For about eight years, Massachusetts has been stuck on the cusp of opening a fourth casino.
In September 2015, the Department of the Interior brought the Mashpee Wampanoag Tribe’s land into federal trust. Of the 321 acres in the trust, 151 were approved for gambling use. When the Mashpee Wampanoag Tribe broke ground on the First Light Resort and Casino in April 2016, the stage was set for the fourth Massachusetts casino.
However, nearly seven years later, no more progress has been made on the casino’s construction.
That’s because, during this whole process, a legal challenge was brewing.
Wait continues for 4th Massachusetts casino despite vote
Michelle Littlefield is part of a coalition that opposes the proposed First Light Casino in Taunton. Littlefield believes the DOI did not have the authority to take the Mashpee Wampanoag Tribe’s land into federal trust.
Littlefield’s opposition goes back to 2012, when the First Light Casino was first proposed. She was part of the opposition movement to vote “no” on the proposed casino. Her opposition included the casino’s proximity to an elementary school, her belief that few local jobs would be created, and her issues with the intergovernmental agreement between the tribe and city.
She was unsuccessful in 2012. Taunton residents approved the casino, voting almost 2-1 in favor of building it. As part of the tribal agreement, the Mashpee Wampanoag Tribe would pay Taunton $33 million in infrastructure payments and about $13 million per year to Taunton for hosting the casino.
But Littlefield hasn’t given up. She leads the continued opposition and has built a coalition to campaign with her.
However, she has lost her latest challenge. On Feb. 10, 2023, District Judge Angel Kelley ruled in favor of the Mashpee Wampanoag Tribe. Judge Kelley decided that the Secretary of the Interior was correct in granting the tribe federal recognition and taking the tribe’s land into federal trust.
Given Littlefield’s history, she’ll likely appeal the ruling. That would drag opening the First Light Casino out even longer. But the Mashpee Wampanoag came away from this latest challenge with an important victory.
“The Mashpee Wampanoag have called this part of Massachusetts home since time immemorial,” the Mashpee Wampanoag Tribe said in a statement to PlayMA. “The Tribe is confident in the moral and legal justice of its position in the litigation.”
Littlefield’s attorneys did not respond to a request for comment.
Here’s a dive into this decade-long legal battle, as well as a look at the most recent update on Feb. 13, 2023.
A Tale of Two Court Rulings
The maze of court rulings, tribal law, and judicial opinions have all stemmed from Littlefield’s early opposition to the First Light Casino. Her legal challenge against the Mashpee Wampanoag Tribe revolves around one law and one Supreme Court opinion: the Indian Reorganization Act of 1934 and Carcieri v. Salazar.
The Indian Reorganization Act
The Indian Reorganization Act was the foundation for programs that tried to increase Native American self-sufficiency on their own reservations. One of the policies it reversed was the theft of tribal lands to give to settlers. This act returned some land to Native Americans and provided a mechanism for tribes to get more land back over time.
The clause that was important for the Littlefield case specified that “members of any recognized Indian tribe now” are recognized as sovereign tribes and eligible to have their lands placed in trust.
So, any tribe that was recognized in 1934 is eligible to have its land placed in the federal trust that reserves tribal lands for tribes only.
The Mashpee Wampanoag Tribe was recognized in 2007 after showing that its history in the state extended back to 1621, the year after the pilgrims landed at Plymouth Rock. (Its full history goes back 12,000 years in present-day Cape Cod, but the interaction with the American government is legally significant.)
As a federally recognized tribe, it could have its land placed into the federal trust.
Based on the Indian Reorganization Act, it seems the Machpee Wampanoag Tribe would clearly beat the Littlefield opposition.
Carcieri v. Salazar
Then in February 2009, the Supreme Court ruled on Carcieri v. Salazar. Rhode Island’s governor disputed whether the DOI was allowed to place land in trust for a tribe that hadn’t been federally recognized until 1988. The court ruled against the DOI, deciding that the government could not take the land into federal trust.
So, based on this ruling, the Littlefield’s case in Massachusetts seemed like a clear win.
However, the Mashpee Wampanoag Tribe depended on a different clause in the Indian Reorganization Act. The tribe’s lawyers argued that because the tribe resided on the reservation in 1934, even though they weren’t federally recognized until 2007, their land was eligible to be put into the federal trust.
The Littlefield case was the first time this interpretation was tested in court. It wouldn’t take long to get an answer.
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The Rollercoaster of Court Rulings
In July 2016, a US District Court ruled that the DOI lacked the authority to bring the Mashpee Wampanoag land into federal trust. That put the First Light Casino plans into limbo, where they have been ever since.
The tribe’s fortunes worsened during President Trump’s administration. In 2018, the DOI took the opposite position from 2015, and made the same arguments that the Littlefield case made. Now, the DOI was fighting to remove the Mashpee Wampanoag land from trust that it had placed into trust under the Obama administration.
The tribe appealed this decision. At this point, this conflict was bigger than the casino plans. It was about whether the Mashpee Wampanoag Tribe would still have its land.
In February 2020, a federal judge ruled against the tribe’s appeal, challenging the Mashpee Wampanoag’s right to its reservation. The DOI revoked the Mashpee Wampanoag’s 321 acres of reservation land the next month. The case seemed lost.
The Turning Point in the Littlefield Challenge
Finally, in June 2020, a US District Judge sent the Mashpee Wampanoag’s case back to the DOI. Judge Friedman ordered th DOI to reverse its 2018 decision and put the tribal land back into federal trust.
(The US District Court was required to review the DOI’s decision. Trump’s appointee to the DOI did not comply with this requirement. The judge found the DOI’s decision to remove the Mashpee Wampanoag’s land from federal trust after the fact.)
Judge Friedman wrote the DOI used the wrong standard in evaluating the Mashpee Wampanoag’s tribal status. A 2014 Interior Department memo established a two-part test to determine whether a tribe was under federal jurisdiction by 1934.
However, this didn’t require formal federal recognition. Justice Steve Breyer explained why in his concurring opinion in the 2009 Carcieri v. Salazar case. State and federal governments often dealt with Native American tribes and treated them as if they existed on reservations. Evidence of these kinds of interactions are sufficient to establish that a tribe was under federal jurisdiction by 1934 even if they weren’t federally recognized by then.
Some of the pieces of evidence the tribe presented included:
- Reports referencing the tribe and its lands
- Listing of tribal members on a Federal census
- Evidence that the US Government excluded the tribe from its forced removal policy in the 1820s
This historical evidence shows that state and federal governments recognized the existence of the Mashpee Wampanoag’s land, which satisfies the evaluation method Judge Friedman outlined.
The DOI submitted an appeal to this decision. But after Joe Biden’s election, the DOI policy reversed again and, in February 2021, the DOI withdrew its appeal.
After six years, the DOI recognized the Mashpee Wampanoag’s right to the land put into federal trust in 2015.
The Littlefield challenge was over. The Mashpee Wampanoag Tribe had won.
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The Fourth Casino Fight Continues
The first Littlefield case hinged on the phrase “members of any recognized Indian tribe now under Federal jurisdiction,” in which “now” refers to 1934. However, Justice Breyer’s concurring Supreme Court opinion acknowledges that federal jurisdiction can be proved without federal recognition. That distinction allowed the Mashpee Wampanoag Tribe to secure victory.
However, the Littlefields aren’t backing down.
They submitted a new challenge in February 2022. This time, they opposed the casino’s effect on the neighborhood of Taunton and contested whether the Mashpee Wampanoag Tribe matched the definition of “Indian” in the 1934 Indian Reorganization Act.
This is a partial reversal of Michelle Littlefield’s 2016 position.
In July 2016, Wicked Local reported that her first challenge rested on her objection to sovereign land that is “independent of state and local regulations.” The same article also quotes her as saying the 150 acres of Mashpee Wampanoag land is “back on the tax rolls and should now be under state and local control.” Finally, the article noted that “her opposition to land in trust for the tribe is not based on anti-casino sentiment.”
Seizing on new language appears desperate after a lengthy legal battle. The argument that a casino will alter the neighborhood is a significant change in strategy. Whether it will be successful remains to be seen.
Massachusetts Fourth Casino Timeline
On Feb. 10, 2023, a US District Court judge ruled in favor of the Mashpee Wampanoag Tribe, determining the DOI was right to move the land for the casino into the tribe’s reservation trust.
There’s no end in sight to Littlefield’s legal challenges. It’s reasonable to expect an appeal. If the legal challenges continue long enough, the DOI policy could change again depending on who is sworn into office on Jan. 20, 2025.
The Massachusetts Gaming Commission website includes a case timeline that ends in 2016 and states:
“At a time deemed appropriate, the Massachusetts Gaming Commission may engage in a public discussion to further our review of what course of action will be in the short and long-term best interests of Southeastern Mass. and the Commonwealth.”
The MGC told PlayMA it has “no comment beyond what is listed on (their) website.”
Another group of private investors tried and failed to lobby the creation of a new gaming zone in Massachusetts. This private group would build their own casino in the newly created Region D in northern Massachusetts. March 29 will be the two-year anniversary of this bill’s death in committee.
The bottom line is that legalizing Massachusetts sports betting won’t make a dent in the various attempts to open a fourth casino in the state. The legal battle over the First Light Casino — and the Mashpee Wampanoag’s right to its land — has a life of its own.