Feds reverses itself on timing of trust decision on Mashpee tribe

The timing of a decision on whether the Mashpee Wampanoag Tribe’s land application will be either approved or rejected remains a mystery despite indications by the Bureau of Indian Affairs to the contrary that were unveiled earlier this week.

By George Brennan
gbrennan@capecodonline.com

Posted Aug. 29, 2015

MASHPEE – Not so fast.

The timing of a decision on whether the Mashpee Wampanoag Tribe’s land application will be either approved or rejected remains a mystery despite indications by the Bureau of Indian Affairs to the contrary that were unveiled earlier this week.

The decision has implications for whether the tribe will be able to build a $500 million casino in Taunton and may ultimately decide the fate of a commercial casino proposed for Brockton Fairgrounds. It's unlikely the Massachusetts Gaming Commission would license a casino in the same region because of a tribal-state compact that would set the tribe's contribution to the state at zero.

In an Aug. 26 letter sent to Mashpee officials the federal Bureau of Indian Affairs sought to clarify the process leading up to the decision. The BIA is currently reviewing the tribe’s request for a “reservation proclamation,” according to the letter.

“We write to clarify that we are inviting comments for a 30-day period on the tribe's request to issue a reservation proclamation, that the tribe's request is under review, and that no date has been identified in which a reservation proclamation will be issued by the Department of the Interior,” Randall Trickey, acting regional director of the agency's eastern region, wrote. “Issuance of a reservation proclamation is a separate and distinct action from acquiring land in trust...”

A separate letter dated Aug. 21 and signed by a different acting regional director, made it appear that a decision on taking land into trust was imminent because the agency’s own guidelines dictate that a proclamation of reservation wouldn’t be made until the land into trust issue is settled.

“Please note that to be proclaimed an Indian reservation, it is requisite that lands be held in trust,” acting regional director Johanna Blackhair wrote.

Confused? So, it appears, is the BIA.

Nedra Darling, a spokeswoman for the BIA, could not immediately shed any more light on why the letter sent Aug. 21 was so unclear.

“It was not intentional,” she said.

In a follow up email, Darling wrote that the proclamation that designates trust land to be a “reservation” is not a “proclamation of trust” status.

“Land has to be in trust before a proclamation can be issued,” she wrote. “The trust application is still under review and there is no date set when a decision on that will be issued.”

Blackhair's letter specifically stated, “this letter is to provide a 30-day notification of a proposed action by the Secretary of the Interior to proclaim lands held in trust by the United States of America as a reservation for the Mashpee Wampanoag Tribe.”

The letter repeated in another section that a reservation proclamation was not possible unless the land into trust issue is settled first.

“If a decision denying the acceptance of the Tribe’s lands into trust is made by the Assistant Secretary, no reservation proclamation will be issued,” Blackhair wrote.

It is unnecessary for the host communities to comment or take action, Blackhair wrote.

But the new letter from Trickey, who is the BIA’s realty officer, specifically invites comments on the tribe’s request to proclaim the approximately 321 acres as an initial reservation.

The notice initiated a 30-day comment period on the proposed reservation proclamation to begin as of the date of the Aug. 21 letter, Darling wrote.

As for having two different acting regional directors, Darling said it's likely that each is just filling in, as needed, before a permanent director is on board in Nashville, Tennessee.

Trickey's letter was provided by Mashpee Town Manager Rodney Collins shortly after it arrived Friday.

Estele Borges, president of the Taunton City Council, said she had not yet seen a copy of the newest letter. Taunton City Hall closes at noon on Fridays.

Tribe leaders, through spokesman Sean Gonsalves, said they would have no further comment.

A statement issued earlier this week by Chairman Cedric Cromwell still applies, Gonsalves said.

“We have always been confident in our prospects,” Cromwell said. “However, this letter is not a final decision, but an indication that the process continues to move forward.”

Kathryn Rand, an Indian gambling expert at the University of North Dakota School of Law, wrote in an email that the regional and national offices will likely review comments before a final decision is made by the BIA’s main office in Washington, D.C.


http://www.capecodtimes.com/article/20150829/NEWS/150829362/101015/NEWSLETTER100