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Gladys KravitzCasino opponents
want to curb tribe’s
appeal of land ruling
By Tanner SteningPosted Oct 14, 2018
MASHPEE — Plaintiffs suing the Interior Department over its 2015 decision to take land into trust for the Mashpee Wampanoag Tribe have requested that the tribe withdraw its appeal of the case or be required to file opening briefs within the next 60 days, according to the latest filing with the appeals court.
The request came after the tribe sought another stay in its ongoing appeal of a 2016 judgment in U.S. District Court in Boston that said the Interior Secretary did not have the authority to take its land into trust because the tribe was not under federal jurisdiction in 1934 — the year the Indian Reorganization Act was passed. Neighbors of a casino the tribe planned to build on land in Taunton had sued the federal government, challenging the Interior Department’s decision to take the land into trust in Taunton and in Mashpee.
In a boldly worded request filed with the U.S. Circuit Court of Appeals for the 1st Circuit on Oct. 9, attorney David Tennant argued the tribe should not be permitted another stay in the appeal process because it opted to “take its chances” with a remanded review of their trust-lands eligibility, according to court documents.
Tribal attorneys on Sept. 27 requested a stay in the appeal of its case, according to court documents, until the resolution of a new suit, which it filed that same day. The new action challenges the Sept. 7 determination from the Interior that reversed an Obama-era decision to secure 321 acres of tribal land into trust. The agency’s latest ruling declared the tribe was not under federal jurisdiction in 1934.
Both parties to the original suit had waited more than two years for that remanded ruling. The Interior Department issued a draft of that same decision 14 months earlier, but withdrew it and asked for supplemental briefing on an issue “never before raised in any court or land-into-trust-proceeding,” according to Tennant.
For the next year, the Interior Department considered whether the tribe’s historical relationship to Massachusetts could be viewed as a substitute for the under federal jurisdiction requirement of the IRA. That theory ultimately did not pass muster.
When reached Sunday, Tennant said the tribe is avoiding the “inevitable, final conclusion” to the litigation, saying that Judge William Young’s original decision in 2016 was “free of doubt.”
Tennant said if the tribe be permitted another stay, the appeal could go dormant for years.
“It’s beyond any type of a normal stay,” he said.
“To say now that this 2016-filed appeal should be tacked onto the backend of a just-commenced lawsuit in a different circuit is not simply ‘moving the goalposts,’ it is relocating them into a different stadium,” Tennant wrote in the filing. “Enough’s enough.”
Tennant argued that the new lawsuit is an attempt to “hijack” the ongoing proceeding and “defeat the purpose of the parties’ joint stipulation.”
“I’ve done a ton of appellate work over the years, and I’ve never seen anything like this,” he said.
Tennant also argued that the “ghost” of a tribal casino has thwarted economic development in the region.
“When you have land that is not legally in trust, and there’s no economic development, it’s a bad situation for all parties,” he said.
Representatives of the tribe could not be reached for comment Sunday.
Mashpee Wampanoag Tribal Chairman Cedric Cromwell has repeatedly rebuked the lawsuit as being funded by an “anti-Indian,” competing casino interest, referring to Chicago-based developer Neil Bluhm.
Tribal leaders have also emphasized that the lawsuit more fundamentally threatens its ability to self-govern, should its land be removed from trust. It would be the first time since the so-called Termination Era in the 1950s that the federal government would effectively disestablish a tribal reservation it had previously proclaimed legal, according to legal experts and tribal citizens.
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