Mashpee Wampanoag Casino Still A Pipe Dream, But New Bill in Congress Could Rescue Tribe

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Taunton residents who don’t want a 900-room hotel casino near their homes would be overridden if Congress passes a bill ending their legal challenge to the Mashpee Wampanoag Tribe.

U.S. Representative William Keating (D-Bourne) and U.S. Representative Joseph P. Kennedy III (D-Brookline) earlier this week filed the bill, which would allow a federal agency to take land into trust on behalf of the tribe, according to the Cape Cod Times.

Keating filed a similar bill March 9, 2018, during the last session of Congress, but it did not get approval.

In recent years the anti-casino Taunton residents have succeeded in court and with the federal agency that oversees Indian affairs. Their legal challenge is now almost three years old.

On February 4, 2016, 24 residents (living in 17 homes) of Taunton filed suit in U.S. District Court in Boston seeking to overturn the federal agency’s pro-casino decision issued during the Obama administration.

They’re fighting what their lawyer described in the complaint in dramatic language:

“The purpose of the [pro-casino Record of Decision] is to remove forever the land, currently held in fee simple by the Mashpees, from the tax and regulatory jurisdiction of the Commonwealth of Massachusetts, the County of Bristol, and the City of Taunton, and in the process create a tax-immune, regulation-free Indian reservation on which the Tribe is authorized to build and operate a Las Vegas-style casino resort called ‘First Light,’ complete with a 15 to 17 story high main building, three hotels and parking for 6,000 vehicles. The main tower building, if constructed, will be the tallest structure for miles around, purportedly able to catch the sun’s first rays and light up the night sky — a highly visible intrusion, day and night, 24 hours a day, 365 days a year.”

They got a favorable ruling from a federal judge in July 2016 that has hurt the tribe’s cause.

Meanwhile, the setbacks have left the Mashpee Wampanoag Tribe in tough shape financially. On November 30, 2018, the foreign company that is backing the tribe’s casino bid, Genting Malaysia Berhad, reported a $440 million loss during the third quarter of 2018 stemming from its promissory notes to the Mashpee Wampanoag Tribe. The company declared the loss because of what it called “the uncertainty of recovery of the Notes,” although it noted that if Congress passes a bill enabling the casino in Taunton it might fix the bad-debt problem.

A week later, in early December 2018, the chairman of the tribal council, Cedric Cromwell, issued a statement describing the bill in Congress as vital for the tribe.

“Unless Congress enacts legislation now to prevent the Department of the Interior from disestablishing our reservation, in 2019 we will have to close programs, shutter our school, lay off our governmental employees, and witness the dissolution of all that we have achieved since our federal recognition was restored in 2007. It is almost impossible to describe the despair that the federal government’s continued inaction has brought to our people,” Cromwell said in the statement, according to the Mashpee Enterprise.

The problem for the tribe is whether it qualifies to get the federal government to take land into trust as a reservation on its behalf.

A 1934 federal law called the Indian Reorganization Act authorizes the U.S. Secretary of the Interior to take land into trust on behalf of Indian tribes, originally for the purpose of securing Indian lands from encroachments.

That especially matters nowadays because Indian land taken into trust by the federal government can be used for gambling if the state allows it.

But a 2009 U.S. Supreme Court decision (Carcieri v. Salazar) said that the Secretary of the Interior can take land into trust for an Indian tribe only if the federal government recognized the tribe at the time the Indian Reorganization Act was passed in 1934, because the act defines “Indians” as people “who are members of any recognized Indian tribe now under Federal jurisdiction.”

That ruling 10 years ago negated a bid by the Narragansett Tribe in Rhode Island to have land taken into trust, because that tribe was recognized by the federal Bureau of Indian Affairs only in 1983.

The Mashpee Wampanoag Tribe has a similar problem, because the federal government recognized it as a tribe only in 2007. But the Mashpee tribe has argued in court that it was under federal jurisdiction at the time the act was passed in 1934 even if it wasn’t formally recognized.

In the Taunton lawsuit, on July 28, 2016, a federal judge ruled that “In light of the Supreme Court’s interpretation of ‘now under Federal jurisdiction’ to mean under Federal jurisdiction in June 1934, the Secretary lacked the authority to acquire land in trust for the Mashpees, as they were not then under Federal jurisdiction.”

The current bill in Congress sponsored by Keating and Kennedy would render the legal dispute moot by explicitly enabling the federal government to take Mashpee Wampanoag Tribe lands into trust.


Why Indians Can Operate Casinos …
and Why the Mashpee Wampanoags Currently Can’t

Legalized gambling run by American Indian tribes has roots in a June 1976 U.S. Supreme Court decision in a case brought by a married Chippewa couple living on an Indian reservation in northern Minnesota who got a property tax bill from the county for their mobile home. The federal Supreme Court ruled in Bryan v. Itasca County that not only could the state and county not tax Indians on a reservation, they couldn’t even regulate their behavior on a reservation, and that only Congress has such authority. Indian tribes in various parts of the country started opening bingo halls that ignored limits set by the state.

Two months after that Supreme Court decision, on August 26, 1976, the Mashpee Wampanoag Indian Tribal Council filed a federal lawsuit seeking nearly all of the land in the town of Mashpee – about 11,000 acres – claiming it was rightfully theirs. Similar cases were filed by other tribes around that time on Martha’s Vineyard and in Maine, Rhode Island, Connecticut, and New York, spearheaded by the Native American Rights Fund, a legal advocacy organization headquartered in Colorado.

The Mashpee case didn’t concern property taxes or gambling, but the tribal leaders at the time may have been encouraged by what The Boston Globe called in November 1976 “court decisions on preliminary issues [that] have been breaking clearly in the Indians’ favor.”

The Mashpee Wampanoags’ lawsuit paralyzed economic development in Mashpee in the mid-1970s because it threw into question the validity of existing land titles. The case ended badly for the tribe, when a federal jury in January 1978, after a 40-day trial, found that the Mashpee Wampanoags had ceased to exist as a tribe by 1869, a year before the town of Mashpee was incorporated.

Judge Walter Skinner (1927-2005), who oversaw the civil trial, dismissed the tribe’s lawsuit (and was later upheld on appeal) after the jury verdict. In his order of dismissal he wrote:  “In my view, the evidence would support the jury’s finding that between 1842, when the Indians in Mashpee were active in establishing self-determination and asserting their right to their own customs, and 1869 … the proprietors had reoriented their efforts toward assimilation into the general non-Indian community. … The absence of any indication of Indian self-identification, or of the establishment of tribal common land in the years immediately following 1869, at a time when the Indians exercised virtually complete control of the area, may have had some bearing on the jury’s response. From all of the circumstances, the jury was entitled to find that tribal identity had been abandoned at some time between 1842 and 1869.”

(The Mashpee Wampanoag Tribe bitterly disagreed with the jury’s finding, and eventually prevailed on that point. Twenty-nine years later, on February 15, 2007, during the George W. Bush administration, the Department of the Interior formally recognized the Mashpee Wampanoag Indian Tribal Council Inc. as a tribe. The agency said that the trial court’s standards in the 1970s don’t apply to the Bureau of Indian Affairs, and instead determined that the Mashpee Wampanoags met its regulatory definition of a tribe by being “a socially distinct group of people within the wider society.”)

Unrelated to the 1970s Mashpee land case, though, Indian tribes elsewhere in the country made breakthroughs allowing them to expand gambling on tribal lands through the late 1970s and during the 1980s.

In 1986, for instance, the Mashantucket Pequot Tribal Nation opened a high-stakes bingo hall on tribal land in Ledyard, Connecticut, which over time has developed into today’s Foxwoods Resort Casino.

The Indian Gaming Regulatory Act of 1988, signed by President Ronald Reagan, allowed casino gambling on Indian reservations in states that allow gambling, subject to a compact between the state and the Indian tribes that allows the state (among other things) to get a cut of the profits.

Still, gambling remained illegal in Massachusetts (except for the state-sponsored Lottery, begun in 1971) for more than two decades.

In November 2011 then-Governor Deval Patrick signed into law the Massachusetts Expanded Gaming Act, allowing for three so-called resort casinos in the state:  one in western Massachusetts (defined as the counties of Berkshire, Franklin, Hampshire, and Hampden); one in central and eastern Massachusetts (defined as the counties of Suffolk, Middlesex, Norfolk, Essex, and Worcester); and one in southeastern Massachusetts (defined as the counties of Plymouth, Bristol, Barnstable, Dukes, and Nantucket). The law sets a hefty licensing fee (of at least $85 million) and entitles the state to 25 percent of “gross gaming revenues.”

(The law also enabled Plainridge Park Casino in Plainville to open. Offering slot machines and video poker, the Plainville venue is not in the same legal class as the so-called resort casinos, which offer table games like roulette, craps, and Blackjack.)

The state’s first so-called resort casino, MGM Springfield, opened August 23, 2018 in that western Massachusetts city.

A second casino (in the eastern-and-central-Massachusetts region) is under construction in Everett (about 3 miles north of Boston) and is scheduled to open in June 2019. (It’s currently called Encore Boston Harbor.)

But the southeastern Massachusetts region has no casino currently under construction.

It hasn’t been for lack of interest.

On March 23, 2013, the Mashpee Wampanoag Tribe and then-Governor Patrick entered into a compact for a casino, which was subsequently approved by the U.S. Department of the Interior. The tribe actually broke ground in Taunton on April 5, 2016, three months before the federal judge ruled that the federal government could not take land in trust on behalf of the tribe.

Around the time of the groundbreaking, in April 2016 the Massachusetts Gaming Commission rejected an application from Rush Street Gaming LLC, of Chicago, to build a casino on the fairgrounds in Brockton (about 19 miles south of Boston), on the grounds that the gambling market might become oversaturated if the Mashpee Wampanoag Tribe casino goes forward in Taunton, which is about 13 miles southwest of Brockton.

But the Chicago-based company hasn’t given up. The company is paying attorney’s fees for the Taunton residents fighting the Mashpee Wampanoag Tribe’s proposed casino in Taunton, according to the Taunton Daily Gazette, and in June 2018 the company sent a letter to the state Gaming Commission renewing its interest in the Brockton project, according to The Boston Globe.

Meanwhile, the Mashpee Wampanoag Tribe, which has been interested in building a casino since even before it got federal recognition as a tribe in 2007, has been stymied.

The tribe can’t just build a casino on land that it owns under the terms of its compact with the state, which grants the tribe “exclusivity” in the southeastern Masssachusetts region. Instead, the tribe needs a reservation taken into trust by the federal government. As a business matter, it needs a parcel large enough for a resort with access to major highways to attract the kind of traffic a casino needs to succeed. That all but rules out the small Cape Cod town of Mashpee, where the tribe is headquartered, because the town lacks large available parcels of land and is far from major highways.

The tribe sought to open a casino in Middleborough (about 28 miles northwest of Mashpee) in August 2007. Then it tried Fall River (about 40 miles west of Mashpee) in July 2010. Then the tribe turned to Taunton (about 36 miles northwest of Mashpee) in June 2012. (The tribe’s opponents in Taunton called the actions “reservation shopping” in their February 2016 complaint.)

Most city officials and residents in Taunton support the proposed casino because they anticipate increased property taxes and jobs.

Voters in Taunton approved the casino in a nonbinding referendum in June 2012 by a 63-37 percent margin, although voters in the city’s Ward 4, where the project would be built, opposed it by about the same proportion (36 percent for to 64 percent against), according to the Taunton Daily Gazette.

On September 18, 2015, during the Obama administration, the Department of the Interior agreed to take into trust about 170 acres in Mashpee and about 151 acres in Taunton on behalf of the Mashpee Wampanoag Tribe.

The tribe then bought a 151-acre parcel from the Taunton Development Corporation (a nonprofit corporation controlled by the city) on October 30, 2015, and then on November 10 of that year the tribe conveyed the land to the federal government to be held in trust.

On February 4, 2016, 24 neighbors of the project filed suit in federal court seeking to overturn the federal agency’s pro-casino decision, and got the favorable ruling in July 2016.

On September 7, 2018, the Department of the Interior reversed course, declaring that in light of the federal judge’s ruling and evidence presented, the Mashpee Wampanoag Tribe wasn’t under federal jurisdiction in 1934 and therefore could not have land taken into trust by the Bureau of Indian Affairs. Supporters of the casino blame the Trump administration, saying the federal government’s attitude toward the tribe changed after President Donald Trump took over in January 2017.

It’s not clear when or whether Congress will act on Keating’s bill seeking to end the lawsuit and give the Mashpee Wampanoag Tribe a reservation in Taunton.

Supporters of the bill are hoping that the new Democratic majority in the U.S. House of Representatives will help its chances, since its primary sponsors (and indeed, all members of Congress from Massachusetts) are Democrats.

But that’s true in Rhode Island, too, where the state’s two U.S. senators and two U.S. representatives oppose the bill, out of fears a casino in Taunton would cut into revenues at a new casino in Tiverton, about 20 miles southwest of Taunton.