Legislation | Litigation
1st Circuit revives challenge over tribal provisions in gaming law

The 1st Circuit Court of Appeals on Wednesday revived a lawsuit that challenges the tribal provisions of H.3702, the Massachusetts gaming law.

The law authorizes three casinos in different regions of the state. The facility in Region C -- southeastern Massachusetts -- has been set aside for "a federally recognized tribe" under Section 91.

K.G. Urban Enterprises, a non-Indian company, claims the provision violates the U.S. Constitution because it is "race based." A federal judge dismissed the case in February and declined to issue a preliminary injunction that would block the state from approving the tribal casino.

On appeal, the 1st Circuit upheld the lower court's refusal to grant the injunction. The 56-page decision pointed to numerous uncertainties -- including the effects of the U.S. Supreme Court decision in Carcieri v. Salazar on the land-into-trust process -- that "undercut" KG's claims of injury.

"Given this situation, the lack of clear answers on questions of both state and federal law, the shifting of the nature of the injury to KG, and the apparent attempt to allow some time for the IGRA process to work (including any Carcieri fix), we cannot say there was an abuse of discretion in the denial of preliminary injunctive relief," the 1st Circuit wrote.

The three-judge panel also cited the more recent decision in Salazar v. Patchak. "The Supreme Court recently took notice of the length of time involved in reaching a decision on a land in trust application," the 1st Circuit noted.

However, the panel said it was too early to dismiss KG's lawsuit on the merits. The case was remanded to the lower court, so further discussion of Carcieri issues is likely.

"We simply cannot say that KG's equal protection claim as to § 91 fails to state a claim on which relief may be granted, or that the issuance of equitable relief may not be appropriate at some future date," the court wrote.

The Mashpee Wampanoag Tribe has negotiated a Class III gaming compact and has submitted a land-into-trust application for a casino site in Taunton. But the state has yet to grant a license for the casino in Region C and the Bureau of Indian Affairs has yet to rule on the application.

The Carcieri decision restricts the land-into-trust process to tribes that were "under federal jurisdiction" as of 1934. The Mashpees didn't receive federal recognition until May 2007

Get the Story:
Appeals court reinstates case against tribal preference (The New Bedford Standard-Times 8/2)
Mashpee casino rival wins court hearing for its case (The Boston Herald 8/2)
Court revives challenge to casino law (The Boston Globe 8/2)
Mashpee Wampanoags make a gaming deal with state (The Martha's Vineyard Times 8/1)

1st Circuit Decision:
KG Urban Enterprises v. Patrick (August 2, 2012)

District Court Decision:
KG Urban Enterprises v. Patrick (February 16, 2012)

Related Stories:
Mashpee Wampanoag Tribe marks a major milestone for casino (7/31)