Massachusetts is home to three commercial casinos, but if not for a couple of Mashpee Wampanoag lawsuits, there could be four. The state of that litigation was the subject of a recent Massachusetts Gaming Commission meeting.
Whether the federal government can take land in the Bay State for the tribe is the subject of the lawsuits. That has a strong bearing on whether the MGC can issue a gaming license to a commercial operator in the Brockton area.
History preceding the Mashpee Wampanoag lawsuits
Understanding this situation requires a knowledge of events from 1934 onward. In 1934, the US Congress passed the Indian Reorganization Act.
That law gave the US Department of the Interior authority to take land into trust for federally recognized indigenous tribes. At the time, the Mashpee Wampanoag tribe was not on that list.
The tribe did obtain federal recognition in 2007, however. Shortly thereafter, the DOI tried to take land into trust to create a reservation for the tribe.
That was successfully challenged, however, in the 2009 Carcieri v. Salazar decision. The US Supreme Court determined that the DOI only had the authority to take land for tribes that had federal recognition when the IRA became law in 1934.
Four years later, the state of Massachusetts and the tribe reached a compact. In 2016, the DOI again attempted to take land for the tribe, which again prompted legal action.
Once again, that litigation was successful in blocking the DOI’s actions. Last year, the tribe filed its own lawsuit.
The tribe’s casino hopes rest on ongoing lawsuits
In Mashpee Wampanoag Tribe v. Barnhardt, the tribe is challenging the determination that it was not under federal jurisdiction under the definition of the term “Indian” in the IRA of 1934.
That lawsuit is ongoing. It is currently in the federal court for the District of Columbia, despite an attempt to change the venue to a federal court in Massachusetts.
There is also another lawsuit involving the tribe, this one pending in the federal First Circuit Court of Appeals for Massachusetts. In Littlefield v. Mashpee Wampanoag Indian Tribe, the tribe has recently filed an appeal challenging a lower court’s ruling that the tribe did not qualify for federal recognition in the IRA.
Although there is no clear timeline for either case, a victory in either for the tribe would be significant. It could give them exclusive right to offer casino gaming in the southeastern part of the Bay State. They’ve been fighting for a casino in Taunton for years.
A defeat, on the other hand, could open the door to commercial developers in the area.
Rush Street in a hurry for Brockton casino license
The possibility of defeats in court was the focus of a recent inquiry by the MGC. That’s because there is a developer interested in putting a casino in Brockton, which lies not far from Taunton.
Rush Street Gaming is one of the interested parties. The potential developers submitted a letter to the MGC during its meeting Thursday, asking a few questions and outlining several points.
The developers inquired about the possibility of submitting a new casino license application. They also pointed out that a feasibility study on such had already been completed.
The letter also expressed a sentiment that the tribe’s litigation efforts were futile. It did point out one possible wrinkle in the situation, however.
The US House passed a bill expressly granting the Mashpee Wampanoag tribe federal recognition in May. The US Senate hasn’t taken any action on it since it could influence both or either of the cases in the tribe’s favor if enacted.
The bottom line for Massachusetts residents is that a developer is interested in putting a commercial casino in Brockton, and the MGC has an interest in granting such a license. Right now the state’s ability to do so is in question, however.
Until the cases involving the tribe are decided, the state’s commercial casinos will remain a triumvirate.