Wednesday, March 4, 2009

The Tribe In The Media: The Massachusetts Question

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This installment of The Tribe In The Media is a Boston Globe article on the effect on the Mashpee Wampanoag Tribe by last week's US Supreme Court landmark decision.

The US Supreme Court delivered a crippling setback yesterday to the Mashpee Wampanoag in Massachusetts and many other tribes across the nation that are seeking to build casinos, ruling that the federal government cannot place land into trust for newly recognized tribes.

The ruling instantly cast doubt on the Mashpee Wampanoags' quest to build a $1 billion casino in Middleborough, disappointing tribal officials who had hoped to get 539 acres put into federal trust as soon as this spring.

The ruling also eliminates one of the political rationales that had been advanced last year by Governor Deval Patrick and other gambling proponents for approving casinos in Massachusetts. Administration officials had argued that the tribe was likely to win a Native American casino someday, so the state should get in on the action first and control the flow of revenues by setting up its own network of licensed casinos.

But the Supreme Court, ruling in a Rhode Island case involving the Narragansett Indians, said that for nearly 75 years, the federal government had been misreading the Indian Reorganization Act of 1934. In a 6-3 ruling, the court decided that land-trust status should have been granted only to tribes that were federally recognized before 1934.

The result is a major reshuffling of the gambling picture across the country. Specialists said the Mashpee Wampanoag and other tribes will find it necessary to mount a fresh lobbying campaign in Congress in a bid to change federal law for dealing with Native American land.

"It's absurd on its face that the policy of the United States government would be to recognize the sovereignty of native tribes, but not allow those sovereign nations to take land into trust," Cedric Cromwell, the newly elected chairman of the Mashpee tribe, said in an interview. "We look to Congress to correct what the court could not."

Cromwell is planning to send letters this week asking US Senators Edward M. Kennedy and John F. Kerry, as well as US Representative William D. Delahunt, to file legislation to change the law. Representatives of the state's delegation, as well as the governor, said they were reviewing the decision, but took no position yesterday.

The ruling is expected to trigger an outcry among the dozens of Native American tribes that have been seeking to obtain sovereign land, and it will provide an early test for President Obama, who has promised to be more attuned to the concerns of Native Americans.

"The implications are literally coast to coast and border to border," said Dennis Whittlesey, a Washington-based lawyer who specializes in Indian law and helped negotiate the multimillion-dollar agreement between the Mashpee Wampanoag and the town of Middleborough. "If this decision is not overturned by the Congress, the Mashpee project cannot go forward. There cannot be a casino there."

Some members of Congress, including US Senator John McCain, have said there are problems with current gaming laws and have suggested overhauling the federal system to restrict tribes from opening casinos off reservations and prevent outside investors from reaping huge profits from tribal casinos. Some lawmakers have also been critical of so-called reservation shopping, where tribes and developers attempt to build casinos that are, in some cases, hundreds of miles from historic tribal lands.

"There's no doubt this casts a major shadow over opportunities to expand Indian gaming on off-reservation land or otherwise," said Steven Andrew Light, codirector of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota. "This is one of those bolts from the blue that potentially changes a lot of things."

The Mashpee tribe won federal recognition in 2007 and is attempting to have land in two areas put into federal trust: 140 acres in Mashpee, where its tribal headquarters is located, and 539 acres in Middleborough, about 25 miles away, where it wants to build the casino. The Mashpee tribe has been planning 4,000 slot machines, table games, a 1,500-room hotel, and amenities including a golf course.

The Supreme Court case - Carcieri v. Salazar, 07-526, which was heard in November - stems from a dispute in Rhode Island over the Narragansett tribe's argument that 31 acres of land in Charlestown, R.I., it owns should be placed in a federal trust.

State officials, concerned that the tribe would create a tax-free zone or build a casino, argued that federal law prevents the US government from taking land into trust for tribes recognized after the 1934 Indian Reorganization Act. The Narragansett Tribe was federally recognized in 1983.

The US Court of Appeals for the First Circuit in Boston rejected the state's claim in July 2007, but the Supreme Court reversed that decision yesterday.

Massachusetts Attorney General Martha Coakley, along with several other attorneys general from other states, signed onto the case with Rhode Island.

Debate hinged on the phrase "now under federal jurisdiction," wording in the 1934 law. Rhode Island officials argued it meant the law would apply only to tribes that were recognized when the law was passed, while the tribe argued it was ambiguous.

"Because the record in this case establishes that the Narragansett Tribe was not under federal jurisdiction when the IRA was enacted, the secretary does not have the authority to take the parcel at issue into trust," Justice Clarence Thomas wrote in the majority opinion.

Justice John Paul Stevens, in a fully dissenting opinion, criticized Thomas for a "cramped reading" of the 1934 law. Two justices, David Souter and Ruth Bader Ginsburg, offered opinions that dissented in part.