The House Committee on Natural Resources, which oversees Indian matters, last week heard testimony on a bill, HR-5244, the Mashpee Reservation Reaffirmation Act, that would put 321 acres into trust for the Massachusetts-based Mashpee Wampanoag tribe. This would allow the tribe to complete construction of the First Light Resort and Casino project.
The Bureau of Indian Affairs originally put the land, including 151 acres in the town of Taunton, into trust in 2015. However, residents in East Taunton challenged that action in trust and a federal judge, Judge William Young, ruled in their favor that the BIA action had violated the Supreme Court decision Carcieri v. Salazar. That ruling says that tribes not under federal jurisdiction after 1934 cannot put land into trust.
The tribe argues that it was long under federal control and before that under colonial rule dating back to the 1600s.
The tribe’s construction of a $1 billion casino in partnership with the Genting Group came to an abrupt halt. The Malay-based company has already loaned the tribe $400 million.
Tribal Chairman Cedric Cromwell was among those who testified to the House panel on the bill, which is sponsored by Massachusetts Rep. William Keating and co-sponsored in the U.S. Senate by Senator Elizabeth Warren. It has gotten 18 sponsors from both parties, including six key Republicans.
Interior Department Secretary Ryan Zinke had been scheduled to speak, but instead Bureau of Indian Affairs Acting Director Darryl LaCounte testified. He told the committee that the department isn’t taking a position on the bill. When asked if the department was poised to remove the land from trust, he replied, “I have heard no plans to do this.”
When the federal judge ruled that the department’s logic in putting the land into trust was faulty, it remanded the issue back to the department, which has been reviewing it ever since. LaCounte said he didn’t know when that review would be complete. “The (solicitors were) concerned about the decision that came from the court and they want to iron that out before they go full support of this,” LaCounte told the panel.
Subcommittee Chairman Rep. Doug LaMalfa urged the department to support the bill.
“We are extremely grateful to Congressman Keating, the Massachusetts Congressional delegation, the bipartisan group of co-sponsors who have signed onto this legislation — and the dozens of tribal nations across Indian Country who have come out in support of this bill,” said Cromwell.
He told lawmakers it was “imperative that Congress exercise its plenary authority to prevent the disestablishment of our reservation land as soon as possible. Re-affirming our right to a reservation for our people is just and honorable, and will ensure that our Tribe is treated equally under the law as other federally recognized tribes.”
Cromwell asked lawmakers to prevent the “disestablishment of our reservation,” which said would be the first such instance since the Termination Era of 1940s to the 1960s when Congress came close to abolishing the reservation system.
Cromwell testified, “It really means that we could lose programs and services around our elders, for education and housing. We may lose our school as well.” He added, “This is very devastating if this happens.” He added that state House Minority Leader Brad Jones had also submitted testimony in support of the legislation.
Mashpee Town Manager Rodney C. Collins who provided a written statement to the subcommittee that said, “The Town of Mashpee is concerned that taking the Tribe’s reservation out of trust will create a host of new uncertainties that could undermine our relationship and could cause jurisdictional confusion and hardship for both of our governments.” The letter continued, “Finally, the Town of Mashpee believes enactment of the Mashpee Tribe Reservation Reaffirmation Act is the right thing to do.”
The town’s Board of Selectmen last month voted to hire a lobbyist to support the bill. The town is concerned with the land put into trust for the tribe in Mashpee, on Martha’s Vineyard, rather than the 151 acres in Taunton.
If the bill is not passed many consider it likely that the Interior Department will follow the court’s lead and disestablish the tribe’s reservation.
The bill is not without controversy and the mayor of Taunton, which favors the bill, and Brockton, which opposes the bill and the casino, are battling each other with their lobbying efforts.
Brockton Mayor Bill Carpenter wants his city to have another chance to apply for a casino for the Brockton fairgrounds—which it can’t as long as the Mashpee casino is still alive. Brockton, Rush Street Gaming, and Brockton Fairgrounds owner George Carney, who originally proposed a $677 million casino two years ago, are asking that the Massachusetts Gaming Commission reopen the file on the license for the southeastern gaming zone.
Last month Mass Gaming and Entertainment, a subsidiary of Rush Street Gaming, wrote to the Massachusetts Gaming Commission saying that it was “eager and ready” to go forward with its casino proposal. It wrote, “In the two years since the Commission’s decision, [the tribe] have not been able to do anything in Taunton, and they will not be able to do anything in the future either.”
One reason the MGC rejected the Brockton bid was the worry that the Bay State might oversaturate the gaming market if both casinos were allowed. They would be 20 miles from each other.
However, last week the commission put the Brockton petition on its agenda for discussion. The developers say they plan to argue that further delays will put the southeastern zone further into a further competitive disadvantage against gaming facilities in neighboring Rhode Island and Connecticut
In their letter they referred to the bill before Congress: “The Commission should not permit the prospect of such speculative and flawed legislation to cause yet further delay, which will only continue to harm Southeastern Massachusetts and the Commonwealth.”
Carpenter argues that Congress should leave the court case alone. “I just can’t agree with this notion that a federal judge makes a final decision, and the Department of Justice has abandoned their appeal, and after that Congress considers overriding all of that,” Carpenter told the Enterprise last week. “I think it’s a separation of powers issue.”
Carpenter says the Interior Department should remove all doubt by issuing a final decision. “It sure seems like a stall game by Interior, that then allows this opportunity for congressional action,” he said. Of course, even if Interior issues such a ruling, Congress still has the final say.
Carpenter says his economically-strapped city could use the $10 million a year that the casino would pay it and the 2,000 jobs the casino would create. He argues that the bill is a “bailout bill” for Malaysian-based Genting.
He told the Enterprise, “I think there’s a fairness issue. I think economic justice is just as important to hard-working families in Brockton as it is to Native Americans. I just don’t think it’s right for the Congress to in essence overturn a federal judge’s decision for the sole purpose of benefiting one small tribe, and more importantly, a Malaysian gaming company.”
Carpenter has contacted members of the state’s congressional delegation to argue for his side. He hasn’t tried to sway Senator Warren, but instead questioned her motives. “I do expect Warren to sponsor it. I think Senator Warren is on the record as being very pro-Indian and pro-tribal.” He added, “I think that she’s made public statements in which she viewed it as her role to advocate for Native Americans. I do find it interesting. I used to think she was anti-gambling. Now somehow she is directly supporting a Malaysian gaming company to the tune of a $400 million bailout.”
He later told the Washington Times: “Year after year we’re running multimillion-dollar deficits in our budget. We’ve laid off schoolteachers for three years in a row. We desperately need the revenue.” He added, “It’s a blue-collar immigrant city where two years ago, 80 percent of the students in our school system qualified for free or reduced lunch. Our unemployment rate runs about 50 percent above the statewide average historically, and we’re a majority-minority city.”
Taunton Mayor Thomas Hove is lobbying hard for the bill, while also attacking the Brockton proposal. He argues that the tribe’s history goes back thousands of years and notes that the tribe is credited with greeting the Pilgrims when they landed at Plymouth.
“Not only is passing the act the right thing to do — considering the tribe’s long-lasting ties to Taunton that I grew up learning about, and the surrounding area going back thousands of years, and the fact that it was the Wampanoag that made the settlement of this state possible because of the Tribe’s hospitality — it’s the right thing to do for the city, economically,” Hoye said in a statement.
Mayor Hoye told the Enterprise, “The Mashpee Wampanoag have put forth a first-rate proposal that would be tremendously beneficial to everyone looking for a job or economic development in southeastern Massachusetts,” adding “This includes not only the people of Taunton, but everyone in the region, including our friends in Brockton. … I applaud the Massachusetts congressional delegation for saying enough is enough, and I thank them for filing legislation to clear this up once and for all. I call on everyone in Massachusetts to support this legislation as well.”
Hoye says the casino would be an economic multiplier and bring $30 million to the city in infrastructure and $75 million in local and state tax revenue.
Cromwell recently told the Enterprise that Rush Street Gaming chairman Neil Bluhm ought to stop funding the legal efforts of those trying to stop the tribe’s casino.
“If he really wants to help the regional economy and create thousands of jobs for the Brockton area, then he should tell George Carney and Neil Bluhm to get rid of all the lawyers, lobbyists, and hired guns they have working to take away our reservation. If they stop today, then we can get back to work starting tomorrow.”
One of the East Taunton residents whose lawsuit stopped the tribal casino cold, Michelle Littlefield, told the Washington Times, “We are up against a foreign company that’s worth hundreds of millions of dollars. It’s a bottomless well on the other side. From day one, we’ve been the underdog, and the only thing we’ve ever had on our side was the law.”
Littlefield says she has been to Washington to lobby against the bill. “Those in Washington are really aware that passing this bill would be another illegal action taken by the federal government to benefit a special interest group,” she told the Taunton Gazette.
David Tennant, the attorney who represents Littlefield and the other plaintiffs, added, “There’s been this kind of perpetual, ‘Hey, maybe the tribe can get qualified in some other way, maybe on remand with Interior, maybe Congress can step in and do something for them.’
“And all of this is to the detriment of Brockton, which lined up its ducks years ago and had somebody ready to go. This kind of perpetual preference for a tribal casino is now running well past the clock that the federal court said would be an equal protection violation,” he added.
Littlefield addressed Cromwell’s concern that the lawsuit was funded by Rush Street Gaming. She said it was partially funded by that company but also by “numerous” donors and fundraising. She told the Taunton Gazette, “Our financial backing has been from a wide variety of sources and has funded trips to D.C. and legal fees, among other things,” adding, “The tribe was able to buy and pay for favors to get this far, and I don’t see that trend continuing at this level.”
Littlefield also said, “For us, the campaign has always been about a claim to sovereign land and not necessarily about the casino. Rather, it’s about whether or not the federal government will continue to break the law on behalf of special interests.”
