Saturday, 2:15 PM
Supreme Court ruling may torpedo tribe's casino plans
By Matt Viser, Globe Staff
The US Supreme Court ruled today that the federal government could not place land into a federal trust for newly recognized tribes, potentially upending the Mashpee Wampanoag Tribe’s quest to build a casino in Middleborough.
In a 6-1 decision, with two justices offering mixed opinions, the Supreme Court ruled that the federal government could not place land into trust for tribes that were not federally recognized before 1934, when Congress passed the Indian Reorganization Act.
The Mashpee Wampanoag tribe became a federally recognized tribe in 2007 and has submitted an application asking the federal government to place 539 acres into a federal trust, which would allow it to build a casino.
“The implications are literally coast to coast and border to border,” said Dennis Whittlesey, a Washington-based lawyer who helped negotiate the multimillion-dollar agreement between the Mashpee and the town of Middleborough. “If this decision is not overturned by the Congress, the Mashpee project cannot go forward, there cannot be a casino there."
The Supreme Court decision means the federal government would not be able to place the land into trust, meaning the tribe cannot build a casino unless gambling becomes legal in Massachusetts. And even if the state legalizes gambling, it may not have to give any special preference to the tribe.
The Supreme Court decision is expected to spark a pitched battle in Congress to pass a law that would allow the federal government to place land into trust for all tribes.
“It’s absurd on its face that the policy of the United States government would be to recognize the sovereignty of native tribes but not allow those sovereign nations to take land into trust,” Cedric Cromwell, the newly elected chairman of the Mashpee tribe, said in a statement. “We look to Congress to correct what the court could not.”
Cromwell is planning to send a letter today asking US Senators Edward M. Kennedy and John F. Kerry, as well as US Representative William Delahunt, to file legislation to change the law.
The Supreme Court case, which was heard in November, stems from a dispute in Rhode Island over the Narragansett tribe's claim of 31 acres in Charlestown, R.I. State officials, fearing that the tribe would create a tax-free zone or build a casino, argued that federal law prevented the US government from taking land into trust for tribes recognized after the 1934 Indian Reorganization Act. The Narragansett tribe was federally recognized in 1983.
The US Court of Appeals for the First Circuit in Boston rejected the state's claim in July, but the US Supreme Court later agreed to hear the case.
Massachusetts Attorney General Martha Coakley, along with several other attorneys general from other states, signed onto the case with Rhode Island.
"Because the record in this case establishes that the Narragansett Tribe was not under federal jurisdiction when the IRA was enacted, the Secretary does not have the authority to take the parcel at issue into trust," Clarence Thomas wrote in the majority opinion.
Matt Viser can be reached at email@example.com.