King George III to Decide if the Wampanoags Get a Casino

The Great Race for Massachusetts Casinopalooza Gold (we're workshopping that) has often felt a little bit like theater of the absurd, but the latest bit of news out of the Mashpee Wampanoag tribe takes the cake. As George Brennan reports in the Cape Cod Times, whether or not the tribe gets to open a casino could all come down to what the bureaucrats in the federal Bureau of Indian Affairs and the Department of the Interior think of a 250-year-old document detailing an agreement between the tribe and King George III of England.

First, some context: the new Massachusetts casino law grants the Mashpee Wampanoags exclusive rights to open a casino in the state's southeastern region, provided they operate it under federal Indian gaming laws. In order to do that, the tribe needs the federal government to grant it reservation land—or, land into trust, as it's called. And here's the problem: a 2009 U.S. Supreme Court ruling declared that only tribes “under federal jurisdiction” before 1934 are eligible to get land into trust. The Mashpee Wampanoags were federally recognized in 2007. And so, as Brennan reports, the tribe is using that agreement with Jolly Old King George—among other pieces of evidence packed into a 60 page document submitted to the Bureau of Indian Affairs—to try to prove that it has, in fact, been under federal jurisdiction for centuries and is therefore eligible to receive reservation land. Here's the history lesson from Brennan:

In 1763, Wampanoag school teacher Reuben Cognehew traveled to England to complain that Colonial overseers were not doing enough to protect the tribe's land.

The king granted the Mashpee tribe the authority to “annually elect a moderator and five overseers, three of which were to be Mashpees, a town clerk, treasurer, and one or more constables. The overseers were to regulate fisheries, lease lands, and apportion land and meadow among the Mashpee proprietors themselves.”

When the U.S. Constitution was enacted 23 years later, the federal government took over the responsibility for enforcing that agreement, the tribe asserts. “As the Supreme Court has long held, the United States, upon acquisition of territory from another sovereign, is bound by the rights and property confirmed to tribes by that sovereign, whether those appear in treaty or statute,” the report says.

So there it is: if the feds don't buy it, then the Mashpee Wampanoags can't get their land into trust and can't build a casino. If the feds say the Wampanoags' evidence passes muster, then the tribe gets to move forward with its plans…that is, until someone sues on the grounds that the federal government is violating the Supreme Court's 2009 decision, leading a judge to slap on an injunction stopping the tribe from building—in which case we then take years to sort out all the legal wrangling. We've written before that the southeastern casino region is a total crazy mess—this is just the latest evidence.