by Abim Thomas
Despite the Massachusetts Gaming Commission (MGC) decision to open Region C to commercial casino bids, KG Urban Enterprises continues its suit against the Commonwealth for what it perceives to be an unconstitutional race-based preference for tribal casino interests in the Massachusetts Gaming Act.
On June 13, 2013, KG Urban opposed the Commonwealth’s motion to dismiss the suit as moot in light of the MGC decision. In its brief, KG Urban called the April 2013 MGC decision to open Region C to commercial bids “a step in the right direction” but went on to argue that this “preliminary” move is insufficient to protect KG Urban’s interest or moot its claims.
KG Urban contended in its brief that the Region C process remains potentially “skewed by tribal preferences,” quoting MGC Commissioner Crosby’s comments that the Mashpee Wampanoag Tribe has a “powerful head start” in Region C with “by far the best chance to end up getting what it wants.” What the Tribe “wants” is gaming exclusivity in Region C.
KG Urban went on to note that Governor Patrick continues to operate under a presumption that the Tribe is entitled to regional exclusivity under state law. KG Urban went as far as to claim that the Governor purposely timed the release of the new compact “with an eye to derailing the [MGC’s] nascent efforts to open the Southeast to commercial bids.”
KG Urban also noted the possibility that the Mashpee will challenge the legality of the MGC’s authority to open Region C to commercial applications in arguing against dismissal of its suit.
At a July 15, 2013 status hearing, Judge Gorton signaled his intention of ruling on the Commonwealth’s motion to dismiss by the end of July. When asked by Judge Gorton to update the Court as to the status of the Mashpee Wampanoag Tribe’s casino plans, Assistant Attorney General Daniel Hammond is quoted as saying there is “frustrating little to report.”
The Mashpee have made little progress since the Bureau of Indian Affairs rejected their 2012 tribal gaming compact with the Commonwealth. The Tribe has negotiated a new compact with the Governor’s Office that remains stalled in the legislature. By way of comparison, commentators have noted that, while the first compact took only two and a half weeks to win the legislature’s seal of approval, the current compact has already been waiting for legislative action for over two and a half months.
With the Mashpee no closer in their casino aspirations than they were a year ago, KG Urban’s claimed prejudice remains speculative.