Indian law experts debate outcomes in two land-into-trust cases

Thursday, August 4, 2016

Mashpee Wampanoag Tribe Chairman Cedric Cromwell, left, and elder Vernon Lopez spread the good news after the Bureau of Indian Affairs approved the tribe's land-into-trust application on September 18, 2015. Photo from Facebook

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Indian law experts are closely analyzing two court cases that show how the U.S. Supreme Court decision in Carcieri v. Salazar continues to wreak havoc on the land-into-trust process.

In one case, 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. In the other, a federal appeals court said the BIA was right to approved the land-into-trust application submitted by the Cowlitz Tribe of Washington.

“To my eyes, the reasoning of the two cases does not seem consistent,' Kathryn Rand, the co-director of the Institute for the Study of Tribal Gaming Law and Policy in North Dakota, told The Fall River Herald News. “I’m not sure they can both be right.”

Bryan Newland, an attorney who used to work in the Obama administration, agreed. He said the judge in the Mashpee case went too far in applying Carcieri to the tribe.

Members of the Cowlitz Tribe gathered at their reservation in Washington in August 2015. Photo from Facebook

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“What was problematic is the court took it a step further and made a ruling about something the parties weren’t arguing about,” Newland told the paper. “The judge said not only is the BIA’s reading of the law wrong, but we’re also going to determine ourselves that the Mashpee weren’t under federal jurisdiction in 1934 anyway.”

But Alex Skibine, a law professor at the University of Utah, didn't think the judge got it wrong. However, he called on Congress to pass a fix to the Carcieri decision.

"The problem with that interpretation is that it creates two classes of Indians," Skibine told the paper. "It’s like the haves and the have-nots. To me it’s very sad that it’s pitted Indians against Indians.”

Efforts to fix the decision have been stymied by divisions among tribes and lawmakers from both parties. Even limited or "partial" solutions have failed to gain sufficient traction on Capitol Hill.

Uncertainty has slowed down the Mashpee and Cowlitz tribes but they are finally moving ahead with their casinos after their land-into-trust applications were finalized by the BIA. The First Light Resort and Casino in Massachusetts is expected to open in the summer of 2017. The ilani gaming facility will open in Washington in April 2017.

Read More on the Story:
Mashpee, Cowlitz rulings could have national impact on casino law (The Fall River Herald News 8/4)

An Opinion:
Editorial: With Taunton casino in limbo, time for Congress to pass 'Carcieri fix' (The Fall River Herald News 8/4)