Mashpee Wampanoag Chairman Cedric Cromwell last week lobbies lawmakers in Washington D.C. to urge their support for the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. That bill would do what the Interior Department was stopped from doing by a federal judge, put land in trust for the tribe in Taunton to allow it to build a casino.
The chairman told legislators, who included Massachusetts’ 9th District Rep. William Keating, “Without Congressional action confirming that the IRA applies to Mashpee, it is possible not only that we will lose our current reservation, but also that we will never have any reservation.” Keating is the sponsor of the Act: H.R. 5244. It has 18 co-sponsors in the House.
Bay State Senators Edward Markey and Elizabeth Warren have co-sponsored the same bill in the Senate, S. 2628. However, it faces a much rockier path in that chamber.
The bill has been endorsed by the National Congress of American Indians (NCAI), United South and Eastern Tribes, Apache Alliance, Affiliated Tribes of Northwest Indians, Midwest Alliance of Sovereign Tribes, National Indian Gaming Association (NIGA), the Rocky Mountain Tribal Leaders Council, and many tribes.
Keating told the U.S. House Natural Resources subcommittee on Indian, Insular and Alaska Native Affairs: “If this piece of legislation does not pass this would result in the tribe no longer being eligible for many federal grants and assistance programs, including assistance on the opioid epidemic that is scourged to our area.” He pointed out that the Act also addresses land put in trust in the Town of Mashpee. Three hundred and twenty-one acres in Taunton and Mashpee would be put into trust by the bill.
Keating said of the tribe: “The status of their land has been called into question, unfortunately, and we have serious concerns about the land being taken out of trust. This would result in the Tribe no longer being eligible for many federal grants and assistance programs. It would also call into question inter-governmental agreements.”
His bill would overturn a federal judge’s ruling that the Bureau of Indian Affairs acted wrongly when it put land into trust for the tribe. The ruling cited Carcieri v. Salazar, the Supreme Court ruling that says that tribes under federal jurisdiction after 1934 can’t put land into trust. The tribe was recognized in 2007, although it traces its lineage and interaction with the Bay State back to when the Pilgrims stepped off the boat at Plymouth in 1620.
He testified, “The Mashpee were well known to the young United States government, and the Tribe and its members repeatedly have been enumerated in federal reports listing Tribal nations within the United States’ jurisdiction and federal census documents during the 1800s and through the mid-1900s.” Unfortunately, the tribe had no reservation although its homeland once stretched from Cape Ann to Rhode Island, a lack which made it difficult to maintain its status.
Cromwell said that it was a mystery that the tribe was removed from tribes listed as recognized by the federal government sometime during the last century. Cromwell insists that this is a “technical issue.”
The tribe would also have to close its school, abandon a housing project and give up any federal grants, plus end social services, said Cromwell. “Our reservation includes our Meeting House, Government Center, burial grounds and cemeteries, tribal museum, tribal offices, conservation land, and cultural recreation land, and we are working on additional tribal housing and economic development projects.”
He added, “A Tribal land base is critical for the exercise of Tribal sovereignty, and for the protection and continuation of tribal culture, and represents the foundation for Tribal economic development. Having reservation land where we can generate Tribal revenue increases our self-sufficiency and decreases our dependence on federal funding and grants.”
Before the court ruling the tribe had broken ground in Taunton and was well on the way to begin building its $1 billion First Light casino funded by the Genting Group.
Cromwell added, “At this point there is so much concern around no decision. Currently… with the trust lands that we do have in place, it is very honorable, and just, that Congress could act on passing this bill to clear up any uncertainty, and ambiguity so that our people could continue to thrive and prosper.”
Acting Bureau of Indian Affairs Director Darryl LaCounte also spoke to the congressional panel, and when asked the tribe’s current status, said he would return with that information, but that at the current time the BIA did not plan to revoke the tribe’s land into trust status—despite the court ruling.
“I have heard of no plans to do this,” said LaCounte.
The Mashpees’ trust land was thrown into jeopardy by lawsuit filed by East Taunton residents, who challenged the tribe’s legal status. Judge William Young ruled in their favor, although he did not order the land taken out of trust. However, he did remand the decision back to the Interior Department, which he ordered to come up with a different rationale for putting the land into trust. The department is still reviewing this decision two years later.
Cromwell points out that if the bill is not passed that his tribe would be the first one since the 1950s to have its tribal status revoked. He noted that the litigation challenging the tribe’s status is partially funded by developers who want to build a casino in Brockton.
Leaders of Indian Country are watching this drama closely. For many it draws uncomfortable parallels to the 1950s and 60s when Congress actively tried to do away with the reservation system and withdrew recognition from many tribes. This period is known among tribes as the “termination era.”
Lance A. Gumbs, vice president of the northeast region of the National Congress of American Indians, who attended the hearing, told the Mashpee Enterprise: “This has the potential to impact the entire Indian country.” He said, “What we are seeing right now is a national issue. If they can do it to one tribe, they can do it to any tribe.”
Gumbs, a member of the Shinneock Indian Nation of Long Island, said for Congress to fail to help the Mashpees would return to the termination era.
Senator Markey recently declared, “After centuries of neglect, we must act to protect the Mashpee Wampanoag Tribe and ensure they will maintain rights to their ancestral home.” His statement continued, “Without Congressional action, the door would be open for the Trump ad-ministration to take the unprecedented step of robbing the Mashpee Wampanoag, or any other tribe, of their rightful lands, something that has never happened in modern history.”
During the hearing, some members mentioned Carcieri v. Salazar in passing, and the hope among some lawmakers of a “Carcieri Fix,” that would establish that tribes recognized after 1934 are not denied the right to put land into trust.
However, a “fix” is very controversial, particularly among senators, such as Diane Feinstein of California, who see it as an open door for tribes to put off-reservation casinos anywhere, no matter the relation to their historical homelands.
Rep. Gallego asked LaCounte what precedent might be set if the Mashpees’ reservation was disestablished. “It would certainly be a new precedent, something that we haven’t experienced since the policy of the federal government was, in fact, termination,” LaCounte responded.
