The Mashpee Wampanoag tribe of Massachusetts is still reeling from the stunning decision by the U.S. Department of the Interior to withdraw the 321 acres in Taunton from the trust status the department gave it in 2015.
Now the tribe’s leaders are looking up the U.S. Congress as their court of last resort. Congress has the legal authority to put the land into trust and there is a bill introduced by Massachusetts Rep. William Keating, and championed by Senator Elizabeth Warren, to do so.
Recently tribal member Jessie Little Doe Baird tearfully told U.S. Senators that her tribe first learned of the Interior Department’s decision from Facebook.
They learned that their tribe, which historians generally agree met the Pilgrims when they landed at Plymouth in 1620, does not “meet the definition of an Indian,” according to a letter from the director of the Bureau of Indian Affairs, Tara Sweeney.
Baird, vice chairman of her tribe, joined by Chairman Cedric Cromwell, asked members attending Tribal Unity Impact Days in Washington D.C. to throw their support behind the tribe. She also singled out Sweeney, who was at the event, as the face of that decision.
“Help me help my community, protect the women in my community, protect children in my community and keep our land under our feet with our jurisdiction and sovereignty in place,” pleaded Baird.
The tribe needs the land to be declared sovereign territory so they can complete the building of the $1 billion First Light Resort and Casino that they first broke ground on three years ago—but abruptly stopped work when a federal judge ruled that the land into trust decision was based on faulty reasoning.
How a tribe that has been around for, as it reckons, thousands of years, doesn’t fit the legal definition of “Indian” requires some explaining. It refers to the 2009 Carcieri v. Salazar decision by the U.S. Supreme Court that ruled that tribes recognized after 1934, when the Indian Reorganization Act was passed, cannot put land into trust. The policy states that a tribe most have been “under federal jurisdiction” in 1934. The tribe, which obtained federal recognition in 2007, was not able to meet that definition.
This definition puzzles some tribal leaders. Lance Gumbs a leader of the Shinnecock tribe, quoted by Indian Country Today, said many are asking what does “under federal jurisdiction” mean and “who is making this determination as to what under jurisdiction means?”
Cheryl Andrews-Maltais, chairman of the Aquinnah Wampanoag tribe of Gay Head, a neighboring tribe to the Mashpees, told Sweeney that her decision “has an impact on us as the only other federally recognized tribe from the Commonwealth of Massachusetts as well as the rest of the Indian Country, and this is setting the precedent that should not be moving forward.”
Recently the National Congress of American Indians criticized the Interior decision: “This decision severely restricts the Mashpee Wampanoag Tribe’s sovereignty and its ability to exercise meaningful self-governance. In addition, the tribe’s reservation is now threatened with disestablishment. The tribe is effectively stripped of important ‘reliance interests’ that will affect the social service programs it provides to its citizens, as well as the economic development ventures (including gaming) that the tribe relies on to support critical tribal government functions and provide job opportunities to its people.”
Cromwell claims that his tribe is caught between the political rivalry between Senator Warren and President Trump. “We’re getting punished for national politics when the process should be what’s in place to preserve tribal homelands for tribes,” he said. He also believes that officials in the Bureau of Indian Affairs were insufficiently educated in Indian policy and Indian rights.
“They don’t walk in our moccasins so they can’t understand it and they’d look at technical legal arguments that are jaded and played towards the word ‘no’ versus the natural conclusion based on the combination of our submissions towards land into trust. It is supposed to be a ‘yes’ because they are the Bureau of Indian Affairs and they got the Indian Reorganization Act that was established for self-determination, not extermination.”
However, the department was acting under an order of a federal judge who ruled that its original justification for putting the land into trust wasn’t viable and that it was required to find a new justification within the law to do so. Although it tried for two years, the department was ultimately unable to make that determination.
If the tribe loses its status, it doesn’t just lose the right to build a casino, but also to get national funding from the Department of Education available to tribal schools, and to a planned 42-unit housing project and a police department to protect the 2,600 tribal members.
Meanwhile, the casino is looking to be less and less possible. Genting Malaysia, the mega casino developer that bankrolled the tribe’s entrée into gaming, appears to be looking at an exit strategy and how, or if at all, in can get back some of the $426 million it has so far invested with the tribe, and which it holds in promissory notes.
In a filing with financial regulators Genting stated: “The group is currently deliberating the appropriate course of action by working closely with the [Mashpee Wampanoag] Tribe to review all options available for the group’s investment in the promissory notes as well as its recoverability. This includes legislation being introduced in the United States Congress which, if passed, will entail the United States Department of the Interior to reaffirm the land in trust for the benefit of the [Mashpee Wampanoag] Tribe.”
The promissory notes represent the principle and interested on $250 million that Genting gave the tribe in March of 2016 after reaching a management agreement to run the First Light Resort and Casino, which was planned in the town of Taunton for 1,900 slot machines and 60 table games.
Meanwhile, the Boston Globe has joined a growing chorus in the Bay State demanding that the congressional delegation pull out all the stops to force a vote on the bill. “No excuses. No whining about partisan gridlock. Congress has taken such action before for other tribes. They should do it for the tribe that greeted the Pilgrims and joined in the first Thanksgiving. The need to beg is a national embarrassment—and a special embarrassment for Massachusetts, as the 400th anniversary of the Pilgrim landing in Plymouth approaches.”
Rep. Keating claims that there is bipartisan support, including from “key Republican sponsors,” which is important since Keating is a Democrat, as is mostly “blue” Massachusetts. The bill is still in committee and would need to be voted out onto the full house.
As the Globe points out in its editorial, when the state authorized casino gaming in 2011 it envisioned that the Mashpees would have a place at the table, and virtually set aside the southeastern portion of the state for the tribe. That didn’t happen, largely because the tribe was unable to put and keep land into trust.
