Tribe Reservation Quest Must Run Through Congress
By: Geoff Spillane
Mashpee Wampanoag Tribe Chairman Cedric Cromwell traveled to Washington, DC, this week to testify before a US House of Representatives committee regarding a “fix” to a controversial 2009 US Supreme Court ruling that has prevented the creation of a reservation for the tribe.
A similar effort failed to obtain Congressional approval in 2010, leading observers to speculate about the odds of success this time around.
“Predicting the future of Congress is a risky business, but I believe it’s inevitable that sooner or later, hopefully sooner, that the Carcieri clean fix will be approved,” John H. Dossett, general counsel for the National Congress of American Indians, said. “The current situation is creating too much risk and uncertainty about tribal lands, and is affecting everything from jobs, bank loans, and criminal jurisdiction. There’s a lot riding on this.”
“I compare the fix to what’s currently happening in DC with the debt crisis. Eventually Congress will get its act together to reduce risk and uncertainty,” he added.
Since the Mashpee Wampanoag Tribe received federal recognition in 2007, tribal leaders have sought to establish a reservation comprising several locations in Mashpee, as well as proposed casino sites in Middleborough and Fall River.
The tribe’s efforts to create a reservation were based on the Indian Reorganization Act (IRA) of 1934, a federal law that restored to Native Americans the management of their land assets and included provisions to create an economic foundation for the inhabitants of Indian reservations.
However, in the 2009 Carcieri v. Salazar case—named after the former governor of Rhode Island, Donald L. Carcieri, and Interior Secretary Kenneth Salazar—the US Supreme Court ruled that tribes such as the Mashpee Wampanoag are not entitled to federal land-trust status because they were not a federally recognized tribe in 1934.
“It seems pretty clear to me that the original ruling was off the wall. Justice (Antonin) Scalia did not get the history of the law right by interpreting ‘now’ as 1934, and has imposed a moronic definition of the law,” said Peter d’Errico, an attorney and writer specializing in indigenous issues who has worked with the Mashpee Wampanoag Tribe in the past.
To prove that the IRA was intended to be forward-looking, Mr. d’Errico pointed to a 1938 quote by John Collier, then-commissioner of Indian affairs: “Since 1933, the Indian Service has made a concerted effort—an effort which is as yet but a mere beginning—to help the Indian to build back his landholdings to a point where they will provide an adequate basis for a self-sustaining economy, a self-satisfying social organization.”
The Mashpees, other tribes, and their allies in Congress mounted a broad push to “fix” the ruling last year, but the effort failed despite the bill winning approval by the House of Representatives. During the lame duck session of Congress, several larger, primarily budget-related items were attached to the bill, resulting in its defeat in the Senate.
According to Library of Congress documents, there are currently two “Carcieri fix” bills in play in the House of Representatives, one sponsored by Representative Dale E. Kildee (D-MI) and one sponsored by Representative Tom Cole (R-OK). Both bills are very similar in efforts to amend the IRA, with the exception of Rep. Cole’s push for the term
“Indian tribe” to include natives of Alaska.
Among the 27 cosponsors of Rep. Kildee’s bill, listed in the Congressional documents include Massachusetts Congressmen Edward J. Markey, Stephen F. Lynch, and James P. McGovern. Congressman William Keating, who appeared with Chairman Cromwell at the recent Mashpee Wampanoag Powwow, is not listed as a cosponsor.
A similar bill, sponsored by Senator Daniel K. Akaka (D-HI), is being proposed in the Senate, and is being cosponsored by Massachusetts Senator John F. Kerry.
In addition to Chairman Cromwell, tribal leaders from the Tunica-Biloxi Tribe of Louisiana and the Cherokee Nation of Oklahoma provided testimony at the hearing of the Indian and Alaska Native Affairs Subcommittee, as did Donald “Del” Laverdure, principal deputy assistant secretary for Indian Affairs for the US Department of the Interior.
“Today was a huge day for us in Washington. This time we are seeking a ‘clean fix’ to the absurd, misguided 2009 Carcieri decision which, in effect, created two types of tribes—landholders and landless,” Chairman Cromwell said.
In a telephone interview from Washington, Chairman Cromwell was eager to point out that his testimony was not in any way related to the tribe’s efforts to open a resort casino in Southeastern Massachusetts, but was focused on the welfare of the Mashpee Wampanoag people.
Mr. Cromwell’s sentiment was echoed by Congressman Edward J. Markey (D-MA), ranking member of the subcommittee.
“Let me be clear: the Carcieri legislative fix is not about off-reservation gaming or any other issue affecting Indian country. This bill is about getting tribes land on the high plains, not attracting more high rollers to blackjack tables. The majority of land in trust applications are not for gaming purposes—they are for housing, health care clinics, and Indian schools. And state and local governments have a voice in the land to trust process: the Department’s comprehensive regulations contain extensive procedures that guarantee that all interested parties are consulted before land is taken into trust,” Congressman Markey testified.
According to Mr. Cromwell, due to lack of trust land, the Mashpee Wampanoag are lacking in government services and are underfunded when compared to other tribes.
“Tribal members cannot afford to live among the mansions, malls, and golf courses that now crowd our coastline. Today, we lack a single acre of federally protected territory,” Chairman Cromwell said during his testimony.
Mr. Cromwell reports that the “clean fix” bill is now out of committee and has been moved on to the House floor. A vote may occur this year, perhaps as early as August.
“It’s a new day,” Mr. Cromwell said.
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