Federal judge hears Mashpee tribe's election dispute
BOSTON — A U.S. District Court judge is being asked to dismiss a lawsuit that seeks a Bureau of Indian Affairs investigation into alleged irregularities in the Mashpee Wampanoag Tribe's 2009 election of tribal leaders.
Ben Schifman, an attorney for the BIA, said during a brief hearing before Judge Denise Casper that the case should be dismissed for two reasons — the federal agency has no authority over tribal elections and, even if it did, the tribe would have to be a party to the suit. Federally recognized tribes cannot be sued in state or federal courts because they have sovereign immunity, he said.
"Ultimately, this suit is an intertribal dispute," Schifman said.
But Jonathan Polloni, who represented the nine tribe members who brought the suit, said tribe members have taken the case to tribal court where it was dismissed on a technicality. They've also taken their case for an investigation to the BIA, which has failed to respond, he said.
"This has left tribal members with no available redress," Polloni said.
At issue is the 2009 election of Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell and then Vice Chairman Aaron Tobey Jr..
The nine tribe members filed suit last January saying the election results that year were tainted. After going through the tribe's fledgling court system with no success and petitioning the BIA to intervene on three separate occasions, tribe members went to federal court seeking a BIA investigation.
The tribe members who brought the court action say four members of the tribe who had been shunned by the tribal council — a punishment that stripped them of voting rights, among other tribal benefits — were allowed to go back on the voting rolls for that 2009 election and two of them — Stephanie Tobey-Roderick and Michelle Fernandes — were allowed to cast ballots.
The plaintiffs also allege that voters weren't properly vetted to ensure they were qualified members of the tribe. One of the plaintiffs is Patricia Oakley, a former tribe genealogist who was once responsible for checking the lineage of tribe members.
Oakley and Nellie Ramos, two of the nine plaintiffs, declined to comment as they left the courtroom. Joining Oakley and Ramos as plaintiffs are Curtis Hendricks, George Bingham, Paul Mills, Nathaniel J. Tobey, Lawrence Tobey Jr., Francis Fermino and Leigh Potter.
Schifman also argued that the investigation is moot because a subsequent election has been held and Cromwell was re-elected to office.
"It's not about challenging who won the election, but whether tribe laws were followed," Polloni said.
Casper took the motion to dismiss under advisement.
Cromwell has said he expects the case to be dismissed. In a recent interview, he said the suit had already gone through the tribe's appeal process and was unfounded.
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