GUEST OPINION: Is Mashpee Wampanoag Tribe 'under federal jurisdiction?'
Gov. Deval Patrick, left, and the Mashpee Wampanoag Tribe, whose tribal Chairman Cedric Cromwell is at right, reached a casino compact on Wednesday, July 10, 2012. The compact, which would govern the operation of a proposed tribal casino in Taunton, calls for 21.5 percent of gross gaming revenue from the tribe to go to the state. A 6.5 percent share of that amount would be used for mitigation in communities affected by the casino, but no specific projects are identified.
As we are all aware, the Mashpee Wampanoag Tribe has been publicly stating that the tribe is actively in the process of petitioning the Bureau of Indian Affairs (BIA) to have land within the city of Taunton taken into federal trust as a federal Indian reservation. As of this writing, their petition to the BIA is incomplete, in that it is still lacking the required historical narrative proving, as required by federal regulations, that the tribe maintained a ”significant historical presence” in southeastern Massachusetts. Thus, the Mashpee’s persistent claims to the contrary, BIA’s consideration of their petition to have lands taken into federal trust cannot proceed without this essential information.
Additionally, the tribe is faced with the legal barrier placed before it to have land taken into federal trust by virtue of the 2009 U.S. Supreme Court Decision in the matter of Carcieri v. Salazar. In this decision the Court decided that Indian tribes not “under federal jurisdiction” prior to the 1934 enactment of the Indian Reorganization Act could not have lands taken into trust after that date.
I would be the first to agree that from the outside the matter of “under federal jurisdiction” is confusing. What is this concept or status? The Mashpee have argued that they were under federal jurisdiction prior to 1934 citing the on-going litigation concerning the Cowlitz tribe of Washington State and their interpretation of “under federal jurisdiction” made in their quest to also have land taken into federal trust as an Indian reservation for gaming purposes. This issue is currently in federal appellate court.
Here is the underlying problem. The Cowlitz are claiming that prior to 1934 individual members of the Cowlitz Indian community received assistance from the regional Indian Agent. They are interpreting such individual Indian assistance writ large as proof that the tribe was under or subject to federal jurisdiction.
At that time, BIA assistance was based upon two criteria: assistance to Indian individuals regardless of tribal affiliation who could prove that they met the federal Indian blood quantum requirement (usually 50 percent) to be recognized as a qualified Indian. Such qualified individuals regardless of any tribal affiliation could, and did as individuals, receive assistance from the Indian agency such as medical services, land allotments, school attendance etc. This criteria was an ethnic-phenotypically -based non-tribal and non-jurisdictional form of assistance.
Secondly, recognized Indian tribes residing upon federally established Indian reservations or restricted fee federal public domain lands set aside for Indian use, such as treaty tribes, pueblos, and rancherias received block aid via annual Congressional budgetary enactments disbursed by BIA. Such land set-asides involved jurisdictional and at times non-jurisdictional matters.
That is why the BIA has always maintained two legal definitions that governed its ability to provide assistance or aid. A definition of tribe, and a separate definition of what constitutes an Indian individual. Each had its own regulatory stream governing such aid. But neither definition depended on the concept of jurisdiction as a functional necessity for providing assistance to a tribe or individual. Currently both BIA and the Cowlitz are trying to merge both aid and jurisdiction as one and the same. This is not the case.
Federal jurisdiction means, under, or, completely subject to federal law vs. under state jurisdiction which means under or subject to state law. In 1928 there were extensive congressional hearings on this very subject which addressed the issue of extending the scope of federal jurisdiction over Indian reservations. On some Indian reservations its occupants were subject to federal law for specific serious offenses and subject to state law or jurisdiction otherwise. Thus, such an entity was not under federal jurisdiction as called for in the Carceri decision.
On the other hand, some tribal reservations, especially treaty-established reservations that were created on lands that, at the time, were not states, but federal territories, were completely subject to federal jurisdiction or law. Then, there were some Indian settlements such as California Indian rancherias, whilst residing upon federally-owned lands, its Indian occupants were completely subject to state legal jurisdiction.
This is what the U.S. Supreme Court was addressing in its Carceri v. Salazar decision. The court found that circa 1937 the Narragansett Indian tribe of Rhode Island was not under federal jurisdiction but subject solely to Rhode Island state law or jurisdiction. Thus the tribe could not have land taken into federal trust.
In regards to the Mashpee, the bottom line is, that from its founding in 1651 as a distinct Christian Indian community, the Indians at Mashpee were always totally subject to colony, provincial, or commonwealth legal jurisdiction. This was their status as a state created municipality in 1934.
In sum, the Mashpee cannot validly prove that they maintained a “significant historical presence in Southeastern Massachusetts as defined by federal regulations (25 CFR 292) nor, can they meet the “under federal jurisdiction” requirement as posited in the Carceri decision. Barring congressional action enacting specific legislation establishing a reservation for the tribe in Taunton (a highly unlikely action by the Congress), Mashpee cannot hope to acquire the land and legal status necessary to establish a tribal-based gaming facility under the 1988 Indian Gaming Regulatory Act in Massachusetts.
James P. Lynch is principal and owner of Waterbury, Conn.-based, Historical Consulting & Research Services. He has been a practicing ethno-historical researcher and consultant for more than 25 years. He is also the author of four books on tribal history, colonial-tribal land relations and federal Indian policy.
Read more: http://www.tauntongazette.com/newsnow/x1922393572/GUEST-OPINION-Is-Mashpee-Wampanoag-Tribe-under-federal-jurisdiction#ixzz2ItkbAQIL
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