For years, the Mashpee Wampanoag have pursued a tribal casino in Taunton through a frustrating, Byzantine federal process, only to see their long-held dream derailed by a federal court.
While an appeal plays out, the Mashpee are now quietly discussing an option they once firmly rejected — applying to the state for a commercial license.
“We’ve had conversations with the tribe on all available options,” said Mayor Tom Hoye of Taunton, who supports the tribe’s $1 billion casino plan. “They’re continuing to explore all options with the [federal Bureau of Indian Affairs] — and the possibility of a commercial license.”
Hoye said he would recommend the Mashpee pursue the commercial license “if that becomes the only option.”
“In the relatively near future, they’re going to have to make a decision on how to proceed,” he said.
The tribe, through a spokesman, declined to address questions about whether it has interest in a commercial license.
A shift in strategy toward a commercial bid could help resolve an intractable problem in the development of the state’s nascent casino market. Despite the Mashpee tribe’s legal struggles, the looming prospect of a tribal casino in the region has made the state’s Gaming Commission reluctant to approve a commercial bid, wary of oversaturating the market.
The state recognized this dilemma from the start, and tried years ago to persuade the Mashpee to seek a commercial license. In crafting the state’s 2011 casino law, lawmakers concluded the market could handle up to three resort casinos, each in separate regions of the state.
The Mashpee were always a wild card, since US law allows recognized tribes with reservation land — land taken into trust for the tribe by the federal government — to open casinos without a state license. At the same time, lawmakers knew the Mashpee faced significant legal hurdles to acquiring tribal land, hurdles that could take years to overcome, if they ever were.
That was — and still is — the problem.
If the state waited for the Mashpee to resolve the legal issues, lawmakers figured, southeastern Massachusetts might never get a resort casino and the money and jobs it would generate.
On the other hand, they worried that if Massachusetts went ahead and licensed a commercial casino in the southeast, the Mashpee might someday get the go-ahead to open the state’s fourth gambling resort, fracturing the market.
The simplest fix was for the tribe and its partner, casino giant Genting Group, to forgo the federal process and open a commercial casino. In the other regions, MGM is building in Springfield and Wynn Resorts is under construction in Everett.
“It was the perfect solution,” said Clyde Barrow, a casino specialist at the University of Texas and former professor at the University of Massachusetts Dartmouth. Barrow said many state officials tried to get the tribe on board with the plan when the casino legislation was being written. Tribal leaders rejected the idea, Barrow said, because they didn’t want to lose their sovereignty and believed they would prevail in securing land in trust, a longtime goal of tribal leaders.
In the end, lawmakers punted the problem to the state gambling commission, which has wrestled with the issue for five years. In April 2016, the commission rejected a bid for a $677 million casino in Brockton, criticizing the design as uninspired and noting the strong competition it might face from the Mashpee.
Three months later, in July 2016, a federal court ruled that the Department of Interior did not have the authority to take land into trust for the Mashpee. The law is clear, US District Court Judge William G. Young wrote in his decision: “With respect, this is not a close call.”
The tribe appealed. The commission has not considered any bids since, leaving the door open for a Mashpee commercial bid.
“In keeping with our approach to complex challenges, the commission remains open to innovative ideas from commercial and tribal developers alike regarding the establishment of a destination-resort casino in Southeastern Mass.,” the commission said this week in a statement.
The developer behind the Brockton proposal, Mass Gaming & Entertainment, said in a statement Wednesday that opening the region to a new round of bids would delay the process and be unfair, given that the company had pursued the license in good faith for three years.
The best option, the company suggested, was for the commission to begin “an expedited review of the Brockton casino plan.”
Commission Chairman Steve Crosby suggested several years ago that the tribe consider a bid for the commercial license, with the understanding that if its land issues were eventually worked out, the state would not stand in the way of the tribe’s efforts to have the resort regulated as a tribal casino under federal law.
The commission awards licenses through a competitive process. Other commercial bidders could enter the fray if the process were restarted, but a Mashpee/Genting bid would be extremely formidable, given the enormous headache it would solve for the state.
In recent years, tribes in other states have become involved in off-reservation commercial casino ventures. The Mohegan Tribe of Connecticut, which runs the Mohegan Sun tribal casino, also owns a commercial casino in Pennsylvania. Mohegan Sun and Foxwoods, the other Connecticut tribal casino, each made multiple tries for commercial licenses in Massachusetts. The tribal gambling giants are also partners in an off-reservation casino project planned for East Windsor, Conn.
Yet Kathryn Rand, a tribal gambling specialist and a professor at the University of North Dakota School of Law, said a Mashpee commercial bid would raise significant issues. Presumably, the tribe and Genting would have to pay the $85 million state casino licensing fee, which a tribal casino would not have to pay.
“Legally possible, yes,” she said by e-mail. “But even under a highly detailed law like the [Massachusetts casino law], there would still be a number of issues that need resolution — and some of those issues, such as the license fee, may be financial, if not legal, obstacles. Converting a commercial casino to a tribal casino — that, too, would raise numerous issues.”
Michelle Littlefield of Taunton, a lead plaintiff in the lawsuit that challenged the Mashpee right to build a tribal casino in her city, said a commercial bid would force the tribe and Genting to open their books and pass an intensive state background check, like other bidders.
“I doubt they would be successful,” she said. “But I don’t begrudge them the chance to try.”
Tribal Council chairman Cedric Cromwell said in a statement, “We will continue our existing appeal while working closely with the Interior Department to protect our land base, bring thousands of jobs to Southeastern Massachusetts, and secure a prosperous future for the tribe and the entire region.”
As the tribe’s legal battle grinds on, the commercial option may become more attractive.
“The land in trust process has gone south so fast, it may be that [a commercial license] is the only reasonable option they have left,” Barrow said.