The problem lies in the land.
Tribal gaming can only occur on Indian land as defined by federal law. So when the Mashpees finally buy real estate for a casino, they must persuade the US Department of Interior to take the parcel into trust on behalf of the tribe.
But the Supreme Court, in 2009, stripped much of the power of the federal government to take land into trust, leaving the tribe hoping for help from Congress, or clarification from the courts.
In the meantime, state casino regulators will have to decide if they will move on without the tribe and open the southeast region to bidding by a commercial developers, a potentially risky choice.
In crafting the casino law, lawmakers determined that the state could handle up to three gambling resorts. They held off competition in the southeast under the theory that a federally recognized Indian tribe - the Mashpees - would pursue a tribal casino there under the federal Indian Gaming Regulatory Act, known as IGRA.
If there is to be a tribal casino in the southeast, the state Gaming Commission is expected not to seek bids for a commercial resort in that region.
But if state regulators eventually give up on the Mashpees and allow a commercial casino in the southeast, they risk that the tribe may someday overcome the roadblocks and open an unwanted fourth resort casino in the state, undercutting the market.
“We cannot predict the future but what we do know is we have specific rights as a federally recognized tribe that others don’t,’’ Cedric Cromwell, the tribe’s chairman, said in an interview.
The deference to the tribe in state law is being challenged in federal court by KG Urban Enterprises, a developer seeking to build a commercial casino in New Bedford. A hearing is scheduled for today in US District Court in Boston.
The state law lists several benchmarks the Mashpees must meet to show progress. By July 31, the tribe must acquire land for the project and negotiate the operating terms of a tribal casino in a compact with Governor Deval Patrick, as required by federal laws that govern tribal gaming. The tribe must also win approval for the compact in the Legislature, and schedule a referendum to get the endorsement of the host community.
