Dear Tribal Community:
I write in order to address the unfortunate confusion and misinformation which seems to be circulating among some tribal members concerning the proposed adoption of the Tribal Gaming Authority Ordinance by the Tribal Council. As your Chairman, it is important to me that transparency and the true facts always be the basis upon which we proceed with anything which affects our tribe. So, here are the facts about the Ordinance and why I believe that it must be passed in order for the Tribe to move forward with all of the critical work we have been doing towards our advancement.
First, the Ordinance was originally brought up for a vote before the Tribal Council last June and the Tribal Council voted in favor of it by a 6 to 2 margin. The Tribal Council believed at that time that its 6 to 2 vote properly adopted the Ordinance and, as a result, the Gaming Authority commenced its activities. Recently, we discovered that the original vote needed to be approved by a vote of 7 approving votes. (Ironically, consistent with my usual practice, I did not vote on the Ordinance last June even though I could have, and my vote would have been the 7th vote needed). Based upon this, we realized that it is now necessary to have a new vote to approve the Ordinance, and the Council is scheduled to have that vote at a meeting tomorrow (February 15).
Second, the Ordinance as proposed which we will vote on tomorrow is identical to the Ordinance voted on last June. It provides that the Tribal Council exercise control over the Tribal gaming Authority by appointing its Board of Directors consisting of at least 3 but not more than 5 members. The Ordinance also requires that the Chairperson of the Tribal Council be one of the of the directors and also serve as President of the Board of Directors, and that the Treasurer of the Tribal Council be one of those directors and also serve as Treasurer of the Board of Directors. (And to be clear, this means that whoever is in office at the time assumes these positions, not that I or the current Treasurer are appointed for all time). The Tribal Council’s role in controlling the Board is an important assurance that the two senior officers and directors of the Tribal Gaming Authority will hold these positions as a direct result of a membership vote of the Tribe. In other words you, as members of the Tribe, vote to determine both the senior officers of the Tribal Council and the Tribal Gaming Authority by voting for your representatives on the Tribal Council. If the Tribal Council determines to remove one or more of the 3 appointees to the Board (who form a majority of the Board), it may do so and by so doing it can control the make-up of the Board going forward.
Third, at the time the Ordinance was originally considered last June, the Tribal Council voted to appoint Tribal Council member Yvonne Avant as the required third director of the Authority as well as Secretary of the Authority. The Ordinance allows the Tribal Council to appoint up to two additional directors. The Tribal Council has the authority to expand the Authority Board of Directors to 4 or 5 members, and has had that authority at all times since last June and if the Ordinance is approved it will continue to have it. Additional directors need not be members of the Tribal Council: any member of the Tribe qualified and registered to vote in Tribal elections who is at least 25 years old and is of good character can serve as an Authority director through appointment by the Tribal Council.
Fourth, it is important that we all understand why it is necessary to have a Tribal Gaming Authority. The creation of this kind of entity protects the Tribe and its assets from possible legal liabilities related to the construction and operation of a Casino. This is further explained, and examples provided, in the attached Memo about the need for an “Authority”. The Authority will deal with all of the hundreds and thousands of detailed decisions that the development, design, construction, financing and operation of a $500 million destination resort casino requires on a day to day basis and which cannot await a vote of the full Tribal Council. (Of course, again, any decisions are always subject to Tribal Council oversight by virtue of its ability to remove Directors and the Gaming Authority is limited in terms of what it can and cannot so, as explained in the attached Memo).
Fifth, even after it creates the Authority, the Tribal Council always retains a significant direct voice with respect to your Tribal Casino. The Tribal Council holds all of the real estate options, it is a party to the financing, it signed the Intergovernmental Agreement with the City of Taunton, it is the beneficiary of the land-into-trust process, it appoints the Authority Board and it can amend the Authority Ordinance pursuant to the Tribe’s Constitution whenever it chooses. Any suggestion that these matters have been ceded to the Gaming Authority is just not correct.
Sixth, it is important to understand why it is critical that the vote approving the Ordinance take place now. Although the original vote last June approving the Ordinance was insufficient, the Tribal Gaming Authority commenced operations last June in the good faith belief that it had been properly approved and achieved many milestones over the last eight months of its existence, including:
- Negotiation and closing of critical financing, development and management agreements with Genting with the direct, active involvement and consent of the Tribal Council, and then monitoring the Tribal Council’s continuing obligations under those agreements.
- Monitoring all of the Tribal Council’s real estate option agreements on land in Taunton to insure that those option agreements remain in full force and effect.
- Monitoring and expediting the land-into trust process on behalf of the Tribal Council.
- Working with the Project architect and other consultants to bring the Project plans to their current level of schematic design, with significant input from the Tribal Council and Tribe members, insuring that the Project will reflect our culture.
- Supervising the extensive and complex local, State and federal permitting process, including full review under the National Environmental Protection Act and the Massachusetts Environmental Protection Act.
- Negotiating and obtaining lender consents to the many contracts required with third-party service providers to the Project, including the Architect (JCJ), the NEPA/MEPA consultant (Epsilon), the traffic consultants (HSH and FST), the Owner’s Representative (D’Amato Builders) and the civil engineer (Field Engineers).
- Developing Project budgets and schedules and drilling down on costs.
In many instances, the Authority entered into relationships and agreements with others who relied upon its existence in agreeing to work with the Tribe. I am sure you would agree that as a nation it is important that we honor our commitments. Our unwillingness to do so will leave the Tribe at risk. As a result, all of the prior actions of the Authority will be ratified by the Tribal Council if it approves the Ordinance. If the Ordinance is not approved it may undo eight months of hard work and significantly delay the completion of your Tribal Casino.
In recent weeks, it has been my privilege to announce the achievement of truly historic milestones in pursuit of our goals. I expect that more are to come in the very near future. Having the Authority set up and running is one important part of the process. As we continue to make progress the enormous press of business will only increase. It would be impossible for the full membership of the Tribal Council, who currently serve on a part-time basis, to consider and act on all of these day to day tasks given all of their other Tribal responsibilities. The Gaming Authority is fully answerable to the Tribal Council and the Tribal members and will continue to keep you fully informed with respect to the progress of your Tribal Casino.
These are the facts. Tribal Gaming Authority is an important and necessary part of the process of building your Tribal Casino. Please join me in supporting the adoption of the Authority Ordinance and ratification of all the Authority actions taken to date.
Qaqeemasq (Running Bear)
The Need for a Tribal Gaming Authority
The Mashpee Wampanoag Tribal Gaming Authority is an instrumentality of the Mashpee Wampanoag Tribe. It is customary for Tribal governments to create a tribal “instrumentality” to act for the Tribe when they enter into contracts and borrow money for gaming and other related commercial enterprises that involve substantial amounts of liability. In virtually all of these cases, the instrumentality is created to better shield non-gaming assets of the Tribal government and to provide a structure with whom third party financiers and others can deal. For those tribes who have to date sold “high yield” bonds, like the Tribe expects to do, most have created some form of an instrumentality. The most recent issuance example was the issuance of $450 million of these bonds on behalf of the Federated Indians of Graton Rancheria, who named their instrumentality the “Graton Economic Development Authority.” This Tribe used the instrumentality to incur the $450 million of liability, instead of the Tribe itself.
By way of example only, the following tribes (in addition to others) have created such instrumentalities where the tribe has needed to incur more than $100 million in debt:
|Mohegan Tribe of Connecticut
||Mohegan Tribal Gaming Authority
|Shingle Springs Band of Miwok Indians
||Shingle Springs Tribal Gaming Authority
|Snoqualmie Indian Tribe
||Snoqualmie Entertainment Authority
|Picayune Rancheria of Chukchansi Indians
||Chukchansi Economic Development Authority
|Pokagon Band of Potawatomi Indians
||Pokagon Gaming Authority
|Nottawaseppi Huron Band of Potawatomi
||Firekeepers Development Authority
|Seneca Nation of Indians
||Seneca Gaming Corporation
|Quapaw Tribe of Oklahoma
||Downstream Development Authority
|Dry Creek Rancheria of Pomo Indians
||River Rock Entertainment Authority
|San Pasqual Band of Mission Indians
||San Pasqual Casino Development Group, Inc.
|Mississippi Band of Choctaw
||Choctaw Resort Development Enterprise
|Santa Ynez Band of Mission Indians
||Chumash Casino and Resort Enterprise
|Tunica-Biloxi Tribe of Louisiana
||Tunica-Biloxi Tribal Gaming Authority