The ongoing dispute that will play a pivotal role in deciding whether or not there is a Mashpee Wampanoag casino in Taunton or a commercial casino in Brockton is still, well, ongoing. After a federal judge’s decision Friday, there’s no telling when the issue will see a final determination.
US District Judge Paul Friedman issued a scathing order to the US Department of the Interior to review its decision to take the tribe’s reservation out of trust. There’s no telling right now when the DOI will issue a new decision, or whether that would actually settle the matter once and for all.
How is the Mashpee Wampanoag casino involved?
It’s essentially all about the land targeted for the facility. Understanding the situation requires a short history lesson. In 1934, the federal government passed the Indian Reorganization Act into law. That law, among other things, gave Interior the authority to take land into trust for federally recognized tribes.
The Mashpee Wampanoag tribe wasn’t on that list in 1934. However, the tribe did gain federal recognition in 2007. In 2015, Interior took 321 acres of land into trust for a reservation for the Mashpee Wampanoag near Taunton.
Not long after, the tribe announced intentions to construct a $1 billion casino and resort. It secured the necessary compacts with the federal government and the state of Massachusetts. In March 2016, 25 Taunton residents filed a lawsuit to block the casino’s construction.
In Littlefield v. Mashpee Wampanoag Tribe, Taunton residents argued that, because the tribe didn’t gain federal recognition until 2007, a 2009 US Supreme Court decision (Carcieri v. Salazar) says that Interior can’t take land into trust for the Mashpee Wampanoag. Several courts agreed with that opinion.
Because of that lawsuit and a loss in their own legal attempt to force the issue, DOI disestablished the reservation in March. The Mashpee Wampanoag tribe still had cards to play, however. An appeal of the lawsuit in which it was the plaintiff, Mashpee Wampanoag v. Bernhardt, stood unresolved.
Mashpee Wampanoag in legal fight to retain reservation
It was in ruling on that case that Friedman rebuked Interior’s decision Friday. His decision called Interior’s disestablishment of the reservation “arbitrary, capricious and contrary to law.” He ordered the DOI to review the tribe’s federal recognition under a broader standard and issued a stay against enforcing the disestablishment.
As of Monday, the tribe had not exercised its option to appeal Littlefield to the US Supreme Court. Along the same lines, DOI has made no indication of whether it will appeal Friedman’s decision in Bernhardt.
On Saturday, Interior said it “is reviewing the decision and our options to proceed, and remains committed to upholding our trust responsibilities to Indian Country.” That seems to suggest that Interior may appeal, even while complying with Friedman’s order in the short term.
Although there are several possible paths, there are only two likely outcomes: the Mashpee Wampanoag reservation survives the challenge or it doesn’t. That will determine whether there will be a tribal casino in Taunton. Federal courts may not have the final say in the matter, however.
Congress may get involved still
Several members of Congress from MA have weighed in on this situation in the tribe’s favor already. US Sen. Elizabeth Warren filed an amicus brief (a letter to a court in support of one party in a civil dispute) in Bernhardt on the tribe’s behalf, for example.
US Rep. Willam Keating, a MA congressman, took his support a step further. He sponsored and helped pass a bill in the US House of Representatives that would have explicitly established the Mashpee Wampanoag’s federal recognition and overturned Carcieri‘s impact as far as whether Interior could take land into trust for tribes who received federal recognition after 1934.
The bill hasn’t seen the Senate floor, however. At this point, it’s unlikely to happen in the current term. It is possible that the next Congress may consider such a bill in the next term. If Congress passes a bill to overturn Carcieri, both Bernhardt and Littlefield become moot.
For a potential commercial casino developer in the Taunton area, all these scenarios mean their plans are on hold. That party represents another interest in how this situation ultimately plays out.
Preliminary interest in a commercial casino in Brockton
Late last year, the Massachusetts Gaming Commission expressed interest in potentially granting a license to a commercial casino operator in the Taunton region. It received a letter from Rush Street Interactive expressing interest in a facility in Brockton.
The state’s compact with the tribe bars the MGC from granting such a license. If Interior ultimately disestablishes the reservation, however, that would dissolve the compact with MA and free the MGC to grant a commercial casino license in the region.
Nothing is final yet as far as the Mashpee Wampanoag casino in Taunton goes. The circumstances look much better now for the tribe, however, than they did before last Friday. The opposite is true for any developer hoping to secure a license for MA’s fourth commercial casino, however.