[toc]Tribal gaming is always complex. What is unfolding in the southeastern part of Massachusetts is convoluted even by tribal gaming standards though.
After losing in court, the Mashpee Wampanoag tribe asked the Department of Interior (DOI) to review its land in trust application on different grounds. However, the day before the decision was expected to be handed down, the tribe withdrew the request.
Everything seemed pretty cut and dry… until the DOI decided to deny the tribe’s request to withdraw its request.
The reason this case is so interesting is that a proposed billion-dollar tribal casino in Massachusetts hangs in the balance. Genting will bankroll the First Light Casino project, while Mashpee Wampanoag Tribe of Massachusetts will run the property. The casino project ran into legal issues after a group of local residents effectively argued the DOI’s decision to put the tribe’s land in trust was faulty.
DOI still wants to review Mashpee Wampanoag’s status
When the Mashpee Wampanoag Tribe withdrew its DOI request, it seemed like the tribe’s dreams of building a tribal casino in Taunton, Massachusetts were over.
By all accounts the tribe withdrew its review request because it expected the DOI to reject its claim that it was under federal jurisdiction in 1934. Plus, internal communications with the DOI affirmed these beliefs.
According to the Taunton Gazette, a draft emailed to Mashpee Chairman Cedric Cromwell on June 19 by Interior Department Associate Deputy Secretary James Cason painted a bleak picture.
“Evidence submitted by the Tribe on remand provides insufficient indicia (indications) of federal jurisdiction,” Cason wrote.
Cason went on to say that the tribe hasn’t adequately proven it was under federal jurisdiction in 1934. As a result he “therefore cannot grant the Tribe’s land-into-trust application under either of those definitions.”
But just three days after the tribe asked to withdraw its request, Cason sent another email to the tribe. That email declined its request to suspend the review. Suddenly the tribal casino had a second lease on life.
As Taunton Mayor Thomas Hoye Jr. told the Taunton Gazette “It appears the DOI wants to see them (the tribe) succeed in their quest. They haven’t said no, which leads me to believe there is hope.”
Maine plays a surprising role in the case
According to the Taunton Gazette, Cason asked both sides for supplemental information. Parties need to supply the supplemental information by August 31. Cason then plans to rule on the case by October 30.
In his email, Cason writes that he wants to look at “complex issues” and the “unique historical relationship” not yet explored in this increasingly extraordinary case.
What Cason is looking at is early 19th-century geography. More specifically, he is looking at Maine’s status in 1820 before it became a state. Prior to 1820, Maine was a district of Massachusetts. That’s where the Mashpee’s land in trust claim gets really convoluted… as if it wasn’t already.
As the Taunton Gazette summarized it:
Cason said he needs to consider whether the exercise of authority over the tribe by the commonwealth “could be considered a surrogate for federal jurisdiction” in context of the Indian Reorganization Act’s definition of “Indian.”
“It’s their only chance, and it will be denied,” attorney David Tenant told the Gazette.
Tenant is representing the group of Taunton residents who took the tribe to court and successfully blocked the casino. Tenant later called Cason’s new approach “a novel, unprecedented and absurd motion.” He also threatened swift legal action if the DOI rules the tribe’s land can be placed in trust on those grounds.