Massachusetts Tribe Pursuing Political Fix

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March 25, 2009

MIDDLEBORO - The Mashpee Wampanoag's plan to build a $1-billion casino resort hit an major obstacle when the U.S. Supreme Court ruled in February that the federal government cannot take land into trust for tribes not recognized in 1934. The land trust blocks state and local governments from imposing most laws and taxes on the land and in most cases allows the tribe to operate gambling facilities.

Mashpee Wampanoag tribal leaders expressed their frustration along with many tribal leaders across the US after the court's decision was announced.

"This decision is yet another assault on native sovereignty," the tribe said in released statement. "It is 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."

Mashpee Wampanoag officials have been consulting with other tribal leaders across the US and have decided to push ahead with their land-in-trust application, which is under review by the Bureau of Indian Affairs.

The tribe's new legal argument contends it has long been recognized by the state and was under the jurisdiction of the federal government in the 1800s. That approach could work, but there are uncertainties according to Clyde Barrow, a professor and gambling industry expert at the University of Massachusetts Dartmouth.

"Being under federal jurisdiction and being federally recognized are not the same thing," Barrow said. "They are clearly trying to look for a loophole."

If this legal argument fails, the political strategy is to support federal legislation to revise the Supreme Court ruling. Legislation has the support of Ken Salazar, the Obama Administration's new Interior Department chief, who has said he is troubled by the Supreme Court decision.

"This is on Congress' radar screen. We should expect a legislative fix for the case," said Kathryn Rand, co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota.

Rand sees Congressional support for a sweeping revision with a few exceptions such as blocking cases of so-called reservation shopping.

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