Tribe and tribulation for Indian gaming

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Since Gov. Deval Patrick signed a law authorizing casino gambling last year, a giant contradiction has been hanging over the race for the state’s three casino licenses. The law carves out a license for the Mashpee Wampanoag tribe in the state’s southeastern region, provided the Legislature and the state gaming commission are confident in the ability of the Mashpee to enter the federal regime governing tribal gaming. But thanks to a 2009 Supreme Court ruling, the federal government has no power to take title to land for a Mashpee gaming reservation. So even as the Mashpee proceed with plans to construct a casino complex in Taunton, absent an act of Congress, they’re heading toward a federal dead end.

An 8-1 Supreme Court ruling released yesterday underscores the Mashpee tribe’s tenuous position in the federal gaming bureaucracy. The court refused to toss out a lawsuit challenging a profitable tribal casino that opened in Michigan early last year. The Supreme Court challenge was litigated on narrow ground — whether the federal government and the Michigan tribe were immune from lawsuits, and whether a casino abutter has standing to challenge the federal land taking that created the casino.

Yesterday’s ruling allows a much more explosive lawsuit to proceed; that suit claims the federal interior secretary never had the ability to take title to the land the tribal casino operates on. That question goes to the heart of the Mashpee conundrum, since the Supreme Court has already ruled that Interior can only take land for tribes that the federal government recognized before 1934. Essentially, the court just allowed a lawsuit challenging powers the court has already said Interior doesn’t have.

And the Michigan tribe is on somewhat more solid footing than the Mashpee, since Interior’s Michigan land taking was made one month before the 2009 Supreme Court ruling that shut the door on most tribal land takings; the Mashpee, a tribe that received federal recognition in 2007, have been chasing gaming reservations in Fall River and Taunton with the full weight of that 2009 ruling hanging over them. And as the court said yesterday, it’s more than ready to hear any challenges to end-runs around it.

Also seen in Commonwealth Magazine.