Wampanoag Tribe Reservation Plans

By: Brian Kehrl
Published: 10/02/09

A high-ranking senator has filed a bill in Congress that would remove a major obstacle to the Mashpee Wampanoag Tribe’s application to establish reservations in Mashpee and Middleborough.

The bill, filed late last week by Sen. Byron Dorgan, a North Dakota Democrat, is the first sign forward of momentum for the tribe’s bid for a reservation since the US Supreme Court derailed the application in a broad ruling declaring that the federal Department of Interior cannot create reservations for tribes recognized after 1934, like the Mashpee Wampanoag.

It comes at a fortuitous time for Tribal Council Chairman Cedric Cromwell and the rest of the tribe’s political leadership, as opposition within the tribe and frustration at the lack of progress toward a reservation and a casino has been mounting in recent months. Mr. Cromwell sent out an e-mail about the bill almost immediately after it was introduced.

Mr. Cromwell, in an interview this week, said the bill, by creating a law that is unequivocal in preserving the right of all tribes to create reservations, would fulfill what the tribe was hoping for in a response to the court decision.
The amendment proposes a quick, nearly surgical response to the Supreme Court’s decision, known as the Carcieri decision after Rhode Island Governor Donald L. Carcieri, who successfully sued the federal government to prevent the Narragansett Tribe from adding to its reservation.

Sen. Dorgan’s bill allows for post-1934 tribes to place land in trust but avoiding more complex, and likely more controversial and politically messy, aspects of federal Indian policy, such as casino regulations.

“It turns out they came forward with the best bill possible for tribes, which is the simplest bill possible,” said Matthew L.M. Fletcher, a professor at the Michigan State University College of Law and director of the MSU Indigenous Law Center, as well as an enrolled member of a tribe in Michigan.

“It takes us back to the status quo before Carcieri v. Salazar.”

Sen. Dorgan, who oversees the Senate committee on Indian Affairs, held a Congressional hearing on the issue this spring and pledged support for the tribes directly affected by the Supreme Court ruling, even arguing that it creates two separate classes of recognized Indian tribes, expressly against established federal policy, by allowing some tribes to create reservations while prohibiting others from doing so.

The bill faces tough prospects in Congress, however, with a phalanx of powerful interests likely to oppose it, according to Indian law and policy experts.

“I think it is going to be pretty hard sledding. I would be surprised if it passes this year, and I might be surprised if it passes ever,” said Clyde W. Barrow, director of the Center for Policy Analysis at the University of Massachusetts, Dartmouth.

Dr. Barrow ticked off a list of potential sources of resistance, from commercial gaming interests who feel that they are forced to compete on an uneven playing field against tribal casinos; a diverse and growing group of organizations opposed to “reservation shopping”; to tribes that already have casinos and want to prevent competition.

“So you put all of those concerns together and all of the interests behind those concerns and you have a very powerful lobby against the amendment. And then you ask who is there to support it? Probably no one other than the tribes that are directly affected by it,” Dr. Barrow said.

A spokesman for US Senator John F. Kerry, in response to a query of whether Mr. Kerry plans to support the bill, wrote in an e-mail this week that the senator is reviewing it to determine whether it helps the Mashpee tribe.

According to officials from the federal Bureau of Indian Affairs, there are about 100 tribes directly affected by the ruling, though few as acutely as the Mashpee Wampanoag, who were recognized in 2007 and do not yet have a reservation, an essential step toward building a casino and key to many grants afforded to tribes for programs like public safety and education.

Mr. Fletcher said chief among the opposition interests may be state and local governments, who have long argued that the reservation and casino approval process should allow them much greater input.

Mr. Fletcher pointed to a letter signed by the attorneys general of 16 states, including Massachusetts Attorney General Martha Coakley, asking the four ranking members of the Congressional committees with oversight of Indian affairs not to rush through a quick response to the Carcieri decision and to allow states to have a strong voice in crafting a response if one should emerge.

“Taking land into trust deprives the local units of government and the state of the ability to tax the land and calls into question the power of state and local government to enforce civil and criminal laws on the land,” according to the April letter. “The Carcieri decision is only one highly visible example of the larger frustration many states feel with the existing regulatory process for taking land into trust.”

At a hearing held by Sen. Dorgan and the Senate Committee on Indian Affairs in May, two witnesses argued for a quick response to the Carcieri ruling, while a state attorney general called for a complete review of the land-into-trust regulations.

Indian policy experts have said that by opening the entire regulation for review, state interests hope to fundamentally change the policy.

Mr. Fletcher said, “What they really want is veto power, but that is something that I don’t think anyone in Indian Country or in the federal government is willing to give them.”

Sen. Dorgan, in a press release, described his bill as a “technical amendment” to the 1934 Indian Reorganization Act. He said the bill re-approves the reservations that have been created for tribes recognized after 1934, which have been called into question since the Carcieri decision, and re-affirms the federal government’s authority to take land into trust for all tribes moving forward.

“If Congress does not act,” according to the press release, “the ruling will create havoc in Indian Country.”

Mr. Cromwell said i

The tribe’s application to create reservations in Mashpee and Middleborough, the site of the proposed casino, has been stalled since the Carcieri decision, and the tribe’s investors halted their monthly payments to the tribal council this summer, in part because of the obstacles created by the court ruling.

A group of tribe members has been protesting Mr. Cromwell’s administration in recent weeks, trying to draw attention to claims of financial mismanagement as well as what they say is a failed effort to create a reservation.

An aide to Sen. Dorgan and the Indian affairs committee, Barry Piatt, said no timeline has yet been established for moving the bill forward. No additional hearings have been scheduled, but others may be in the future, he said.

Sen. Dorgan’s bill was cosponsored by Sen. Jon Tester (D-Mont.), Sen. Max Baucus (D-Mont.), Sen. Daniel Inouye (D-Hawaii), Sen. Daniel Akaka (D-Hawaii), Sen. Tom Udall (D-N.M.), Sen. Jeff Bingaman (D-N.M.), and Sen. Al Franken (D-Minn.).

Mr. Cromwell said he and other tribal council members have not given any campaign contributions to Sen. Dorgan or the other cosponsors of the bill in recent years.

Mr. Fletcher said the partisan politics of the issue are difficult to characterize and often do not fall along party lines.

“The funny thing about it is, it is basically a nonpartisan issue. You can have very conservative senators from Oklahoma, say, who are strongly behind this. Then you can have some very liberal senators from California that are against it. So it is difficult to predict,” Mr. Fletcher said.

1 Responses to "Wampanoag Tribe Reservation Plans"

1. katrina2108 says: 10/13/09
   

   Box 447 11 Hills Beach Road Biddeford, ME 04005 October 7, 2009 kkyros@une.mail.edu or 1508-246-2470 Brian H. Kehrl Mashpee Enterprize Mashpee, MA 02649 Dear Editor, YES FOR A CASION! In my opinion, I strongly agree with the Mashpee Wampanag’s decision of building a new area for convention centers, hotel’s, complex’s, shops and the casino in the town of Plymouth, MA. There is great potential for this project, and with the success rate of past casino’s, there is a great chance that this project will do very well. The impact of this project, will help the economy by adding more jobs, more activity to the area, and a place to get away and have fun! Now that I am a valid voter, I am eager for my voice to be heard in the town of Mashpee, to try and make a difference in our area. I hope that more people look at this as an opportunity to improve the economy, rather than discriminate against the idea that could essentially improve many lives. The openings of jobs both temporary and permanent will improve families’ lives who have been unfortunate in this job economy. There will be such jobs as construction for temporary, while a hand full of permanent jobs once the operation is up and running. The casino will increase tourism, and also opening up new businesses for the future. Gambling in many places can generate tax income that can support specific public services. With the help and support for this project, something will be done. Thank you for taking the time to read this and hopefully it will have some influence on this new upcoming project. Sincerely, Kathryn N. Kyros