Tribal gaming may have endured a setback, but perhaps not a complete elimination in the Massachusetts gaming arena. When a U.S. District Court judge determined the federal government erred in approving the Mashpee Wampanoag Tribe’s reservation in Taunton, the Tribe’s First Light Casino plans waned – temporarily. Last week, Judge William Young made clear that the Secretary of the Department of Interior could reassess its grant of land into trust for the Tribe using a different definition of “Indian” under the Indian Reorganization Act (“IRA”). When the Secretary granted land into trust for the Tribe in 2015, the Secretary found the Tribe met the IRA’s definition of “Indian” as descendants of a federally recognized tribe. In July, Judge Young ruled that the Tribe did not satisfy that definition, but in his recent decision denying a motion to reconsider his July ruling, Judge Young stated the Secretary could evaluate the Mashpee Wampanoag’s land trust application under an alternative definition. A recent D.C. federal appellate opinion suggests that a different definition of “Indian” under the IRA may be more suitable for tribes who, like the Mashpee Wampanoag Tribe, were not formally recognized but had substantial contact with the federal government at the time the IRA was enacted.
In the wake of Judge Young’s clarification, the Mashpee Wampanoag Tribe now intends to ask the Secretary of the Department of Interior to consider the land into trust application with a substituted definition of “Indian.” Specifically, the Tribe will ask the Secretary to replace the previous Record of Decision with a finding that the Tribe was under federal jurisdiction as of June 1934 and to grant land into trust for the Tribe’s benefit on the basis of federal control rather than formal federal recognition. Because of the D.C. appellate court’s recent decision distinguishing the IRA definitions, it seems failure to satisfy the “federal recognition” definition is not inevitably a failure to satisfy the “under federal jurisdiction” definition. So the future for the First Light Casino may be beaming once again.