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Mashpee tribe reservation legality to be decided

Status is crucial to tribe’s casino plans

The US Department of Interior will decide early this year if it has legal authority to grant a reservation to the Mashpee Wampanoag, an essential requirement before the tribe can open a casino and one of the major questions hanging over the Mashpee’s plans for a Taunton gambling resort.

That legal determination may be months away, and finalizing a reservation would take longer and could result in a court challenge, but the tribe argues that it is making progress and the state should not permit a commercial casino in Southeastern Massachusetts.

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The Department of Interior offered the timeline in a letter to the Mashpee dated Dec. 31 and signed by Kevin Washburn, assistant secretary of Indian affairs. The tribe released the letter on Sunday.

“It supports our position toward saying that within the very near future, the Mashpee will have their [reservation], and will begin this destination resort casino,” said Cedric Cromwell, Mashpee chairman, in an interview.

Cromwell predicted that the Department of Interior will take land into federal trust for the tribe, creating a reservation eligible to host gambling, by “roughly around the end of spring, midsummer.”

Casino development in Southeastern Massachusetts has been muddled since the passage of the state’s 2011 gambling law, which opened commercial bidding for casino licenses in Greater Boston and Western Massachusetts, but delayed commercial casino development in the southeast to give the Mashpee time to make progress on a tribal casino. Tribal casinos are approved under federal law and do not need state licenses.

The challenge for the Mashpee has been a federal law stipulating that tribal gambling can only take place on sovereign Indian land, and the Mashpee have none.

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Tribes can buy land like any other group, but they must persuade the US Department of Interior to take the land into federal trust to make the land eligible for a casino. That process has been hampered for the Wampanoags, and other tribes, by a 2009 Supreme Court ruling that the department can only take land into trust for tribes that were “under federal jurisdiction” when Congress enacted the 1934 Indian Reorganization Act. The Mashpee were not formally recognized by the federal government until 2007.

The tribe is trying to satisfy the Supreme Court requirement by submitting documentation to demonstrate a long connection to the federal government. It will argue the relationship is tantamount to formal recognition.

“We’re confident and comfortable that upon [the Department of Interior’s] analysis of the information we submitted they will give thumbs up and take this land into trust,” said Cromwell.

Meanwhile, the state gambling commission, which controls commercial casino licenses, has been waiting for signs of progress from the tribe. The commission has the authority to open the southeast to commercial casino bidders if the commission concludes the tribe will be unable to get a reservation. The commission appeared ready last month to move toward a commercial casino in the southeast, but put off a decision until at least March to give the tribe “a last shot” at making progress toward a tribal gambling resort, said Stephen Crosby, commission chairman, at the time.

The commission is concerned that the longer it waits for the Mashpee, the further the southeast may fall behind the other two regions. However, should the commission go ahead and license a commercial casino in the southeast, it runs the risk of someday having two casinos in the region, if the Mashpee are able to get land into federal trust. State officials believe more than one casino in the region would undermine the gambling market.

Crosby said on Sunday that the commission would welcome any guidance from the federal government on the Mashpee’s application for a reservation. “But without knowing what the content of such guidance would be, there’s no way for us to respond further,” he said. “It’s purely speculative how long it will take to get land, even if the department believes it has the authority.”

Mark Arsenault can be reached at marsenault@globe.com. Follow him on Twitter @bostonglobemark

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