6.06.07
The final say on casino is a matter of debate
By Sean P. Murphy
Globe Staff
With interest intensifying in the possibility of casino gambling in Massachusetts, Indians, legislators, and various state officials are in disagreement over who will have the final say on the high-stakes proposal.
Some lawmakers say that only a vote by the Legislature can approve a casino. But representatives of the Mashpee Wampanoag Indian tribe say the governor can negotiate a binding deal with the tribe, even without an affirmative vote by the Legislature.
"The issue of Indian gaming is uncharted territory in Massachusetts," Attorney General Martha Coakley said yesterday. "With regard to the approval process for a tribal gaming compact, the attorney general's office is currently reviewing the matter and has not yet reached an opinion."
The Mashpee Wampanoags are circulating among state officials a 13-page legal brief the tribe commissioned from a University of Michigan law professor that concludes Governor Deval Patrick has broad authority to negotiate a binding agreement with the tribe, known as a compact. In that scenario, a Patrick-negotiated agreement would become effective even without a vote by the Legislature.
The brief says the Legislature, in the face of a negotiated deal with the tribe, can vote to reject it within a specified period.
Not so, said state Representative Daniel E. Bosley, chairman of the House Committee on Economic Development and a longtime opponent of casino gambling in Massachusetts. He said his legal research shows that a casino cannot open without the unequivocal blessing of the Legislature.
"They are saying we can reject it, but I am saying we have to approve it," he said. "There's a big difference."
Both sides are trying to get the advantage, Bosley said. "It's all pieces [on] a chess board," he said.
House Speaker Salvatore F . DiMasi, a longtime casino gambling skeptic, has questioned the tribe's legal clearance.
"Everybody talks about the Wampanoags having an absolute right to open some kind of casino here," he told State House News Service last week. "I'm not sure about that. That has to be researched, as well."
Scott Ferson, a spokesman for the Mashpee Wampanoags, said: "Obviously, there's a lot of legal research being done. But it would be premature to speculate over the exact roles of the governor and Legislature in negotiations over a compact, until the Legislature and the governor have spoken on this matter."
In a statement yesterday, a spokesman for Patrick said the administration was awaiting a report on casino gambling from Daniel O'Connell, secretary of housing and economic development. "The governor expects to make a final decision later in the summer," the statement said.
Bosley said that the last time the Legislature grappled with the issue was in 1997, when the Aquinnah Wampanoag Indian tribe proposed a casino in Southeastern Massachusetts. He said Governor William Weld asserted he had the authority to negotiate an agreement with the tribe on his own, while Bosley and others insisted that the Legislature's approval was required.
The issue was not resolved. The Aquinnah Wampanoags needed a two-thirds vote of the Legislature to take state land for a casino, and the Legislature rejected the land deal, Bosley said.
A casino became a possibility this year when the Mashpee Wampanoags won federal recognition as a tribe after a 30-year effort. Their bid to open a casino on the scale of Foxwoods and Mohegan Sun, both in Connecticut, intensified in recent weeks when the tribe took control of 350 acres in Middleborough.
The process for a tribe to open a casino is governed by the Indian Gaming Regulatory Act, passed by Congress in 1988. While it empowers the Department of the Interior to make most decisions on Indian casinos, the law requires tribes to get the approval of the states in which the tribal casino is to be located.
In Connecticut, the Mashantucket Pequot and Mohegan tribes negotiated deals that guaranteed that the state receive 25 percent of total slot machine revenue in lieu of taxes, which last year amounted to $435 million.
Casino proponents argue that Massachusetts residents spend as much as $880 million a year at Foxwoods and Mohegan Sun, worth about $133 million a year in taxes to Connecticut. It is assumed that a compact with the Mashpee Wampanoags would include a sizable share of revenues for the state, in effect recapturing some of the money now going to Connecticut.
The Mashpee Wampanoags' opinion, by professor Richard Primus, is based on the urgency of the state government in concluding a compact. If no compact is reached within 180 days of the tribe formally asking for one, the Department of the Interior may step in and impose terms of a compact, Primus wrote.
"The Department of Interior may be able to issue gaming procedures on terms less favorable to the state than those the state could have secured by negotiations," the brief says.
Sean P. Murphy can be reached at smurphy@globe.com
http://www.boston.com/news/local/articles/2007/06/06/the_final_say_on_casino_is_a_matter_of_debate/
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