Congress may step in to end an ongoing legal challenge to the Mashpee Wampanoag Tribe’s efforts to secure reservation land and build a casino.
A bill, sponsored by U.S. Rep. William Keating, D-Mass. and co-sponsored by a cadre of lawmakers on both sides of the aisle, would reaffirm a 2015 decision by the U.S Department of Interior to take 171 acres in Mashpee and 150 acres in Taunton into trust, and establish statutory safeguards against further litigation on the matter in federal court.
The legislation is a response to fears that the Interior Department, which is presently deciding it if it can maintain the trust agreement under a different legal category than one a federal judge previously rejected, is leaning toward revoking the tribe’s right to the reservation land in the coming months, said Keating, who introduced the bill March 9.
“We’re hearing that the Interior Department is very seriously looking at taking away the tribe’s status to own land and that has an enormous effect on the very existence of the tribe itself,” he said.
If the Interior reverses its 2015 decision, the tribe would lose access to a variety of funding sources, including for social services, housing, education and environmental programs.
“It would be financially devastating,” Keating said.
Neighbors of the tribe’s proposed $1 billion casino project in Taunton had challenged the Interior’s initial decision in federal court. In 2016, U.S District Court Judge William Young rejected the way the Interior Department took land into trust for the tribe, but sent the the decision back to the federal agency for further consideration.
Congress has plenary authority, or “complete and absolute power,” over the establishment and protection of tribal reservations - and in some instances - to expand tribal trust lands, according to legal experts.
“In general Congress has tremendous power to affect the land status of Indian tribes,” said Bethany Berger, an Indian law scholar at the University of Connecticut School of Law.
If the bill passes, it’s unclear whether the statute would bar opponents of the planned casino from future legal challenges to the status of the tribe’s land, Berger said. A provision in the bill states that, notwithstanding actions pending in federal court, any such challenges “shall not be filed or maintained in a federal court and shall be promptly dismissed.”
Berger said the language in Keating’s bill was the same used in a previous piece of legislation that effectively dismissed a lawsuit challenging a decision by the Interior Secretary to take land into trust on behalf of the Potawatomi Indian tribe in Michigan. After the passage of the Gun Lake Trust Land Reaffirmation Act in 2014, the federal district court dismissed the lawsuit, citing the same legal safeguard spelled out in Keating’s proposed legislation.
But in the case of the Mashpee Wampanoag Tribe, the opponents of the casino already received a court decision in their favor and that the congressional action would violate that court order, according to Michelle Littlefield, the lead plaintiff in the lawsuit opposing the tribe.
“It should be stressed that this tribe lost in court in a strongly worded decision,” she said. “Obviously this is just a Hail Mary pass because they have failed at every possible level.”
Littlefield said if the legislation passed, she would appeal it “all the way to the Supreme Court.”
The bill comes roughly one month after Interior Department Associate Solicitor Eric Shepard wrote to the tribe to give them an update on the agency’s deliberations.
The bill’s co-sponsors include Reps. Joseph Kennedy, D-Mass., Katherine Clark, D-Mass., Michael Capuano, D-Mass., Stephen Lynch, D-Mass., Gregory Weeks, D-New York, Douglas LaMalfa, R-California, Thomas McClintock, R-California, Donald Young, R-Alaska, and Carlos Curbelo, R-Florida.
Mashpee Wampanoag Tribe Chairman Cedric Cromwell said he applauds Keating and the other legislators for their “courageous leadership” and for understanding the “moral imperative” behind the legislation.
“This is about the Mashpee Wampanoag Tribe’s ancestral homelands,” Cromwell said. “The heart of our tribe is really about land, and that often gets lost. Our land is our culture, it’s out spirituality.”
— Follow Tanner Stening on Twitter: @tsteningCCT