Mashpee Wampanoag casino plan stuck in legal limbo
One year ago, the Mashpee Wampanoag seemed on a fast track to open the state’s first resort casino, a $1 billion project that would proclaim its identity as a tribe and stake its claim in a growing gambling market.
Despite a lawsuit filed to block the casino, the tribe had broken ground at the Taunton site, with plans to open this June.
But the year didn’t turn out as the Mashpee had envisioned. Now, First Light Resort and Casino hangs in limbo, an afterthought to major casinos under construction in Everett and Springfield. Nine months after a federal judge ruled that the Mashpee’s sovereign reservation was invalid, siding with Taunton residents who sued to block the casino, the project has gone back to square one: the US Department of the Interior.
That has forced the Mashpee to suspend construction of the casino while it recasts its legal strategy in hopes of convincing the federal government — for a second time — that it deserves land to call its own.
“Reservation status is the linchpin to getting a casino,” said Robert T. Anderson, a law professor at the University of Washington who has closely followed the Mashpee’s legal case. “So the tribe badly needs approval.”
The Interior Department, which oversees the Bureau of Indian Affairs, recently said it would issue a decision on the Mashpee’s status in June, giving the tribe’s casino bid new hope.
The current scenario would have seemed farfetched in late 2015, when the Interior Department ruled that the tribe had met the myriad legal requirements for a Native American reservation. Tribes must have reservation status to open a casino.
It was a triumph more than three decades in the making, and the Mashpee and their financial backers wasted little time in announcing an aggressive timetable for the casino.
“We’re real,” Mashpee Chairman Cedric Cromwell declared to cheering supporters in March 2016. “There is no doubt about this. All the doubters out there? Sorry. It’s happening.”
But in July, the tribe’s hopes were dashed when the federal judge flatly rejected the tribe’s reservation status, ruling it ran counter to a 2009 Supreme Court decision, known as Carcieri.
“With respect, this is not a close call: to find ambiguity here would be to find it everywhere,” US District Judge William G. Young wrote.
The Carcieri decision held that only tribes that had an official relationship with the federal government in 1934, the year of a landmark law called the Indian Reorganization Act, were eligible for reservations. That disqualified the Mashpee, which didn’t win tribal status until 2007.
The Mashpee had argued that Carcieri didn’t apply because the tribe’s Cape Cod home had long been recognized as a state reservation, and that the Indian Reorganization Act made state-recognized tribes eligible for reservations.
The Mashpee also pointed to evidence that the law was intended to be flexible, with the overarching goal to “rebuild tribal land bases and empower tribal self-determination.”
Anderson described the government’s approval of the Mashpee reservation as “a carefully reasoned decision” based on “an exhaustive analysis of the Mashpee history.”
Young rejected that rationale, but sent the case back to the Interior Department for further review. So the Mashpee are now pursuing a different argument, one used successfully by a tribe in Washington state facing a similar situation.
Like the Mashpee, the Cowlitz gained official federal recognition as a tribe only recently, seemingly disqualifying them under Carcieri. But the tribe argued they were effectively under federal jurisdiction for decades, a view held by many legal specialists.
“This idea that there can be federal jurisdiction without formal federal recognition makes a lot of sense,” said Lorinda Riley, a University of Hawaii law professor who follows Indian law cases. “It seems pretty clear there was a relationship in the practical sense.”
The Interior Department endorsed the Cowlitz argument, and its decision was upheld at the federal district court and appeals court levels. Last month, the US Supreme Court let the ruling stand, and the Cowlitz are going ahead with a $500 million casino near Portland.
The Mashpee hopes to follow a similar path.
“The Mashpee are saying they have long been under federal jurisdiction, based on the historical record, even though they lacked formal federal recognition all those years,” Anderson said.
Cromwell, the Mashpee chairman, declined an interview request, but in a statement touted the benefits a casino would bring to the region.
“We are ready to deliver thousands of jobs, tens of millions of dollars in critical traffic infrastructure improvements, and hundreds of millions of dollars toward urban renewal,” Cromwell said.
Cromwell said the tribe is “preparing to resume work at the site this summer, and putting the frivolous lawsuit” behind it.
For the moment, there’s little activity on the 150-acre site. Last year, crews demolished several buildings in the former office park and began extensive excavation work before the site was closed down.
With the backing of the federal government, the Mashpee was confident it would prevail against the lawsuit, which was bankrolled by a rival casino developer. The Interior Department had sidestepped the Carcieri decision by relying on a broad interpretation of the Indian Reorganization Act. But casino opponents, led by Taunton residents Dave and Michelle Littlefield, attacked that rationale as contrary to the “plain reading” of the 1934 law, often called the “Indian New Deal.”
In a lawsuit, they asserted that the federal government had glossed over the “inconvenient truth” of the 1934 law — and the Carcieiri decision — in its rush to approve the Mashpee reservation.
Michelle Littlefield remains confident the law is on their side.
“We aren’t giving up,” she said. “And we will ultimately win.”
For the state, the uncertainty of the casino’s status is frustrating. The state Gaming Commission wants a casino in Southeastern Massachusetts, an area of high unemployment, in hopes of giving the region’s economy a boost.
But last year, the panel denied a casino bid in Brockton because the Mashpee seemed like a relatively safe bet.
“The commission and Southeastern Mass. have been anticipating a resolution on this matter for five years,” said Stephen P. Crosby, commission chairman.
“The commission remains hopeful that there will soon be a federal decision on the tribe’s status that will finally provide the long-awaited clarity that is necessary for all involved parties to determine how to proceed.”