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Interior Department Disestablishes Mashpee Wampanoag Reservation, Perhaps Clearing Way For Brockton Casino

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Mashpee Massachusetts

The likelihood of an eventual fourth Massachusetts commercial casino just went up. The US Department of the Interior disestablished the Mashpee Wampanoag reservation Friday.

All hopes for the Mashpee Wampanoag to stay on their land aren’t exhausted yet. The department’s decision, however, may give the Massachusetts Gaming Commission the confidence it needs to move forward with plans for another gaming facility in Brockton.

Why Interior disestablished the Mashpee Wampanoag reservation

In 2015, the Department of the Interior took the land into trust for the tribe. Not long after, 25 citizens of nearby Taunton filed suit against the department.

Taunton residents opposed the tribe’s plans to build a casino and filed a lawsuit, Littleton v. Mashpee Wampanoag Indian Tribe. Because the federal government didn’t recognize the Mashpee Wampanoag until 2007, the plaintiffs argued, the department couldn’t take land into trust for the tribe.

In response, the Mashpee Wampanoag tribe filed its own lawsuit, Mashpee Wampanoag Tribe v. Bernhardt, challenging the department’s interpretation of the 1934 Indian Reorganization Act.

Earlier this month the Mashpee Wampanoag lost an appeal of their suit against US Secretary of the Interior David Bernhardt. That led to Bernhardt issuing the order to revoke the trust for the 321 acres, according to a spokesman for the department.

In Fall 2015, Interior issued a decision approving a trust acquisition for the Tribe. Subsequently, both a federal district court and a federal circuit court panel comprised of former Supreme Court Justice David Souter, former Chief Judge Sandra Lynch, and Senior Judge Kermit Lipez, found there to be no statutory authority for this decision. The Tribe did not petition for a panel rehearing or a rehearing en banc. On March 19th, the court of appeals issued its mandate, which requires Interior to rescind its earlier decision. This decision does not affect the federal recognition status of the Tribe, only Interior’s statutory authority to accept the land in trust. Rescission of the decision will return ownership of the property to the Tribe.

The tribe has not stood down on this matter, however. There are still two lifelines for the reservation and a tribal casino in southeast Massachusetts.

The Mashpee Wampanoag’s two lifelines for the reservation

Because Littlefield is pending appeal, the tribe might be able to ask the court for a stay on Interior’s decision. There’s no guarantee that the court would grant such a request, however.

The tribe could appeal Bernhardt or Littlefield to the US Supreme Court if it loses its current appeal. Precedent may not favor the tribe, however.

In 2009, the US Supreme Court ruled on a case known as Carcieri v. Salazar. The ruling said that the Interior Department could only take land into trust for tribes with federal recognition in 1934.

Additionally, there’s no guarantee that the Supreme Court would actually hear either case. That would leave the tribe with only one recourse, although it could be an effective one.

The US House of Representatives passed a bill that would solidify federal recognition of the tribe and the Interior Department’s right to take land into trust for it. US Rep. Bill Keating, whose district includes the disputed land, sponsored the bill.

Keating issued a statement after the news broke that the Interior Department disestablished the reservation. He called upon the US Senate to act and criticized the department.

The Secretary should be ashamed. This also calls out the need for the Senate to act on the dual bipartisan proposals led by myself and [Oklahoma US Rep. Tom Cole], which would rectify this issue.

Every member of the Republican Party voted against the bill in the House, which suggests the bill may not even see the floor in the GOP-controlled Senate. President Donald Trump also publicly criticized an earlier version of the bill, so a veto is possible even if the Senate does concur with the House.

Because the Mashpee Wampanoag are running out of options, the possibility of a commercial casino in Brockton is higher. Interested parties have already laid some of the groundwork.

Why a Brockton casino seems more likely now

While all this has been ongoing, Rush Street Interactive expressed interest to the MGC about developing a commercial casino in Brockton. In a letter, Rush Street noted the state already completed a required feasibility study on such a facility.

Rush Street inquired about applying for a license, as well. Currently, the state can’t grant such a license because of the existing gaming charter with the Mashpee Wampanoag.

If the Mashpee Wampanoag can’t start developing their casino, however, they will lose their charter. That would open up the door to the MGC granting a license to a commercial operator.

As the tribe runs out of options, that situation becomes more likely. The fate of the Mashpee Wampanoag reservation may not be final yet, but the end seems more certain now.

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About

Derek Helling is a freelance journalist who resides in Kansas City, Mo. He is a 2013 graduate of the University of Iowa and covers the intersections of sports with business and the law.

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