Mashpee Wampanoag Tribe Victory in U.S. District Court

To
National Indian Gaming Association Member Tribes
From

Ernie Stevens, Jr., Chairman
Jason Giles, Executive Director
Danielle Her Many Horses, Deputy Director/General Counsel

re
Mashpee Wampanoag Tribe Victory in U.S. District Court
Date
June 11th, 2020

On Tuesday, the United States District Court for the District of Columbia rendered a decision in favor of the Mashpee Wampanoag Tribe in the case of Mashpee Wampanoag Tribe v. Bernhardt. In its opinion, Judge Paul L. Friedman ruled:

“The Court will grant the Mashpee Tribe’s motion for summary judgment and deny the federal defendants’ and defendant-intervenors’ motions for summary judgment. Furthermore, because the Secretary of the Interior’s September 7, 2018 Record of Decision is arbitrary, capricious, an abuse of discretion, and contrary to law, the Court remands the matter to the Secretary of the Interior for a thorough reconsideration and re-evaluation of the evidence before him consistent with this Opinion, the 2014 M-Opinion, M-37209 – its standard and the evidence permitted therein – and the Department’s prior decisions applying the M-Opinion’s two-part test.”

For the first time since the termination era, the Department of the Interior (DOI) attempted to disestablish a Tribal reservation, ordering the homelands of the Mashpee Wampanoag Tribe to be taken out of trust. The order from DOI Secretary David Bernhardt came on March 27, 2020, as the Tribal Nation worked to respond to the COVID-19 public health emergency, during active litigation on the status of the land, and following the rescission of the 2014 Carcieri M-Opinion and the issuance of a new 4-part test to qualify under the first definition of “Indian” in the Indian Reorganization Act (IRA). On March 30, 2020, the Mashpee Wampanoag Tribe asked the Court to issue an emergency restraining order to prevent DOI from taking immediate action to disestablish its reservation.

“The DC District Court righted what would have been a terrible and historic injustice by finding that the Department of the Interior broke the law in attempting to take our land out of trust,” said Mashpee Wampanoag Tribal Chairman, Cedric Cromwell. “We will continue to work with the Department of the Interior — and fight them if necessary — to ensure our land remains in trust.”

The National Indian Gaming Association congratulates the Mashpee Wampanoag Tribe on this important victory and joins the National Congress of American Indians and the USET Sovereignty Protection Fund on their commitment to Tribal sovereignty and the restoration of Tribal homelands.

The National Indian Gaming Association, with our sister organizations, call for the immediate passage of a fix that contains the two features necessary to restore parity to the land-into-trust process:

  1. A reaffirmation of the status of current trust lands; and
  2. Confirmation that the Secretary has authority to take land into trust for all federally recognized Tribal Nations.

While this decision is an important step toward righting centuries of wrong against the Mashpee Wampanoag Tribe, our collective work is not finished. We urge and await a positive determination from DOI on Mashpee’s homelands once and for all. Our organizations will continue to fight for the restoration of Tribal homelands and the full delivery of trust and treaty obligations. We call upon DOI to recommit itself to the restoration of homelands, the trust obligation, and Tribal sovereignty.
Please contact Danielle Her Many Horses at dhermanyhorses@indiangaming.org if you have any questions or concerns with this alert.