The Bureau of Indian Affairs has indicated that it wants one more bite at the apple of determining whether the Mashpee Wampanoag tribe is entitled to have 151 acres in Taunton, Massachusetts put into trust for a casino: the billion First Light Resort & Casino.
Last week the BIA turned down a request by the tribe to suspend the review of whether it qualified under a different section of the Indian Gaming Regulatory Act (IGRA) that it original used. When a federal judge one year ago overturned the original December 2015 finding by the BIA, the judge left open the possibility that the land into trust might be allowed under a different section of the law.
About two dozen residents of East Taunton had challenged the 2015 land into trust decision by the BIA in February 2016, citing a U.S. Supreme Court ruling. The judge, agreed with the plaintiffs, and had ruled that putting the land into trust violated the Carcieri v. Salazar decision of the U.S. Supreme Court that said that land not under the direct supervision of the federal government in 1934 can’t put land into trust. The Mashpees obtained federal recognition in 2007.
As soon a federal judge issued his ruling the tribe suspended building on the casino—and it has remained in limbo ever since.
The tribe had asked to put the brakes on the process while it appealed the federal court ruling of U.S. District Court Judge William Young. Instead of doing that, the BIA has said that it plans to further examine the idea of whether being under state authority could be used in place of supervision by the U.S.
The BIA intends to refer to a 1975 case (Passamaquoddy Tribe v. Morton) where a U.S. Court of Appeals, in a case that involved Maine becoming a separate state from Massachusetts wrote that Congress “had notice of Massachusetts’ exercise of authority over Indian affairs in the state.”
“This fact raises a potentially important issue for the remand analysis that neither the tribe nor the Littlefield plaintiffs explored,” Cason wrote.
The Mashpees are one of the oldest known tribes in North American, and legend has it was the first tribe to greet the Pilgrims when they landed at Plymouth.
Department of the Interior Associate Deputy Secretary James Cason wrote to Mashpee Chairman Cedric Cromwell, “To ensure a thorough analysis of this complex issue, I therefore request supplemental briefing from the parties on the question of whether the exercise of authority over the tribe by the Commonwealth of Massachusetts could be considered a surrogate for federal jurisdiction for purposes of the Indian Reorganization Act’s first definition of ‘Indian.’ ”
Cromwell commented, “The Mashpee Wampanoag Tribe is grateful that the U.S. Department of Interior today has provided a pathway forward in securing our reservation lands. This evening I received a letter announcing the Interior Department decision to extend and expand the review process by inviting us to submit further materials demonstrating how our tribal history supports our rights to trust land.”
The attorney for the East Taunton plaintiffs criticized the Interior Department’s issue. David Tennant said, “It’s not anything that makes sense in history or law.” He added, “Now, more time and resources will be taken up, continuing the cloud over the land in Taunton and depriving all constituents of the clarity that was the whole point of the remand process. We’re going with another 90 days of briefings on a total non-starter of an issue.”
Cason gave the tribe and plaintiffs until the end of August to submit materials supporting or opposing the line of reasoning that the BIA is following, plus another 60 days for each side to reply to each other one’s points.
Until then, said Cason, the land in Taunton, and another 170 acres on Martha’s Vineyard remain in trust—unless the court were to order otherwise.
Taunton Mayor Thomas Hoye Jr., who has supported a casino in Taunton from the beginning said he was encouraged by Cason’s letter. “It appears the DOI wants to see them succeed in their quest. They haven’t said no, which leads me to believe there is hope.” Under the tribal/town agreement, the tribe would pay his city $8 million each year once the casino opens.
