Middleborough Lawsuit Could Delay Mashpee Tribe Casino Hopes

By: Geoff Spillane
Published: 09/09/11

As the Mashpee Wampanoag Tribal Council looks ahead toward a new casino plan to fit under the proposed gaming legislation on Beacon Hill, the repercussions of an old plan may prove to be a significant obstacle.

A member of the Middleborough Board of Selectmen said this week that, if the tribe continues to pursue a casino in another town, the former site of the tribe’s casino plans will bring a challenge in court.

The two parties are in disagreement as to whether the Intergovernmental Agreement (IGA), signed during negotiations to build a casino in Middleborough, is still valid. Middleborough is still seeking payments promised to the town under that 2007 contract, while the tribe claims the agreement is now void.

Middleborough’s opposition is one of several points of resistance that have emerged in response to the release of a gaming bill on Beacon Hill last month, a proposal that would effectively set aside a casino license in southeastern Massachusetts for the Mashpee tribe, at least until the end of next July. Other commercial casino developers have questioned the legality of the state giving preferential treatment to the tribe.

At the very least, the legal challenges could create a significant delay for the tribe, a loss of time that the tribe cannot afford under the tight timeline set out in the state gaming proposal.

Meanwhile, Rhode Island is preparing to analyze the impact on its two casinos of new gaming in Massachusetts, a move that clarifies the regional consequences of the proposed Bay State casinos.

Middleborough Legal Threat
In Middleborough, the issue is a fight over the continuing validity of the landmark agreement signed by the tribal council and the Middleborough Board of Selectmen, following one of the largest Town Meetings in New England history.

Under terms of the contract, the tribe was to pay the town $250,000 per year in mitigation and planning fees before the planned casino opened.

But in 2010, soon before the tribe announced plans to pursue a casino in Fall River, the tribe notified Middleborough that it was no longer interested in that town as a potential site for a casino.

The tribe has not yet rescinded its application to place land into trust for a gaming complex.

Allin Frawley, a Middleborough selectman and former candidate for state representative from the 12th Bristol District, said that as long as the application for placing land into trust is active, the contract is valid. Nothing has changed for Middleborough, Mr. Frawley said.

“They have missed payments of mitigation funds two years in a row. They owe us $500,000,” Mr. Frawley said.

The IGA sets out a precise process by which the tribe and the town are meant to settle disputes, but that process has reportedly not been followed.

The town sent the tribe a letter demanding payment in July.

In a late-August response Mashpee Wampanoag Tribe Chairman Cedric Cromwell wrote, “As we informed you last year, the Tribe has no further obligations under the IGA, and, therefore, disagrees that it is obligated to make additional mitigation payments to the Town or that the Town has any right or basis to continue to demand, expend, or commit mitigation funds previously provided by the Tribe.”

Mr. Cromwell further demanded that the town not spend the $500,000 in previous mitigation money provided to Middleborough on legal costs to fight the tribe.

Chairman Cromwell was not available for comment.

In a telephone interview with the Enterprise this week, Mr. Frawley said that there will be litigation if the dispute is not settled, or if the tribe should move toward building the casino in another city or town.

“It’s disgraceful the way the Tribe has treated Middleborough. We’re all fed up. They’re tearing our community in half, but it doesn’t bother them. They haven’t delivered anything they promised,” Mr. Frawley said.

Reached by telephone yesterday, Middleborough Selectmen Scott McKinnon declined to comment, citing the pending litigation.

Middleborough Town Manager Charles J. Cristello did not return a call seeking comment.

Ownership of the property remains unclear, as the land was purchased with the financial backing of the tribe’s gaming investors at the time, a group with which the tribal council has since severed ties.

Competitor’s Legal Challenge
A potential competitor for the tribe—KG Urban Enterprises, which has proposed redeveloping blighted waterfront property in New Bedford into a resort casino—has called into question whether the special treatment the tribe receives in the bill is legal.

A legal analysis solicited by the development firm and written by prominent Indian gaming attorney Marsha A. Sajer argues that the state cannot treat tribes differently than commercial businesses under state law.

“A state gaming law that provides a tribal preference in a state licensing process is facially unconstitutional as race-based discrimination that violates the Equal Protection clause of the Fourteenth Amendment of the US Constitution,” Ms. Sajer wrote.

Such a law would create two groups, “tribes (favored) and all others (disfavored),” based solely on race, she wrote. Under state law, Native American tribes are a racial group to be treated like any other.

While Congress can legally treat tribes differently, states cannot, she wrote.

According to news reports, other potential competitors have also questioned the legality of the preferential treatment.

The tribe has maintained that, due to its federal gaming rights, it will eventually get a casino, so the state must treat it differently than commercial gaming operations. Gaming experts have said the tribe’s position may devalue the southeastern license if the tribe were not accounted for, because if a commercial firm builds a casino in the southeastern district, and the tribe is later able to build a casino eventually, it would compete directly with the existing facility but with the considerable advantage of avoiding state and local taxes.

Out Of State
Rhode Island has not indicated that it will fight an Indian casino, but it is clearly interested in what is going on north of its border.

Claire Richards, chief legal officer for Rhode Island Governor Lincoln Chafee, said this week that the Ocean State has begun the process of selecting a firm to study the impacts of expanded gaming in Massachusetts on its two state-operated gaming parlors.

Gov. Chafee has stated that Rhode Island will seek to maintain or enhance the revenue it receives from Twin River and Newport Grand in the face of a gaming expansion elsewhere, she said.

However, she said the state has not taken a position about whether it will challenge a federally sanctioned Indian casino in Massachusetts. “To me, a [federal Indian Gaming Regulatory Act] casino is far, far away. The Carcieri fix would need to be passed and then the Indian tribe would need to go through the whole trust process, which is a very long process,” she said.

5 Responses to "Middleborough Lawsuit Could Delay Mashpee Tribe Casino Hopes"

1. Casinomike says: 09/09/11
   

   Game Over!? Think again. Facts and the law are a stubborn thing. As much as Beacon Hill wants to push this lopsided, non-competitive, bad for the state measure through, let's be thankful that Middleborough not only remembers, they get it: "Middleborough’s opposition is one of several points of resistance that have emerged in response to the release of a gaming bill on Beacon Hill last month, a proposal that would effectively set aside a casino license in southeastern Massachusetts for the Mashpee tribe, at least until the end of next July. Other commercial casino developers have questioned the legality of the state giving preferential treatment to the tribe. At the very least, the legal challenges could create a significant delay for the tribe, a loss of time that the tribe cannot afford under the tight timeline set out in the state gaming proposal." And here's one more point to consider in this game of gain without merit: Genting, the Malaysian syndicate backing this whole measure, is now under federal investigation by the United States Senate for potential funding of Islamic fundamentalist and extremist movements operating out of Asia. That's right. This whole fraud may be bought and sold by a criminal enterprise with blood on their hands. If this were some crackpot commentary, I'm sure it would go ignored. But its hard not to ignore the US Senate Committee on Intelligence and Indian Affairs. Read more about the Genting story, their terrorist connections and the Florida outlet that broke the news last night here: http://floridaclarion.com/2011/09/genting-connected-to-islamic-extremists/comment-page-1/#comment-6605
2. CinAn says: 09/09/11
   

   It is ironic that for as hard as Governor Patrick is fighting for the Genting-backed Indian gaming scheme for Massachusetts that it will be his ignorance (or not?) of the IGRA process and federal laws which will determine whether or not the Mashpee tribe is granted a land in trust deal for the purposes of casino gaming. Perhaps the Governor is just scamming his campaign contributors and stiffing Southeastern Massachusetts for some unknown reason. He's reportedly a pretty smart lawyer. His top guy Greg Bialecki is another smart Harvard lawyer too. You'd think they would see the pitfalls of their unconstitutional proposal to benefit one tribe - specifically the Mashpee Wampanoag according to Mr. Bialecki - and no one else. If the Governor of Rhode Island opposes such a deal while providing any evidence (study underway now) that a Southeastern "Indian" casino would pose an economic threat to his state, the Department of Interior will not grant a the Wampanoag or any other tribe land in trust for a casino. Further, if the then Governor (this is going to take years and years to resolved regardless so it won't be Deval Patrick) of Massachusetts does not support the Mashpee Wampanoag plan, the current DoI process gives that governor an essential veto over the granting of lands in trust to new tribes. This just happened in California and two tribes who lacked the governor's support applications were denied. All the facts simply point to Southeastern Massachusetts being left in the dust. However, with all the litigation and failings of this proposed bill, all casinos in the state will likely get stalled because of the Governor's pay-back to Bill Delahunt and the Mashpee Wampanoag.
3. lingerter says: 09/22/11
   

   Allin Frawley, the Middleborough selectman who is opposing the Mashpee Wampanoag Tribes efforts to build a casino is actually being paid by other casino interests who do not want the competition. It's just politics as usual. He must be getting huge "campaign" contributions, or "favors" through his surrogates. It's outrageous to see him try to dupe everyone. Allin Frawley has two condos in Florida and a waterfront house in Rhode Island. I wonder how he pays for all of these extravagances???
4. JPSimpson says: 09/22/11
   

   I've been to some of the Board of Selectman meetings when they discus the tribe and it's obvious to see that they're all prejudiced against the tribe. I live here in the community and I have been shocked to see how deliberate the board has been in trying to harm the tribe. None of the local community thinks a casino would be bad. Actually, everyone I talk to thinks it will revitalize the entire area and help crete some jobs. These board members are either getting paid-off or they are enacting some sort of revenge. They are doing this at the cost us all of us residents. I'm retired and I might want to be a part-time blackjack dealer for a little extra income and for something to do. I'll be dead before this board allows us to get this casino built.
5. MHamerhill says: 09/26/11
   

   Charges of Genting ties to terrorism are totally false and have been discredited - as are the accusations of Genting being tied to Islam extremists. Genting is very pro-American and pro-compeititon. False charges of Genting's ties to islamic extremists were cooked up by other casino companies who seek to smear them. Genting has no ties to terrorism or islam--Genting is pro-US, pro-economic growth, pro-competition. One just has to understand the proceedures all gaming companies who received a gaming license in Singapore - what they had to endure was a strict examination of all their business dealings and connections before they were approved. Signapore has one of the toughest gaming approval requirements next to New Jersey - that in its self say how non-corrupt Genting is. (unlike Stanley Ho who was not approved to hold a gaming license in Singapore and MGM's partner, Ho's daughter Pansy who also was denied in New Jersey.