BOSTON (CN) — Denied a reversal in its fight to build a $1 billion casino in Massachusetts, the chairman of a Cape Cod-based Native American tribe says the effort will continue in the courts and in Congress.
“There’s no question that this is a grave injustice,” Cedric Cromwell, chairman of the Mashpee Wampanoag Tribal Nation, said Thursday evening, releasing a statement after learning that the First Circuit had rejected its appeal.
The tribe is based in Mashpee but won federal approval in 2015 to build a casino resort on the mainland some 50 miles away in Taunton.
This prompted a lawsuit from 25 residents who live close to the proposed site, and the First Circuit agreed with the group Thursday that the government should not have taken the 151-acre Taunton property into trust for the tribe.
Issuing the decision just two weeks after oral arguments, the court relied heavily on the language of the 1934 Indian Reorganization Act, which authorizes the Interior Department to place land in trust for tribes.
Key to the dispute, the Mashpee Wampanoag only received federal recognition as a tribe in 2007, and the 1934 IRA makes key specifications as to who meets the definition of Indian.
“Because the BIA [Bureau of Indian Affairs] had not determined that the tribe was under federal jurisdiction in 1934 ... the tribe had not met the IRA's definition of Indian,” U.S. Circuit Judge Sandra Lynch wrote for a three-judge panel. “And that meant the land could not be taken in trust.”
The Mashpee Wampanoag trace their lineage back to the first natives that interacted with the Pilgrims in Plymouth, and the tribe’s chairman balked at the court’s focus on the semantics of the Indian Reorganization Act.
“Much of this case revolved around the ambiguity of two words — ‘now’ and ‘such,’” Cromwell said. “We will continue to fight, as our ancestors did, to preserve our land base, our culture and our spiritual connection to our homelands.”
With 47 Republicans crossing the aisle, the Democrat-controlled U.S. House passed a bill in May 2019 to allow the Taunton casino.
The U.S. Senate has yet to take up the matter.
“We will continue working with the congressional delegation, and the U.S. House of Representatives who overwhelmingly — and in bi-partisan fashion — passed two legislative proposals to correct this injustice to our people and all tribes,” Cromwell said.
In addition to the land for the casino, the government in 2015 had put into trust some 170 acres in Mashpee that the tribe had already owned and used for housing.
Pointing to a separate case the tribe is fighting in Washington, Cromwell said Thursday’s decision will not cause its land to be taken out of trust.
With the pending Wampanoag casino in mind, the Massachusetts Gaming Commission rejected a proposed casino in nearby Brockton in 2016. That decision could be reversed if the Wampanoag don't get their casino, the plans for which include a water park, three hotel, thousands of slot machines, and nearly 200 table games and poker tables.
Two Rhode Island casinos that could face competition from the Wampanoag project have spoken out against the House bill.
On appeal, the tribe was represented by Benjamin Wish of the firm Todd & Weld. David Tennant and the law firm Goodwin Procter LLP represented the residents.
Judge Lynch was joined on the panel by fellow Clinton appointee U.S. Circuit Judge Kermit Lipez and by retired Supreme Court Justice David Souter.
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