A recent federal court ruling regarding the Mashpee Wampanoag Tribe’s land in trust could have local ramifications beyond the uncertainty of whether the tribe still could build and operate a resort casino in Taunton.
According to the town’s legal counsel, the 170 acres in Mashpee granted to the tribe through the land in trust declaration is no longer in trust, and is possibly taxable.
“Our position is the land is not in trust, but we will seek clarification,” town manager Rodney C. Collins said following last week’s court decision. “We’re not quick to do anything now until we have a degree of certainty so that we are not missing anything.”
He, and several others, said that the US Department of the Interior likely would appeal the decision. Although he will seek further clarification, Mr. Collins also is under the impression the land would not be in trust during the appeal, which could be a lengthy process.
The Mashpee Board of Selectmen will discuss the issue at its meeting scheduled for Monday, August 8.
On Thursday, July 28, Judge William G. Young of the United States District Court in Boston ruled that the federal government lacked the authority to take land in trust for the tribe based on the argument it used to make the decision, referencing a 2009 Supreme Court ruling known as Carcieri.
“... [The] Secretary [of the Interior] lacked the authority to acquire land in trust for the Mashpees, as they were not then under federal jurisdiction,” Judge William G. Young wrote in his ruling, referring to the Indian Reorganization Act of 1934. The tribe did not receive federal recognition until 2007.
On the afternoon following Judge Young’s decision, Mr. Collins issued a letter to all town department heads asking that they proceed as if no land has been trusted to the tribe by the federal government. In the same e-mail, he also asked that his staff extend professional courtesy to tribal officials.
Ramifications on a local level include the town and tribe’s memorandum of understanding for public safety response on tribal lands, as well as possibly taxing land owned by the tribe.
Mr. Collins said that the town would not immediately tax the tribe before completely clarifying the ruling. “In terms of assessing, we will consult with town counsel to determine the appropriate action for taxation and other issues that will surface,” his e-mail to town departments read.
The 11 parcels taken in trust by the federal government for the tribe have a combined net worth of approximately $17 million. At the town’s property tax rate of 9.51 cents per $1,000 assessed valuation, the tribe would pay approximately $160,000 per year.
Representatives of the tribe did not respond for comment, but Mashpee Wampanoag Tribal Council chairman Cedric Cromwell issued a statement on Friday, July 29, to tribal citizens in regard to the recent court decision.
“While our legal team and Tribal Council develops our strategy moving forward, let me tell you what this ruling does not mean. This ruling does not mean that we have lost our land. This ruling does not mean we have been ordered to stop moving forward with our First Light Resort & Casino.”
The town and tribe agreed to a memorandum of understanding in January of this year for public safety response on tribal lands.
According to that memorandum, the tribe has jurisdiction over its 170 acres taken in trust. The agreement allows the tribe to govern its own land, but while it builds its fire and medical emergency departments, the agreement grants town emergency personnel to enter tribal lands if contact is made with tribal officers. Town and state police officers also need permission from the tribe before entering tribal lands.
That agreement, according to the town’s legal counsel, is now null and void. At this point, the town is responsible for emergency services on the land, according to counsel.
“The ultimate status of the ‘land into trust’ determination will likely be decided by a federal appellate court and could take an extended period of time to work its way through the appeals process,” Mr. Collins’ e-mail read. “In the interim, be prepared to provide necessary fire protection, emergency medical services and law enforcement services with respect to the subject properties.”
While Thursday’s ruling was a major blow to the tribe, another case across the country with very similar language could provide a glimmer of hope in Mashpee.
The case involves the Cowlitz tribe in Washington state.
A rival tribe with a casino, the Confederated Tribes of Grand Ronde, as well as other casino opponents, challenged a land in trust application granted to the Cowlitz tribe in Washington state.
The Cowlitz tribe did not receive federal recognition until 2000, long after the Indian Reorganization Act of 1934, similar to the experience of the Mashpee tribe. The Cowlitz gained 152 acres in trust in 2010.
Three federal judges of an appellant court last week ruled in favor of the Cowlitz. The judges reaffirmed a lower court ruling last week that referenced similar language in Judge Young’s Mashpee tribe ruling.
The Confederated Tribes of Grand Ronde could take the Cowlitz case to the United States Supreme Court.
The three judges in Washington referenced the Carcieri Supreme Court ruling in 2009 that Judge Young also referenced in the recent Mashpee tribe ruling, although those judges reached different conclusions.
“In Carcieri v. Salazar, the Supreme Court held that the word, ‘now,’ unambiguously limits the first definition to members of those tribes that were under federal jurisdiction in the year,” the federal judges in the Cowlitz case wrote in their ruling to reaffirm the lower court’s curling. “In so holding, it did not pass on the exact meaning of ‘recognized’ or ‘under Federal jurisdiction.’ These two terms are at the heart of our case.”
In the Carcieri v. Salazar Supreme Court case, concluded in 2009, the Court found that the Department of Interior cannot create reservations for tribes “not under federal jurisdiction” in 1934.
The Carcieri decision changed the landscape for the Mashpees and countless other tribes across the country, who previously did not have to prove their position under federal jurisdiction in 1934, as they now do.
The appellant judges drew a distinction between federal jurisdiction and federal recognition.
The Mashpees, in their application for land in trust to the Interior Department, cited several historical documents as well as decisions by both the US Supreme Court and by the US Department of Interior in approving other Indian reservations.
The tribe argued that, on several occasions, it proved a relationship with the federal government prior to 1934, and so qualifies as having been under federal jurisdiction.
Congress has not declared the tribe not under federal jurisdiction, so under federal jurisdiction it was and so it remains, according to the tribe’s argument. The tribe also argues that it had relations with Great Britain before the federal government was even formed.
As further evidence, the tribe notes that the federal government several times through the 19th century applied federal Indian policy to the Mashpees, including sending Mashpee Indians to a federal re-education school in Pennsylvania and actively considering the Mashpee tribe for relocation.
As of deadline this week, representatives of Bureau of Indian Affairs, which is part of the Interior Department, had yet to announce if an appeal of the decision would be filed or not.