LAW360 Article: DOI Will Hold Off On Taking Mashpee Land Out Of Trust – April 7

By Kelly Zegers

Law360 (April 7, 2020, 6:29 PM EDT) — A D.C. federal court has put on hold the Mashpee Wampanoag Tribe‘s bid to block the federal government from taking the tribe’s reservation lands out of trust after the U.S. Department of the Interior agreed not to take any steps to do so in the next 45 days.

U.S. District Judge Paul L. Friedman on Monday ordered the tribe’s motion for a temporary restraining order and preliminary injunction to be set aside until May 15 as long as the government backs off from transferring the tribe’s lands intended for a casino out of trust, revoking the tribe’s reservation status and annulling a gaming eligibility determination.

The tribe sought to temporarily bar the DOI’s move on March 30, after learning from the agency’s Bureau of Indian Affairs that it planned to make those changes “soon” in a March 27 letter. Following a conference the next day, the parties agreed on the pause.

The DOI rescinded its 2015 decision to take the roughly 320 acres of land in Mashpee and Taunton, Massachusetts, into trust as part of a casino construction plan, citing a recent First Circuit ruling that it wrongly interpreted the Indian Reorganization Act and had lacked the authority to take the land into trust.

The appeals court ruling came out of a case –– Littlefield et al. v. Mashpee Wampanoag Indian Tribe  –– in which residents of Taunton sued over the land in trust to prevent construction of the First Light Resort and Casino. The Mashpee Wampanoag tribe initiated a separate suit challenging the agency’s decision to reverse course and deny its land-into-trust request in September 2018.

Before the pause, the tribe called the DOI’s decision last week “arbitrary, capricious, an abuse of discretion and contrary to law.” It sought an emergency temporary restraining order and preliminary injunction to maintain the status quo with respect to the land taken into trust while its case is pending.

The federal government, as well as the Taunton defendant-intervenors in the instant suit, have until April 21 to file their oppositions to the tribe’s motion for a preliminary injunction. Oral arguments on the motion are scheduled for May 7, according to the court order.

A DOI spokesperson referred to a March 30 statement that said despite the agency’s decision, the Mashpee Wampanoag tribe remains a federally recognized tribe, and the decision “does not affect the federal recognition status of the tribe, only Interior’s statutory authority to accept the land in trust.”

Representatives for the tribe did not immediately respond to requests for comment Tuesday.

Meanwhile, House members on Friday sent a letter to Senate Majority Leader Mitch McConnell, R-Ky., and Minority Leader Chuck Schumer, D-N.Y., demanding they immediately address the “troubling precedent” set by the DOI and BIA with respect to the treatment of the Native Americans.

They called for the Senate to pass The Mashpee Wampanoag Tribe Reservation Act, which the House advanced in May last year. The legislation, introduced by Reps. Joe Kennedy, D-Mass., and Bill Keating, D-Mass., would reaffirm the trust status of the approximately 320 acres of tribal land. The tribe has been circulating an online petition in support of the bill.

The lawmakers also urged the Senate leaders to take up another bill the House approved last year that would provide for a broader fix to the 2009 U.S. Supreme Court decision in Carcieri v. Salazar , which ruled that only federally recognized tribes at the time the 1934 Indian Reorganization Act became law are able to take land into trust.

“Now the choice lies in the hands of Mitch McConnell and the United States Senate: either protect the Mashpee Wampanoag people or become complicit in the president’s disregard for the humanity and dignity of indigenous Americans,” Kennedy said in a news release Monday.

The tribe said in an emailed statement to Law360 on Tuesday that despite the DOI’s public statements, the question of whether the interior secretary had authority to establish Mashpee’s reservation under a particular provision in the Indian Reorganization Act is ongoing in the tribe’s case, and that case is unrelated to the First Circuit decision on which the DOI has tried to defend its efforts to disestablish the reservation.

“We are grateful to the court for providing us the opportunity to protect our reservation until we are given the chance to prove our case,” Mashpee Wampanoag Tribe Chairman Cedric Cromwell said in a statement. 

The tribe said the court’s order provides temporary relief to the tribe, which is enduring ongoing hardships wrought by the challenge to its reservation ––hardships now made significantly more difficult by the COVID-19 pandemic. 

The tribe is represented by Kenneth J. Pfaehler, Tami Lyn Azorsky, V. Heather Sibbison, Suzanne R. Schaeffer and Samuel F. Daughety of Dentons.

The government is represented by Sara E. Costello of the U.S. Department of Justice‘s Environment and Natural Resources Division.

The case is Mashpee Wampanoag Tribe v. Bernhardt et al., case number 1:18-cv-02242, in the U.S. District Court for the District of Columbia.

–Additional reporting by Craig Clough. Editing by Orlando Lorenzo.