Schedule gets challenge to Interior Department’s land trust decision underway.
MASHPEE — The parties in the Mashpee Wampanoag Tribe’s lawsuit against the U.S. Department of the Interior have agreed to a timeline that could see the case briefing wrapped up by the middle of October, according to federal court filings.
The joint scheduling order — supported by the tribe, Interior Department and a group of Taunton residents opposed to the tribe’s planned casino — was filed July 1, documents show, charting the steps in the case for the next few months.
The order states that the Interior Department must by July 19 file the evidence associated with its Sept. 7 decision that the tribe did not qualify for land in trust. The tribe must respond to that filing — the administrative record — by July 26.
The administrative record includes the federal government’s interpretation of the tribe’s historical and anthropological evidence, demonstrating its centuries-long presence in the region and ties to the federal government in 1934 — the time the Indian Reorganization Act was passed.
The Sept. 7 decision reversed the Interior Department’s original determination under the Obama administration that stated the tribe qualified under that act to have land taken into trust. The tribe sued the department within days of its about-face.
The federal government has long acted as trustee for tribes, holding land deeds in trust for the purpose of self-government. Tribal officials have said that without trust protection on 321 acres of reservation land in Mashpee and Taunton, the properties would be subject to state and local taxation and regulation, effectively stripping the tribe of its ability to self-govern.
A group of Taunton residents, led by David and Michelle Littlefield, originally sued the federal government in 2016 in response to the tribe’s $1 billion casino proposed for their city, which precipitated the now-dueling lawsuits. The Littlefields successfully intervened in the tribe’s suit earlier this year and sought to transfer the case back to U.S. District Court in Massachusetts, where the first case sits dormant on appeal.
Judge Rosemary M. Collyer of the federal court for the District of Columbia denied the transfer request last month, noting the tribe’s case has national implications and “public interest factors,” among other things.
David Tennant, an attorney for the Littlefields, had argued both cases deal with the same “narrow legal question” of whether the tribe was under federal jurisdiction at the time of the Indian Reorganization Act’s passage, a requirement codified in a 2009 Supreme Court decision known as Carcieri v. Salazar.
On Monday, Tennant said he had no concerns with the scheduling order, noting it was based on a joint submission.
The Interior Department has until Aug. 9 to answer the tribe’s response to the administrative record filing. If there are no objections, the tribe must file a motion for summary judgment by Aug. 17. The department and the Littlefields would then file combined cross-motions for summary judgment by Sept. 13, according to the court files.
The tribe may file its summary judgment reply by Sept. 30, followed by the Interior Department and the Littlefields by Oct. 15.
Mashpee Wampanoag Tribal Chairman Cedric Cromwell was not available for comment through a tribal spokeswoman.
Recall effort against Mashpee Wampanoag Tribe treasurer to advance
By Tenner Stening
Posted Jun 18, 2019
Committee certifies petition and will schedule election.
MASHPEE — An attempted recall of the Mashpee Wampanoag Tribe’s treasurer, Gordon Harris, is moving forward after the Election Committee certified a petition to oust him.
After falling short of signatures deemed valid by the committee upon their first submission, the three petitioners representing a movement to unseat Harris received an email from the committee stating it had certified 120 signatures — 20 more than required under the tribe’s constitution — and would schedule a recall election in the coming days.
The petition was one of three filed with the committee in recent weeks to expel the tribe’s leadership — Tribal Council Chairman Cedric Cromwell, Vice Chairwoman Jessie “Little Doe” Baird and Harris — over longstanding concerns over their handling of tribal finances, including the amount they receive in salaries.
The certification of the Harris petition comes several weeks after the committee certified 104 signatures on a petition to remove Cromwell from power, which also required two submissions. It also comes after tribe members circulated a robocall urging attendance at a general membership meeting earlier this month, highlighting the more than $500 million in debt owed to Genting Malaysia, the tribe’s financier, and the contention that the tribe “has no money coming in” while its leaders use federal grants to continue to pay themselves inflated salaries.
The Times could not identify the source of the call but confirmed that several tribe members did receive it.
The tribe spent $1 million from its general fund between January and the end of April, leaving it with $281,203, according to a statement of revenues and expenditures for that period obtained by the Times. But the grant fund shows a net loss of $662,849 from that time period, according to a statement for that account. Nearly all of the $679,513 in state and federal grant revenue was spent on tribal salaries and fringe benefits, the statement shows.
Complaints accompanying the three petitions against the tribe’s leadership cited, among other things, the debt owed to Genting and decisions to keep Baird in power after she resigned Jan. 25 as reasons for the recall, according to documents obtained by the Times.
The effort to remove Baird fell short of the required signatures.
The complaint against Harris alleges he missed the February and April monthly general membership meetings and all four Tribal Council meetings held in April — an offense the petitioners believe amounts to “nonfeasance” as outlined in the tribe’s constitution.
WASHINGTON — The Mashpee Wampanoag Tribe is halfway home.
After several attempts over many weeks to move the legislation to a vote, the U.S. House of Representatives on Wednesday passed the Mashpee Wampanoag Tribe Reservation Reaffirmation Act, a bill aimed at putting an end to a protracted legal fight challenging the tribe’s trust eligibility under the Indian Reorganization Act.
Lawmakers voted 275-146 to approve the measure under regular order. The bill was introduced by U.S. Rep. William Keating, D-Mass., earlier this year.
In a statement issued by the tribe, Tribal Council Chairman Cedric Cromwell praised Democrats and Republicans for coming together.
“What they demonstrated today on the House Floor was nothing short of genuine understanding of my people, the Mashpee Wampanoag,” he stated.
“Our Tribe has suffered so much in the past from the United States’ failure to protect our land -- today the House of Representatives acted to change that history, and to help us take one step closer towards a better and more secure future for the Mashpee people” Cromwell said.
Last month, Keating and his colleagues had tried to pass the bill on a suspension of the rules, a process that expedites so-called noncontroversial bills. It appeared headed for passage last week before President Donald Trump issued a tweet urging Republicans to vote against it, saying it would allow a “special interest casino” backed by U.S. Sen. Elizabeth Warren, D-Mass., to move forward.
“Had President Trump not tweeted about this bill, it would have likely passed on suspension,” U.S. Rep. Mary Gay Scanlon, D-Pa., said before Wednesday’s vote.
As anticipated, the bill was the subject of much debate on the House floor, highlighting deep divisions between Rhode Island and Massachusetts lawmakers over the tribe’s plan to build a $1 billion casino-resort in Taunton, as well as the impact of millions of dollars spent lobbying on the issue.
Rhode Island Gov. Gina Raimondo and her state’s federal legislative delegation have long expressed opposition to the bill, saying the tribe’s casino project would hamper their state’s gambling revenue. U.S. Reps. David Cicilline and James Langevin, both Democrats, expressed their opposition on the floor.
“It would be the first time Congress ever reversed a final federal court ruling,” Cicilline said, referring to a finding from a federal judge in 2016.
That judge ruled that the secretary of the Interior Department did not have the authority to take the tribe’s 321 acres of land into trust because the tribe was not under federal jurisdiction at the time of the passage of the Indian Reorganization Act in 1934, and therefore did not qualify under a definition of “Indian” used by the Department of the Interior.
Rep. Paul Gosar, R-Ariz., led the opposition to the bill, contending that the tribe selected Taunton as the site for its planned casino because of its proximity to the Rhode Island gambling market — a process referred to as “reservation shopping.”
“H.R. 312 is contrary to the view of the Department of the Interior ... and it aims to reverse federal court decisions on this matter,” Gosar said.
In a fiery speech on the House floor, Keating defended the merits of the legislation, noting that it’s “not about gaming” but about “justice.”
“Tragically, like so many Native Americans, the Mashpee Wampanoag Tribe have lived through centuries of injustices,” he said. “After nearly 250 years since our country’s founding, we would not be where we are without them. They deserve that dignity, they deserve that respect and they deserve that sovereignty.”
The vote follows increased public scrutiny of Rhode Island-based Twin River Management Group for its ties to several high-powered lobbyists linked to Trump. The company, which manages the state’s two casinos, paid Black Diamond Strategies $30,000 during the first quarter of this year, according to federal filings. Twin River paid Cove Strategies $30,000 in the same quarter.
Matthew Schlapp, who works for Cove Strategies, was an early Trump supporter and chairman of the American Conservative Union, which organizes the annual Conservative Political Action Conference. Schlapp also is married to Trump’s director of strategic communications, Mercedes Schlapp.
However, lobbying spending by the tribe’s financial backer, Genting Malaysia, has appeared so far to outpace efforts opposing the bill. Genting spent more than $1 million on various lobbying firms in 2018 in connection with the cause, three times more than it did in 2017, according to federal lobbying disclosures.
The House also voted 323-96 to pass H.R. 375, the so-called “clean Carcieri fix” introduced by Rep. Tom Cole, R-Oklahoma, under a suspension of the rules.
The bill would reverse the 2009 Supreme Court decision, known as Carcieri v. Salazar, which established that the secretary of the Interior could not take land into trust for tribes that were not under federal jurisdiction before 1934, at the time of the passage of the Indian Reorganization Act. Carcieri v. Salazar increased the burden of proof tribes had to meet to qualify for trust status.
Since neighbors of the tribe’s Taunton casino successfully sued the Department of the Interior in 2016, the Carcieri decision has stood in the way of the tribe, leading to the original finding out of the U.S. District Court of Massachusetts.
With respect to the Mashpee legislation, Cole said there had been “a lot of misinformation put out” following Trump’s tweet.
“This is a bill about keeping our federal promises to tribes,” he said.
The bill now will go before the Senate for review. The second leg of the journey may prove a tougher track. Warren’s presidential bid has cast a shadow on the potential for bipartisan support in the Senate and the likelihood that Trump will sign it into law.
Warren previously was a co-sponsor of a Senate version of the bill, but she has since distanced herself from the legislation.
In a telephone interview following the vote, Keating said he was pleased with the number of Republicans who signed on with their support.
“I’m just glad we had the opportunity within less than a week’s time to show that the House is an independent body that can deal in a bipartisan way on fundamental legislation,” he said. “This could have well been a death knell for the tribe.”
May 1, 2019 https://www.capecodtimes.com/news/20190515/house-affirms-mashpee-wampanoags-sovereignty?utm_source=SFMC&utm_medium=email&utm_campaign=The%20Cape%20Cod%20Times%20daily%202019-05-16&utm_content=GTDT_CCT&utm_term=051619
House moves closer to affirming Mashpee Wampanoag reservation
By Tanner Stening
Posted Apr 29, 2019
Tribal bill set for Wednesday markup.
MASHPEE — Federal legislation that seeks to clarify the status of the Mashpee Wampanoag Tribe’s reservation will be marked up and considered Wednesday by the House Committee on Natural Resources.
The Mashpee Wampanoag Tribe Reservation Reaffirmation Act, introduced by Rep. William Keating, D-Mass., earlier this year, is scheduled for a full committee markup to potentially advance the bill to the floor for a vote. Lawmakers use the markup to consider changes to legislation, proposing and ultimately voting on amendments to it.
The bill would end a legal challenge to the tribe’s 321 acres of reservation land in Mashpee and Taunton and prevent future legal challenges to the land.
Keating crafted the bill in response to a lawsuit brought by neighbors of the tribe’s proposed $1 billion casino in Taunton in 2016 in the U.S. District Court of Massachusetts. That lawsuit resulted in the U.S. Department of Interior reversing a decision it made the year before to take the Mashpee and Taunton land into trust on the tribe’s behalf.
A federal judge ruled that the Secretary of the Interior did not have the authority to take the land into trust because the tribe was not under federal jurisdiction at the time of the passage of the Indian Reorganization Act in 1934, and therefore did not qualify under a definition of “Indian” used by the Interior Department.
Interior’s Sept. 7 reversal put the future of the tribe’s reservation in jeopardy — though it remains in trust until a final court order is issued. The tribe has since filed a lawsuit against the agency challenging that decision.
On April 3, the subcommittee for Indigenous Peoples of the United States held a hearing on the bill that opened a rift between Rhode Island politicians who oppose the Taunton casino and its supporters. The Ocean State delegation has garnered opposition to the legislation, claiming a tribal casino would curb the state’s gaming revenue and undermine competition.
“An Indian casino in Rhode Island’s gaming catchment area poses a serious threat” to that revenue, Claire Richards, executive counsel to Rhode Island Gov. Gina Raimondo, previously told the subcommittee. Keating responded by pressing Richards on the specifics of Rhode Island’s opposition, noting the bill’s purpose is to protect the tribe’s reservation and that Massachusetts already has approved a casino in that part of the state.
The markup comes amid a move by tribe members to recall Mashpee Wampanoag Tribal Chairman Cedric Cromwell and Vice Chairwoman Jessie “Little Doe” Baird.
MASHPEE — Under a suspension of the rules, the U.S. House of Representatives will look to fast-track a bill aimed at ending a legal challenge to the Mashpee Wampanoag Tribe’s reservation, according to sources close to the process.
The Mashpee Wampanoag Tribe Reservation Reaffirmation Act could be taken up by lawmakers as early as Monday, the sources said. The bill was reintroduced in January by Rep. William Keating, D-Mass., after floundering in the previous legislative session.
Bills considered under a suspension of the rules require a two-thirds supermajority vote of lawmakers present for passage, are limited to 40 minutes of debate and cannot be amended on the House floor.
In a statement issued Monday, Keating expressed optimism about the process.
“I have been working with members across the aisle, with members in both parties on the committee of jurisdiction, and with Democratic leaders in charge of floor action,” Keating said. “I feel very positive about the bill’s progress toward a vote.”
The bill would end ongoing litigation challenging the Mashpee tribe’s reservation by reaffirming the land and barring any legal challenges to it in the future.
In 2016, a lawsuit brought by neighbors of the tribe’s proposed $1 billion casino in Taunton resulted in the Department of the Interior reversing a decision it made the year before to take 321 acres of land into trust on the tribe’s behalf.
A federal judge ruled that the secretary of Interior did not have the authority to take the land into trust because the tribe was not under federal jurisdiction at the time of the passage of the Indian Reorganization Act in 1934, and therefore did not qualify under a definition of “Indian” used by the Interior Department.
On Sept. 7, the agency reversed its finding, throwing the future of the tribe’s reservation into jeopardy — though it remains in trust until a final court order is issued. The tribe has since filed a lawsuit against the agency challenging that decision.
The move by House Democrats to put the bill on a fast track to passage comes amid increasing political turmoil among tribal leaders. This week, tribal council will vote to expel three of its members for a variety of complaints that stem from accountability concerns brought to light by the accused leaders. They claim the charges amount to retaliation.
Should the bill succeed in Congress and be signed into law, its passage couldn’t be more timely for the tribe, which is contending with a final installment of loan dollars from its financial backer, Genting Malaysia, according to one source familiar with the tribe’s finances.
Expenditures in 2018 left the tribe with $83,670 in its general fund, according to a statement of its expenses and revenue for the year obtained by the Times.
Mashpee Wampanoag Tribal Chairman Cedric Cromwell said in a statement that he applauds the “bipartisan effort to protect our reservation ... by moving our bill expeditiously through the House Committee of Natural Resources.”
“The honorable Congressman Keating has led this endeavor and told our story throughout the halls of Congress,” he said, thanking the committee leadership.
The possible House vote also comes after the Wampanoag Tribe of Gay Head (Aquinnah) — a sister tribe of the Mashpee tribe — declared its opposition to the legislation. In a letter sent to the Massachusetts Gaming Commission dated Jan. 22, Aquinnah Tribal Chairwoman Cheryl Andrews-Maltais said the bill’s passage would have a “very real potential to have a serious adverse effect” on her tribe’s ability to acquire additional land within the Wampanoag Nation’s ancestral territory.
The legislation is backed by Taunton and Mashpee. On Monday, Mashpee Town Manager Rodney Collins said he appreciates “all the efforts to move this bill along.”
“I am hopeful that the bill receives congressional approval, whether through the House or the Senate,” he said.
Source: Mashpee tribe members thwart expulsion hearing
By Tanner Stening Posted Mar 20, 2019
MASHPEE — An expulsion hearing Tuesday for Mashpee Wampanoag Tribal Council member Carlton Hendricks Jr. descended into chaos as tribe members confronted their leaders for attempting to take the matter into executive session, according to sources present during the meeting.
Tribal council met in its chambers at the tribe’s government center at 5:30 p.m. to address a complaint lodged by Treasurer Gordon Harris against Hendricks for improper conduct. Hendricks was also accused of inciting a riot and breaking rules of decorum, which includes prohibited behavior and improper conduct — charges he dismissed as “frivolous and baseless.”
After a roll call vote to move the meeting into executive session passed, the tribe members gathered inside the chambers refused to leave, the sources said. There were between 30 and 40 tribe members inside the room at the time.
“We stood our ground,” one member said.
Others said they saw the move against Hendricks, who was recently re-elected to the council, as antithetical to the tribe’s democratic process. Hendricks retained his seat in February’s annual election, receiving 232 votes.
“They’re taking away our vote,” another member said.
Sources said nearly 70 tribe members watched the meeting from inside the building’s gymnasium on a livestream feed.
“People were crying,” a tribe member said of the atmosphere inside the meeting room. “It was very emotional.”
Council Chairman Cedric Cromwell did not immediately respond Wednesday to a request for comment. Tribal council meetings are generally closed to non-tribe members.
Sources said Cromwell listened to tribe members’ grievances and, after nearly two hours, he adjourned the meeting.
Conflicts between tribe members can be resolved through a peacemaking process by the tribal judiciary, called the peacemakers court. Members questioned leadership over why they didn’t pursue the peacemaking channel, sources said.
While public information about special meetings is typically scant, the tribe’s website notes that Thursday’s meeting will include three executive session items to deal with “council member issues.” Councilman Brian Weeden, Secretary Ann Marie Askew and Councilwoman Edwina Johnson-Graham are also named in the meeting notice. An emergency tribal council meetings was scheduled for Wednesday night that also included an executive session for a personnel matter, according to the website.
Sources previously told the Times that council members Hendricks, Aaron Tobey Jr. and Rita Gonsalves were facing expulsion.
Gonsalves is charged with a breach of executive session, though the specifics are unclear; her hearing is scheduled for Thursday, according to sources with knowledge of the meetings.
Charges against Tobey arose after he sent a letter to tribal council members March 2 after a council vote to deny the resignation of its vice chairwoman, Jessie “Little Doe” Baird, who relinquished her seat Jan. 25, according to emails Tobey provided to the Times. The council’s reasons for the denial were not clear.
In his letter, Tobey says he presented a motion for reconsideration of Baird’s resignation, citing a provision in the tribe’s constitution stating that council seats be deemed automatically vacant “upon death, resignation or conviction of a major crime.” Tobey said Cromwell denied the motion. He alleges Baird is guilty of malfeasance for remaining in power after tendering her resignation, and the council is guilty of nonfeasance for denying her departure.
The three council members accused of wrongdoing can be expelled by seven votes from other members under the categories of malfeasance, or “wrongful conduct,” and nonfeasance, or “nonperformance,” according to the tribal constitution.
Tobey and Hendricks both allege the effort to remove them from power is retaliation.
Hendricks said he believes the leadership is retaliating against him for questioning the Mashpee Wampanoag Tribal Gaming Authority’s spending, a five-member board overseeing the tribe’s proposed $1 billion casino-resort in Taunton. As of January 2017, the gaming authority had accumulated more than $375 million in debt, according to a recently published 2016 audit, which referred to the oversight board as a “discretely presented component” of the tribe.
Overall tribal debt is in excess of $500 million, Hendricks said previously. Tribe members and critics of Cromwell, who is president of the gaming authority, have long questioned the administration’s gaming-related spending.
Genting Malaysia had provided financial support to Mashpee Wampanoag to help run its government
MASHPEE — Genting Malaysia, the company behind the Mashpee Wampanoag Tribe’s proposed $1 billion casino project in Taunton, is no longer loaning the tribe money to pay for its government operations, according to multiple sources with knowledge of the tribe’s finances.
The Malaysian-based casino developer has fulfilled its contractual obligations to the tribe and is no longer providing financial support. The company is still backing efforts to thwart a legal effort threatening the tribe’s 321 acres of reservation land in Mashpee and Taunton, which is necessary for the project.
“They have no financial responsibilities to us,” newly elected tribal council member Aaron Tobey Jr. said about Genting.
“They’ve fulfilled their obligations ... and now they’re helping out with the land-in-trust (issue),” Tobey said, referring to the ongoing litigation challenging a decision by the U.S. Department of the Interior that found the tribe is ineligible to have land taken into trust.
In 2015, under President Barack Obama, Interior took the land in trust, creating the reservation.
In December, Genting announced that it had suffered an “impairment loss” of roughly $440 million on its investment in promissory notes issued by the tribe. The Malaysian casino giant has been backing the tribe’s efforts to pursue gaming since at least 2009. It previously helped bankroll the Mashantucket Pequot tribe’s construction of Foxwoods Resort and Casino in Connecticut.
Documents detailing Genting’s contractual obligations to the tribe are not publicly available, but the casino developer has been loaning the tribe cash to support its government operations for several years. The remaining loan dollars are going to finance the government fund through March 31, at which point future funding for operations becomes uncertain, according to another source with knowledge of the agreement. In 2017, Tribal Council Chairman Cedric Cromwell said the tribe’s annual operating budget was about $12 million.
In May, Tribal Council approved a budget that saw far fewer loan dollars from Genting than in previous years. The tribe received $5.4 million in loans from Genting in fiscal year 2018, which is less than half of what it received for fiscal year 2017. That year, the tribe received $11,944,567, an increase of approximately $250,000 over fiscal year 2016, according to budget documents obtained by the Times.
The tribe began 2018 with $6,369,258 in the fund, and spent $6,285,589 as of the end of the year, leaving it with roughly $83,670 in its general fund, according to the documents.
The programs and services funded by the Genting have been cut, though it isn’t clear which departments were affected, Tobey said. Cromwell alluded to the cuts in a statement issued on Jan. 7.
The difficult financial situation has precipitated a number of changes to paid positions within the tribal government, including on the Tribal Council. Only three high-ranking officials — Treasurer Gordon Harris, Secretary Ann Marie Askew and Cromwell — are still receiving salaries on the tribal council, according to sources. Payouts for the 12 legislative personnel, including fringe benefits, totaled $938,206, according to the tribe’s budget for fiscal year 2018.
Cromwell’s slice of that pie amounted to $181,794 in 2018, according to the budget, which was down from $219,186 in 2017.
The Council’s vice chairwoman, Jessie “Little Doe” Baird, has since forfeited her salary also, and at one point offered her resignation, the sources said. She previously made $134,439, according to the most recent budget.
Federal agency denies Mashpee Wampanoag Tribe’s allegations
By Tanner Stening Posted Feb 20, 2019
MASHPEE — The Department of the Interior has responded to the Mashpee Wampanoag Tribe’s lawsuit challenging its Sept. 7 decision, denying allegations that the federal agency contorted and ignored facts to engineer a decision against the tribe.
“Except as expressly admitted, all allegations are denied,” department attorney Sara E. Costello wrote in the Feb. 19 filing.
The tribe’s suit disputes the Department of the Interior’s decision to reverse its 2015 finding that the tribe satisfied a definition of “Indian” required under the 1934 Indian Reorganization Act to qualify it for trust lands. Trust status is a designation in which the federal government holds title to tribal property, exempting it from state and local regulations.
The tribe’s suit contends that the Department of the Interior “erroneously determined” that the tribe was not “under federal jurisdiction” at the time of the law’s passage, a requirement spelled out in a 2009 Supreme Court decision known as Carcieri v. Salazar.
David L. Bernhardt, Acting Secretary of the Department of the Interior, and the agency itself are named as defendants in the case. The department’s response to the tribe’s suit follows several extensions that federal officials requested in light of the 35-day partial government shutdown.
The department’s response also comes just days after Taunton residents who successfully sued the agency over whether the tribe qualified for trust-protected reservation lands motioned to intervene in the case as intervenor-defendants aligned with the department, according to court filings. The tribe has plans to build a $1 billion casino-resort in Taunton.
David and Michelle Littlefield brought the initial legal action against the department in 2016 after it took the tribe’s 321 acres of land into trust. U.S. District Court Judge William Young ruled that the tribe was not under federal jurisdiction and instructed the department to further review its decision.
The department considered whether Massachusetts’ authority over the tribe could be considered in place of federal jurisdiction, but ultimately decided against the tribe, reversing the land-in-trust decision.
The tribe alleges the decision represented a failure on behalf of the Department of the Interior to “properly exercise its delegated authority under the (Indian Reorganization Act)” in the context of the department’s “general trust obligations to the tribe.”
Tribal officials have repeatedly warned that the decision could result in the termination of the tribe’s reservation, its sovereign status and its ability to self-govern.