Mashpee Tribe Deal With Middleborough At Issue Again

By: Brian Kehrl
Published: 04/23/10

 Representatives of the Mashpee Wampanoag Tribal Council and Middleborough sat down this week to discuss the future of the tribe’s proposed casino in the rural southeastern Massachusetts town, offering the first sign of life in what had for months been a stalled relationship.

Middleborough selectmen in February sent a letter to the tribal council, requesting information on the tribe’s publicized meetings with officials regarding a potential casino in Fall River and the status of the nearly two-year-old deal allowing the tribe to build a resort in Middleborough.

The tribal council did not respond until an April 6 letter requesting a meeting between attorneys representing each side. That meeting took place on Tuesday, and from it came a request from the tribe to meet in private with a small group of Middleborough selectmen.

The selectmen on Wednesday evening declined the private meeting, and instead invited tribal council Chairman Cedric Cromwell and other tribe officials to an open meeting with no public comment or questions.

Middleborough selectmen said they did not know the reason for the tribe’s private meeting request, but two of them speculated that the tribe may be interested in other locations or may want to renegotiate the contentious contract in which the tribe and its casino partners agreed to pay the town at least $7 million a year and build roads and other costly infrastructure to support the project. One selectman, Albert Rullo, said the issue could be that the tribe wants to either renegotiate or get out of the deal.

Mr. Cromwell did not respond to two requests for comment on the developments in Middleborough and the tribe’s role in the gambling debate.

The action in Middleborough comes in the midst of the statewide debate over casino gaming, in which experts say expanded gambling appears as close to becoming reality as it has in recent history in Massachusetts. Yet, even as the debate has progressed, the Mashpee tribe’s role has changed significantly since it was a driving force behind the ultimately unsuccessful bid to permit expanded gambling two years ago. It is, in many ways, the same debate and a new role for the tribe. One notable difference in the debate, however, is the traction it has gained in the state House of Representatives, which passed a bill last month that would allow slot machines at the state’s racetracks but made no reference to the Mashpee tribe or a casino in Middleborough or southeastern Massachusetts.

“From the outside, it looks like they are scrambling to get back in the debate. They were just completely ignored by the speaker’s bill,” said Clyde W. Barrow, a public policy professor at University of Massachusetts Dartmouth and an expert on gaming issues in New England. “In the current bill, unlike the governor’s bill a few years ago, they are given no special consideration.”

The Bigger Issue

Dr. Barrow said the tribe and Middleborough may have been left out of the House bill because it focused on the race tracks, two of which are in House Speaker Robert A. DeLeo’s (D – Winthrop) district north of Boston, and Middleborough is included in the district of Senate President Therese M. Murray (D – Plymouth). So out of deference to Sen. Murray and her district, “an informal protocol in the Legislature,” the Middleborough site may have been left for the Senate to consider in its bill, he said.

“But the bigger issue is that they don’t have land into trust,” he said.

The tribe’s reservation application is being held up by a recent US Supreme Court decision preventing the US Secretary of Interior from taking land into trust for tribes, like the Mashpee, that were recognized after 1934.

The court decision and questions about the viability of the tribe’s reservation application based on its ties to Middleborough have undercut the tribe’s previous argument that a casino was “inevitable,” a tack used to compel state and local officials into negotiations, he said.

“It is not clear that they will ever be successful at taking land in Middleborough. And even if they were, it could be years away,” he said. “At that point, they could have the authority to build under [the federal Indian Gaming Regulatory Act], but could be coming into a saturated market, as a latecomer,” he said.

The development to watch will be whether the Senate version of the bill includes a casino in southeastern Massachusetts, he said. “I have heard that if the tribe would publicly state their intentions to bid on a commercial license, there would be a third casino in the bill,” Dr. Barrow said.

“But at this point, the tribe is just another potential bidder for a commercial operation,” he said.

The tribe’s retention of prominent financial backers—Arkana Limited, an affiliated of the Asian gaming giant Genting—lends some strength to its position, Dr. Barrow said, but top state officials have clearly indicated a preference for a casino in an urban area like New Bedford, where the economic development benefits would be stronger and the environmental impacts fewer than a more rural site like Middleborough.

While external changes may have altered the tribe’s role in the debate, the tribe has still been able to prove its clout on at least one occasion in recent months. Mr. Cromwell was quoted in a Boston Herald report in January expressing anger that Gov. Deval L. Patrick’s staff had not met with the tribe despite repeated requests. He threatened to move forward on the Middleborough casino without cooperation from the state.

The next day, Gov. Patrick appeared on a radio show and said he or his staff would “absolutely” meet with the tribe. The meeting took place a few weeks later.

“For the governor, I can’t speak for him, but what I do know is that he looks at the tribe as a civil rights issue,” Dr. Barrow said. “But he does not want to see an [Indian] casino in Massachusetts. In fact, he filed a very detailed letter opposing their application to take land into trust.”

Mr. Cromwell and the tribe’s leadership have generally taken a different approach to the debate from his predecessors Glenn A. Marshall and Shawn W. Hendricks Sr. Mr. Marshall, before he stepped down amid controversy regarding his criminal record and was convicted on federal charges of financial impropriety, was a highly public persona and active player in political gamesmanship.

Mr. Cromwell, though, has taken a more low-key approach.

“I think they have been much more active in talking to people this time, both potential developers, site owners, and the state leadership,” Dr. Barrow said. “They have not publicly changed positions, but they have certainly been out talking to people and not making threats.”

The tribe’s lobbying and campaign contribution activity has changed significantly as well.

The tribe dropped its former lobbyists, from the firms Quinn & Morris and the Liberty Square Group, in favor of new firms: Smith, Ruddock, & Hayes and Kearney, Donovan & McGee, according to public lobbying records filed with the state Secretary of the Commonwealth’s office. All four firms include former high-ranking state and federal officials.
Lobbyist payment disclosure forms are filed twice a year, so the forms for activity to date in 2010 will not be available until July, according to a spokesman for the secretary of the commonwealth’s office.

In the second half of 2009, the tribal council spent $30,000 on lobbying activities, a significant drop from the approximately $80,000 the tribal council had been spending each half year for four previous reporting periods.
Mr. Marshall made federal and state campaign contributions totalling more than $20,000 between 2003 and 2007, according to public records on file with the secretary of commonwealth’s office and the Federal Election Commission. The contributions led to some of the criminal charges against Mr. Marshall, since standard nonprofits like the tribal council were prohibited from making direct donations to political campaigns.

Mr. Hendricks made similar contributions, totalling just less than $20,000, to an almost identical list of candidates as Mr. Marshall over the same period of time. Mr. Hendricks was never charged in connection with the contributions.
Mr. Cromwell and Aaron Tobey Jr., vice chairman of the tribal council, have made no contributions in the last three years, according to the databases.

The Middleborough Contract

Other Indian gaming experts described the tribe’s deal with Middleborough as a tough one for the tribe, particularly the infrastructure improvements like widening an access road to the site. The cost of improvements all together is “approaching nine figures,” one expert said.

The Mashpee tribe made noise this winter by meeting with officials from Fall River, an apparent expression of interest in other locations that prompted Middleborough selectmen to request the status report from the tribe.
But news reports this week indicated that the Mashpee’s sister tribe, the Wampanoag Tribe of Gay Head (Aquinnah), is nearing a deal with developers for a site in Fall River.

The discussion by Middleborough selectmen this week was marked by apparent frustration with the slow pace of progress with the casino, a project they said appeared to be in limbo, the delayed response to their letter.

Chairman Marsha L. Brunelle described being “disappointed” with the tribe’s response to her board’s letter.

“This all was going to move instantly after it was signed. And then nothing happened,” Selectman Stephen J. McKinnon said. “We’ve had this carrot out there dangling. We’ve been waiting, waiting, waiting.”

In Middleborough Town Manager Charles Cristello’s report, just before the discussion about the casino, he informed the selectmen that a decline in local receipts and inaction by the state Legislature on a bill to extend payment deadlines for the town pension fund had created a worse-than-expected budget picture for the upcoming fiscal year.

Instead of 3.5 percent budget cuts across all town departments, Mr. Cristello asked selectmen to support cutting all budgets by five percent. The selectmen lamented the situation, but said they had little option other than to support the cuts.