The Mashpee Wampanoag Tribe held its 96th annual powwow from July 1-3, 2017. Photo: Mashpee Wampanoag Tribe

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Mashpee Wampanoag Tribe remains confident as Trump team reviews casino bid

Tuesday, August 15, 2017

The leader of the Mashpee Wampanoag Tribe remains confident of plans for a long-delayed casino even though the Trump administration was prepared to kill the project.

In an August 3 message, Chairman Cedric Cromwell said the tribe has several options on the table. One is an appeal of a lawsuit that questioned whether the Bureau of Indian Affairs should have approved the First Light Resort and Casino in Massachusetts.

The appeal remains on hold while the tribe pursues a second option. The Department of the Interior plans to make a new decision on the tribe's land-into-trust application after new information is submitted later this year.

"There’s no questions that we’ve got a lot of work to get through over the next few months, but we’ve got a great team that’s willing to work right by my side grinding the midnight oil to ensure the Department of Interior receives the supplemental material they’ve requested," Cromwell said in the message to tribal citizens.

A third option has been mentioned in the Massachusetts media. Although Cromwell did not address the issue in his message, the tribe could pursue a commercial license under state law for the stalled casino.

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

The tribe broke ground on the casino in the spring of 2016 and plans called for the first phase to open this summer. The lawsuit derailed the project, with opponents bringing up the U.S. Supreme Court decision Carcieri v. Salazar.

In the 2009 case , the justices held that the BIA can place land in trust only for those tribes that were "under federal jurisdiction" in 1934. The Mashpees didn't gain formal recognition until 2007, long after that date.

The BIA, during the Obama administration, approved the application on the grounds that the tribe and its citizens were living on a "reservation" in 1934. But a federal judge said that wasn't sufficient to address Carcieri , a ruling that prompted both the tribe and the government to appeal to the 1st Circuit Court of Appeals.

The legal landscape shifted after President Donald Trump took office. In April, the BIA withdrew its appeal and told the tribe it was going to make a new decision on the land-into-trust application in June.

That almost happened. Jim Cason, the Associate Deputy Secretary at Interior, gave the tribe a copy of a draft decision in which he was prepared to reject the application.

But instead of going that route, Cason asked the tribe and opponents to submit more information by October 30. Based on the promise of a new decision, the tribe has stayed its separate appeal before the 1st Circuit.

If the tribe ends up pursuing the appeal, it will be doing so without one of its strongest advocates. On July 17, attorney Arlinda Locklear, a citizen of the Lumbee Tribe who was the first Native woman to argue a case before the Supreme Court, withdraw as the tribe's counsel

"Proceedings in this matter will be neither delayed nor otherwise prejudiced by the undersigned’s withdrawal inasmuch as remaining counsel for the tribe are able and prepared to prosecute the tribe’s appeal, notwithstanding the withdrawal of the undersigned," the motion stated. It was granted by the 1st Circuit two days later.

Read More on the Story:
Court continues delay of Mashpee tribe's appeal (The Cape Cod Times August 14, 2017)
Tribe Appeal Pushed Back (The Mashpee Enterprise August 11, 2017)

Federal Court Decision:
District Court of Massachusetts: Littlefield v. Department of the Interior (July 28, 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)