The U.S Department of Interior has notified the Mashpee Wampanoag Tribe that it is still reviewing evidence to determine whether the tribe qualifies to have land taken into trust under a different legal category from one rejected by a federal judge in 2016, and will provide an update on that process in one month.
In an email Tuesday, Associate Solicitor for the Interior Department Eric Shepard wrote that the federal agency is still evaluating arguments and submissions from parties involved in the ongoing effort and cannot provide a specific date by which to issue a decision.
Despite this, he said the matter “remains a top priority” and will provide an update in 30 days.
Mashpee Wampanoag Tribe Chairman Cedric Cromwell said the tribe is anticipating only positive news from the federal agency, which is attempting to resolve a legal challenge to its 2015 decision to take 170 acres of reservation land in Mashpee and 151 acres in Taunton into trust for the tribe.
In 2016, U.S District Court Judge William Young remanded that decision back to the federal agency, suggesting in a later ruling that an alternative approach might allow the Interior Department to take the land into trust. Since then, the agency has been considering whether the state of Massachusetts had exercised authority over the Mashpee Wampanoag Tribe in a manner that could be viewed as a surrogate for the federal jurisdiction requirement under the Indian Reorganization Act.
The tribe has been trying to build a $600 million resort-casino on the Taunton land, First Light Casino and Resort, which is being financed by Genting Malaysia. The project was stalled when neighbors of the proposed gambling facility filed a lawsuit challenging the Interior Department’s decision to take tribal land into trust.
Cromwell said that the agency’s exploration of an alternate legal route to securing the original agreement does not constitute a victory for the plaintiffs.
“This is no slam dunk decision,” Cromwell said. “There is a trust responsibility (between) the United States and federally recognized tribes.”
David Tennant, a lawyer for the Taunton neighbors, called the idea that Massachusetts could be considered a surrogate for the federal government for the purposes of meeting the requirements under the Indian Reorganization Act “a complete conflation of our dual sovereign structure.”
“All of the land claim litigation would be wiped out,” he said. “All of the land claim settlement acts that were enacted to resolve those claims would be pointless. It unravels every part of Indian law.”
The Interior Department based its initial determination to take the reservation land into trust on the tribe’s “long and continuous occupation of tribal lands” in Mashpee, according to a letter to Cromwell from James Cason, associate deputy secretary of the Interior Department. Ultimately, the department ceded to a Supreme Court ruling, Carcieri v. Salazar, a decision that was also followed by the district court judge.
The Carcieri decision required that tribes seeking land into trust must have been under federal jurisdiction in 1934 when the Indian Reorganization Act was signed into law.
The tribe argued in its 2012 submission to the Interior — when it initially sought to have its land taken into trust — that its Mashpee land, which it occupied for centuries, amounted to a reservation for the purposes of the IRA’s second definition of “Indian.”
Having gained federal recognition in 2007, roughly 32 years after it first petitioned for the status, the Mashpee Wampanoag Tribe traces its ancestral roots in the region back 12,000 years.
