for all concerned, including the tribes, but it’s one of the few economic mechanisms granted to Native Americans to improve their conditions.
It’s unfortunate that the state and the tribe are negotiating against such an uncertain legal landscape. But it’s in the interests of both to find a way to make it work.