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Taunton casino’s fate tied to landless tribe’s legal battle

Governor Deval Patrick finalized an agreement with the Mashpee Wampanoag last week about the terms under which a Taunton tribal casino would operate.
Governor Deval Patrick finalized an agreement with the Mashpee Wampanoag last week about the terms under which a Taunton tribal casino would operate.Wendy Maeda/globe staff

In 2010, the Cowlitz Indians, a landless tribe in the Pacific Northwest, celebrated a long-fought victory after finally persuading the federal government to take 152 acres in Washington state into trust as the tribe’s reservation.

The Cowlitz had grand plans for their land: a gambling resort with 3,000 slots and Las Vegas-style table games, a hotel and RV park, restaurants, and retail stores.

But two years later the project is on hold, frozen by federal lawsuits challenging the government’s right to take land into the trust for the tribe. Tribal gambling can take place only on sovereign Indian land, and until the lawsuits are resolved the tribe is technically still landless.


The travails of the Cowlitz are resonating across the country, all the way to Taunton, where another landless tribe, the Mashpee Wampanoag, was last week celebrating its own incremental victory in an effort to build a resort casino.

The fates of the tribes may be related: The Mashpee Wampanoag are following the Cowlitz blueprint for getting trust land.

And final decisions in the lawsuits over the Cowlitz project could determine if the Mashpee ever realize their casino dreams.

“Everyone seems to think we’re the test case,” said Phil Harju, vice chairman and tribal attorney for the Cowlitz.

No answers are expected soon.

Harju hopes the US District Court in Washington, D.C., will rule on the two pending cases by the end of this year or in early 2013. Appeals are a foregone conclusion, no matter which side wins the first round, probably adding at least one more year of delay before the courts have clarified the government’s authority to take land into trust for the Cowlitz — and perhaps the Mashpee.

In recent months, the Mashpee have made important progress toward winning federal approval for their casino plans. The tribe secured options to buy land in Taunton near the junction of routes 24 and 140, where it hopes to build a $500 million resort. Local voters gave their blessing in a nonbinding vote.


And last Wednesday, the tribe finalized an agreement with Governor Deval Patrick about the terms under which a Taunton tribal casino would operate. The Mashpee agreed to give the state 21.5 percent of gambling revenue should they manage to open a casino, in exchange for a prohibition on commercially run gambling resorts in Southeastern Massachusetts, and other considerations.

But the biggest obstacle between the Mashpee tribe and its multimillion-dollar plan is figuring out how to get its land into federal trust.

The Mashpee have been reluctant to detail their strategy, but a source close to the tribe confirms that the Mashpee will follow the same method employed by the Cowlitz. That arduous administrative process took the Cowlitz eight years, according to federal documents, and has so far resulted in no gambling revenue and two federal lawsuits.

Tribes for years have routinely made use of the Department of the Interior’s administrative land-in-trust procedures. Hundreds of tribal casinos have been built on Native American land since passage of the Indian Gaming Regulatory Act in 1988, a federal law that permits tribes to pursue gambling on their reservations as a means of self-support and economic development.

But things became much more difficult for tribes in 2009, when the US Supreme Court limited the power of the government to take land into trust. In a Rhode Island case involving former Governor Donald Carcieri and the Narragansett tribe, the high court ruled that the federal government may take land into trust only for tribes that were “under federal jurisdiction” at the time Congress enacted the Indian Reorganization Act in 1934.


The ruling appeared to prevent recently recognized tribes, such as the Cowlitz, which earned federal recognition in 2002, and the Mashpee, recognized in 2007, from getting eligible land for gambling. Tribes have lobbied lawmakers to fix the problem; the gridlocked Congress is not expected to act anytime soon.

In the meantime, the court ruling left enough wiggle room for the Department of the Interior to take a generous interpretation of what it meant for a tribe to be “under federal jurisdiction” in 1934.

The Cowlitz got around the Carcieri decision by arguing they met the Supreme Court’s standard, due to the tribe’s historical engagement with the US government. The Cowlitz presented evidence of a lengthy relationship with US authorities, dating back to treaty negotiations in 1855, Harju said.

Evidence supplied by the tribe, summarized in the Department of the Interior’s final report granting trust land to the Cowlitz, includes documented attempts by the federal government to consolidate the Cowlitz with another tribe in the 1860s; the government’s identification of Cowlitz chiefs in the 1870s; and references in the 1920s to the federal government’s representing Cowlitz tribal interests in asserting fishing rights. A 1937 government report mentioned 500 “unattached Indians largely of Cowlitz tribe” under the supervision of the Office of Indian Affairs.


“There is an overwhelming record that we were under federal jurisdiction,” Harju said.

The Department of the Interior agreed, approving the tribe’s land-in-trust application in December 2010.

Soon after, opponents of the tribal casino sued the federal government to overturn the decision to grant trust land to the tribe. The legal challenges are based in large part on the 2009 Supreme Court ruling in the Carcieri case.

The Mashpee Wampanoag hope to follow the trail blazed by the Cowlitz around the Carcieri decision, by proving the tribe had an ongoing relationship with the federal government into the 1930s, based on evidence gathered by Mashpee tribal historians. The tribe declines to release its evidence.

The Patrick administration, which has pledged to actively support the tribe’s land-in-trust application, has not reviewed the tribe’s evidence that it qualifies under the Supreme Court’s standard.

James P. Lynch, a Connecticut historical research consultant who has studied the Mashpee’s claims for a rival tribe, the Pocasset Wampanoag, said the Mashpee cannot qualify because they, historically, were under state jurisdiction.

There is a chance the Cowlitz dispute could reach the Supreme Court. That would add to the delay, but another high court review would be valuable, Lynch said: “It would give the court a chance to say what it meant by ‘under federal jurisdiction.’ ”

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