The lack of clarity and inconsistent reasoning in two opposite rulings last week by federal court judges in separate, but similar cases regarding land into trust applications approved by the Bureau of Indian Affairs (BIA) is likely to result in continued litigation for the Mashpee Wampanoag Tribe.
Two tribal casino cases being closely watched by tribes across the country were coincidentally decided within a day of each other last week. While language contained in the 2009 U.S. Supreme Court decision in Carcieri v. Salazar was used as a determinant in both cases, the courts reached opposite conclusions.
Citing Carcieri v Salazar, a federal judge ruled on Thursday that the decision in September by the BIA, which granted the Mashpee Wampanoag Tribe’s land-into-trust application for 151 acres in Taunton for the tribe’s Project First Light Resort & Casino should not have been approved because the tribe lacked federal recognition at the time the landmark Indian Reorganization Act was passed in 1934. Earlier last month, attorneys for the government said that the BIA correctly determined that in 1934 the Mashpee Wampanoag people were living on a reservation despite the fact that the tribe’s formal relationship with the government wasn’t confirmed until 2007.
The following day, the opposite conclusion was reached by a federal appeals court regarding a $510 million casino project by the Cowlitz Tribe of Washington State when the judge in the case upheld a lower court decision and found that in 1934 the tribe was “under federal jurisdiction” and therefore entitled to have land taken into trust as a reservation.
On the surface the decision in the Mashpee case seems to strike a devastating blow not only to the tribe’s casino dream, but its 32-year legal struggle with the federal government to win federal recognition, which it did in 2007. According to Kathryn Rand, an expert on Indian gaming and dean of the University of North Dakota School of Law, the inconsistent reasoning of the two courts will likely find the Mashpee case before the 1st Circuit Court of Appeals. Rand said, “There’s plenty of room for a newly recognized tribe to put together a factual record that could show that descendants were under federal jurisdiction,” according to the Cape Cod Times.
A cease and desist order was not issued by Judge William Young for the Mashpee Tribe’s $1 billion resort casino currently under construction in the southeastern Massachusetts city of Taunton, instead, the land in trust decision was remanded to the Interior Department. The argument regarding how “Indians” are defined in the landmark Act in 1934 was dismissed by Young, who said, “With respect, this is not a close call: to find ambiguity here would be to find it everywhere,” and, “The secretary (of the Interior) lacked the authority to acquire land in trust for them, at least under the rationale the secretary offered in the record of decision,” per the news agency. According to Rand, the ruling by Young does not make a determination as to whether either the tribe or descendants of a tribe were under federal jurisdiction, effectively keeping alive the option for appeal or new review by the Interior.
The prospect of an appeal guarantees a continuation of the legal battle says Michelle Littlefield, who is the lead plaintiff in the Mashpee land case and leads a group of East Taunton neighbors opposed to the BIA’s decision and contend that it exceeded its reach and wrongly interpreted Carcieri v. Salazar. The Cowlitz decision doesn’t worry Littlefield, who said they will fight to the end.