The Need for Compromise: Introducing Indian Gaming and Commercial Casinos to Massachusetts

Article excerpt

"In rejecting the compromised nature of the federal legal doctrine of tribal sovereignty and reaching a new compromise among sovereigns, state, tribal, and federal political actors may craft fair and effective Indian gaming law and policy. A compromise reached by sovereign governments need not compromise either the interests of non-Indians or the future of Native Americans." (1)

I. INTRODUCTION

Casino gambling is a contentious issue between American Indian tribes seeking sustainable economic development and states attempting to increase revenue while controlling a controversial industry. (2) In 1988, Congress enacted the Indian Gaming Regulatory Act of 1988 (IGRA) to preserve tribal business while affording states a measure of control in an effort to balance tribal sovereignty with state interests. (3) Despite Congress's effort, state and tribal interests continue to conflict as states threaten the IGRA's effectiveness and tribes find ways to establish gaming independently from the states. (4) A prime example of this interplay between states and tribes is unfolding in Massachusetts where the Commonwealth and two Indian tribes seek to establish gaming on their own terms. (5)

Central to the dynamic between tribes and federal government is the sovereign status of Indian tribes. (6) Tribal sovereignty stems from the existence of tribes as independent nations long before the creation of the United States. (7) Under tribal sovereignty, tribes have an "inherent right of self-determination" that includes the right to self-govern. (8) This sovereign right to self-determination, however, is not absolute. (9) Accordingly, a tribe's "distinct legal status" as a sovereign nation is crucial to understanding the Indian gaming phenomenon. (10)

Both the United States Supreme Court decision in California v. Cabazon Band of Mission Indians (11) and the IGRA illustrate the importance of tribal sovereignty in shaping Indian gaming law and Congress's ability to restrict tribal rights. (12) Initially, tribes began experimenting with gaming as a way to raise revenue. (13) In Cabazon, the Court considered whether California could force two federally recognized tribes operating bingo games to comply with state bingo regulations. (14) Somewhat surprisingly, the Court ruled against the application of state law on tribal land as a means to curb crime anticipated as a result of unregulated gambling. (15) The decision led Congress to pass the IGRA, rein in the potentially unchecked expansion of unregulated gambling, and uphold "tribal self-sufficiency and economic development." (16) Through the IGRA, Congress attempted to promote these two goals by fashioning a compromise between competing tribal and state interests. (17)

In the wake of the IGRA, Indian gaming has expanded exponentially due to its ability to jumpstart economic development on reservations and its potential for immense financial success. (18) In Massachusetts, because casino gambling is currently illegal, no Indian tribes operate gaming facilities. (19) Before the federal government legally recognized the Mashpee Wampanoag, a Massachusetts tribe, the tribe expressed interest in pursuing casino gaming. (20) Upon receiving federal recognition, the Mashpee quickly negotiated an intergovernmental agreement with the Town of Middleborough to build a destination-resort casino. (21) Another Massachusetts tribe, the Aquinnah Wampanoag, have also actively pursued their own gaming facility. (22)

Per the IGRA's requirements, Massachusetts must legalize casino gaming before any tribe can open a casino through the federal process. (23) Massachusetts Governor Deval Patrick supports casino gaming in the Commonwealth and has proposed legislation to place three commercial casino licenses up for bid. (24) Patrick's proposed legislation reserves at least one of the licensed casinos for a tribe. (25) As a result, casino gambling and Indian gaming may come to Massachusetts; however, it is unclear whether the Mashpee or the Aquinnah will bid on a state license or, alternatively, continue with the federal application process. …