For Cedric Cromwell, it’s ironic, as the U.S. prepares to observe the 400th anniversary of the Pilgrims’ arrival in Plymouth, that the Massachusetts tribe whose forebears met them there can’t be officially recognized as “Indian.”
Cromwell, chairman of the Mashpee Wampanoag Tribe, last week spoke to GGB News about the First Circuit Court ruling against the Mashpees, who have battled to put land in Taunton and Martha’s Vineyard into trust, the first step to developing a casino.
“There is question that this is a grave injustice,” said Cromwell, adding he would like to invite President Donald Trump to “break bread” with him and his tribe. “We want to sit down with this president and say, ‘Help us.’”
The Boston appeals court affirmed a lower court decision that the Bureau of Indian Affairs under Obama acted improperly in 2015, when it put 321 acres into trust so the tribe could build its $1 billion First Light Resort & Casino.
The action sparked a lawsuit by 25 Taunton residents who didn’t want a casino. The court agreed with their argument that the tribe, which was recognized by the federal government in 2007, could not have land put into trust because, according to the Indian Reorganization Act, only tribe recognized by the federal government before 1934 can do so.
The opponents of the trust action attach their arguments to the definition of what constitutes an “Indian,” which the act specifies as “all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation.”
For several years, the Department of the Interior tried to figure out a justification for the Mashpees, who trace their history back not only to 1620, when they greeted the Pilgrims at Plymouth Rock, but to preceding millennia. In September 2018, Interior, then under the Trump administration, withdrew its action. It was the first instance in modern times that a trust action was reversed.
In a statement, Cromwell promised more appeals, if need be. “We will continue to fight, as our ancestors did, to preserve our land base, our culture and our spiritual connection to our homelands,” he said.
“The first circuit’s opinion, we strongly disagree with that,” he told GGB. “We are the tribe that met the first settlers. We had agreements with the first government, and we gave land to the first colony. The courts get to a place where you say, ‘Hey! Justice is going to be served,’ and that doesn’t happen. They get into this high-profile discussion of the word ‘Indian’ and how you define it.
“As an example,” he said, “‘such Indians,’ as used in the text of the Indian Reorganization Act of 1934,” was created to help Indians regain their rights.
Cromwell cites doctrines such as the “Indian Canons,” which federal courts use to ensure that, in the words of the Supreme Court, “language used in treaties with the Indians should never be construed to their prejudice.” He pointed to the oft-cited Chevron Deference, in which the high court ruled that, if a law is ambiguous, federal courts should defer to a federal agency’s original interpretation.
“It’s crazy that the court didn’t stand up for the tribe’s rights,” declared Cromwell. “The act was set up to help Indian tribes achieve self-determination, because so much had been taken from them. In this case, the courts have narrowed the playing field.”
H.R. 312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act, would leap over the Department of the Interior and directly put the tribe’s land into trust. The bill passed in the House by a large majority, but is stalled in the Senate, which is controlled by the Republicans. President Trump has called it a “special-interest casino” bill whose principal Senate backer, Elizabeth Warren, was a presidential candidate until last week.
“Despite the court decision,” Cromwell said, “our land still remains in trust because we have the legislation in Congress which had overwhelming bipartisan support and passed in the House and it’s over in the Senate.”
Many in the Senate “didn’t want to support it because of Trump’s tweets and the association of the bill with Senator Elizabeth Warren,” said Cromwell. “But it’s not about the political fight between the senator and the president. It’s about the federal government that steps up to the plate as it did with the 1934 act, which stabilized tribes. We are looking forward to 2020. It passed the House, and we are praying to God that the Senate passes it, too.”
In 2009, the Supreme Court in Carcieri v. Salazar ruled that tribes that couldn’t show they were under federal jurisdiction before 1934 can’t put land into trust. The judge in the lawsuit against the tribe cited that ruling, and remanded the case back to the Department of the Interior.
According to Cromwell, when the case was remanded back to Interior, “we got a letter, September 18, 2018, saying the tribe didn’t match the definition of ‘Indian.’ Our submissions show a relationship with the federal government before 1934. Our complaint is that the department didn’t appropriately apply that memorandum, for the remand from Judge Young, by applying all of our submissions.”
The courts and many Americans “fail to realize that the goal of the act was not to destroy tribes, but to make up for impacting these sovereign entities,” Cromwell said. “So let’s up the playing field, so that tribes have what they need. Because that was the legislative goal of the act.”
It isn’t all about gaming, he added. “Gaming comes after you put land into trust. This capitalistic society makes everything about gaming. Yes, we want to do that, and we also want to reinvest and create prosperity for our elders and working people, to provide important services. That’s not socialist, it’s building our own product.”
Noting that Trump recently recognized the contributions of Indian tribes in every American war, Cromwell said, “We fought for this country. We are uniquely qualified to build a gaming resort—not just for our tribe, but to create a vast amount of jobs and resources for the Commonwealth of Massachusetts. Just as we helped the first settlers and gave up resources to them during their first winter.”
He continued, “We are still looking forward to building something that would provide for natives and non-natives, and the working class, to help provide for their families. Jobs, jobs, jobs. Uplift for the tribe, uplift for the commonwealth.”
The tribe’s partner in the Taunton casino, Genting Malaysia, “has the financial resources, the marketing experience to build on Day One to deliver the promise we made to the commonwealth and our Mashpee tribal group,” he said. “We understand what it takes to build an resort casino. We are ready to get to work.”
All this is unfolding in an election year, but Cromwell said, “This isn’t about who we are voting for, this is about justice, and right now we are in 2020 and we have an administration in place. We have been here for 12,000 years. We helped provide the land for the first Plymouth colony. We’ve had relations with the federal government. It’s unheard of that we would not have trust land as sovereign land.
“I would welcome President Trump to meet the tribe that first met the settlers, and reaffirm our land, so we can survive and thrive on our lands as indigenous people. This is 400th anniversary of the Mayflower. Who was the tribe? It was the Wampanoags. It was my people. It was us.
“This is all American history, and for the courts to say, ‘We don’t know if you meet the definition’ and the courts are talking about ‘now’ and ‘such.’ We need this administration to step up to the plate and foster good will and help the tribe. This administration is all about economic development and job creation. A first class resort will provide thousands of jobs to the Commonwealth of Massachusetts and millions to the great city of Taunton.”
He concluded, “We’re caught up in today’s electoral war, and we are not about that. We aren’t into bashing the president or Elizabeth Warren. It’s all about affording tribal determination so we can move forward.
“These are lives here. These a real people. It is serious to think that our own country is turning on us. We want to sit down with this president and say, ‘Help us.’”
