A federal District Court in Washington, DC, will hear oral arguments via videoconference in litigation brought by the Mashpee Wampanoag Tribe against the Trump administration’s Department of the Interior today, Wednesday, May 20, at 10 AM.
In the lawsuit the tribe alleges that the Interior Department’s 2018 determination that the tribe could not be considered “under federal jurisdiction” in 1934 for purposes of the Indian Reorganization Act of that year was “arbitrary, capricious, and contrary to law.”
Judge Paul L. Friedman will preside over the arguments, which can be listened to over teleconference at 877-848-7030. The access code is 8204797.
The Indian Reorganization Act lays out the procedure for establishing tribal reservation lands through a federal trust process. The Interior Department in March ordered that the tribe’s 321 acres of reservation land in Mashpee and Taunton be disestablished.
The Interior Department under the Obama administration placed the land into trust and established the Mashpee Wampanoag Tribe’s reservation in 2015. A group of residents from Taunton, where the tribe planned a $1 billion casino, sued.
In 2016 a federal District Court judge in Boston found that the Obama administration had lacked the authority to take land into trust for the tribe under the second definition of “Indian” under the Indian Reorganization Act.
The decision remanded the question of whether the tribe could be considered to fit the first definition, rather than the second. The first definition has required tribes to have been considered “under federal jurisdiction” in 1934 since a 2009 Supreme Court decision, known as the Carcieri Decision, found the word “now” in the definition to mean “in 1934.”
The tribe filed hundreds of pages of evidence to attempt to prove its status of being “under federal jurisdiction” in 1934 as the phrase is understood by the M-Opinion, an opinion which has guided interpretation of the phrase “under federal jurisdiction” since 2014.
The Interior Department determined in 2018 that the tribe could not be considered “under federal jurisdiction” in 1934 by the criteria laid out in the M-Opinion. The tribe sued in the Washington, DC, case, arguing that the determination ignored the evidence and improperly applied the M-Opinion.
In March the department replaced the M-Opinion with new guidance. Less than a week before scheduled May 7 oral arguments, Judge Friedman wrote in an opinion and order that he was “shocked” to learn of the change, which had not been disclosed to the court.
The tribe requested more time to address issues raised by the court, and the judge moved the oral arguments to May 20.
A lawyer for the tribe will argue for up to 55 minutes, followed by a 15-minute recess. Then Interior Department lawyers will have up to 40 minutes for arguments, followed by 12 minutes of arguments from the Littlefield party—the party of Taunton residents who intervened in the lawsuit.
Another 15-minute recess will be followed by a 20-minute rebuttal from the tribe, 15 minutes of rebuttal by the Interior Department and eight minutes of rebuttal by the Littlefield party.