Court Decisions Define the Future for Tribal Gaming

by Goodwin

Definitions and syntax. Not only on middle school quizzes, but also what determined the fate of the Mashpee Wampanoag and Cowlitz tribal casinos in Massachusetts and Washington, respectively. Two federal court decisions decided one day apart considered the definitions of “Indian” under the Indian Reorganization Act (“IRA”), a law that allows the Secretary of the Department of Interior (the “Secretary”) to grant land into trust to benefit Indian tribes or individuals. The IRA defines “Indian” as follows:

[1] all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and [2] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include [3] all other persons of one-half or more Indian blood.

Confused about what you just read? The Supreme Court and the Department of Interior have teased out the definitions. In 2009, the Supreme Court held that “now under Federal jurisdiction” meant tribes under federal jurisdiction when the IRA was enacted in 1934. But noticeably absent from the 2009 decision was a definition of “under Federal jurisdiction.” The Department of Interior interprets “now under Federal jurisdiction” as meaning, prior to or in 1934, that the tribe had “taken an action or series of actions – through a course of dealings or other relevant acts for or on behalf of the tribe or in some instance tribal members – that are sufficient to establish, or that generally reflect federal obligations, duties, responsibility for or authority over the tribe by the Federal Government.”  Despite these attempts at clarification, the court decisions for the Mashpee Wampanoag and Cowlitz tribes reached what many believe to be inconsistent conclusions.

As background to the court decisions, in 2002, the Cowlitz tribe of Washington was federally recognized as a tribe by the federal government, meaning that after a formal fact-intensive process, the tribe was recognized as having a government-to-government relationship with the United States and, as a result, is entitled to receive certain federal benefits, services, and protections because of its special relationship with the United States. Shortly thereafter, the Secretary granted land into trust for the tribe’s benefit, finding the Cowlitz tribe met the IRA’s first definition of “Indian” (“all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction”). In 2007, the Mashpee Wampanoag tribe of Massachusetts was federally recognized by the federal government. In 2015, the Secretary granted the tribe land into trust, finding the tribe fit the IRA’s second definition of “Indian” (“all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation”).

Then, on July 28, 2016, the District Court in Massachusetts found the Secretary erred in granting land into trust for the Mashpee Wampanoag tribe because the tribe did not satisfy the second definition. According to the District Court, “such members” in the second definition refers to the entire preceding clause in the first definition—meaning the tribe’s ancestors must be members of a “recognized Indian tribe now [in 1934] under Federal jurisdiction” who were residing on an Indian reservation in 1934. The District Court concluded the Mashpee Wampanoag tribe “gained federal recognition in 2007” and therefore “they are excluded from the version of the second definition[.]”

What does it mean to be “under Federal jurisdiction”? Does a tribe need to be federally recognized to be considered “under Federal jurisdiction”?  In its opinion, the District Court of Massachusetts seemed to suggest a tribe needs to be federally recognized to be considered under Federal jurisdiction.  One day later, on July 29, the U.S. Court of Appeals for the District of Columbia disagreed with that position and made a distinction between being federally recognized and being “under Federal jurisdiction.” Although the Cowlitz tribe was federally recognized in 2002, the D.C. appellate court found the Secretary correctly determined the Cowlitz tribe had sufficient contacts with the federal government to be “under Federal jurisdiction” prior to or in 1934. In affirming the lower court’s decision, the D.C. appellate court agreed that the Secretary reasonably relied on contacts between the federal government and the Cowlitz tribe – such as treaty negotiations – in concluding the Cowlitz were under federal jurisdiction in 1934 and, thus, an “Indian” tribe as classified in the IRA’s first definition.

The D.C. appellate court agreed with the Secretary’s distinction between being federally recognized and being “under Federal jurisdiction.” The D.C. appellate court’s agreement with the Secretary’s reliance on the Department of Interior’s “under Federal jurisdiction” analysis provides a glimmer of hope for the Mashpee Wampanoag tribe. Instead of ordering a cease and desist, the Massachusetts court remanded the Mashpee Wampanoag matter back to the Secretary, thus allowing for a potential revised land-into-trust decision.  And proponents of tribal gaming in Massachusetts will hope for a Record of Decision that, like the Secretary’s Record of Decision for the Cowlitz tribe, memorializes the Mashpee Wampanoag tribe’s contacts with the United States government.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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