US – Judge protects Mashpee Wampanoag Tribe’s right to build casino on reservation landBy Phil - 15 June 2020
A judge has prevented the federal government from rescinding its reservation designation for a Native American tribe’s land in Massachusetts, protecting the Mashpee Wampanoag Tribe’s desire to build the First Light Resort & Casino in Taunton, Southern Massachusetts.
The fate of the tribe’s land in trust could also have a significant impact on the state’s commercial casino industry. The Massachusetts Gaming Commission is looking at issuing a license for a commercial casino in Region C — the commission’s name for Bristol, Plymouth, Barnstable, Dukes and Nantucket counties — but some worry that commercial casino operators might not be willing to invest the minimum $500m in a project that would have to compete with a nearby tribal casino.
Massachusetts Rep. Joe Kennedy III has now filed legislation that would protect the trust status of tribal lands, preventing the federal government from revoking prior decisions granting the special status for any federally recognized tribe.
Trust status is a special designation that promotes tribal self-governance by exempting the reservation from state and local regulations.
The bill would prevent the federal government from being able to revoke “the status of land held in trust” or a reservation proclamation, as well prevent the government from being able to “rescind a record of decision on which a trust status or reservation proclamation” is established.
The United States District Court for the District of Columbia rendered a decision in flavor of the Mashpee Wampanoag Tribe in the case of Mashpee Wampanoag Tribe v. Bernhardt. In its opinion, Judge Paul L. Friedman ruled:
“The Court will grant the Mashpee Tribe’s motion for summary judgment and deny the federal defendants’ and defendant-intervenors’ motions for summary judgment. Furthermore, because the Secretary of the Interior’s September 7, 2018 Record of Decision is arbitrary, capricious, an abuse of discretion, and contrary to law, the Court remands the matter to the Secretary of the Interior for a thorough reconsideration and re-evaluation of the evidence before him consistent with this Opinion, the 2014 M-Opinion, M-37209 – its standard and the evidence permitted therein – and the Department’s prior decisions applying the M-Opinion’s two-part test.”
For the first time since the termination era, the Department of the Interior attempted to disestablish a Tribal reservation, ordering the homelands of the Mashpee Wampanoag Tribe to be taken out of trust. The order from DOI Secretary David Bernhardt came on 27 March 2020, as the Tribal Nation worked to respond to the COVID-19 public health emergency, during active litigation on the status of the land, and following the rescission of the 2014 Carcieri M-Opinion and the issuance of a new 4-part test to qualify under the first definition of “Indian” in the Indian Reorganization Act. On 30 March 2020, the Mashpee Wampanoag Tribe asked the Court to issue an emergency restraining order to prevent DOI from taking immediate action to disestablish its reservation.
“The DC District Court righted what would have been a terrible and historic injustice by finding that the Department of the Interior broke the law in attempting to take our land out of trust,” said Mashpee Wampanoag Tribal Chairman, Cedric Cromwell. “We will continue to work with the Department of the Interior — and fight them if necessary — to ensure our land remains in trust. Tribal Council Chairman Cedric Cromwell said Friedman “righted what would have been a terrible and historic injustice. While we are pleased with the court’s findings, our work is not done. The Department of Interior must now draft a positive decision for our land as instructed by Judge Friedman. We will continue to work with the Department of the Interior and fight them if necessary to ensure our land remains in trust.”
The National Indian Gaming Association congratulates the Mashpee Wampanoag Tribe on this important victory and joins the National Congress of American Indians and the USET Sovereignty Protection Fund on their commitment to Tribal sovereignty and the restoration of Tribal homelands.
The National Indian Gaming Association, with our sister organizations, call for the immediate passage of a fix that contains the two features necessary to restore parity to the land-into-trust process s reaffirmation of the status of current trust lands; and confirmation that the Secretary has authority to take land into trust for all federally recognised Tribal Nations.
Senator Marc Pacheco, who lives in and represents the city where the Wampanoag tribe hopes to build its casino, said: “Throughout the course of this dispute, the tribe has consistently argued that the Department of the Interior failed to apply the correct standards in deciding to invalidate the tribe’s land-in-trust — this new ruling certainly seems to validate that argument,” he said. “The Court’s recent decision will hopefully prevent the shameful injustice of taking land from the tribe that greeted the Pilgrims as we celebrate the 400th anniversary of their arrival here in the Commonwealth.”
US Rep. William Keating added: “Judge Freidman described the actions of the Administration with regard to the Mashpee Wampanoag Tribe as arbitrary and capricious. I think that rightly describes the Administration’s actions to remove the Tribe’s land from trust during the most serious public health emergency of our lifetime â€“ actions that defy reason and basic decency,” Keating said. “I applaud Judge Friedman’s decision, but given that it remands the issue back to the Department of the Interior, we must now remain vigilant to ensure that the Trump Administration does not continue with the flagrant pattern of disregard for tribal rights.”