Mashpee Wampanoag Tribe sees setback in land-into-trust dispute

Friday, July 29, 2016

The First Light Resort and Casino maintained a booth at the Mashpee Wampanoag Tribe's 95th annual powwow in Massachusetts in early July 2016. Photo: First Light

The Mashpee Wampanoag Tribe has seen a significant setback in its effort to open a long-delayed casino in Massachusetts but Chairman Cedric Cromwell remains confident that justice will prevail.

The tribe already started work on the First Light Resort and Casino and the facility was projected to open next summer. But a federal judge said the Bureau of Indian Affairs should not have approved the land-into-trust application for the project.

"Obviously, we are disappointed in the ruling, as it represents an attack on Indian sovereignty and an attempt to undermine our right to self-determination and self-reliance," Cromwell said in a statement.

The tribe, however, is not a party to the lawsuit, which is known as Littlefield v. Department of the Interior. So Judge William G. Young, at this point, cannot do anything about construction at the 151-acre site in Taunton.

The state has limited options too because the tribe cannot be sued due to sovereign immunity.

"This ruling does not mean that we have lost our land," Cromwell noted. "This ruling does not mean we have been ordered to stop moving forward with our First Light Resort & Casino."

The Mashpee Wampanoag Tribe hosted its 95th annual powwow from July 1-3, 2016. Photo from Facebook

Young's decision leaves the ball in the hands of the federal government but it's not clear whether the BIA or any other agency are going to do anything to halt construction unless federal laws are being broken. The tribe has not brought gaming machines on site so gambling laws aren't in play at this time.

Still, there are major hurdles going forward. In the 22-page decision, Young said the BIA was wrong to conclude that the Mashpee people could benefit from the land-into-trust provisions of the Indian Reorganization Act because the tribe was not "under federal jurisdiction" in 1934.

"This means that, despite their subsequent acknowledgement by the federal government, for purposes of Sections 465 and 479 of the IRA the Mashpees are not considered 'Indians' because they were not under federal jurisdiction in June 1934," Young wrote, referring to the provisions of the IRA at issue in the case.

"Thus, the [Interior] Secretary lacked the authority to acquire land in trust for them, at least under the rationale the Secretary offered in the record of decision," he added.

Young sent the matter to the BIA for further consideration so the ruling leaves an opening for the agency to come up with an explanation that could survive muster. Or the federal government could try to have the decision overturned through further appeals.

"I don’t need to tell you that our people have been challenged many times over the centuries. But I am comforted by the fact that we are still here, living on the land of our ancestors," Cromwell said in his statement. "At this time, we need to stand united as a tribe. If we can do that, with the blessings of our Creator and our ancestors, I have no doubt we will prevail!"

The Mashpee people have lived in present-day Massachusetts since time immemorial. Their lands were recognized as distinct and as a "reservation" by Colonial governments for centuries, even though the tribe's federal status wasn't formalized until May 2007, according to the BIA.

"The historical record demonstrates that a reservation was set aside for the Mashpee Indians via colonial land deeds that were under the protection of the colonial court and government," former Assistant Secretary Kevin Washburn wrote in the 137-page decision last September. "The record further shows that the reservation continued to exist in 1934 and at that time, Mashpee members were residing within its boundaries."

The additional analysis was needed as a result of the U.S. Supreme Court decision in Carcieri v. Salazar. In February 2009, the justices held that the BIA can only place land in trust for tribes that were "under federal jurisdiction" in 1934. At the same time, they did not define the exact meaning of that phrase.

That left an opening for the Obama administration to develop a two-part test that takes into account numerous factors to determine whether a particular tribe meets the test. That test, however, was not employed with respect to the Mashpees -- the BIA instead relied on a different part of the IRA when it approved the land-into-trust application for the casino.

Turtle Talk has posted documents from the case, Littlefield v. Department of the Interior.