July 20, 2019

The court and the casino

Spinning local interpretations of Supreme Court decisions always is risky business, and Maine would be wise not to read much into the high court’s ruling in favor of the Narragansett Tribe’s effort to bring casino gambling to Rhode Island.

When the court refused Monday to support Rhode Island in its opposition to construction of a tribal gambling emporium, supporters of the stalemated Calais casino were convinced it meant movement in Maine. The $40 million project bogged down in the Legislature last spring. It can be budged by willing negotiators and compromise, or by the courts.

Two points on the Rhode Island decision.

Tribal gambling establishments are an economic development tool promoted by Congress with the Indian Gaming Regulatory Act of 1988. It is clearly its intent that federally recognized tribes be given the opportunity to get into the casino business. Rhode Island didn’t have the legal muscle to stand in the way.

The rub for the Penobscots and Passamaquoddies is that although the claims settlement act of 1980 was generous in awarding them a land base and a financial stake, it tightly defined the relationship of the sovereigns: the federal government, state and tribal nations, especially on the matter of jurisdiction.

Bangor attorney Timothy Woodcock, who was on the team that drafted the legal language that settled the tribal lawsuits 14 years ago, says federal lawmakers deliberately bound their successors to the terms to which the state and the tribes agreed. In layman’s terms, Woodcock explains, “No act regarding jurisdiction and Indians will apply in Maine unless Congress makes it specifically applicable in Maine.”

The gaming act of 1988 doesn’t make that distinction.

Rhode Island, which resolved its case nearly a decade before Maine did, had much looser language in its settlement document.

Passamaquoddy attorney Tom Tureen may be overzealous in promoting the local spin on the Rhode Island decision — he is paid to be Dr. Doom on the state’s chances of prevailing if the tribe pushes the issue in court — but he makes an observation Maine legislators should heed.

“The state of Maine,” Tureen admonished, “participated in this case and once again had its arguments rejected.”

This state’s track record in court is abysmal on issues relating to the tribal land claims. Given the mood in Washington, exemplified in the gaming act and the surge in political energy on the issue of aboriginal rights, Maine must consider the possibility that Congress eventually may modify the settlement language, or extend to the Penobscot and Passamaquoddy nations the same opportunity enjoyed by the Sioux, and now the Narragansett.

Maine had the best route to resolution mapped out for it in 1980: negotiation. When your opponent is on a roll, there is great risk in an all-or-nothing resolution in court. Just ask Rhode Island.

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