A bill introduced in the U.S. House would put 151 acres in Taunton and 170 acres in Mashpee, Massachusetts into trust for the Mashpee Wampanoag tribe. It would allow the tribe to move forward with its $1 billion First Light Resort & Casino despite setbacks created when its original 2015 land into trust decision by the Interior Department was overturned in court, which ruled in favor of 25 East Taunton plaintiffs.
Members of the Mashpee Board of Selectmen said they were irritated because no one alerted them about the bill and that they learned about it by reading a newspaper. However, Rep. William Keating’s office commented that the bill would do nothing more than restore the land to its status before the court ruled against the tribe. It would not affect the town in any way, it said. Keating’s 9th Congressional district includes Cape Cod.
Mashpee tribal Chairman Cedric Cromwell is very excited about the bill: H.R. 5244. The casino would have been operating by now if the lawsuit had not been filed. Cromwell said the tribe needs the gaming money, but that the issue is not all about casinos.
He told the Taunton Daily Gazette: “Of course we’re excited about that (the casino), but it’s shortsighted to say it’s only about the casino. The public just doesn’t understand that.”
The tribe, which many historians believe met the Pilgrims when they landed at Plymouth Rock in 1620 and claims it was there for 12,000 years before that—has always sought fair treatment by the federal government, he said.
The attorney for the 25 East Taunton residents who challenged the land decision in court, David Tennant, called the bill a “Hail Mary on top of a Hail Mary.” He added, “They tried to slide it into the (fiscal 2018) omnibus appropriations bill,” now being hammered out in Washington by congressional leaders. He promised to sue if the bill is passed, claiming that it would violate the constitution’s separation of powers.
The bill’s language would seem to preclude that. A provision states even if there are federal cases pending they “shall not be filed or maintained in a federal court and shall be promptly dismissed.” In the case of the Mashpees, however, a court order has already been issued.
Cromwell scoffed: “Congress has plenary authority on all tribal issues,” he said. It is not uncommon for Congress to choose to put land into trust, effectively bypassing the Interior Department.
He praised the bill: “This bill is further evidence that Congress, in both the House and Senate, see it as the honorable and just thing to do — re-affirm our right to a reservation for our people and to ensure that our tribe will be treated equally under the law as other federally recognized tribes.”
In 2016 U.S. District Court Judge William Young ruled that the Interior Department could not put land into trust for the Mashpees because they were federally recognized in 2007. The U.S. Supreme Court has ruled that tribes that were not under federal jurisdiction after 1934 could not put land into trust. The judge remanded the case back to the department and told it to try to find another justification for putting the land into trust—which the department has not yet done, although it is expected to issue a ruling soon.
However last year an official of the department, Associate Deputy Secretary James Cason sent an email to the tribe saying that evidence the tribe submitted to support its claim, “does not show that the tribe was under federal jurisdiction in 1934” a adding, “I must also conclude that the tribe cannot meet the Indian Reorganization Act’s first definition of ‘Indian,’ or its second definition as interpreted by the Massachusetts U.S. District Court in the Littlefield litigation.”
Keating commented: “We’re hearing that the Interior Department is very seriously looking at taking away the tribe’s status to own land and that has an enormous effect on the very existence of the tribe itself. It would be financially devastating.”
Although the Gazette has reported that the tribe is working with a commercial group to develop a non-tribal casino for the site, Cromwell said the tribe is still “focused on federal Indian policy.” He added, “I think anything’s possible, but we’re fighting to preserve our rights as a sovereign nation.”
