The fate of the First Light Casino resort that the Mashpee Wampanoag Tribe of Massachusetts wants to build in Taunton, now rests with the U.S. Court of Appeals for the 1st Circuit.
Last week a three-judge panel of the court, which included former U.S. Supreme Court Justice David Souter, heard arguments from both sides in the tribe’s appeal of a federal judge’s 2016 decision that overturned the Department of the Interior’s 2015 action that put 321 acres in Taunton and on Martha’s Vineyard into trust.
The tribe’s fortunes rest on this case. In partnership with Genting Malaysia, the largest developer of casinos in the world, the tribe began building its $1 billion casino after the Interior Department put the land into trust. Then a group of Taunton neighbors sued to stop the casino. The Mashpees ceased work on the site after the judge’s ruling but continued pushing on all fronts. At this point Genting has written off about $500 million in funds that it loaned to the tribe to build the casino.
The tribe’s budget and ability to provide services for its members has tumbled precipitously in recent years. Tribal Chairman Cedric Cromwell told CDC Gaming Reports, “We’re hurting, and we’ve carried this burden for so long. We’re just asking for justice. We want to live and provide for our elders and our children.”
The judge’s ruling in the case stems from the U.S. Supreme Court’s Carcieri v. Salazar ruling that holds that no tribe recognized after 1934—when Congress passed the Indian Reorganization Act— can put land into trust. The tribe was officially recognized by the federal government in 2007.
The tribe’s history is not in doubt. Historians agree that it was the Mashpee Wampanoag who greeted the Pilgrims when they landed at Plymouth in 1620. However, the tribe has been unable to prove a relationship with the federal government.
Nevertheless, the tribe and its supporters argue that it is absurd to say that the tribe had no such relationship, in spite of lack of evidence. After the court ruling the Department of the Interior attempted to follow a different line of reasoning that was based on the tribe’s well-documented relationship with the Commonwealth of Massachusetts over the centuries.
In 2018 the Department, now under the Trump administration, abandoned that effort and reversed its earlier ruling. The tribe is also challenging that action, but in a different court in the D.C. circuit.
There has also been an effort in Congress to put the land into trust through a bill. The House passed it last year and it has been backed by Senator and presidential candidate Elizabeth Warren. But it log-jammed in the Senate after President Trump called on Senators to reject it.
The oral arguments last week centered on whether the Mashpee Wampanoag can be considered “Indian” under the 1934 act which defines the term as: “all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation.” The tribe, of course, did not have a reservation at that time.
The tribe’s attorneys have contended that “such members” is an ambiguous term that might leave the way open for other interpretations. They also emphasized the tribe’s longstanding “identity, community and culture” which includes being present at the first Thanksgiving.
