Another Legal Plot Twist Keeps First Light Casino Faint Hopes Alive

[toc]As we’ve reported in the past, the Mashpee Wampanoag Tribe’s attempts to build a tribal casino in Taunton have produced more plot twists than M. Night Shyamalan.

• The The Department of the Interior (DOI) placed the tribe’s land into trust in September 2015, paving the way for the tribe to build a casino.
• A group of Taunton residents filed suit and won their case. This brought construction efforts to a halt.
• The tribe appealed the ruling (a case it later dropped). It requested the DOI reexamine its land in trust application on different grounds.
• The DOI planned to rule on June 19, but delayed the decision until June 27.
• Expecting the decision to go against it, the tribe withdrew its request on June 26.
• Days later, the DOI rejected the tribe’s request and reopened the case. It expects to rule on it in the fall.

Since our last update, yet another plot twist unfolded.

A bill in Congress, introduced by Rep. Tom Cole (R-OK), aims to make it easier for tribes federally recognized after 1934 to take land into trust. It does so by “fixing” the language the DOI uses to determine if a tribe can have its land placed into trust.

At the core of the issue is a 2009 Supreme Court ruling that requires most tribes to have been federally recognized prior to the passage of the Indian Reorganization Act in 1934. The Carcieri Ruling, as it’s become known, is the centerpiece of the Mashpee Wampanoag Tribe’s casino travails.

According to the bill summary, it would effectively overturn the decision and clarify the Indian Reorganization Act:

“This bill amends the Indian Reorganization Act to make it applicable to all federally recognized Indian tribes, regardless of when a tribe became recognized. The amendments made by this bill are retroactively effective as if included in the Indian Reorganization Act. (This effectively overrules the Supreme Court’s decision in Carcieri v. Salazar, which held that the Department of the Interior could not take land into trust for a specified tribe because that tribe had not been under federal jurisdiction when the Indian Reorganization Act was enacted.)”

The fix is sorely needed

Fixes of this sort are nothing new. The 2009 ruling has widespread impacts on Indian country. Legislatures introduced multiple bills  to redefine the Indian Reorganization Act in order to extend land-in-trust status to any federally recognized tribe regardless of when it was recognized.

At the heart of the matter is the undefined phrase “under federal jurisdiction.” In Carcieri vs. Salazar, the court determined they meant under federal jurisdiction in 1934 — when the law was written.

But critics of the decision would argue that a common-sense reading simply means under federal jurisdiction. The ruling has been the bane of several tribes trying to better their communities.

Land in trust is not just a casino issue

Not every tribe is in an area where a casino would make sense. With that in mind, putting land in trust isn’t simply a casino issue.

As Kirk Francis, chief of the Penobscot Nation in Maine, said at a recent Congressional hearing on Cole’s bill:

“Tribes’ ability to regain their homelands is not only critical for them to be able to overcome economic disparity, education outcome disparities, housing disparities … but it’s also at the very core of cultural identity.”