The Department of the Interior has issued its long awaited ruling on 321 acres that it originally put into trust in 2015 for the Mashpee Wampanoag tribe of Massachusetts. And it’s as devastating for the tribe’s hopes to build a casino in Taunton as it could be.
The department announced last week that it cannot hold land in trust for the tribe. Its original 2015 decision was challenged in federal court by local opponents and a federal judge, Judge William G. Young, citing the Supreme Court ruling of Carcieri v. Salazar, which prevents tribes recognized after 1934 from putting land into trust, in 2016 ordered the department to come up with a different legal justification for putting about 300 acres in Taunton and on Martha’s Vineyard into trust.
It wasn’t able to. The 28-page ruling says the tribe, despite having greeted the Pilgrims when they landed at Plymouth Rock, was not under federal jurisdiction when the Indian Reorganization Act was passed by Congress in 1934. The federal government recognized the tribe in 2007.
Assistant Secretary of Indian Affairs Tara Sweeney (aka the director of the Bureau of Indian Affairs) in the 28-page letter to the tribe wrote: “The Department has evaluated the parties’ submissions within the framework established by the Department’s Office of the Solicitor (Solicitor) for that purpose. Based on my review and consideration of these submissions, I cannot conclude that the Tribe was ‘under Federal jurisdiction’ in 1934. As a result, the Tribe does not satisfy the ‘under Federal jurisdiction’ requirement of the first definition of ‘Indian,’ and it also does not satisfy such requirement with respect to the second definition as that definition has been interpreted by the United States District Court for the District of Massachusetts.”
Tribal Chairman Cedric Cromwell called the ruling a “tremendous blow” and urged Congress to pass a bill that would put the land into trust.
The tribe had broken ground a few months before the legal blow for the First Light Resort & Casino, which was estimated to cost between $600 million and $1 billion. That site has been undisturbed now since then as the tribe appealed.
According to some experts on Indian law, this may be the first time since the 1960s that land placed into trust for a tribe has been removed.
The tribe’s difficulties prompted Rep. William Keating to introduce the Mashpee Wampanoag Tribe Reservation Reaffirmation Act that would do by act of Congress what the department has been unable to do.
Bay State Senator Elizabeth Warren, who along with Senator Ed Markey, sponsored the same legislation in the Senate, sharply criticized the Trump administration for the Interior decision in a joint statement: “The decision by the Trump administration to move forward with denying the Mashpee Wampanoag a right to their ancestral homeland and to keep their reservation is an injustice.”
They added, “America has a painful history of systematically ripping apart tribal lands and breaking its word. We cannot repeat that history. Today’s action by the Trump administration is yet another deal the federal government is reneging on with Native Americans, and it underscores why Congress must pass our legislation, so that the Mashpee Wampanoag do not lose their home at the hands of the federal government.”
Warren, whose own false claims of Native American ancestry raised eyebrows, promised to move forward with the legislation, which has gotten strong support in the House, but tepid support in the Senate.
The decision was cause for celebration by Bill Carpenter, the mayor of Brockton, where residents hope that the Massachusetts Gaming Commission will revive a casino proposal that the commission rejected in 2016 because it didn’t want to do anything to prevent the Mashpee casino from going forward.
The mayor publicly tangled with the senators this week with this statement: “I respectfully disagree with the statement released by our U.S. senators. The tribe has had multiple opportunities to make their case, that a land in trust designation for the Mashpee tribe met the requirements of existing federal law.” He calls attempts to overturn the judge’s decision by legislation a violation of separation of powers.
“Starting with the Carcieri Supreme Court case in 2009, involving similar issues to the Mashpee tribe by the Narragansett tribe, to Judge Young’s decision in federal court in July of 2016, to yesterday’s decision by the Bureau of Indian Affairs in the Interior Department, historically strong advocates for the rights of tribes, the issue of land in trust designation for the Mashpee Tribe is now clearly settled law,” wrote the mayor.
That $677 million proposal by Rush Street Gaming to build a casino on the Brockton Fairgrounds may have been given new life by the department’s decision to give up on putting the land into trust. Rush Street hasn’t really been a silent bystander in this process. It funded the residents of East Taunton, who sued the Department of the Interior.
Earlier this year Rush Street sent a letter to the MGC asking it to reopen the process; something the commission said it would reply to later this year. The commission is authorized by the 2011 legislation that authorized casino gaming in the Bay State to issue a license for three casinos and a slots parlor. It has so far issued licenses for two casinos and a slots parlor, but not for Region C, the southeastern region of the Bay State.
The 2011 legislation hoped to limit the number of casinos to four, and that was why it deliberately attempted to set aside one of the licenses for the Mashpee tribe, with the understanding that it was required to put land into trust and to sign a tribal state gaming compact with then Governor Deval Patrick.
The tribe has been backed by the Malaysian gaming developer Genting Group, which largely funded tribal government while the tribe first proposed the casino, and then fought to save it. Genting is the backer of the Resorts World projects in the Bahamas, New York, Florida and Las Vegas.
Michelle Littlefield, one of the nearly two dozen East Taunton residents who sued and won in federal court this week told the Taunton Gazette: “It’s over and done with. This is a resounding, final no with a big period at the end.”
Taunton Mayor Thomas Hoye Jr. is clearly disappointed that his city won’t get the $8 million a year that the tribe had promised it if the casino opened. He told the Gazette that the decision “wasn’t unexpected.”
He feels that the department changed its stance to reflect the view of the new administration. He remains hopeful that the bill in Congress could revive the project.
“Congressional action has always been the end game with the tribe anyway,” said Hoye. “It’s certainly not dead yet,” he added, noting that the tribe hasn’t abandoned the idea of applying to the gaming commission for a license for a commercial casino, rather than an Indian casino.
That would mean that the tribe would be forced to operate without the advantage of tribal sovereignty, and to pay the state 25 percent, instead of the 17 percent it would pay under the Indian Gaming Regulatory Act (IGRA.)
He notes that if nothing else happens, the city benefited from its association with the tribe because it was paid $1.5 million up front as well as $775,000 for infrastructure improvements to local roads.
Native American leaders have almost universally condemned the Interior ruling, which many of them consider to be a step backwards in the long history of how the federal government has treated Indian tribes.
The National Congress of American Indians issued a strong statement disagreeing with the Interior decision. It wrote: “In the decision, the Department (DOI) failed to consider the totality of the Tribe’s evidence in determining whether or not the Tribe was “under the jurisdiction” of the Federal Government in 1934. Instead, the Tribe was unfairly expected to prove that each individual submitted piece of evidence on its own proved that the tribe was under federal jurisdiction, rather than viewing the collective evidence presented by the tribe and then making a determination based on all of the assembled facts.”
It added, “DOI rendered this unfounded decision despite the fact the Tribe presented evidence that Mashpee Wampanoag children, enrollees of the federal Carlisle Indian School in Pennsylvania, were subjected to the most repugnant policies toward Indians during that era—the forced removal of Native children from their tribal homes so they could be stripped of their cultures and languages.”
NCAI also noted that despite evidence the tribe presented showing that it was included in a number of documents reporting on Indian tribes over its history “the decision rejects this clear evidence of federal jurisdiction by inexplicably claiming that these federal reports – in some cases commissioned by Congress – somehow do not constitute ‘exercises’ of federal jurisdiction.”
It concluded: “NCAI is extremely disappointed in this decision, as it reflects the obvious failure of the federal government to uphold its trust responsibility to Indian tribes. NCAI demands an immediate response from the Department as to whether this decision indicates that the Administration’s current land policy towards Indian tribes is one of ‘how to get to no.’ ”
