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Judge rules Interior Department decision on Mashpee Wampanoag violates law

The lobby of the Mashpee Wampanoag Tribe's Community Government Center in Mashpee on Cape Cod.
The lobby of the Mashpee Wampanoag Tribe's Community Government Center in Mashpee on Cape Cod.Stephan Savoia/Associated Press

A US District Court judge has ordered the federal Department of the Interior to reconsider its 2018 decision that threatened the status of the Mashpee Wampanoag, writing that the agency didn’t follow its own legal guidance in making that determination.

In 2018, the Mashpee Wampanoag filed a federal lawsuit in an effort to retain sovereignty over the tribe’s reservation, after the Department of the Interior determined the government could not hold the land in trust for the tribe.

In court papers, the Interior Department said it was unable to do so because the agency determined the tribe wasn’t under federal jurisdiction when Congress passed the Indian Reorganization Act in 1934.

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Judge Paul L. Friedman criticized the agency’s 2018 decision as “arbitrary, capricious, an abuse of discretion, and contrary to law,” in a court filing Friday.

The 2018 ruling reversed an Obama administration-era decision by the agency, which took about 320 acres of land in Taunton and Mashpee into trust for the benefit of the tribe in 2015.

On Friday, Friedman remanded the decision to the Interior Department and ordered the department to refrain from taking any steps to move the tribe’s land out of trust while the matter remains under litigation.

“The Court agrees that the Tribe will suffer irreparable harm if the Secretary is allowed to proceed with removing its land from trust pending remand,” Friedman said in his memorandum and order filed Friday in US District Court in Washington, D.C.

Cedric Cromwell, the Mashpee Wampanoag’s tribal council chairman, praised the decision in a statement posted to the tribe’s website.

“Today, the DC District Court righted what would have been a terrible and historic injustice by finding that the Department of the Interior broke the law in attempting to take our land out of trust,” Cromwell said in the statement.

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Cromwell said the tribe is pleased with Friedman’s findings, but added that “our work is not done.”

“We will continue to work with the Department of the Interior — and fight them if necessary — to ensure our land remains in trust,” Cromwell said in the statement.

The Interior Department said in an e-mail Saturday that the judge’s decision was being looked at.

“The Department is reviewing the decision and our options to proceed, and remains committed to upholding our trust responsibilities to Indian Country,” the statement said.

The Mashpee Wampanoag have worked for years to build a casino on reservation land in Taunton and have been involved in an ongoing separate case in a federal court over that project.

Earlier this year, the US Court of Appeals for the First Circuit ruled in favor of a group of residents opposed to the casino and found that the government did not have the authority to designate land to the tribe in 2015.

In March, the Interior Department advised the tribe it would begin the process of taking the tribe’s land out of trust, rescinding its reservation status, and annulling the Tribe’s gaming eligibility determination, Friedman wrote in court papers.

Without reservation status, the tribe said it would face a loss of sovereignty, along with eligibility for federal programs and funding, including for COVID-19 relief.

“The Tribe also argues that the irreparable harm to its cultural and community connections is so fundamental that it cannot be calculated in terms of money,” Friedman said, while federal officials have maintained such claims are overstated.

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The tribe said losing the status would also mean other impacts, making the Wampanoag responsible for back taxes and jeopardizing its ongoing projects to build low-income housing, he said.

Friedman sided with the tribe’s arguments, and wrote that “the most obvious harm” to the tribe will be the loss of sovereign authority over its historic lands.

He said there is no harm to the federal defendants to maintain the status quo while the case is on remand.

"If the land is taken out of trust, then the Mashpee Tribe will lose its sovereignty over the land in its entirety,” Friedman said. “The total loss of sovereign authority, self-government, and jurisdiction over the land is unquestionably an irreparable harm.”

Representative William Keating praised the court decision Saturday, and said it showed that “common sense prevailed.”

“This is the tribe of the First Light," Keating said in an interview. “This is the tribe that took the Pilgrims through the first hard winter. They’re clearly a tribe.”

Keating sponsored a 2019 bill that would protect the federal designation of of Wampanoag parcels held in trust by the federal government as reservation land. That status is required for a tribal casino.

That bill was pulled from the House floor after President Trump tweeted his opposition. One of his prominent supporters, Matt Schlapp, is a lobbyist representing casinos in Rhode Island, which would compete with the Mashpee Wampanoag.

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The bill was ultimately passed by the House, according to Keating’s office, and awaits action by the Senate.

On Saturday, Keating said he is concerned that Trump will continue his opposition to the Mashpee Wampanoag retaining control of their land.

“If you’ve lost the land, you’ve lost everything,” Keating said.

Danny McDonald of the Globe staff and Globe correspondent Jeremy C. Fox contributed to this report.


John Hilliard can be reached at john.hilliard@globe.com.