Obama administration backs Mashpee Wampanoag Tribe casino bid

Cedric Cromwell, the chairman of the Mashpee Wampanoag Tribe, speaks at a job and vendor fair for the First Light Resort and Casino in Taunton, Massachusetts, on May 14, 2016. Photo from Facebook

The Mashpee Wampanoag Tribe qualifies for the land-into-trust process, the Obama administration told a federal judge on Thursday in a legal battle over a casino in Massachusetts.

The Department of Justice is defending the Bureau of Indian Affairs in a lawsuit challenges the tribe's land-into-trust application. Government attorneys said the BIA properly determined that the Mashpee people were living on a reservation in 1934 even though their formal government-to-government relationship wasn't confirmed until 2007.

"[T]he 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," the administration wrote in a 34-page brief.

On the opposing side are the plaintiffs in Littlefield v. Department of the Interior. They claim the tribe was not "under federal jurisdiction" in 1934 -- a key requirement of the U.S. Supreme Court decision in Carcieri v. Salazar.

"The Mashpees were not organized and functioning as a tribe in 1934— indeed any time after 1869," the attorneys for the plaintiffs wrote in their 32-page brief. "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 dueling factions are headed to court on Monday to argue their case before Judge William G. Young. He has limited the proceeding to one issue -- whether the tribe qualifies for the land-into-trust provisions of Indian Reorganization Act of 1934.

The tribe is not a party to the case but opponents hope their challenge will stop the First Light Resort and Casino from opening next summer. The facility is located in the city of Taunton, whose officials are seeking permission to file their own brief in support of the Obama administration. The Littlefield plaintiffs are opposing the city's participation.

The hearing will take place in Young's chambers in the federal courthouse in Boston. Incidentally, the building also houses the 1st Circuit Court of Appeals, which sided with the BIA not once but twice as part of the Carcieri lawsuit. The state of Rhode Island appealed and the Supreme Court overturned the decision on February 24, 2009.

The BIA's approval of the land-into-trust application for the casino was not based on the same provision of the IRA that was at issue in Carcieri. The novel interpretation of the law appears to be the first of its kind for a newly-recognized tribe.

Get the Story:
Taunton files brief in Mashpee Wampanoag casino fight (The Cape Cod Times 7/8)

Mashpee Wampanoag Tribe Land-Into-Trust Documents:
Chairman Cedric Cromwell Announcement | Mashpee Wampanoag Tribe Press Release | Bureau of Indian Affairs Press Release | Assistant Secretary Kevin Washburn Letter to Chairman Cedric Cromwell | Record of Decision

DOI Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)

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