A decision by a federal judge has dealt a temporary blow that has the potential to be a mortal one to the Mashpee Wampanoag Tribe’s plans to build its billion First Light Resort and Casino in Taunton, Massachusetts.
Judge William Young of the U.S. District Court ruled last week that the 2015 decision by the Bureau of Indian Affairs to put 151 acres into trust for the tribe violated the U.S. Supreme Court’s 2009 Carcieri v. Salazar, which said that land can’t be put into trust for tribe’s recognized after 1934, because of the wording of the 1934 Indian Reorganization Act.
The ruling came in a lawsuit from residents of East Taunton who sued to try to stop the casino.
Judge Young wrote: “In light of the Supreme Court’s interpretation of “now under federal jurisdiction” to mean under federal jurisdiction in June 1934, the Secretary for the Department Of The Interior lacked the authority to acquire land in trust for the Mashpee Wampanoag Tribe as they were not then under federal jurisdiction.”
But in spite of the ruling the tribe hasn’t stopped its building. In part that’s because the tribe and its supporters have been encouraged by ruling on a similar case on the other side of the continent where the U.S. Court of Appeals for the District of Columbia arrived at an entirely different conclusion.
Fortunately for the tribe, Judge Young did issue a cease and desist order on the building, but instead remanded the case back to the Department of the Interior.
The Mashpees are pinning their hopes on a ruling that came a day after Judge Young’s ruling. This ruling was in favor of the Cowlitz Tribe of Washington. The appeals court upheld a lower court ruling that the tribe had been “under federal jurisdiction” in 1934 in spite of the fact that the federal government didn’t formally recognize until a few years ago.
According to Kathryn Rand, the co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota School of Law, interviewed by the Cape Cod Times: “At least by my quick skim of those two cases, the reasoning of those two courts is inconsistent.” Rand added, “There’s plenty of room for a newly recognized tribe to put together a factual record that could show that descendants were under federal jurisdiction.”
Inconsistencies in federal rulings require settling by a higher court, occasionally by the U.S. Supreme Court.
During its application to put land into trust in 2013 the Mashpees pointed out that had an agreement with King George III of Great Britain before the American Revolution and that it continued to maintain relations with the Commonwealth of Massachusetts after that.
The Interior Department has 60 days to file an appeal. The department is hoping that eventually Congress will pass what supporters call a Carcieri “fix” that will preserve existing land into trust decisions.
Workers returned to their jobs on Monday and the work continues, including the demolition of existing buildings.
Taunton Mayor Thomas Hoye, whose town gave the tribe a resounding vote of support in a referendum four years ago, said he was disappointed in the ruling. Under the terms of the tribe’s agreement with the city it would pay $8 million annually.
The federal government recognized the tribe in 2007 after a 30-year effort by the tribe to gain recognition. The federal government, in defending its action putting the land into trust, argued that the wording of the 1934 law was ambiguous.
In his ruling Judge Young responded, “With respect, this is not a close call: to find ambiguity here would be to find it everywhere. The Secretary [for the Department Of The Interior] lacked the authority to acquire land in trust for them, at least under the rationale the secretary offered in the record of decision.”
Mashpee Chairman Cedric Cromwell reacted to the ruling: “Our people have been challenged throughout history and we are still here, living on the land of our ancestors. I have no doubt we will prevail.” He added that the tribe is “descended from the indigenous people who have lived on this land for the past 12,000 years.” The Mashpees are generally considered to be the tribe that greeted the Pilgrims when they first arrived at Plymouth Rock in 1620.
He also called the ruling “an attack on Indian sovereignty and an attempt to undermine our right to self-determination and self-reliance.”
The 2,500-member tribe broke ground on the First Light project in April.
One of the over two dozen plaintiffs in the case, Michelle Littlefield told the Boston Globe “Judge Young’s decision affirms what we learned and what we’ve been saying over the last four-and-a-half years. It isn’t about a casino, it’s about land in a trust and it’s now under state and local control. Our goal has always been that there be local and state oversight.” They filed the case in 2015.
Asked to comment on the possibility that the tribe would appeal the case, Littlefield said, “We said from the beginning we’ll fight to the end. We mean it.”
The decision opens up the possibility that the Massachusetts Gaming Commission might need to revisit the issue of a commercial license for the southeastern part of the state. The commission turned thumbs down to a proposal for
A spokesman for the Massachusetts Gaming Commission said that the commission would be reviewing the decision. Elaine Driscoll said, “Today’s outcome reflects the uncertainties that have long been part of the commission’s deliberations in southeastern Massachusetts.” She added, “At a time deemed appropriate, the commission will engage in a public discussion to further our review of what course of action will be in the short and long-term best interests of southeastern Massachusetts and the commonwealth.”
The tribe could also apply for the commercial license, although it wouldn’t be able to operate the casino under the same revenue sharing agreement that it now has with the state. A commercial casino must pay 25 percent of its revenues, while under the terms of its tribal state gaming compact the Mashpees would pay 17 percent.
