Interior: Mashpee Trust Land Decision on Track for Early 2013

Gale Courey Toensing
1/14/13

 

 

The Department of the Interior plans to complete the Mashpee Wampanoag Tribe’s application for trust land for gaming in January.

On January 13, Mashpee Chairman Cedric Cromwell released a letter from Interior Assistant Secretary-Indian Affairs Kevin Washburn, saying that the tribe’s application for land on which to conduct Indian gaming is being reviewed under the Indian Gaming Regulatory Act’s Section 20 exception for an “initial reservation. “After an initial review of the tribe’s application and other applicable documents in the record, we will be directing the Eastern Regional Director to being processing the tribe’s application pursuant to this exception. The Office of Indian Gaming will complete its final analysis of the applicability of the initial reservation exception in January 2013,” Washburn wrote.

IGRA generally prohibits gaming on tribal lands put into trust the act was passed in 1988, but there are a number of exceptions to that rule. Lands acquired after 1988 can be taken into trust if the Interior Secretary determines that gaming on such lands would benefit a tribe and the state governor agrees; if the lands are part of a land claim settlement or for an Indian tribe whose federal acknowledgment has been restored; or for an initial reservation for a landless tribe.

Although Wampanoag Indians met the first European colonizers to land on the northeastern shores of Turtle Island almost 400 years ago, they did not receive federal acknowledgment until 2007. And while the Wampanoag Confederacy’s aboriginal territory extended from southeastern Massachusetts to the western end of Cape Cod and the coastal islands of what are known today as Martha’s Vineyard and Nantucket, the current tribe owns some fee land, but is otherwise is landless.

The tribe has applied to have 170 acres of land in Mashpee, Cape Cod, and 146 acres in the southeastern Massachusetts city of Taunton taken into trust as an initial reservation. The Taunton property is slated for a $500 million destination resort casino. Taunton, one of oldest cities in the country, is located in part of the Wampanoag’s vast aboriginal territory that tribal ancestors called Cohannet.

Cromwell announced the update on the tribe’s trust last application at a tribal meeting on January 13. “We have received exciting news,” he told tribal members. “Our land in trust application is proceeding rapidly. This is another critical step forward for our proposed destination resort casino, which will create thousands of jobs and widespread economic opportunities for our tribe and our neighbors in southeastern Massachusetts.”

Washburn’s letter also informed the tribe that Interior continues “to review the record to develop our determination of the Secretary’s authority to acquire land for the tribe” with regard to the Indian Reorganization Act (IRA). The statement was an oblique reference to the U.S. Supreme Court’s misguided ruling in Carcieri v. Salazar. The 2009 Carcieri ruling said the Interior Secretary was not authorized to take land into trust for tribes that were not “under federal jurisdiction” in 1934 when the IRA was enacted. The ruling up ended 75 years during which the Interior Secretary has taken thousands of acres of land into trust for tribes under IGRA and other statues without considering whether a tribe was “under federal jurisdiction” in 1934.

The high court ruling did not define “under federal jurisdiction,” but the Interior Department has developed an extensive legal analysis of the meaning of “under federal jurisdiction” in a court document filed last May in support of the Ione Band’s land into trust application. The document was written by Donald Laverdure, the Acting Assistant Secretary-Indian Affairs at the time. The review entails a “two-part inquiry – an examination of a tribe’s interactions with the federal government before 1934 and whether the tribe’s “jurisdictional status” remained in place in 1934. Evidence of federal jurisdiction over a tribe” may include, but is certainly not limited to, the negotiation of or entering into treaties, the approval of  contracts, between the tribe and non-Indians, enforcement of the Nonintercourse Acts (Indian trader, liquor laws, and land transactions); inclusion in federal census counts; and the provision of health, education, or social services to a tribe or individual Indians,” and other  types of evidence not cited that shows the federal government’s obligations or power of authority over a tribe. “As Justice Breyer discussed in his concurring opinion in Carcieri, a tribe may have been ‘under federal jurisdiction’ in 1934 even though the Federal Government did not believe so at the time,” Laverdure wrote.

Another critical step needed before the tribe can move ahead with its planned casino is the approval by the Interior Department of the tribal-state gaming compact. In October, Washburn rejected the existing between the Mashpee Wampanoag Tribe and the Commonwealth of Massachusetts, saying it would have unfairly given the state too much money and unwarranted authority over tribal matters, threatening the tribe’s sovereignty. The rejected compact violated IGRA in a number of ways, including an excessive 21.5 percent share of all gross gaming revenues, while asserting “illusory concessions” by the state, Washburn said. The compact is under revision, Cromwell said.

Cromwell said he expects the trust land application to be approved. He acknowledged the “unwavering confidence and support of our tribal members and tribal council to push forward and fight for our right to sovereign land. It is important to remember that land in trust isn’t just about gaming. We’re even more excited about what finally having a reservation will mean for our tribe. A reservation is absolutely critical to our ability to operate as a tribal government, to provide services to our people like housing, health care and education, and to maintain our history and culture in our ancestral homeland,” he said. He also expressed appreciation for “this very strong commitment from the Obama Administration and the active support of Governor Patrick and our congressional delegation.”

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