The Mashpee Wampanoag Tribe of Massachusetts is waiting for a new Record-of-Decision from the Department of the Interior on the status of its land in Taunton—where it hopes to be allowed to continue to build its billion casino. The tribe stopped construction last year after an adverse court ruling.
The tribe is hoping for positive news to offset the decision by a U.S. District court last year that stopped all progress on the Project First Light Casino after Judge William Young ruled that the department did not have the authority to put the land in Taunton into trust for the tribe.
The judgment didn’t close out the case entirely, but hinted that if the department took a different route to arrive at the land into trust decision that it might yet be legal.
Opponents of the casino took the tribe and the Interior Department to court and successfully challenged its methodology. The judge held that the department did not have the authority to put the 300 acres into trust under Category 2 of the Indian Reorganization Act of 1934, which says that a tribe must have lived continuously on an existing reservation.
The judge sent the decision back to the department for reconsideration, advising it to use Category 1, which must show that the tribe was under federal jurisdiction before the 1934 act.
Tribal officials have been heartened by a recent decision by the U.S. Supreme Court not to hear the challenge to the land into trust decision made by the Interior Department for the Cowlitz Tribe of Washington state. Lower courts had ruled for the tribe.
The Department’s Eric Shepard, associate solicitor at the Division of Indian Affairs Office of the Solicitor sent this email to the tribe: “This is to notify the parties that the Department intends to issue its remand decision on or before June 19, 2017.”
This followed a December letter from Lawrence S. Roberts, principal deputy assistant secretary of Indian Affairs, who wrote that the Department would “prepare a decision on whether the Tribe was under Federal jurisdiction in 1934, and thus eligible to have land taken into trust for it.”
Tribal Chairman Cedric Cromwell expressed optimism about the pending Interior Department decision. “We are confident that an amended Record-Of-Decision from the Interior Department will reaffirm what has already been well established and documented: we have lived on this land for thousands of years and it is only right that we remain,” he said.
Cromwell added, “The firm date provided by the Department of Interior puts any false claims about further delays to rest. We recognize that the Interior has a rigorous review process, but the June date at least gives us certainty there will be a decision very soon, and we are confident that our undeniable historical legacy will support a favorable outcome.”
He said he hoped to start up construction again this summer.
Meantime the tribe’s attorneys applied to an appeals court last week to delay the litigation from going forward until the Department issues its new decision. Depending on that ruling, an appeal might not be necessary. The tribe is asking for a delay of two months.
Martha’s Vineyard Appeal
Meanwhile, the other Wampanoag tribe, the Aquinnah Wampanoag of Martha’s Vineyard, last week learned that the state of Massachusetts and the town of Aquinnah have filed an appeal of the 1st U.S. Circuit Court of Appeal ruling upholding the tribe’s right to operate a Class II casino on its reservation on the island.
The appeal asked an en banc (full court) to reconsider the ruling made by a three-member panel of the court. That panel had overruled a federal court judge who held that the tribe was bound by an agreement that it made with the state and town as part of a land settlement. The settlement was enshrined by an act of Congress—however the appeals court agreed with the National Indian Gaming Commission’s opinion that when the Indian Gaming Regulatory Act (IGRA) was passed in 1988 that it obviated that agreement.
The tribe hopes to turn an unfinished community center in a small Class II casino.
