Mashpee tribe presses bid for sovereignty

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REEL WAMPS

WAMPALEAKS

GLADYS KRAVITZ

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Mashpee tribe presses bid for sovereignty
By Jessica Hill

Posted Feb 5, 2020

Court hears appeal of land-in-trust ruling that has put casino plans on hold.

BOSTON — Members of the Mashpee Wampanoag Tribe stepped out of a federal court Wednesday feeling hopeful.

“I’m feeling like our attorneys did a good job,” Tribal Council Chairman Cedric Cromwell said. “The justices were on the right side of the law.”

After hearing arguments, a three-judge panel for the 1st U.S. Circuit Court of Appeals took under advisement the tribe’s appeal of a lower court decision that the Interior Department was not authorized to take the tribe’s land into trust.

The tribe has been enmeshed in a yearslong battle with neighbors over its proposed $1 billion casino in Taunton, planned to include 300 hotel rooms, 3,000 slot machines, 150 table games and 40 poker tables.

With pending litigation involving the tribe, the casino has been put on hold.

The federal government has long acted as trustee for tribes, holding land deeds in trust for the purpose of sovereignty and self-government. In 2015, the Interior Department under the Obama administration took 321 acres of reservation land into trust in Mashpee and Taunton for the Wampanoag.

The land-in-trust designation also cleared the way for the tribe to pursue a casino.

In 2016, however, U.S. District Judge William Young ruled that the tribe was not under federal jurisdiction at the time the Indian Reorganization Act was passed in 1934, disqualifying it for land-in-trust status. He sent the case back to the Interior Department, and in 2018 the department under the Trump administration sided with Young’s decision, reversing its previous ruling.

Lawyers argued Wednesday over whether the Mashpee tribe, which was federally recognized in 2007, falls under federal jurisdiction in the Indian Reorganization Act based on the law’s definitions of “Indian.”

It categorizes “Indian” as someone of Indian descent who is a member of a recognized Indian tribe now under federal jurisdiction, a person who is a descendant of such members who were residing within the present boundaries of any Indian reservation on June 1, 1934, or a person of one-half or more Indian blood.

Benjamin Wish, the attorney representing the tribe, argued the word “such” in the definition was ambiguous and left room for interpretation, allowing the tribe to fall under federal jurisdiction under the statute.

“This was not a statute meant to nibble around the edges,” Wish said, “but rather hit a body blow against centuries of mistreatment from the United States to the Mashpee Indians.”

Wish compared the Wampanoag’s issue to a 1980s case involving the Catawba Indian Nation. The Catawba were not under federal jurisdiction, but the Interior Department determined they could organize under the Indian Reorganization Act because they existed as a tribe since at least the mid-1800s.

“They were a recognized Indian tribe,” Wish said.

“The Mashpee Wampanoag fit exactly under those characteristics.”

Also raised in the arguments was the 2009 U.S. Supreme Court decision known as Carcieri v. Salazar, in which the high court rejected a broad reading of the definition of “Indian” and determined that the secretary of the Interior could not take land into trust for tribes that were not under federal jurisdiction before the Indian Reorganization Act passed.

David Tennant, the attorney representing the Taunton neighbors, led by David and Michelle Littlefield, said there was no way to read “such members” that would include the Mashpee Wampanoag Tribe.

“From our perspective, it’s about the plain text,” Tennant said.

The case under advisement is not the only litigation the tribe faces. It also has filed suit in U.S. District Court for the District of Columbia against the Interior Department to challenge the 2018 reversal.

Many tribe members said the case goes beyond a fight for a casino — it’s about sovereignty.

David Weeden, a tribe member and Mashpee selectman, said although economic development is important for the tribe, jurisdictional authority and sovereignty are critical.

Tela Troge, a lawyer for the Shinnecock Indian Nation in Southampton, New York, came to the hearing to support the Mashpee tribe, as its case mirrors the current struggle her tribe faces.

“If you look at what’s going on with the Mashpee, our struggle with the Shinnecock is the same exact struggle,” she said. “They’re going to clear the legal path for us.”

As with the Wampanoag, she said, the federal government did not take tribal land into trust under the Indian Reorganization Act. The Interior Department has a legal duty to take both tribes under federal jurisdiction, Troge said.

The Littlefields declined to comment after the hearing.

While the case is in the courts, U.S. Rep. William Keating, D-Mass., who represents Taunton and Mashpee, has pushed legislation in Congress that would reaffirm the initial 2015 decision that put reservation land into trust. The House approved the bill, but it has not been acted on since being referred to the Senate in May.

“We’re not standing down,” Cromwell said. “We’re standing together.”