No More Middleborough Reservation For Mashpee Tribe
By: Brian Kehrl
The Mashpee Wampanoag Tribe revised its reservation application this week, removing former gaming development properties in Fall River and Middleborough, leaving only land in Mashpee and Taunton, an attorney for the tribal council said this week.
In Taunton 77 acres are now proposed to be the site of a casino resort, while the 140 acres in Mashpee that have been in the application since it was first filed in 2007 remain part of the package. The 539-acre parcel in Middleborough will no longer be part of the tribe’s initial reservation.
The move, which significantly shifts the contours of the tribe’s future reservation, comes after the federal Bureau of Indian Affairs temporarily suspended the tribe’s reservation bid as a result of a period of inactivity on the application. The BIA informed the tribe of the removal of the application from active consideration in a January 19 letter.
Padraic I. McCoy, an attorney with the firm Tilden, McCoy, and Dilweg retained to oversee the tribe’s reservation application, said in an interview yesterday that the suspension by the BIA was a formality with no real consequences for the application.
“Nowhere in the letter from the bureau does it express any intention to reject or withdraw the application,” Mr. McCoy said.
Changing the review to an inactive status was the result of a BIA policy aimed at preventing incomplete applications from remaining on the pending list for extended periods of time, he said.
"Nowhere in the letter from the bureau does it express any intention to reject or withdraw the application."
- Padraic McCoy (Land Into Trust Attorney for the Mashpee Tribe)
The tribe’s revised application filed Wednesday will shift the bid back to active status, he said. The changes should not affect the timing of the bureau’s review, he said. “The tribe has not lost any time. There is no penalty of time or resources or money that has been imposed as a result of the bureau’s January 19th letter,” he said. “It was just a procedural move by the bureau to set this to the side until additional information was submitted.”
The revisions filed this week were the second change made by the tribe, Mr. McCoy said. After filing the main application in August 2007, the tribe added Fall River as a gaming site in July 2010. There is no limit to the number of changes a tribe can make to a pending application, he said.
With the revised application now on file, Mr. McCoy said the tribe is aiming for an aggressive time line to complete the necessary materials for the application by this fall. The application must include a new federal Environmental Impact Statement for the Taunton property, a broad review that includes studies of the consequences of the development on air, water, light, traffic, and endangered species.
“We are supremely confident that there are no actual, substantive environmental conditions to address on these properties,” Mr. McCoy said. “They are clean and developable and ready to go.”
A fall completion of the application, however, would come after the July 31 deadline for the tribe to meet the requirements of the state gaming law under which it hopes to open a casino.
Clyde W. Barrow, an expert on gaming issues in New England, said in an interview yesterday that the tribe may be able to make the case to the new state gaming commission that they will soon have land in trust with the federal government, so the commission should not open up bidding on the southeastern Massachusetts casino license to commercial operators.
“I understand they have an ambitious timetable and part of that is driven by the state legislation. But I am very skeptical that they will have land in trust by fall,” said Dr. Barrow, who is director of the Center for Policy Analysis at the University of Massachusetts Dartmouth.
In addition to the review process, blocking the application will be the US Supreme Court’s 2009 Carcieri decision, which found that the federal Department of Interior cannot take land into trust for tribes recognized after 1934, like the Mashpee Wampanoag.
Mr. McCoy, however, said the tribe has a plan to address the Carcieri decision by proving that it was “under federal jurisdiction,” though not technically recognized, prior to 1934.
“The first path forward is to demonstrate to the bureau, which we are very confident we can do, that the tribe had the appropriate contacts with the federal government in order to satisfy the requirement that the tribe was under federal jurisdiction prior to 1934. We are in the process of finalizing the reports to satisfy that requirement,” he said.
Mr. McCoy said there is a team of anthropologists, linguists, and other academics working to demonstrate those federal ties, but he could not specify what evidence will be presented.
In the revisions no changes were made to the proposed uses in the tribe’s Mashpee reservation, he said.
More On The Tribe's Casino Pursuit
Mashpee Tribe Plans Spending $30 Million In 2012 (February 2012)
Middleborough Lawsuit Could Delay Mashpee Tribe Casino Hopes (September 2011)
Lacking from the Middleborough application was a complete federal Environmental Impact Statement, he said.
A spokesman for the BIA did not return three telephone calls and two e-mails placed over the past three days requesting information on the status of the tribe’s application.
As of Wednesday afternoon, Mashpee officials had not received any correspondence from the BIA or the tribe regarding the tribe’s application.
Nor had Middleborough officials received any word. “That’s news to me,” Middleborough Town Manager Charles J. Cristello said yesterday of the decision to remove Middleborough from the application.
Middleborough Selectman Allin Frawley said, “The tribe has neglected once again to inform the Town of Middleborough of any of this. Personally, I am very happy to hear that, but I don’t think that lets the tribe off the hook for their obligations to Middleborough.”
Middleborough and the tribal council met once last month in an effort to resolve disagreements about the tribe’s decision not to pursue a casino there, as well as the tribal council’s decision not to make mitigation payments promised under a town-tribe intergovernmental agreement signed in 2007.
Mr. Frawley said the town is seeking the return of ownership of the land and payment to compensate the town for the havoc wrecked by the proposal on municipal planning and development.
Mr. Cristello said he did not believe the tribe’s decision to pull the Middleborough application should have any consequences for those negotiations. There are no scheduled plans to hold another meeting, he said.
What stake the tribe has in the property, however, is unclear.
The land is listed on Middleborough town documents as being owned by Trading Cove at Mashpee, the gaming development firm set up in 2007 by the tribe and its former investors.
Mr. Cristello said the town does not know who actually owns the land.
“I know one thing. The Mashpee Wampanoags don’t own a single piece of land in Middleborough. I asked Mr. Cromwell and Mr. Tobey that years ago, and that is what I was told,” Mr. Frawley said.
Herbert J. Strather, a former lead investor in the tribe’s casino project, declined to comment in an interview this week, saying the ownership of the parcels was part of the settlement between the tribal council and the former investors and was subject to a confidentiality agreement.
Correction: The story has been changed to reflect the correct amount of the total acreage of the proposed Taunton reservation. The site is 77 acres, not 53 as originally reported.
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