A federal judge in Boston last week first heard the arguments in Littlefield v. Department of the Interior, a case in which 25 East Taunton residents seek to overturn an action by the Bureau of Indian Affairs last year that put 151 acres in the city into trust for the Mashpee Wampanoag Tribe, which it is using to build the billion First Light Resort & Casino.
The plaintiffs argue that the BIA action violates the 2009 Carcieri v. Salazar decision of the U.S. Supreme Court which ruled that tribes recognized by the federal government after 1934 can’t put land into trust. The federal government in 2007 ostensibly recognized the tribe. The plaintiffs maintain that the Department of the Interior acted outside its authority in taking that action.
To support that decision the BIA wrote, “The record demonstrates that the tribe continued to occupy these lands and the governing sovereigns, whether it be the British Crown by way of the colonial government, the United States, or the Commonwealth of Massachusetts, continued to recognize the lands as a reservation.”
Attorneys for the government last week told the court that in 1934 the tribe was living on a reservation. The Mashpee Wampanoag tribe traces its ancestry to the Indians who first met the Pilgrims in the 1600s shortly after they stepped off the Mayflower.
According to a brief filed by the plaintiffs, “The Mashpees were not organized and functioning as a tribe in 1934— indeed any time after 1869,” and, “The Secretary’s current end-run on Carcieri and willingness to take a contrary position in this court is not explainable or excusable as a sound change in public policy or as necessary governmental action to uphold the law.”
The judge in the case, William G. Young, has concentrated the case into one question, whether the Mashpees qualify under the 1934 act. After that is determined the judge will take up other points of the complaint.
He has said that the issue is not one of facts, but of the letter of the law.
The Department of Justice argues that the opponents should not be fixed on the grammatical text of the 1934 law, but rather the intent of Congress. The government attorney Steven Miskinis declared, “The words can’t be viewed in a vacuum.”
The city of Taunton has filed a friend of the court brief in support of the BIA action. The city supports the casino. Taunton has an intergovernmental agreement with the tribe where the city is paid at least $8 million annually, plus mitigation payments for services and traffic. The city also expects to receive economic benefits, such as 300 construction jobs and 3,500 permanent jobs.
According to the brief: “The voters of the city overwhelming approved the First Light Project through a well-publicized referendum. The project will result in much-needed economic stimulus for the residents of the city in the form of construction and long-term jobs, infrastructure improvements, substantial revenues for the city. Moreover the city took great care to ensure the public was duly notified, informed, and had the opportunity to participate in the deliberative process leading up to the Record of Decision.”
The tribe is not part of the complaint, which was filed in February against the federal government. While the case is litigated the tribe is continuing to build its casino, hotel and entertainment complex, which it held a groundbreaking for in April. It is due to open next summer.
The plaintiffs seek to stop that building. Judge Young is expected to reach a decision by the end of July.
David Littlefield, one of the plaintiffs, said he and his fellows are prepared to appeal if the ruling goes against them.
“We’re optimistic. He seems like a very fair judge. He beat up our attorneys and he beat up their attorneys,” said Littlefield.
Mashpee Chairman Cedric Cromwell commented, “Thankfully, the judge clearly understands the complexity of the issues involved. We remain confident moving forward.”
