Genting Malaysia is so far on the hook for 7 million for the billion First Light Resort & Casino that the Mashpee Wampanoag Tribe seeks to build in Taunton, Massachusetts—but which is mired in a legal battle that could last for years.
Last week, in an annual report filing with Bursa Malaysia, the gaming giant, considered the largest gaming developer in the world, noted that the U.S. Department of the Interior has set new deadlines for proponents and opponents of the casino to submit documents and counter arguments as to why the land in Taunton and Martha’s Vineyard should or should not be put into trust as reservation land. The dates are August 31 for proponents and October 31, 2017 for those opposed.
The tribe seeks to build a mega casino with 3,000 slots and 150 gaming tables that would include a retail mall, theme park, spa, multiple hotels with about 900 rooms and entertainment venues, that would all be managed by Genting. The resort would employ about 4,000.
The $347 million the tribe owes is in interest-bearing promissory notes that are being used to fund pre-construction expenses. If the casino is not built, Genting is seen as unlikely to get the money back—although, according to its filing, the company is looking at the recoverability of the investment and how that will affect its revenue and net assets for the year.
Like most tribes, the Mashpees refuse to discuss their finances, however Genting is required to discuss its finances in its filing with Bursa Malaysia, which is the Malaysian stock exchange company.
In its filing Genting wrote, “Given that the lawsuit remains pending and further rulings are expected to be made, construction of the integrated gaming resort has been put on hold pending further court developments and/or actions by the Department of the Interior or other relevant governmental authorities that will enable the tribe to ultimately proceed with the integrated gaming resort project.”
About two dozen residents of East Taunton sued the Interior Department, contending that the decision to put the land into trust violated the 2009 Carcieri v. Salazar ruling by the U.S. Supreme Court that says a tribe not under federal control in 1934 cannot put land into trust. The federal government recognized the Mashpees in 2007. If the department could not legally put the land into trust the tribe would not be able to operate a casino there—even though it owns the land.
The tribe started work on the casino site in April 2016 ago but was forced to come to an abrupt halt in July 2016 when a federal court ruled that the department had not shown that the tribe qualified as a tribe under federal control before 1934 as defined by the Indian Reorganization Act of that year. The land remains in trust until a judge orders it removed from trust, which so far has not happened.
When U.S. District Court Judge William Young ruled against the tribe last year, he gave the Interior Department a possible window through which it might put the land into trust by using a different section of the Indian Reorganization Act’s definition of Indian tribe.
The Interior Department has since that time been working on the problem. Meantime the tribe held off on appealing Judge Young’s ruling until the department made its determination.
Associate Deputy Secretary of the Interior James E. Cason, who is the head of the Bureau of Indian Affairs, broke the bad news to the tribe on June 19, and advised the Mashpees to withdrew their request for a remand, and instead appeal Judge Young’s ruling. The department was due to issue its official ruling on June 25, and if the tribe didn’t withdraw its application for a remand, then it would have to deal with the fact that the department had ruled against it.
Cason found that the tribe was unable to meet the Reorganization Act’s first definition of Indian, nor the second definition that Judge Young had suggested exploring. His search for evidence referenced other tribes and he concluded that while the U.S. government may have been aware of the Mashpee tribe, that there was no evidence that the tribe was under its jurisdiction.
The Mashpee tribe is generally considered by historians to be the tribe that greeted the Pilgrims when they landed at Plymouth in 1620.
In its Carcieri ruling the Supreme Court ruled that a tribe could put land into trust if, in 1934 it fit the definition of “all persons of Indian descent who are members of any recognized tribe now under Federal jurisdiction.” The Supreme Court left unsaid what it considered to be “under federal jurisdiction.”
Cason’s findings of the 1934 act were that it left ambiguous what “under federal jurisdiction” and he wrote that “the phrase ‘under federal jurisdiction’ had no clear and unambiguous meaning, and that Congress had left an interpretive gap for the agency to fill.”
Cason, writing for the department, wrote that to fit the first definition in the act tribes must demonstrate that the U.S. government “exercised jurisdiction over the tribe at some point in or before 1934 and that such jurisdictional status remained intact as of 1934.” This could include actions taken like a guardian, or of approving contracts between a tribe and non-Indians, or other actions taken that demonstrated the federal government considered it had responsibility for the tribe.
Two years ago, the BIA argued that the Mashpees fit the second definition of that act: “all persons who are descendants of such members who were, on June, 1934, residing within the present boundaries of any Indian reservation.” Judge Young ruled otherwise, saying that the tribe had to fit the first definition. He sent the case back to the Interior Department to give the tribe the chance to provide evidence that it had been under federal jurisdiction in 1934.
The tribe offered the argument that it had relations with the British Crown before the American Revolution, and that the U.S. was the natural successor to items such as colonial deeds from the 1600s that guaranteed the tribe land in perpetuity.
Cason wrote that in his opinion these agreements were not the same as a treaty. “They are not ‘contracts between governments’ and do not evidence mutual commitments between the Tribe and Crown, much less any reciprocal grant of rights by the Tribe to the Crown.”
To counter the tribe’s assertion Cason cited the Tunica-Biloxi Tribe, which was first under control of Spain and when the later U.S. purchased the Louisiana Territory from France, it assumed the same obligations to tribes that the Spanish and then French governments had. Later the federal government used federal law to protect the tribal lands in the territory. This contrasts, he writes, with documents the tribe introduced, such as the so-called Morse Report from 1822 when a U.S. geographer visited and compiled information on hundreds of tribes for the Secretary of War and which included the Mashpees. This simply proved the tribe had the potential to be subject to federal government, Cason wrote.
He came to a similar conclusion about other documents that referenced or mentioned the tribe.
He conceded that the tribes had a point that when the federal government admitted Mashpee children to a federally operated Indian school in the early part of the 20th century, but said it wasn’t enough.
At the end of his 18-page document, Cason wrote: “I conclude that the Tribe’s evidence does not demonstrate that the United States took action or series of actions in or before 1934 that sufficiently establishes or generally reflects federal obligations, duties, responsibility for or authority over the tribe.” He added, “I therefore regret to inform you that I cannot acquire land in trust for the Tribe under the IRA’s first definition of ‘Indian,’ nor under the second definition as it has been interpreted by the United States District Court for the District of Massachusetts.”
