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Casino no done deal for tribal leaders

Wampanoag bid faces US hurdles

Email|Print|Single Page| Text size + By Matt Viser
Globe Staff / March 18, 2008

Governor Deval Patrick has repeatedly argued that the state should license casinos because, with or without state approval, the Mashpee Wampanoag tribe will inevitably build one under federal rules. But, in reality, Wampanoag tribal leaders have embarked on a venture that is fraught with uncertainty, their hopes for gambling riches by no means guaranteed.

Most immediately, the fate of the tribe's casino proposal could hinge on the outcome of the 2008 presidential election. A victory by Senator John McCain, who strongly opposes so-called off-reservation Indian casinos, could derail the Wampanoags' effort because they are seeking to build 25 miles from their headquarters on Cape Cod. Even a victory by Democrats Hillary Clinton or Barack Obama, who have murkier positions on tribal gaming, would not make a tribal casino a foregone conclusion.

The tribe is also attempting a political and bureaucratic feat that the Bureau of Indian Affairs says has never been tried: parlaying tribal recognition, which it received in February 2007, into two tracts of reservation land 25 miles apart, with one targeted for a casino, the other for its tribal headquarters on Cape Cod.

A spokesman for the Department of the Interior said he did not know of any other case in which the government approved such a request.

Casino sides will have say in State House hearings. B4

"I'm not familiar with any that have tried two separate pieces of land," said the spokesman, Gary Garrison. "Most tribes don't do that."

The Bureau of Indian Affairs has typically approved casinos on well-established reservations where economic prospects are bleak. Getting approval to build Indian casinos on separate tracts of land is controversial.

In a bid to skirt those concerns about their plan to build a $1 billion casino in Middleborough, the Wampanoags are trying something novel. They are asking the Bureau of Indian Affairs to grant federal trust reservation status simultaneously to both their traditional Mashpee tribal headquarters on Cape Cod and the casino site in Middleborough.

The gambit gives the tribe a potential shot at success, but the notion that a casino is inevitable is overblown, given the current thinking among Washington politicians and Indian gaming regulators, said Steven Andrew Light, codirector of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota.

"It's an extremely high political hurdle, even if all your ducks are in a row," he said.

"If it's about alleviating poverty, job creation, that's an easier case to make," said Light. "If it's seen as about getting access to a market to create a Foxwoods for a small number of tribal members, it's a hot potato, to say the least. It's politically almost unpalatable."

Even Patrick administration officials have expressed conflicting views on chances of the Mashpee Wampanoags' success. Most recently, the administration has argued that the tribe's casino is inevitable.

"There's no question in my mind that there will be a facility taken into federal trust by the tribe," Daniel O'Connell, the state secretary of economic development and Patrick's chief gaming adviser, said in a recent interview. "We will have a Native American casino in the Commonwealth and in the not-too-distant future."

But that contradicts statements that administration officials, including O'Connell, made before the governor filed his casino legislation in October.

"I don't think it is inevitable," O'Connell told the Cape Cod Times in July. "I think the Mashpee tribe has attempted to create an impression of inevitability with their actions, and I think it has been intentional. . . . I think the sense of inevitability is a false impression."

Federal policy has wavered on the subject of Indian casinos, depending on who occupies the White House.

Under President Bush, the federal government has grown much stricter on granting requests for any tribal land to be used for casinos. His administration has rejected 26 such applications, including 22 earlier this year, and left 37 applications pending. The administration has approved 17 requests, most of them for small parcels of land abutting existing reservations.

With Bush ready to depart next year, the Mashpee Wampanoag tribe is watching the presidential election closely, although its representative says they are not overly concerned with who wins.

"Is there a concern that one of the three remaining candidates is not sympathetic to Native American rights? No, there's not that concern," said Scott Ferson, spokesman for the Mashpee Wampanoag. "The tribe is confident that it will have a casino."

The tribe has said it could have approvals to build its $1 billion resort casino as early as spring 2009.

A review of the candidates' records show that McCain, the Republican's presumptive nominee, would be the least likely to view the Mashpee Wampanoag application favorably.

When he was chairman of the Senate Indian Affairs Committee, McCain oversaw a high-profile congressional investigation of Indian gaming; a Justice Department probe into the committee's findings later sent lobbyist Jack Abramoff, US Representative Robert Ney, and others to prison in a bribery and corruption scandal.

McCain has also said there are problems with current gaming laws and suggested overhauling the federal system to restrict tribes from opening off-reservation casinos and prevent outside investors from reaping huge profits from tribal casinos.

Clinton and Obama have records that are far less clear, and both campaigns turned down requests from the Globe to spell out their positions.

Clinton supported a bid by the St. Regis Mohawk Tribe to build a casino in the Catskills, in the state she represents, New York. It was rejected by the federal government in January because the site was too far from the tribe's reservation. Clinton has been endorsed by the St. Regis Mohawk tribe's former chief. In November, she announced the endorsement of 32 tribal leaders from across the country.

"She has unequivocally proven that she is the best candidate for American Indians," said Chief Executive Melanie Benjamin of the Mille Lacs Band of Ojibwe Indians, which operates two casinos in Minnesota.

Obama has said that he respects tribal sovereignty, but he is concerned about casinos preying upon the poor.

As an Illinois state senator, he warned that "the moral and social cost of gambling, particularly in low-income communities, could be devastating." He also opposed moves by the Illinois governor to expand gambling to make up for a budget shortfall.

But as a presidential candidate, he has tried to court Native American tribes and has said he is open to gaming on reservations.

"I understand that Indian gaming revenues are important tribal resources for funding education, health care, law enforcement, and other essential government functions," Obama wrote in an article that appeared last month in Indian Country Today.

All three presidential candidates have taken money from tribal casino interests.

In the 2008 presidential campaign, McCain has received $102,200 from gambling and casino interests, $3,250 of which came from Indian tribes; Clinton has received $120,675 from gambling interests, $52,025 of which came from tribes; and Obama has received $43,800, $17,600 of which came from tribes, according to data collected by the Center for Responsive Politics, a nonpartisan campaign finance watchdog group.

There is a gantlet of regulatory hurdles in place for tribes attempting to open a casino, but tribes have been willing to try in the hopes of a big bonanza. In the late 1990s, there were 297 Indian tribes in the casino or bingo business, taking in $8.4 billion annually. Today there are 419 tribes doing more than $26 billion a year.

But the most lucrative casinos are not on the big reservations out west, where most Native American tribes are based. By far, the most successful are Foxwoods and Mohegan Sun in Connecticut, set up by small tribes with reservations within driving distance of New England population centers. Only a handful of tribes have been federally recognized over the last three decades - the Mashpee are the only tribe federally recognized under President Bush - and few of those tribes have sought to open a casino.

The 1988 Indian Gaming Regulatory Act does allow tribes to build casinos off their historic reservations, but the land must first be taken into federal trust. During the Bush administration, officials at the Bureau of Indian Affairs, which oversees trust applications and casino approvals, have discouraged off-reservation casinos, trying to crack down on "reservation shopping," in which tribes try to build casinos away from their traditional land.

The administration has provided a process that requires that an off-reservation casino be built within a 50-mile radius of the tribal headquarters, but how those rules are applied has been thrown into question recently with a series of rulings, including the St. Regis Mohawk casino rejection in January.

In an attempt to minimize Bureau of Indian Affairs concerns about separate casinos, the Mashpee Wampanoag submitted a request in August to have land in two areas put into federal trust simultaneously: 140 acres in Mashpee, where its tribal headquarters is located, and 539 acres in Middleborough, where it wants to build the casino, 25 miles away. The tribe wants both pieces of land to be part of its initial reservation.

The closest recent comparison to the Wampanoag application is an application from Washington state by the Cowlitz tribe, which won federal recognition in 2000. It is now trying to win reservation status for a 152-acre dairy farm where it wants to build a casino. They teamed up with the Mohegan Tribe in Connecticut and submitted a land application in January 2002. Six years later, the federal government has yet to rule on the application. But even in that case, the tribe is looking to convert just one piece of land to reservation status, not two.

Backers of the Mashpee argue that a key difference for the tribe is that they are a newly recognized tribe. They say that their traditional lands with their existing headquarters on Cape Cod are unfeasible for a casino because the site is difficult to reach, so they must go elsewhere to find a suitable location.

Matt Viser can be reached at maviser@globe.com.

Daniel O'Connell, the state secretary of economic development and Patrick's chief gaming adviser, recently expressed confidence.

Casino's chances

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