BOSTON (CN) — The Native American tribe that joined with the Pilgrims for the first Thanksgiving in 1621 asked the First Circuit on Wednesday for permission to offer more modern-day hospitality at a $1 billion casino resort.
But despite an argument that ran over its allotted time, the judges appeared perplexed and undecided about how to rule.
“It’s not so obvious that either of you is correct,” U.S. Circuit Judge Sandra L. Lynch told the lawyers in the case. “You’ve managed to convince us that we still have a lot of work to do.”
Lynch, a Clinton appointee, asked both sides to submit additional briefings to help the court make a ruling.
The proposed First Light Resort and Casino would be located in Taunton, Mass., some 50 miles from the Wampanoag tribe’s ancestral home in Mashpee on Cape Cod. (Wampanoag means “People of the First Light.”)
Though the casino plan won approval from the Obama administration in 2015, a group of Taunton residents filed suit against it under the federal Indian Reorganization Act.
The tribe is appealing in Boston now after a federal judge sided with the residents. Meanwhile in Washington, the tribe is fighting a separate case it brought after the Trump administration rescinded permission for the casino.
Congress waded into the controversy as well last year, when the U.S. House of Representatives voted 275-146 in May to allow the casino, overruling the Trump administration’s denial. The Senate has yet to act on the bill.
President Trump criticized the legislation in a tweet, calling it “a special-interest casino bill backed by Elizabeth (Pocahontas) Warren,” the Democratic senator from Massachusetts (parentheses in original).
The bill is opposed by two Rhode Island casinos that could face competition from the Wampanoag project, which would include 300 hotel rooms, 3,000 slot machines, 150 table games and 40 poker tables.
Representative David Cicilline, a Rhode Island Democrat, says the project is unfair because it’s being built so far from the tribe’s reservation. He says allowing it could set a precedent that would permit Native American tribes to build casinos virtually anywhere they like. "The tribal land system shouldn't depend on which tribes hire the most expensive lobbyist," Cicilline told the Associated Press.
With the pending Wampanoag casino in mind, the Massachusetts Gaming Commission rejected a proposed casino in nearby Brockton, Mass., in 2016. That decision could be reversed if the Wampanoag casino isn’t allowed to go forward.
The issue before the First Circuit was whether the Indian Reorganization Act allows the government to approve the casino even though the Wampanoag tribe wasn’t federally recognized at the time the law was passed in 1934.
David Henry Tennant, a lawyer for the Taunton residents who works out of Pittsford, N.Y., argued that the most natural reading of the law’s text would exclude the Wampanoag. “If you gave it to 100 English teachers, they’d all agree” that’s what it means, he said.
But U.S. Circuit Judge Kermit V. Lipez, a Clinton appointee, said interpreting the law that way led to some inconsistencies, which he called “pretty weird” and “a bit of a head-scratcher.” And Lynch added: “No, that can’t possibly the standard. You can’t say there’s no other possible reading.”
But when the tribe’s lawyer, Benjamin J. Wish of Todd & Weld in Boston, suggested that the law was ambiguous, Lipez asked him: “But why isn’t that the most natural reading? That’s what I’m struggling to understand.”
Wish said the purpose of the law was to help Native Americans. “A conclusion that [the tribe] is not ‘Indian’ is too absurd and darkly ironic even for Franz Kafka,” he wrote in his brief.
Retired U.S. Supreme Court Justice David Souter was also on the panel.
Back in 2009, the Supreme Court reversed the First Circuit in a case involving a different provision of the Indian Reorganization Act. Judge Lynch had written a decision in that case finding that the law was ambiguous, but the Supreme Court said the law was clear and didn’t apply to a tribe recognized after 1934. Justice Souter concurred in the result of that case, but he did so based on the legislative history, not because he thought the law was clear.
Souter’s one question in today’s argument was whether the legislative history in this case favored the tribe, which prompted both lawyers to disagree vehemently about the purpose of the section of the law at issue.
Tennant argued that the language in the Supreme Court case was far more ambiguous than the language at issue today, which caused Lynch to quip, “You know, if you had been on the Supreme Court, maybe my decision would have been affirmed.”
The courtroom was packed with members of the Wampanoag tribe who had been bused in to attend. The crowd was so large that the judges set up a video feed of the argument in a nearby courtroom to handle the overflow.
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