By Cape Cod Times
The U.S. Department of Interior has declined a request by the Mashpee Wampanoag Tribe to suspend a review of whether it qualifies for land into trust under an alternative category to the one a federal judge rejected last year.
But the move could be good news for the tribe’s hopes to build a casino in Taunton, seemingly dealt a setback this week when it asked Interior officials to hit the pause button on the review which had, until the latest development, been destined to end badly for the tribe.
Instead of suspending its review or moving forward with a decision on the issue prepared on June 19, the agency instead plans to further analyze an aspect of the case that had not been previously explored: whether the state’s authority over the tribe could be considered in place of the federal government’s authority in determining whether it met one of the alternative definitions of Indian required for land to be taken into trust on its behalf.
Both sides in the lawsuit brought by neighbors of the land where the proposed casino would be built had referenced a case decided in 1975 by the U.S. Court of Appeals for the First Circuit which found that in considering whether to admit Maine – which had previously been part of Massachusetts – as a separate state, Congress “had notice of Massachusetts’ exercise of authority over Indian affairs in the State,” Interior Associate Deputy Secretary James Cason wrote in a 2-page letter sent Friday to Mashpee Wampanoag Tribe Chairman Cedric Cromwell.
That case raised a potentially important issue in the analysis of the remand of the case to Interior by U.S. District Court Judge William Young that neither the tribe or the neighbors had explored, Cason wrote.
“To ensure a thorough analysis of this complex issue, I therefore request supplemental briefing from the parties on the question of whether the exercise of authority over the tribe by the Commonwealth of Massachusetts could be considered a surrogate for federal jurisdiction for purposes of the (Indian Reorganization Act’s) first definition of ‘Indian,’” Cason wrote in the letter, which was accompanied by the 33-page June 19 draft decision.
Under the June 19 decision, if it had been finalized, the tribe would not have qualified for land into trust because Cason had determined the tribe did not meet the first definition’s requirement that it had to have been under federal jurisdiction prior to 1934, leaving it to appeal the judge’s ruling on the second definition of Indian.
“The Mashpee Wampanoag Tribe is grateful that the U.S. Department of Interior today has provided a pathway forward in securing our reservation lands,” Cromwell said in a statement sent out with the Interior’s letter. “This evening I received a letter announcing the Interior Department decision to extend and expand the review process by inviting us to submit further materials demonstrating how our tribal history supports our rights to trust land.”
The letter from Cason also reiterated that the 151 acres in Taunton and 170 acres in Mashpee remains in trust.
“The Mashpee and Taunton parcels remain in trust status, unless a court orders otherwise, while the Department considers the parties’ supplemental submissions to remand,” Cason wrote.
The tribe’s plan to build the First Light Resort and Casino on the Taunton land has faced fierce opposition from neighbors of the property who sued the federal government in February 2016, arguing that it had erroneously concluded it had the authority to take the land into trust for the Mashpee tribe under the second definition of Indian.
In August 2016, Young found in favor of the neighbors but said the government could also make a determination of whether the tribe qualifies for the land under the first definition, namely that it was under federal jurisdiction before 1934. The tribe and the Interior Department chose to pursue that route as government lawyers exited the court case and the tribe asked for a pause in the proceedings while the alternative determination for taking land into trust was being made.
Earlier this week the tribe announced its decision to reverse course and instead focus on the appeal. Cason’s letter, however, breathes new life into the possibility that the alternative definition of Indian remains a viable means of securing the tribe’s land.
“Because the DOI has not concluded its process, no decision is appropriate at this time, and none has been issued,” Cromwell said in his statement. “Previously, Department officials had committed to concluding and issuing its decision by June 27. As of that date, Interior was not persuaded there was an adequate basis to reach a final positive decision. As a result, we opted to suspend review. DOI has now invited us to address other grounds for a positive finding.”
Regardless of the outcome of the government’s review, continued opposition is almost certain. The neighbors have promised to sue if the Department of Interior attempts to justify taking the land into trust for the tribe under an alternative set of criteria.
An Interior Department spokeswoman had not responded to repeated requests for additional information after the tribe’s announcement earlier this week.