Bureau of Indian Affairs faced pressure to approve gaming deal

Thursday, September 29, 2016

Kevin Washburn, the former head of the Bureau of Indian Affairs. Photo by Navajo Nation Washington Office
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The Bureau of Indian Affairs faced intense pressure to approve a Class III gaming compact for the Mashpee Wampanoag Tribe, GamblingCompliance reports.

Former assistant secretary Kevin Washburn, who left the Obama administration at the beginning of this year, was lobbied by state officials, members of Congress and even the White House, according to the report. But he refused to bow to the pressure and rejected the deal in January 2012, saying it would have required the tribe to share too much of its revenues with the state.

The tribe and the state ended up going back to the negotiating table and came up with a new deal that survived Washburn's second review. But the BIA let the compact take effect only to the extent its provisions are consistent with the Indian Gaming Regulatory Act, a situation that arises when an agreement contains some questionable provisions.

As part of the approved deal, the tribe agreed to share up to 21 percent of Class III revenues with the state. That falls on the high end of revenue sharing rates, according to a June 2015 report from the Government Accountability Office.

But the agreement lowers the rate considerably -- to 15 percent -- due to the presence of non-Indian facilities elsewhere in the state. That rate is comparable to the bulk of compacts in Indian Country, according to the GAO report.

And in the event a full-fledged casino opens in the area where the tribe is based, the revenue sharing rate drops to 0 percent.

Despite approval of the agreement, the BIA didn't approve the tribe's land-into-trust application until September 2015. The tribe finally commenced construction on the First Light Resort and Casino in April but work has been placed on hold due to litigation.

Read More on the Story:
Mashpee Casino Sparked Obama Administration Infighting (GamblingCompliance 9/29)
In casino deal, feds felt the heat from Mass. (The Boston Globe 9/29)

Federal Register Notice:
Indian Gaming (February 4, 2014) $P Government Accountability Office Report:
Regulation and Oversight by the Federal Government, States, and Tribes (June 3, 2015) $P Court Decisions:
District Court of Massachusetts: Littlefield v. Department of the Interior (July 28, 2016)
D.C. Circuit Court of Appeals: Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell (July 29, 2016)

Supreme Court Decision in Carcieri v. Salazar:
Syllabus | Opinion [Thomas] | Concurrence [Breyer] | Dissent [Stevens] | Concurrence/Dissent [Souter]

Department of the Interior Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)