Mashpee Tribe Leaves Middleborough For Fall River

By: Brian Kehrl
Published: 05/21/10

The Mashpee Wampanoag Tribal Council and Fall River announced a deal this week aimed at developing a massive resort casino on a 300-acre property off Route 24 in the struggling South Coast city.

But major legal and political hurdles still stand in the way of construction on the proposed $500 million project, which the tribe has chosen instead of the previously planned casino in Middleborough.

On Monday night the Fall River Redevelopment Authority, which owns the site, postponed until next week a vote on approving an option for the tribe to purchase the property, a vote needed to secure the land for the casino and attendant resort facilities.

A trio of state representatives from the Fall River area spoke out against the project at the redevelopment authority’s meeting, calling into question whether the state Legislature will pass a bill needed to allow gaming on the property.

Members of the Fall River City Council also criticized the deal at the meeting on Monday night, calling it rushed and ill-conceived. The city council then passed a resolution to oppose the deal on Tuesday.

Despite claims to the contrary by city officials, representatives of Governor Deval L. Patrick’s administration said nearly $35 million in public funding slated to pay for a new ramp from Route 24 to access the property will have to be repaid if it is to be used for gaming instead of a biotechnology research facility that had been planned for the site.

The Middleborough Board of Selectmen voted this week to begin the arbitration process laid out in the intergovernmental agreement between the tribe and the town, a sign the tribe’s former partner is not willing to let the project go without a fight.

The Wampanoag Tribe of Gay Head (Aquinnah) had previously expressed interest in building a casino in Fall River, and the Pocasset Wampanoag Tribe, which is recognized by the state but not the federal government, has claimed the site is part of its territory and should not be used for a casino by another tribe.

And the two potential tracks for the tribe to pursue a casino, either with a commercial license from the state or as an Indian gaming facility on a federal reservation, both are not yet clear. Gambling is not legal in Massachusetts, though the state Senate is expected to take up a bill this summer to match one passed earlier this year by the state House of Representatives. The tribe is still unable to establish a federal reservation, in Mashpee, Middleborough, or Fall River, due to a US Supreme Court ruling last year.

The proposal, however, was hailed by tribal council Chairman Cedric Cromwell and Fall River Mayor William A. Flanagan as a landmark agreement between the tribe and the city.

“This proposal will bring economic opportunity for the Tribe, and its people, while also directly and indirectly creating thousands of jobs in Fall River during construction and subsequent operation,” Mr. Cromwell said in a press release.

Mr. Cromwell could not be reached for comment this week.

State Senator Joan M. Menard, the assistant Senate majority leader and former head of the state Democratic Party, also strongly supported the project at the redevelopment authority meeting and a subsequent press conference Monday night.

The Fall River location may also come with less friction than Middleborough from Gov. Patrick, who has previously stressed that casinos should be used to redevelop urban areas, not constructed as destination resorts in previously undeveloped, more rural landscapes. Gov. Patrick made clear his objections to a Middleborough casino in a lengthy opposition letter his office filed with the federal Bureau of Indian Affairs.

The tribe has also left open the possibility of pursuing either a commercial gaming license or Indian casino or perhaps both.

Mr. Cromwell did not identify which track the tribe would pursue, a decision that could have significant implications for the tribe’s reservation plans in Mashpee and Middleborough, but city attorney Steven Torres told the redevelopment authority on Monday that a deal negotiated between the tribe and the city accounts for the possibility that the tribe could apply for a state license while pursuing a reservation from the federal government. If that were to happen, the tribe would owe the city payments in lieu of property taxes, he said.

“The tribe is sovereign, the land is not,” Mr. Torres said. If the land becomes a reservation, the tribe has agreed to forgo some of its sovereignty, like immunity from state courts, he said. “There is no sale unless they agree to that,” he said.

The tribe would not have to file a completely new reservation application, said Nedra Darling, a spokesman for the federal Bureau of Indian Affairs. The tribe could add an amendment including Fall River with its original application to place land in Mashpee and Middleborough into trust, she said.

By allowing for the possibility of applying for a commercial license, which tribal council officials never did publicly in regard to the Middleborough site, the tribe has positioned itself to enter the gaming industry even if the US Supreme Court’s Carcieri ruling is not addressed with a bill in Congress.

City and tribe officials said a legislative change may not be necessary, as the obstacle could be addressed with an administrative change in BIA regulations.

Ms. Darling, however, said she was not familiar with an effort to allow the Mashpees and other tribes currently prohibited from establishing reservations at the administrative level.

Another spokesman for BIA, Gary Garrison, said, “My understanding of the constitution is that it would have to be a legislative change, wouldn’t it? I would wager to say that it has got to be a legislative change, because when the supreme court rules on an issue, usually it takes legislation to change it.”

While the governor’s office made clear that state money would not be used to support infrastructure for casinos, the $35 million price tag for the exit ramp is still a far cry from the estimated $250 million to $350 million that experts said would have been needed for infrastructure improvements to the Middleborough site.

“It has been our policy all along that a gaming facility should not be financed in any way with public dollars,” said Kofi Jones, a spokesman for the state Office of Housing and Economic Development. “It doesn’t mean we don’t support the project.”

“We have yet to sit down with the mayor and the tribe to go over their entire proposal. We look forward to doing so,” she said.

The project is proposed at a 300-acre site just off Route 24, in the northern part of Fall River a few miles from the waterfront. The vacant lot, which includes a small section of Freetown, was carved out of the Freetown State Forest to provide the city with land to pursue economic development. A biotech research facility has long been planned there, but the mayor said he felt the casino offered the potential to bring more jobs quicker than research.

City officials declined to release the sale price of the land.

Fall River city councilors expressed their opposition, in part on the grounds that they were working with the Aquinnah tribe on a possible deal, but the proposal has highly public and express support from other city officials.

At the redevelopment authority meeting Monday night, Kenneth J. Fiola, executive director of the Fall River Office of Economic Development, and Mr. Torres pitched the project, a presentation replete with a rendering of the massive casino and hotel complex. The two officials, who took part in negotiations with the tribe to craft the deal, argued in favor of the project and the tribe and the need to move quickly, making the proposal seem as much coming from the city itself as from the tribe.

The two highlighted the strong position of the tribe, particularly given its deal with Arkana Limited, an arm of an international gaming corporation that has developed successful Indian casinos in Connecticut and New York.

The two also emphasized the 3,000 to 5,000 jobs the project would entail—“This is one of the largest if not the largest job generating projects to come before us,” Mr. Fiola said—as well as the much-needed revenue it would provide for the city.

“I don’t need to tell you how our police and fire compliments are faring right now,” Mr. Torres said.

Mr. Torres said the project could be fully permitted in 12 to 18 months, particularly because the land already has some state permits attached to it for 3 million square feet of development.

The volunteer redevelopment authority board, which next week will be asked to vote on a decision that could make or break the project, received the land purchase option last Friday afternoon and was asked to vote on it on Monday evening. The board postponed the vote until next week, with Chairman William Kenney saying the board needed time to digest the four hours of testimony it had heard on Monday evening.

Mr. Torres said once the purchase option is approved, the next step would be to negotiate an intergovernmental agreement to lay out revenue sharing rates and other aspects of a compact between the city and the tribe. He said those negotiations have only just begun.

He said the sale would not be final until the intergovernmental agreement is approved. “And not until we have eked every dime out of the casino and the backers will the redevelopment authority be asked to sign off on the sale,” Mr. Torres said.

Members of the redevelopment board questioned why the proposal needs to be so rushed, to which Mr. Torres replied that the Mashpees are the only tribe with federal gaming rights and the tribe is driving the time table.

Mr. Fiola said the deal would send a strong signal that the city is interested, at a key time in the gaming debate on Beacon Hill.

The sooner the tribe has control of the land, the stronger their position will be in negotiations on Beacon Hill, Mr. Torres said.

Mr. Flanagan and Mr. Cromwell each downplayed the significance of the delay, saying it is a function of democracy.

Mr. Flanagan said the project may still have some “red tape” to pass through, but the deal between Fall River and the Mashpee tribe is a sign that the two are major players in the bid to bring gambling to the state.