Goodwin Gaming
June 21, 2013

Another Card Dealt for the Mashpee Wampanoag Tribe in its Quest for a Tribal Casino in Region C

by Abim Thomas

The Region C casino licensing process (and the preliminary question of whether there would even be a commercial licensing process) has been the source of much debate.  Ultimately, after the Mashpee Wampanoag Tribe failed to obtain approval of its tribal gaming compact in 2012,  the Massachusetts Gaming Commission (MGC) voted to open Region C to commercial casino bids.

On Tuesday, June 18, 2013, the Mashpee Wampanoag Tribe announced the publication of its Draft Environmental Impact Report (DEIR) concerning the site of its proposed casino in Taunton, MA. Public comments on the Tribe’s EIR can be submitted to the Commonwealth through July 12, 2013. The release of the DEIR comes over 15 months after the Tribe filed its federal fee-to-trust application with the Bureau of Indian Affairs (BIA).

Separate and apart from the DEIR governed by state law and the Massachusetts Environmental Protection Agency, however, is the requirement that the Tribe’s proposal pass through the federal Environmental Impact Statement (EIS) process as part of its pending fee-to-trust application under consideration by the Bureau of Indian Affairs.

Although the timeline for ultimate fee-to-trust approval can vary widely, many tribes wait a decade or more before receiving a decision from the BIA. And the EIS process is known to be a lengthy component of a tribe’s fee-to-trust timeline.  By way of comparison, the Cowlitz Tribe of Washington state waited more than four years from the filing of its fee-to-trust application before its draft EIS was published; it then took another two years before that tribe’s final EIS was released, and yet another two years before the BIA approved the Cowlitz fee-to-trust application.

In addition to the federal environmental review needed for its fee-to-trust application to move forward, the Mashpee Tribe faces a number of additional hurdles before it can begin its proposed casino operation. Notably, the BIA has not yet approved a tribal compact, nor has the Massachusetts Legislature.

On March 20, 2013, the Tribe and Governor Patrick agreed to terms of a second compact (the first having been rejected by the BIA as overly favorable to the Commonwealth), but the compact is currently pending approval by the Massachusetts Legislature. If approved, the compact will then be submitted to the BIA for its approval. The BIA’s rejection of the prior compact proves that compact review is more than just a rubber stamp process.

The outcome of the Mashpee Tribe’s fee-to-trust application (still clouded by potential Carcieri challenges) remains unclear.  What is clear, however, is that despite the recently opened commercial bidding process in Region C, the future of gaming in that region remains a source of debate.  At this point, the outcome may turn on whether the Tribe is able to fast track its fee-to-trust application and beat the currently set October 2014 Region C license decision date.  Completing the federal fee-to-trust process in under two and a half years, however, is an ambitious goal given the BIA’s application review track record.