The Mashpee Wampanoag Tribe of Massachusetts, which seeks to build a billion tribal casino in Taunton, have been stymied by the U.S. Supreme Court’s Carcieri v. Salazar, which ruled that tribes not recognized by the federal government in 1934 can’t put land into trust.
The 2,600-member tribe, which is generally recognized as the first Native Americans to greet the Pilgrims when they landed at Plymouth in 1620, and claims to have lived in the area for 12,000 years has argued that, despite not having had direct dealings with the U.S. government during the last 240 years that it qualifies as having been in federal jurisdiction. However, it only achieved official federal recognition in 2007.
However, a federal judge disagreed and last year sided with residents of East Taunton, who sued to prevent the tribe from building its First Light Resort & Casino in land that it purchased in an industrial zoned part of the city.
As South Coast Today described the situation: “Before the United States existed, the tribe had been under the jurisdiction of the British Crown after King Philip’s War in the late 1600s. The colonists put the losers onto reservation, and social disruption and disease as a result of proximity with colonists reduced their numbers and voices. Colonial growth and expansion made it easier to ignore the duty to protect Mashpee people and property.”
The Carcieri decision has been a wishbone in the throat of Indian Country since the high court issued it in 2009, and tribal leaders have tried ever since to persuade Congress to “fix” the decision by amending the 1934 Indian Reorganization Act.
U.S. Rep. Norma Torres, who has introduced such a “fix” told the Indian Affairs Subcommittee last week, “The Carcieri decision has been so troubling in Indian Country.”
The U.S. Department of the Interior has tried to find a way around the Carcieri decision when in 2015 it put more than 300 acres, including 150 in Taunton, into trust for the Mashpees. The judge’s decision sent the department back to the drawing board—although he did not immediately remove the land from trust. However, he said that pending the department finding another way to put the land into trust that the tribe’s work on a casino had to stop.
At the same hearing where Rep. Torres testified, James Cason, acting deputy secretary of the Interior, and head of the Bureau of Indian Affairs explained, “The Mashpee Indian tribe is seeking to have land taken into trust for the purposes of a casino.” He added, “They are one of the tribes that are being looked at under the Carcieri decision.”
He noted that the department has looked at three definitions of Indian in the 1934 law. In a decision that was written but not issued because the tribe withdrew its application Cason wrote that there wasn’t enough evidence show a relationship between the tribe and the federal government before 1934.
He told both parties to submit evidence on another front, one in which the tribe’s relationship with the state of Massachusetts could be used instead of a relationship with the federal government.
Bethany Berger, an Indian law school at the University of Connecticut School of Law, told the Cape Cod Times: “As far as I know, this is an untried theory, but it’s a plausible one.”
This approach would cite a 1975 case involving a tribe in Maine, which was once part of Massachusetts. The court in that case referred to the state’s exercise of authority over tribes. Cason felt this might be used in the case of the Mashpees.
According to Berger: “One of the things that makes it seem more plausible to me is that state jurisdiction, and recognition and responsibility for tribes was a substitute for federal recognition for a lot of tribes in the East.”
Indian law expert and attorney Donald C. Mitchell, disagrees. He told the Times, “I was stunned, at least at first blush, at the ridiculousness of the whole thing.” Mitchell criticized what he calls unfaithful interpretations of the 1934 act by the Interior Department in its testimony. “It is exclusively a statutory construction issue,” he said. “In other words, what did the members of Congress who back in 1934 wrote the text of the IRA, what could they have meant by the undefined phrase ‘under federal jurisdiction.’ ”
The main purpose of the hearing was to look at ways to “fix” Carcieri. One such “fix” would extend the ability to be put into trust to any federally recognized tribe, period.
However, that approach is stoutly opposed by critics who say it fails to take into consideration the effect to local taxes and public safety and the effects casinos can have on local jurisdictions.
Many tribes think that there is too much focus is on gaming, and not enough on why tribes seek sovereignty. Kirk Francis, chief of the Penobscot Nation in Maine told the committee, “Tribes’ ability to regain their homelands is not only critical for them to be able to overcome economic disparity, education outcome disparities, housing disparities … but it’s also at the very core of cultural identity.”
