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| Fed letter rekindles tribe’s Taunton casino hopes |
Just when it looked like the Mashpee Wampanoag tribe was down to its last few chips in its bid to win the right to open a casino in Taunton, a letter from the U.S. Department of the Interior has brought renewed hope for a jackpot. Charles Winokoor of the Taunton Gazette reports the feds still want a chance to review the tribe’s request to use an alternative avenue to have land in Taunton and Mashpee placed into reservation.
Taunton Gazette |
Interior Department wants one more go at Mashpee Wampanoag land ruling
By Charles WinokoorTaunton Gazette Staff Reporter
Posted Jul 2, 2017
TAUNTON — The key counsel for two dozen plaintiffs who have managed to block construction of a resort casino in East Taunton says an email sent Friday by the U.S. Department of Interior does little more than delay the inevitable.
“It’s their only chance, and it will be denied,” said Nixon Peabody attorney David Tenant, referring to the Mashpee Wampanoag tribe and its ongoing attempt to secure a favorable Interior Department ruling to retain 151 acres in Taunton and 170 acres in Mashpee as tribal, sovereign land.
Taunton Mayor Thomas Hoye Jr., a staunch supporter of the tribal casino — which potentially would create thousands of construction jobs and 2,600 permanent jobs — said the email from Interior Department associate deputy secretary James Cason is to some extent encouraging.
“It appears the DOI wants to see them (the tribe) succeed in their quest,” Hoye said. “They haven’t said no, which leads me to believe there is hope.”
Taunton stands to collect at least $8 million annually in lieu of property taxes once First Light Resort & Casino opens.
The email came three days after the tribe asked the Interior Department “to suspend its remand proceedings,” according to Cason.
Work on the Stevens Street casino project — which the tribe has described as a $1 billion investment by Malaysia-based Genting Group — ground to a halt in 2016, after a U.S. District judge in Boston sided with plaintiffs, when he ruled that the Interior Department’s 2015 decision placing the Taunton and Mashpee land “in trust” had been faulty.
Judge William G. Young did not order that the 321 acres be taken out of trust, but he remanded the case back to the Interior Department for final reconsideration.
Young, who said his decision was “not a close call,” concluded that to qualify for land in trust, the Mashpee Wampanoag tribe — which wasn’t recognized as an Indian tribe by the federal government until 2007 — would, by federal statute, need to have been under “federal jurisdiction” in 1934 when the Indian Reorganization Act was enacted.
A press release issued Friday night on behalf of tribal chairman Cedric Cromwell said he is “grateful” that the Interior Department “has provided a pathway forward in securing our reservation lands.”
Cromwell, in the Regan Communications statement, also notes that ”(b)ecause the DOI has not concluded its process, no decision is appropriate at this time, and none has been issued.”
That statement contradicts a communication from Cason, who, in a June 19 draft emailed to Cromwell, indicated he had reached a decision not favorable to the tribe.
Cason wrote that “evidence submitted by the Tribe on remand provides insufficient indicia (indications) of federal jurisdiction,” and “does not show that the Tribe was under federal jurisdiction in 1934.”
“I must also conclude that the Tribe cannot meet the Indian Reorganization Act’s first definition of ‘Indian,’ or its second definition as interpreted by the Massachusetts U.S. District Court in the Littlefield litigation,” referring to lead plaintiff Michelle Littlefield.
“I therefore cannot grant the Tribe’s land-into-trust application under either of those definitions,” Cason wrote.
His land-in-trust decision, Cason said, was to have been issued “at the tribe’s urging” on or before June 19.
But “because of continuing concerns” regarding his department’s “analysis,” Cason notified the parties that issuance of a final decision would be delayed until June 27, which fell one day after Cromwell asked the DOI to suspend its remand proceedings.
Cason’s email indicates he’s had second thoughts about the decision he was prepared to release first on June 19 and then on June 27.
In addition to denying a request by the tribe to suspend his review, Cason says he’s also withdrawn his prior decision for failing to devote “full consideration of complex issues” related to “the unique, historical relationship” between Massachusetts, the Mashpee Wampanoag and the federal government.
Cason is now asking both sides to submit supplemental material so he can render a decision in consideration of a 1975 First Circuit Court of Appeals ruling.
In that Passamaquoddy Tribe v. Morton case, Cason said, the court found that before admission in 1820 to the Union as a state, Maine comprised a district within Massachusetts — which by extension exercised authority over Indian affairs in what was to become the state of Maine.
“This fact raises a potentially important issue for the remand analysis that neither the Tribe nor the Littlefield plaintiffs explored,” Cason said.
Cason said he needs to consider whether the exercise of authority over the tribe by the commonwealth “could be considered a surrogate for federal jurisdiction” in context of the Indian Reorganization Act’s definition of “Indian.”
Both parties, he said, have until Aug. 31 to submit material in anticipation of a decision to be rendered no later than Oct. 30.
“The Mashpee and Taunton parcels remain in trust status, unless a court orders otherwise,” Cason said, while the Interior Department completes its review, to decide if the tribe was under federal jurisdiction in 1934 and is eligible for having land taken into trust.
Tennant called Cason’s request “a novel, unprecedented and absurd motion.”
“It’s a complete non-starter and a specious argument,” he said, adding that the parties cited the case for purposes other than arguing the case at hand.
Tenant says he expects any such decision will go against the tribe, which at that point he predicts will give up the fight.
And if the Interior Department rules that the Mashpee Wampanoag was under federal jurisdiction in 1934, Tenant says the plaintiffs will quickly appeal the decision.
“The courts will not hesitate to reverse such an absurd thing,” he said.
Tenant acknowledges that chairman Neil Bluhm of Rush Street Gaming, the Chicago company that tried unsuccessfully to establish a commercial casino in Brockton, has contributed to paying for the services of Tennant and a co-counsel from Nixon Peabody’s Boston office.
The state of Massachusetts allows for three casinos, including one in southeastern Region C.
Tenant said he’s not surprised Bluhm is siding with his clients and provides financial assistance.
He points out that if the Mashpee Wampanoag loses land-in-trust status it would still be listed as fee title holder of the Taunton land, for which it paid nearly $35 million.
Tenant says it’s even conceivable the tribe someday would entertain commercial-casino, land-use offers including from Rush Street.
“Who knows what could happen to Region C,” he said.
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