Litigation | Openings & Closings

Mashpee Wampanoag Tribe hails bid to reconsider casino ruling

Thursday, August 25, 2016

Demolition work on the Mashpee Wampanoag Tribe's casino in Massachusetts began in spring 2016. Photo from Facebook

The Obama administration is standing up for the Mashpee Wampanoag Tribe of Massachusetts in a casino land case.

In a motion to reconsider that was filed in court on Wednesday, the Department of Justice said the tribe was "under federal jurisdiction" in 1934 even though its federal status wasn't formalized until 2007. That means the Bureau of Indian Affairs has the authority to approve the land-into-trust application for the First Light Resort and Casino, government attorneys wrote.

Judge William G. Young concluded otherwise in a July 28 decision that send the matter back to the BIA for further review. But government attorneys said his ruling stands in direct conflict with one from the D.C. Circuit Court of Appeals involving a land-into-trust application on the other side of the country.

In that case, the court concluded that the Cowlitz Tribe of Washington didn't need to have been "recognized" in 1934 in order to have been "under federal jurisdiction" at that time. The Obama administration argues that the same standard should apply to the Mashpee Wampanoag Tribe.

"The court’s ruling directly conflicts with the recent decision in Grand Ronde, in which the D.C. Circuit, consistent with every district court that has addressed the issue, upheld Interior’s determination that the Cowlitz Indian Tribe, federally recognized in 2002, was 'under federal jurisdiction' in 1934," the motion stated. That case is known as Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell.

The New England Casino Race: Tribal and commercial gaming facilities in Connecticut, Massachusetts and Rhode Island

Chairman Cedric Cromwell applauded the Obama administration for taking a stand but he said the tribe needs to be allowed into the case to tell its side of the story. A motion to intervene is pending before the judge.

"This action, coupled with the tribal council’s decision to file a motion to intervene, will serve to strengthen our case as we will have a more direct role in defending our lands, shoulder to shoulder with the U.S. Department of Interior," Cromwell wrote on the tribe's website. "Nobody can explain the importance of our ancestral homeland and its significance to our survival better than we can."

The Massachusetts case is known as Littlefield v. Department of the Interior. The plaintiffs are citing the U.S. Supreme Court decision in Carcieri v. Salazar in hopes of blocking the Mashpee Wampanoag Tribe's casino.

In Carcieri, the Supreme Court said the BIA can only place land in trust for tribes that were "under federal jurisdiction" in 1934. The justices, however, did not define the meaning of that phrase so the Obama administration has to consider each application on a case-by-case basis by reviewing history, treaties and other actions.

The Mashpee Wampanoag Tribe broke ground on the casino in April but has put work on hold amid the uncertainty. The tribe was anticipating a June 2017 opening.

Read More on the Story:
U.S. Department of the Interior fires back in Taunton casino land case (The Taunton Daily Gazette 8/25)
Justice Dept. challenges ruling on Wampanoag's tribal land (The Cape Cod Times 8/25)
U.S. Justice Department Files Motion to Reconsider in Wampanoag Case (CapeCod.Com 8/25)
US asks judge to reconsider ruling on Mashpee casino (The Boston Globe 8/25)
Tribe applauds Justice Department for challenging court ruling (WWLP 8/24)

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)