The Mashpee Wampanoag Tribe's April 2012 conceptual plan for its proposed $500 million destination resort casion, "Project First Light" (Courtesy Mashpee Wampanoag Tribe)

Mashpee Gets Preliminary Green Light on Initial Reservation and Casino Land in Massachusetts

Gale Courey Toensing
2/12/13

The Interior Department has issued a preliminary approval for an initial reservation for the Mashpee Wampanoag Tribe, which will provide its citizens with an acknowledged homeland and clear the way for the development of a $500 million destination resort casino.

The Mashpee Wampanoag Tribe has asked Interior to take into trust 170 acres of land in Mashpee, Cape Cod, and 146 acres in Taunton, Massachusetts, under the 1934 Indian Reorganization Act and to declare the lands as the tribe’s “initial reservation” under the Indian Gaming Regulatory Act (IGRA). Both sites are currently held in fee, meaning the land can be conveyed to whomever the owner pleases. When Interior holds land in trust for a tribe, it means the land is inalienable and cannot be conveyed.

Kevin Washburn, Interior’s assistant secretary for Indian Affairs, told Mashpee Chairman Cedric Cromwell in a February 7 letter that the Office of Indian Gaming has determined that the lands will qualify as the tribe’s “initial reservation” under the IGRA once they are taken into trust under the Indian Reorganization Act. That means the tribe will be able to conduct Class II and Class III gaming on the lands if final trust approval is issued. Review of the tribe’s application continues, Washburn said. “The Department will finalize its initial reservation determination when a decision is issued on the Tribe’s fee to trust application.” The February 7 letter fulfilled Washburn’s promise last month for an early decision on the status of the gaming land.

In a February 12 press release issued along with Washburn’s letter, Cromwell welcomed the news as “another huge step forward toward the development of a first class destination resort casino in Taunton. We look forward to creating thousands of jobs and widespread economic opportunities for our Tribe, the people of Taunton and the entire Southeastern Massachusetts region.”  The tribe rolled out plans last April for its $500 casino development—“Project First Light,” named after the Wabanaki/Wampanoag “People of the First Light .”

Cromwell praised the speed of the review process. “On behalf of our tribe, I want to express my deepest gratitude to President Obama, Secretary Washburn, the Interior Department, and the many dedicated officials at the Bureau of Indian Affairs. They truly understand how important it is for our people to have land, to maintain our history, our language and our culture. This will enable us to fully operate as a sovereign Tribal government, to secure the resources necessary to support ourselves, and to provide services such as housing, health care and education to our people.”

The IGRA generally prohibits a tribe from conducting gaming on land acquired after the law was enacted in 1988, but Section 20 provides a few exceptions, including land that is settled in a land claim, land that’s restored to a restored tribe, and land establishing a reservation for a newly recognized landless tribe, such as the Mashpee Wampanoag Tribe. Although the Mashpee Wampanoags’ ancestors met the first wave of European colonizers on the shores of what became known as Cape Cod in 1620, the tribe was not federally acknowledged until 2007, more than three decades after filing its petition for federal status.

The tribe’s initial reservation is likely to be challenged in court by a citizens group in Taunton and a state recognized tribe that claims the Taunton area as its own. Taunton is one of the oldest cities in the country and is located in part of the Wampanoag Confederacy’s huge aboriginal territory, which covered all of southeastern Massachusetts. The city was called Cohannet (or Cohanit, Cohannock, Quehannet, Quahannet, Quahannock) by the Wampanoag Indians.

The tribe still has a few obstacles to overcome before the land is secured as an initial reservation and gaming can occur. Last October, the Interior Department rejected the tribal-state gaming compact, saying it unfairly gave the state of Massachusetts too much money and unwarranted authority over tribal matters. The original compact provided the state with an excessive 21.5 percent share of all gross gaming revenues, while asserting “illusory concessions” by the state, Washburn wrote. The compact is being renegotiated. A tribal-state compact will allow the tribe to conduct Class III gaming, which includes slot machines. Without a compact, the tribe can conduct Class II gaming, which includes bingo and other games.

In addition, the tribe has to prove it was “under federal jurisdiction” in 1934 when the Indian Reorganization Act was passed in order to overcome the Supreme Court’s 2009 ruling in Carcieri v. Salazar. That decision 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, but it did not define that term. The tribe has filed a document with Interior establishing its relationship with the federal government since colonial times, including a 1763 agreement with King George III in which the British Crown created Mashpee as an “Indian District” giving the tribe control over local government and fishing rights—which it already had as inherent aboriginal rights.

Last year, the Interior Department conducted an extensive legal analysis of the meaning of  “under federal jurisdiction” and brought it forward in a court document filed last May in support of the Ione Band’s land-into-trust application. The document, written by Donald Laverdure, the acting assistant secretary of Indian Affairs at the time, concludes that “under federal jurisdiction: can be established by examining the interactions between a tribe and the federal government before 1934 and tribe’s 'jurisdictional status' in 1934.” Evidence of federal jurisdiction 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. Laverdure included a quote from U.S. Supreme Court Justice Stephen Breyer.  “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.

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