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Massachusetts Casino Opponents Ramp Up Carcieri Attack

Opponents of the Mashpee Wampanoag Tribe's proposed resort casino have latched onto the 2009 Carcieri decision as a means of derailing the project.
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Opponents of the Mashpee Wampanoag Tribe's proposed resort casino in Taunton, Massachusetts, have latched onto the Supreme Court's 2009 Carcieri decision as a means of derailing the project.

The opposition group Preserving Taunton's Future announced in July that the Bureau of Indian Affairs had said it would consider documents purporting to show the tribe was not under federal jurisdiction in 1934. In Carcieri v. Salazar, the Supreme Court ruled that the BIA could not take land into trust for a tribe unless it was under federal jurisdiction in 1934 when the Indian Reorganization Act was passed.

The Mashpee Wampanoag Tribe, which won federal recognition in 2007, has applied to the BIA to take into trust land in Taunton and Mashpee, with the 170-acre Taunton property slated for the casino project.

Massachusetts attorney Adam M. Bond sent the BIA a copy of an 1899 letter from the Indian Affairs Commissioner saying tribes in the states of the original 13 colonies were under state jurisdiction because "no treaties or agreements were ever made with them by the general government, nor has it ever exercised supervision or control over them. … Their political status is unknown, but it is presumed that they are citizens and subject to the laws of the several States in which they reside." Bond further noted that the Mashpee Tribe was not on the Interior Department's 1939 list of tribes under federal jurisdiction.

Three months after the Mashpee Wampanoag Tribe filed its land-into-trust application on June 5, 2012, it submitted to the BIA a "Carcieri Memorandum" to "demonstrate that the Tribe has been continuously under federal jurisdiction since 1789, including 1934, and thus, within the first category of Indians for whom the Secretary has authority to accept land into trust." Part IV of the report "demonstrates that the Tribe also was in occupation of a constructive reservation in 1934 and, as a result, within the second category of eligible Indians under the IRA."

The now-landless tribe based its assertions on the fact that it had "functional treaty relations with Great Britain, which reserved specific Tribal rights. Upon the United States' accession to sovereignty in the place of Great Britain, the United States succeeded to Great Britain's obligations under the Mashpee treaty," thus putting the tribe under federal jurisdiction. "Second the tribe has continuously exercised aboriginal fishing rights to ceded lands." Third, the federal government has in fact exercised supervision of the tribe, for example, considering and then deciding not to remove the tribe from its aboriginal homeland in the 1830s.

Arlinda Locklear, Lumbee, one of the attorneys for the Mashpee Wampanoag Tribe, says the tribe has responded in great detail to these Carcieri challenges. She says the claim the tribe was not under federal jurisdiction in 1934 is wrong in law, history and fact.

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For example, the tribe should have been deemed under federal jurisdiction because the government in the past exercised a supervisory role, according to Locklear. Once federal jurisdiction is established, it cannot be extinguished except by Congress, she says.

Another argument put forward by opponents is that because the tribe went to the state with some concerns in the past, it was under state jurisdiction. Says Locklear, "There is nothing that says federal jurisdiction must be exclusive. A tribe's relationship with the state does not preclude federal jurisdiction." No documentation or arguments submitted against the tribe's land-into-trust application are sufficient to say the application must fail, Locklear asserts.

In early June, the Massachusetts Gaming Commission opened the Region C (southeastern Massachusetts) application process to commercial bidders. Region C had previously been reserved for an application from an American Indian Tribe. Phase 1 applications from commercial entities are due September 30, with the issuance of a license for Region C tentatively set for late 2014. Elaine Driscoll of the Massachusetts Gaming Commission says, "There is still much more that needs to be done before a Region C license can be awarded to a commercial enterprise. When the commission gets to that point, they will take into account 'the totality of economic circumstances including status of the Tribe’s plans as they exist at the time of the licensing decision.'"

Early this year then-Rep. Edward Markey, D-Mass. (now the junior senator from Massachusetts), and Rep. Tom Cole, R-Okla., each submitted legislation that would amend the Indian Reorganization Act of 1934 in such a way as to "fix" the Carcieri decision. Both bills were referred to the House Subcommittee on Indian and Alaska Native Affairs. No action has been taken on either yet. A spokeswoman for the committee tells Indian Country Today Media Network that the calendar is set only through the September break, which ends September 17, and it is not known yet what legislation the committee will take up after that.

RELATED: Another Shot at a Clean Carcieri Fix in the House

However, the priority for Congress is expected to be hammering out a budget deal to keep the government in business after September 30.

In what might be one of the most compelling arguments in the tribe's favor is Justice Stephen G. Breyer's statement in his concurring opinion in Carcieri v. Salazar. Locklear says, "Oftentimes tribes were under federal jurisdiction even though the BIA was unaware of it." She says she does not know of a land-into-trust decision debated under the Carcieri ruling where the BIA has not said at some point the tribe was not under federal jurisdiction.

Breyer, explaining why the court's finding that "now" in the IRA meant "in 1934" was possibly not as restrictive as it might at first seem, wrote: "[A] tribe may have been ‘under Federal jurisdiction’ in 1934 even though the Federal Government did not believe so at the time. We know, for example, that following the Indian Reorganization Act’s enactment, the Department compiled a list of 258 tribes covered by the Act; and we also know that it wrongly left certain tribes off the list.”