Litigation | Opinion

Opinion: Court decisions appear in conflict on tribal gaming rights

Monday, August 15, 2016

Construction is progressing quickly on the Cowlitz Tribe's casino in Washington. Still image from Live Construction Feed / Cowlitz Casino Project

Two tribes on opposite sides of Indian Country saw two different rulings on their long-delayed gaming projects. So what's next for the Cowlitz Tribe of Washington and the Mashpee Wampanoag Tribe of Massachusetts? Attorneys Christina Bitter and E. Abim Thomas believe the outcome in the Cowlitz case offers hope to the Wampanoags:

Definitions and syntax. Not only on middle school quizzes, but also what determined the fate of the Mashpee Wampanoag and Cowlitz tribal casinos in Massachusetts and Washington, respectively. Two federal court decisions decided one day apart considered the definitions of “Indian” under the Indian Reorganization Act (“IRA”), a law that allows the Secretary of the Department of Interior (the “Secretary”) to grant land into trust to benefit Indian tribes or individuals. The IRA defines “Indian” as follows:
[1] all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and [2] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include [3] all other persons of one-half or more Indian blood.
Confused about what you just read? The Supreme Court and the Department of Interior have teased out the definitions. In 2009, the Supreme Court held that “now under Federal jurisdiction” meant tribes under federal jurisdiction when the IRA was enacted in 1934. But noticeably absent from the 2009 decision was a definition of “under Federal jurisdiction.” The Department of Interior interprets “now under Federal jurisdiction” as meaning, prior to or in 1934, that the tribe had “taken an action or series of actions – through a course of dealings or other relevant acts for or on behalf of the tribe or in some instance tribal members – that are sufficient to establish, or that generally reflect federal obligations, duties, responsibility for or authority over the tribe by the Federal Government.” Despite these attempts at clarification, the court decisions for the Mashpee Wampanoag and Cowlitz tribes reached what many believe to be inconsistent conclusions.

Read More from the Christina Bitter and E. Abim Thomas:
Christina Bitter and E. Abim Thomas: Court Decisions Define the Future for Tribal Gaming (Goodwin Gaming 8/11)

Court Decisions:
District Court of Massachusetts: Littlefield v. Department of the Interior (July 28, 2016)
D.C. Circuit Court of Appeals: Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell (July 29, 2016)

Supreme Court Decision in Carcieri v. Salazar:
Syllabus | Opinion [Thomas] | Concurrence [Breyer] | Dissent [Stevens] | Concurrence/Dissent [Souter]

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