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Judge focuses on Mashpee Wampanoag Tribe casino decision

Thursday, June 30, 2016

Artist's rendering of the First Light Resort and Casino in Taunton, Massachusetts. Image from Steelman Partners / Mashpee Wampanoag Tribe

A federal judge has agreed to determine whether the Bureau of Indian Affairs can place land into trust for the Mashpee Wampanoag Tribe of Massachusetts.

Judge William G. Young will hear arguments on July 11, according to a court order filed on Wednesday. The proceeding will solely be limited to one issue -- whether the tribe qualifies for the land-into-trust provisions of Indian Reorganization Act of 1934.

The BIA determined that the Mashpees could take advantage of the law because their ancestors were "Indian" and were living on a "reservation" in 1934. The novel interpretation of the IRA appears to be the first of its kind for a newly-recognized tribe.

Casino opponents are hoping to convince the judge that the BIA is wrong. According to the first cause of action in their complaint, the tribe was not "under federal jurisdiction" in 1934 -- a requirement imposed by the U.S. Supreme Court decision in Carcieri v. Salazar.

Opponents also raised other claims but they agreed to focus solely on their first cause of action as part of a stipulation they jointly filed with the federal government on Tuesday. Young accepted the limited approach and ordered the parties to submit briefs by July 7.

Whatever the outcome, a decision in the case might not have an effect on the First Light Resort and Casino, which is due to open in the summer of 2017. The tribe is not named as a defendant in the lawsuit and cannot be added without its consent due to sovereign immunity.

If the casino site somehow is deemed to be out of trust, officials in Massachusetts might be pressured to take action. But options are limited as a result of the Supreme Court's decision in Michigan v. Bay Mills Indian Community.

In May 2014, the court determined that tribes can be sued by states but only for activities that occur on "Indian lands" -- a definition that would no longer hold true if the BIA loses the case. Otherwise, the tribe retains its sovereign immunity.

Get the Story:
Judge narrows focus of suit brought by casino foes (The Cape Cod Times 6/30)

Mashpee Wampanoag Tribe Land-Into-Trust Documents:
Chairman Cedric Cromwell Announcement | Mashpee Wampanoag Tribe Press Release | Bureau of Indian Affairs Press Release | Assistant Secretary Kevin Washburn Letter to Chairman Cedric Cromwell | Record of Decision

DOI Solicitor Opinion:
M-37029: The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014)