A legal opinion issued by the U.S. Department of the Interior on what it means to be under federal jurisdiction bolsters the Mashpee Wampanoag Tribe's claims that a high court ruling does not apply to its plans for a $500 million casino in Taunton.
"It's very exciting and epic the way this is coming out," Tribal Council Chairman Cedric Cromwell said Tuesday night.
The opinion, issued late last week, defines "under federal jurisdiction" and provides the legal standard the Interior Department secretary will use to decide whether to take land into trust for an Indian casino.
At issue is a 2009 ruling by the U.S. Supreme Court known as the Carcieri decision, which called into question the authority of the Interior Department to take land into trust for tribes recognized after the Indian Reorganization Act of 1934. The Mashpee tribe was federally recognized in 2007.
The court left open the possibility that Carcieri wouldn't apply to tribes able to show they were under federal jurisdiction, even if not formally recognized. The Interior Department has taken this position before in taking land into trust for the Cowlitz Tribe in Washington, but this latest legal opinion solidifies that stance.
The legal opinion presented by federal Solicitor Hilary Tompkins at the National Congress of American Indians appears to be consistent with the analysis provided by the Mashpee Wampanoag to the Bureau of Indian Affairs in support of its land application. In it, the tribe claims to have been under federal jurisdiction, in part, because some tribe members were sent to Bureau of Indian Affairs schools — something Tompkins specifically cites as a way for tribes to show they were under federal control.
"Some tribes may be able to demonstrate they were under federal jurisdiction by showing that federal government officials undertook guardianlike action on behalf of the tribe, or engaged in a continuous course of dealings with the tribe," Tompkins wrote.
Among the things the tribe cites in its so-called Carcieri analysis are children who were sent to the Carlisle Indian Industrial School in Pennsylvania. It also cites a 1763 land deal it had with King George III of England that it says is akin to a treaty.
"It's totally consistent with our legal analysis," Cromwell said of the legal opinion. "It's important to set the record straight. It's what we've been saying all along. It's great that they've come out and said this."
The federal bureau has not yet acted on the tribe's Carcieri analysis, even though at one point it told the tribe to expect a result in early 2013.
Whether and when the Mashpee tribe might be able to get its land application approved by the Bureau of Indian Affairs is part of the reason the Massachusetts Gaming Commission opened Southeastern Massachusetts, known as Region C, to commercial casinos.
On Thursday, the commission is expected to debate whether to extend the deadline for Phase 2 applications in the region. At least one developer, KG Urban Enterprises, which hopes to build a casino on the New Bedford waterfront, filed a letter by Tuesday's deadline seeking an extension until Oct. 23. In that letter, KG Urban cites the Indian casino process.
"KG's development efforts have been hindered by certain misconceptions held by the gaming industry concerning the commission's delay in opening the region to commercial bidders and the likelihood of a tribal casino operating in the region," the letter from Barry Gosin, a principal of the company, stated.
A delay would give the company time to address those concerns, Gosin wrote.
Meanwhile, Foxwoods is seeking to build a commercial casino in Fall River.
Elaine Driscoll, a spokesman for the Gaming Commission, said Tuesday she's not sure how many comments the commission received by the deadline. Those will be made public at Thursday's commission meeting, she said.
Cromwell said the tribe didn't bother to weigh in.
"We're focused on what we're doing," Cromwell said. "If there were naysayers on the commission, hopefully they'll see we'll have land into trust. We'll have our casino in Taunton. We'll have our revenue sharing for the state. We hope they understand."
Licensing a commercial casino in the region would drop the tribe's payments from 17 percent of gross gambling revenue to zero under the terms of compact between the tribe and Gov. Deval Patrick that was approved by the bureau.
A commercial casino would pay a 25 percent tax.
"It would be unfortunate if they breached our contract by having a commercial casino in the same region," Cromwell said. "There's no way a commercial casino could compete in the same region, if we're paying zero. We would just give it back to the customer in comps."
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