Judge ‘shocked’ by government’s silence in tribal case

By Michael Doyle | 05/04/2020 12:53 PM EDT

A rendering of the planned First Light resort and casino on Mashpee Wampanoag land in Massachusetts.

A rendering of the planned First Light resort and casino on Mashpee Wampanoag land in Massachusetts. Mashpee Wampanoag Gaming Authority

A demonstrably outraged federal judge has blasted the Trump administration for its handling of an Interior Department solicitor’s opinion key to a high-profile tribal lands and gaming dispute.

In a barbed missive issued Friday, U.S. District Senior Judge Paul Friedman said he was astonished and "disturbed" to have belatedly discovered on his own the solicitor’s opinion and accompanying shift in Interior’s legal analysis that occurred in early March.

"The Court frankly is shocked that the government did not bring this change to the Court’s attention and discuss its relevance, or lack thereof, to the pending [legal] motions," Friedman wrote.


A Clinton administration appointee to the U.S. District Court for the District of Columbia, Friedman pointed out that Interior’s withdrawal of a prior legal opinion and its replacement with another was crucial to the case involving the Mashpee Wampanoag Tribe in Massachusetts.

"Not only did the government fail to bring the withdrawal of the [opinion] to the Court’s attention when it should have — almost two months ago when the Solicitor deemed it contrary to law — but astonishingly, the flurry of activity that has developed in this case over the past month also did not prompt the government to act," Friedman wrote.

Friedman ordered Justice Department attorneys, who represent the federal government in litigation, as well as the tribal attorneys to answer a batch of questions today in advance of a scheduled hearing Thursday.

At issue is Interior’s procedure for determining whether a tribe was "under federal jurisdiction" in 1934. Answering that question can help determine whether land can be taken into trust for tribal gaming purposes.

A tribe with about 2,000 enrolled citizens, the Mashpee Wampanoag seeks land for a big casino project. The Cape Cod-based tribe succeeded in 2015 in having 321 acres taken into trust. Litigation ensued (Greenwire, March 2).

On March 9, Interior Solicitor Daniel Jorjani withdrew a prior legal opinion from 2014 that spelled out a two-part test for answering the crucial federal jurisdiction question. The next day, Jorjani issued a new opinion that included a four-part test guiding the Bureau of Indian Affairs.

"Less than two weeks after the Solicitor withdrew the [opinion] … the BIA advised the Tribe that it was taking the Tribe’s reservation lands out of trust and revoking the Tribe’s reservation proclamation," Friedman wrote.

The judge added that "there was no mention of the fact that the agency had just withdrawn its [opinion] on which the agency had relied" previously.

Casino fight prompts ‘outpouring’

In 2018, Interior had likewise advised the tribe it could no longer support putting the land into trust for the Mashpee’s proposed billion-dollar First Light resort and casino in Taunton, Mass.

In March, the 1st U.S. Circuit Court of Appeals in Boston upheld a trial judge’s decision that Interior had not been authorized in the first place in 2015 to take the land into trust because the tribe wasn’t recognized in 1934, when the federal Indian Reorganization Act became law.

Interior said in a March 30 statement that "this decision does not affect the federal recognition status of the Tribe, only Interior’s statutory authority to accept the land in trust."

Separately, the tribe challenged Interior’s 2018 reversal on the land-into-trust question in the D.C. lawsuit being overseen by Friedman. Justice Department attorneys insist that Interior’s call deserves deference, which Friedman questions.

"The government is asking the Court to defer to its application of a test that the agency itself has now deemed is contrary to law," Friedman pointed out.

Last May, the House passed H.R. 312, the "Mashpee Wampanoag Tribe Reservation Reaffirmation Act," by a 275-146 margin. The bill, sponsored by Massachusetts Rep. Bill Keating (D), would allow the Mashpee to retain the 321 acres; the Senate has not acted on it (E&E Daily, May 16, 2019).

"Republicans shouldn’t vote for H.R. 312, a special interest casino Bill, backed by Elizabeth (Pocahontas) Warren. It is unfair and doesn’t treat Native Americans equally!" President Trump wrote on Twitter last May, using a racial slur to refer to the Massachusetts Democratic senator (E&E News PM, May 8, 2019).

Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell said in a statement last week that "we remain deeply concerned about the fate of our Reservation" but that "the outpouring of support from both the Native and non-Native community gives us hope, and bolsters our courage."