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Governor opposes casino land request

Urges US to deny tribe's petition in effort to maintain state control

Email|Print| Text size + By Matt Viser
Globe Staff / February 7, 2008

Governor Deval Patrick asked the federal government yesterday to reject efforts by the Mashpee Wampanoag tribe to place its planned casino site in Middleborough in a federal trust, an attempt by Patrick to steer the tribe toward a state-issued casino license that would garner far more money for Massachusetts.

With billions of dollars at stake, Patrick's move was part of a brewing dispute over what form expanded gambling could take in Massachusetts and whether it will be controlled by the state or by the tribe and the federal government.

If the tribe is able to win federal trust status for the land, the property effectively becomes sovereign territory, and the state risks being shut out of a share of gambling proceeds. State regulators would not have any sway over details like zoning, traffic, environmental impacts, and public safety. The value of any future state-licensed casinos would also be diluted.

By filing his 125-page objection with the Bureau of Indian Affairs, the governor officially planted his flag in the Middleborough casino debate for the first time. While the subtext was clear - a fight over money - the administration hinged its arguments yesterday on jurisdiction, saying that trust status would deny the state any control over a host of issues.

Patrick supports tribal gambling, but on the state's terms. He has proposed a state licensing system for three resort casinos in the state and would give a bidding preference to Indian tribes in Massachusetts. Administration officials have been meeting with Wampanoag representatives to discuss the possibility of the tribe bidding on a state gambling license.

While Patrick's move could help him gain negotiating leverage, it is unlikely to persuade the federal government to deny the Wampanoag trust application, specialists say. States have little influence over whether Indian tribes are able to place lands in federal trust, even for the purpose of building casinos.

"The governor has no voice in the matter," said Dennis Whittlesey, a Washington-based lawyer specializing in Indian law. Last year, he represented the town of Middleborough in negotiating a deal that requires the tribe to pay the town $7 million a year if a casino is built.

"The governor can complain all he wants, but it does not matter," Whittlesey said. "He has no input."

The governor's filing yesterday questioned the actions of former tribal chairman Glenn Marshall, who resigned in August after news surfaced of a past rape conviction and his misrepresentation of his military record. The state's document states that Marshall, who was involved in negotiating the contract between the tribe and its outside partners, is a subject of a federal investigation by the Internal Revenue Service and the Justice Department.

It also says that the financial deal between the tribe and its outside investors has not been disclosed to the state and that, without details, there is no evidence that the tribe would receive the most benefit from a casino.

"We have significant concerns about the initial proposal," Daniel O'Connell, Patrick's economic development secretary and chief gaming adviser, said in an interview yesterday. "We don't think it has enough information provided. Not enough work has been done to make the case for land [to go] into trust."

Administration officials have met with tribal leaders three times and have another meeting planned later this month, to discuss both the tribe's plans for the land and the administration's concerns.

"The tribe continues to have productive discussions with the Patrick Administration," tribal council chairman Shawn Hendricks Sr. said in a written statement yesterday. "We have clearly stated our reasons for sovereign land, and the governor has clearly stated his questions and concerns for the Commonwealth. We look forward to working through the issues raised with him, and I am confident we can do so."

The tribe won federal recognition last year, which set it on course to build a resort casino with 4,000 slot machines, table games, a 1,500-room hotel, and a host of amenities, including a golf course. The next critical step for the tribe is getting federal approval to place its land in trust, a process that can often take years.

When the tribe won recognition, Patrick telephoned the tribal council to extend his congratulations, and they agreed to further talks about taking land into trust.

Tribal leaders have said they would pursue a casino license under the governor's proposed legislation, which would legalize three casinos in Massachusetts. But given the political uncertainty of the proposal, which has not yet been taken up in the House, the tribe is also pursuing a plan to put the 539 acres in Middleborough into federal trust, which would effectively make it part of the tribe's reservation.

Other states have handled the situation similarly, opposing initial applications on a legal or technical basis with the hope of gaining political leverage and negotiating power.

"Very few governors from the get-go come out in support of those applications," said Steven Light, codirector of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota. "It's a political thicket. It's a sticky issue for them."

What is unusual is that, in Massachusetts, the governor is simultaneously pushing for legalization of casinos under a proposed state law.

Governor Tommy Thompson of Wisconsin opposed applications in the 1990s. In Oregon, Governor Ted Kulongoski in 2005 came out in support for an Indian casino in the Columbia River Gorge. Governor Tim Pawlenty of Minnesota initially opposed casinos, but then embarked on a failed bid to develop a joint partnership between the state and the tribes.

Sean Murphy of the Globe staff and Globe correspondent Christine Wallgren contributed to this report. Matt Viser can be reached at maviser@globe.com.

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