Flaws in casino law show in deal with Mashpee tribe

Less than a year after the Legislature passed a law authorizing casinos in Massachusetts, one awkward but significant compromise in the bill is already becoming untenable. The new law gives an Indian tribe — in practice, the Mashpee Wampanoag — a head start in the competition for the single casino license in Southeastern Massachusetts. But as the tribe and Beacon Hill leaders work to put that provision into practice, they’re risking years of limbo and legal wrangling.

Under the law, the tribe had until the end of this month to identify a site and negotiate terms with the governor’s office. The tribe secured a location in Taunton, and the compact between Governor Patrick and the tribe is now winding its way through the Legislature; the Senate is expected to vote on it today. That deal removes one obstacle for the tribe, but the Mashpee Wampanoag also need a kind of federal approval that’s looking less and less likely to come soon, if ever. The tribe has resisted putting a deadline in the compact, and so far the Legislature has as well. The state Gaming Commission should certainly honor the intent of the original legislation by giving the tribe a reasonable period to secure federal approval. Plenty of flexibility is in order. But ultimately the commission should be prepared to set a deadline if no one else will.

The head start for the Mashpee surely seemed sensible, even Solomonic, to the lawmakers who passed it. But the legal barriers still facing the tribe on the federal level are significant. The key step is getting the federal government to formally designate the casino site as sovereign Indian land — something that, under a recent Supreme Court ruling, can’t be done on behalf of tribes that, like the Mashpee Wampanoag, lacked federal recognition in 1934. To reverse that ruling, the tribe needs a change in federal law. Congress isn’t budging.


Further complicating the issue is a well-funded legal challenge from the would-be developers of a New Bedford casino. Represented by Paul Clement, a high-profile lawyer known for cases before the Supreme Court, the plaintiffs say the tribe’s head start is racially discriminatory. While that theory may not take adequate account of the special status accorded to Indian tribes, the plaintiffs also maintain, more persuasively, that state law is simply out of sync with the current state of federal law on Indian casinos.

This situation puts those who opposed the casino legislation — including this editorial page ­— in a odd bind. The most dedicated opponents of casinos might not mind a legal dispute that puts off a casino indefinitely. But the uncertainty at the federal level, and the continuing legal battle, cannot be allowed to create legal and economic uncertainty in the state for years. If lawmakers won’t set a deadline, the Gaming Commission should.