Two tribes see conflicting rulings in long-running quests for casinos

Tuesday, August 2, 2016

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

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In what seemed like pure coincidence, rulings in two closely-watched tribal casino cases came down at the end of last week.

On Thursday, a federal judge ruled that the Bureau of Indian Affairs should not have approved a casino land-into-trust application for the Mashpee Wampanoag Tribe of Massachusetts. A day later, a federal appeals court came to the opposite conclusion with respect to the casino sought by the Cowlitz Tribe of Washington.

Both cases arose out of the U.S. Supreme Court decision in Carcieri v. Salazar. Casino opponents believe the Mashpee and the Cowlitz cannot follow the land-into-trust process because they weren't "under federal jurisdiction" in 1934, but the answer to that question is not clear cut, based on the rulings handed down last week.

"At least by my quick skim of those two cases, the reasoning of those two courts is inconsistent," Kathryn Rand, the co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota School of Law, told The Cape Cod Times.

The lack of clarity is likely to lead to continued litigation. The Mashpee case is expected to eventually end up before the 1st Circuit Court of Appeals and opponents are promising a fight.

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

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"We said from the beginning we’ll fight to the end," Michelle Littlefield, a named plaintiff in the case known as Littlefield v. Department of the Interior told the Times. "We mean it."

Further litigation in the Cowlitz case is possible too. Opponents could ask the D.C. Circuit Court of Appeals for a rehearing or they could take the dispute to the Supreme Court, whose February 2009 decision in Carcieri threw a big wrench in the land-into-trust process.

Congress of course could eliminate the uncertainty by passing a fix to the decision. But efforts have been stymied by divisions among tribes and lawmakers from both parties.

The Mashpees hope to open the First Light Resort and Casino by the summer of 2017. The Cowlitz plan to open the ilani gaming facility in April 2017.

"Congratulations to the Cowlitz Tribe on winning the federal appeal. There's lots of similarities between Cowlitz and the Mashpee Wampanoag," the Mashpees wrote on the Facebook page for the First Light Resort and Casino.

Get the Story:
Ruling in separate case keeps Mashpee tribe's casino hopes alive (The Cape Cod Times 8/2)

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) $P Supreme Court Decision in Carcieri v. Salazar:
Syllabus | Opinion [Thomas] | Concurrence [Breyer] | Dissent [Stevens] | Concurrence/Dissent [Souter] $P Department of the Interior Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)