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Mashpee casino plan could hinge on a few words in a 1934 law

The Mashpee Wampanoag are seeking to build a casino in Taunton.

Millions of dollars and years of debate have gone into the question of whether the Mashpee Wampanoag Tribe will be able to build a tribal casino in Taunton. Now the project’s fate could hinge on how a federal appeals court reads two simple words: “such” and “now.”

At a hearing on Wednesday at the Moakley federal courthouse in Boston, attorneys for the tribe and its opponents zeroed in on the language of an 86-year-old landmark federal law covering Indian self-government as they sought to make their case to a three-judge panel.

At issue is whether the Mashpee are allowed under federal law to hold reservation land, a designation necessary for the tribe to build a $1 billion casino that has been beset by years of legal and regulatory complications.


The tribe argues that the 1934 Indian Reorganization Act ― sometimes known as the Indian New Deal ― gives it a right to reservation land. Its attorneys say a lower court misinterpreted the phrasing of certain terms in the law — defining Indians as people of Indian descent who are part of tribes “now under Federal jurisdiction,” and as descendants of “such members” who lived on a reservation when the act became law.

The tribe is asking the US Court of Appeals for the First Circuit to overturn a 2016 ruling in which a district judge decided that the federal government had wrongly acquired land in trust for the tribe because it was not federally recognized at the time of the act.

The Mashpee first won federal recognition as a tribe in 2007, after a 32-year legal struggle. A 2009 US Supreme Court ruling, known as the Carcieri decision, also took a narrow view of eligibility for reservations, using the 1934 law as a guide.

But the Mashpee argue that the wording in the law remains unclear, and in court on Wednesday, tribal attorney Benjamin J. Wish told the judges that Congress clearly had the intention of helping tribes such as his client when it made the law.


“This was not a statute meant to nibble around the edges . . . but rather to hit a body blow against centuries of mistreatment,” Wish said.

But attorneys for the group of Taunton property owners who are opposing the project argue that the language of the law is not difficult to interpret, and the Mashpee are not eligible to have a reservation.

The panel of three judges ― Sandra L. Lynch, Kermit V. Lipez, and retired US Supreme Court Justice David H. Souter ― gave no clear signals of its inclination in the case, asking skeptical questions of both sides about the wording of the law.

A resolution could begin to clear some of the uncertainty over the gambling picture in Southeastern Massachusetts.

The Massachusetts Gaming Commission has been deliberating slowly on whether to license the state’s third full-service casino in that region, wary of the potential impact of a tribal casino nearby that would not be subject to the same state regulations.

The commission in 2016 rejected a casino proposal for Brockton, in part because of concerns about the Mashpee casino, which had held a groundbreaking ceremony before it was stalled by legal questions.

The company that proposed the Brockton casino, Mass Gaming and Entertainment, has been represented before the commission by some of the same lawyers who represent the opponents of the tribal Taunton site. And Mass Gaming, backed by Chicago casino magnate Neil Bluhm, has helped finance the litigation.


The legal questions could endure even past the Boston court’s decision. The tribe is also suing the Department of the Interior, which oversees the Bureau of Indian Affairs, over the 2018 US government’s reversal of its position that the tribe was eligible for a reservation.

Members of Congress representing Massachusetts have also taken up the Mashpees’ cause. A measure that would secure the tribe’s land as a reservation passed the House last year but failed in the Senate amid opposition from President Trump.

Dozens of members of the Mashpee Wampanoag Tribe attended the hearing on Wednesday, many wearing traditional jewelry along with clothing in the tribe’s purple hue. Afterward, tribal chairman Cedric Cromwell said he hopes the court brings his people closer to control over the land it has called home for generations: "We’ve never moved anywhere,' he said. “We’ve always lived here.”

Andy Rosen can be reached at andrew.rosen@globe.com.