DC Court to Hear Case on May 7
The court case that has postponed a US Department of the Interior order to disestablish the Mashpee Wampanoag Tribe’s reservation will be heard by the US District Court in Washington, DC, on Thursday, May 7, via video or teleconferencing due to the COVID-19 pandemic.
The tribe sued the Interior Department in 2018 over the department’s determination that the tribe does not meet one of the definitions of Indian under the law that establishes land in trust.
The tribe and the Interior Department will be allotted 75 minutes each for oral arguments during the hearing.
The case could determine the fate of the tribe’s 321 acres of reservation land in Mashpee and Taunton. The Interior Department ordered the land to be taken out of trust late last month.
“If implemented, the department’s decision to remove the trust restrictions from the Tribe’s land and disestablish its Reservation will have a tremendous negative impact on the Tribe’s sovereignty, jurisdiction, economy, health, culture and spiritual life,” Tami Lyn Azorsky, a lawyer for the tribe, wrote in a court filing on Friday, April 10.
Among the many ramifications of taking the land out of trust: The order would disqualify the tribe from Indian gaming, with a $1.5 billion casino planned on reservation land in Taunton; interfere with an affordable housing project under construction in Mashpee; and impact funding from the federal government.
After an emergency motion by the tribe, the court ordered a 45-day postponement of the Interior Department order pending oral arguments on the motion.
The court has since consolidated the emergency motion by the tribe with earlier motions for summary judgment, bringing the entire weight of the case to the hearing in May.
In the case, the tribe contends that the department’s determination that the tribe was not under federal jurisdiction in 1934, the year the Indian Reorganization Act (IRA) was passed, was “arbitrary, capricious, and contrary to law.”
That year has underpinned the definition of “Indian” under the IRA since a US Supreme Court decision in 2009, known as the Carcieri decision, determined the word “now” in the phrase “now under federal jurisdiction” to mean “in 1934.”
The Interior Department could cede part of its time for oral arguments to the intervening Littlefield party, which is composed of residents from Taunton who sued the tribe in a separate case in 2016, shortly after that the tribe broke ground on the casino project. The project has since stalled.
When the First Circuit Court of Appeals found in favor of the Taunton residents in that case in February, the court determined that the second definition in the IRA incorporated the part in the first definition requiring a tribe to be under federal jurisdiction in 1934 to be qualified for land in trust under the IRA.
The Interior Department cited a court mandate from the Littlefields’ case against the tribe as the impetus for the order to disestablish the tribe’s reservation.
“On March 19th, the court of appeals issued its mandate, which requires Interior to rescind its earlier decision,” the department said. The Bureau of Indian Affairs, at the directive of the Interior Department, notified Tribal Council Chairman Cedric Cromwell on March 27.
The tribe has requested that the Washington, DC, court allow the hearing to proceed by videoconference so that the tribe’s representatives may attend the argument.
“Absent the circumstances surrounding COVID-19, the Tribe’s representatives would have attended the hearing in person,” Ms. Azorsky said in the court filing on Friday, April 10. “Preventing them from attending would only serve to exacerbate the harm already inflicted on the Tribe by the COVID-19 crisis.”
The case is assigned to Judge Paul L. Friedman.
By Ryan Spencer, Mashpee Enterprise
