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Current, former Mashpee Wampanoag Tribe treasurers subpoenaed

By Tanner Stening
Posted Sep 4, 2019

Tribal Council votes to hire lawyers for both in federal grand jury probe.

MASHPEE — The Mashpee Wampanoag Tribe’s chief financial officer and his predecessor have been subpoenaed in recent weeks, according to sources familiar with the matter and documentation provided to the Times.

Treasurer Gordon Harris and former Treasurer Robert Hendricks were issued subpoenas, prompting Tribal Council, the tribe’s executive decision-making body, to hire legal counsel for them, according to meeting minutes provided by council member Aaron Tobey Jr.

The minutes mention subpoenas without elaboration, and Tobey declined to discuss the nature of the court orders.

Another source, however, said the subpoenas were connected to a federal grand jury investigation. A spokeswoman for the U.S. Attorney’s Office in the District of Massachusetts said “we can neither confirm nor deny investigations” pertaining to the tribe.

Harris, council Secretary Ann Marie Askew, Vice Chairwoman Jessie “Little Doe” Baird and members Rita Pocknett Gonsalves, David Weeden and Yvonne Avant voted in favor of hiring legal counsel for Hendricks during a recent meeting, according to the minutes. Members Brian Weeden and Carlton Hendricks Jr. abstained, and Tobey was opposed.

Askew, Baird, Gonsalves, Tobey, Avant, David Weeden and Brian Weeden voted to approve legal counsel for Harris at a later meeting, according to the minutes. Carlton Hendricks Jr. opposed and Harris recused himself.

Tribal Council Chairman Cedric Cromwell votes only to break a tie.

Tobey said he voted to hire counsel for Harris and not Hendricks because Harris is a sitting official. Asked if he knew if anyone else currently or formerly in tribal government had been issued a subpoena, Tobey said, “I wouldn’t be surprised if there were.”

It is unclear if Harris or Hendricks have appeared in court in connection with the subpoenas. Robert Hendricks did not respond to questions about his court order, and Harris did not respond to a request for comment through a tribal spokeswoman.

Grand jury proceedings are largely secret. Roughly two dozen citizens serve as jurors, empowered to examine documents and hear testimony — usually presented only by government attorneys — to determine whether there is probable cause that someone committed a crime.

The legal probe comes amid growing political turmoil within tribal government in connection with a credibility crisis affecting the top leadership. Tribe members have tried to expel Cromwell, Baird and Harris for, among other reasons, the secrecy surrounding tribal finances, and the amount they receive in salaries. Several petitions that circulated within the tribal community earlier this year garnered enough signatures to set in motion a “recall” process — outlined in the tribe’s constitution — for Cromwell and Harris.

The tribe’s Election Committee certified 120 signatures on the petition to remove Harris and 104 signatures on a petition to remove Cromwell. The petition to remove Baird fell short of the 100 required.

The recall election is set for Sept. 15, according to the tribe’s website, although the notice does not mention Cromwell or Harris by name.

The tribe has paid Cromwell more than $1 million since he took office in 2009, that petition says. Since then, the tribe has incurred more than $500 million in debt with “very little to show for it; no casino, no jobs,” and a mortgaged property in Taunton, where the tribe’s $1 billion casino-resort would be located, according to the petition. The gaming project has been halted since a 2016 injunction granted as part of a lawsuit filed by neighbors of the project.

A robocall that circulated within the tribal community in June alleged that $250 million of the money handled by the Mashpee Wampanoag Tribal Gaming Authority is unaccounted for. The gaming authority is a five-member board governing the tribe’s long-stalled gaming operation. A 2016 financial audit of the tribe described the entity as a “discretely presented component of the tribe.” During that year, the authority transferred more than $17 million in cash and real estate to tribal operations.

“To date, we as tribal members do not know how this money is spent,” the robocall said. “Only Chairman Cromwell and Treasurer Gordon Harris have knowledge and access to how our $250 million has been spent.”

The Times could not confirm the source of the call.

In January, Cromwell was temporarily stripped of his fiduciary powers after news surfaced of the $37,000 he and his wife, Cheryl Frye-Cromwell, owe the IRS, and business interests that were subpoenaed during the course of their divorce proceeding. The Tribal Council has since reversed itself, voting to restore Cromwell’s fiduciary responsibilities and to rescind a vote of no confidence in his leadership.

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Parties in tribe lawsuit agree to timeline

By Tanner Stening
Posted Jul 9, 2019

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.

House affirms Mashpee Wampanoag’s sovereignty

By Tanner Stening
Posted May 15, 2019

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.”

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Government asks for extension in Mashpee Wampanoag Tribe lawsuit

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Government asks for extension in Mashpee Wampanoag Tribe lawsuit

By Tanner Stening
Posted Nov 27, 2018

The U.S. Department of the Interior has asked for a 31-day extension on a deadline to respond to a lawsuit by the Mashpee Wampanoag Tribe challenging the federal agency’s Sept. 7 decision that threatens the tribe’s reservation.

Filled on Nov. 20, the request notes that the Interior leadership and “other agency personnel need additional time to help prepare and review” a response to the lawsuit, according to the court filing, which is signed by Deputy Assistant Attorney General Jean Williams of the department’s Environment and Natural Resources Division and trial attorney Sara Costello.

Tribal attorneys filed the complaint in the U.S. District Court for the District of Columbia on Sept. 27 challenging an Interior Department ruling earlier that month that reversed an Obama-era decision to secure 321 acres of tribal land in Mashpee and Taunton into trust. The latest determination by the department found the tribe was not under federal jurisdiction in 1934 — the year the Indian Reorganization Act was passed. The tribe has plans to build a $1 billion casino on the land in Taunton. Neighbors of the proposed casino had sued to overturn the earlier decision and a judge found in their favor, sending it back to the Interior Department.

The tribe’s lawsuit against Interior Secretary Ryan Zinke and his department alleges the agency “failed to apply established law” by “contorting relevant facts and ignoring others to engineer a negative decision” with respect to the tribe’s land.

The suit alleges that the department’s decision “indefensibly reverses course” from the administrative decisions it has made for other tribes in regard to federal jurisdiction and “badly ignores” the case law interpreting what that phrase means, court documents say.

The government’s court filing occurred days after the tribe marched in Washington, D.C., from the National Museum of the American Indian to the U.S. Capitol to protest the Interior Department’s September ruling.

At the same time, neighbors of the proposed casino who are suing the agency in a separate case over its 2015 decision to take land into trust for the tribe recently requested that the tribe withdraw its appeal of the case or be required to file opening briefs.

In a request filed Oct. 9 with the U.S. Circuit Court of Appeals for the 1st Circuit, attorney David Tennant argued the tribe should not be permitted another stay in the appeal process because it opted to “take its chances” with a remanded review of the eligibility of its trust lands, according to court documents.

https://www.capecodtimes.com/news/20181127/government-asks-for-extension-in-mashpee-wampanoag-tribe-lawsuit

Mashpee tribe sues Interior Department over land decision

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Mashpee tribe sues Interior Department over land decision

By Tanner Stening 

Complaint calls agency’s recent reversal ‘arbitrary’ and ‘capricious.’

MASHPEE — In a new chapter of a long-running legal saga, the Mashpee Wampanoag Tribe is now suing the U.S. Department of the Interior in an effort to defend the validity of a prior decision by the agency to take its land into trust, according to court documents.

Tribal attorneys filed a lawsuit in federal court Thursday challenging a Sept. 7 determination from the department that reversed an Obama-era decision to secure 321 acres of tribal land into trust. The latest ruling declared that the tribe was not under federal jurisdiction in 1934 — the year the Indian Reorganization Act was passed.

The new complaint, which was filed in U.S. District Court for the District of Columbia against the department and Interior Secretary Ryan Zinke, alleges that the agency “failed to apply established law” by “contorting relevant facts and ignoring others to engineer a negative decision” with respect to the tribe’s land.

The suit alleges that the recent department decision “indefensibly reverses course” from the administrative decisions it has made for other tribes in regard to federal jurisdiction and “badly ignores” the case law interpreting what that phrase means, documents show.

“The (tribe) therefore files this complaint to challenge the department’s 2018 decision and correct (its) arbitrary, capricious and unlawful actions,” the suit states. The suit goes on to reassert evidence that the tribe submitted during its bid for federal recognition and throughout the course of the lawsuit to prove it was under federal jurisdiction.

In a statement, Mashpee Wampanoag Tribal Chairman Cedric Cromwell said his tribe has been “utterly abandoned by our federal trustee.”

“We are urgently petitioning the United States Congress and the federal courts to end this nightmare — to prevent what appears to be an intentional return to the dark days of the termination era, when tribal lands were taken out of trust and the federal relationship with tribal governments disavowed,” Cromwell said.

The Interior Department took 321 acres in Mashpee and Taunton into trust for the tribe in 2015, declaring it a sovereign reservation. Under such designation the federal government holds the title to the property but the tribe may decide how to develop or use the land for its own benefit.

The tribe’s plans included a $1 billion casino in Taunton, but neighbors of that proposed resort sued the Interior Department in 2016.

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 and was therefore unqualified under a definition of “Indian” used by Interior officials. The judge sent the case back to the department for further review.

Before its revised ruling earlier this month, the department had been deliberating whether Massachusetts had exercised authority over the Mashpee tribe in a manner that could be seen as a substitute for the federal jurisdiction requirement under the 1934 law. The decades-old statute remains the primary governing tool over Indian affairs, promoting self-determination and self-government.

The lawsuit, as in similar cases, rested on the interpretation of four words: “now under federal jurisdiction,” a phrase that has vexed tribes seeking trust status for newly acquired land with the federal government through the years, most notably the Narragansett Tribe’s efforts in Rhode Island, which culminated in the Supreme Court decision known as Carcieri v. Salazar.

But the Carcieri decision never established the criteria by which a tribe could demonstrate it was under federal jurisdiction, prompting the Interior Department’s solicitor to issue an interpretation of the ambiguous phrase in 2014.

In her written interpretation, Hilary Tompkins rejected the idea that there is one “clear and unambiguous meaning” of “under federal jurisdiction,” writing that the only information available to help decipher what Congress meant by the phrase was gleaned from a Senate hearing on May 17, 1934 — that it was intended as “a means of attaching some degree of qualification to the term ‘recognized Indian tribe.’” She concluded that the Interior Department would continue to take land into trust on the basis of a two-part inquiry that would “fill in gaps where Congress has been silent.”

In a letter sent to Cromwell on Sept. 7, Assistant Secretary of Indian Affairs Tara Sweeney wrote that after reviewing the evidence and submissions, the state’s history of exercising authority over the tribe provided no indication of federal authority sufficient to prove it was under federal jurisdiction.

While the evidence “demonstrates a federal awareness of the Massachusetts Indians and the Commonwealth’s regulation of their affairs, it does not establish or reflect any federal actions taken on behalf of, or for the benefit of, the Mashpee Tribe or its members as such,” Sweeney wrote. Because the tribe was not “under federal jurisdiction” in 1934, it did not qualify under the Indian Reorganization Act’s first definition of ‘Indian’ nor under the second definition, as interpreted by the U.S. District Court in Massachusetts, she wrote.

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http://www.capecodtimes.com/news/20180927/mashpee-tribe-sues-interior-department-over-land-decision

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Interior: Mashpee tribe’s land remains in trust pending appeal

By Tanner Stening
Posted Sep qq, 2018

MASHPEE — The U.S. Department of the Interior will continue to hold the Mashpee Wampanoag Tribe’s land in trust until a legal challenge to its status is finalized, a spokeswoman for a division of the agency said Tuesday.

“Consistent with our practices and procedures, the department will continue to hold the tribe’s land in trust until a final court order is imposed,” said Nedra Darling, a spokeswoman for the Bureau of Indian Affairs.

On Friday, the Interior Department sent a letter to tribe Chairman Cedric Cromwell informing him of the agency’s determination that the tribe was ineligible to have land taken into trust because it was not under federal jurisdiction at the time of the passage of the Indian Reorganization Act in 1934 and therefore didn’t qualify under a definition of “Indian” spelled out in the law. Interior officials had previously found in 2015 that the tribe qualified under another definition allowing the federal government to take 321 acres of land in Mashpee and Taunton into trust on the tribe’s behalf.

The Department of Interior was sued in 2016 by neighbors of a $1 billion casino project the tribe proposed for its reservation land in Taunton. U.S District Court Judge William Young ruled in 2016 that the federal government did not have the authority to take the land into trust in the way it had, remanding the decision to the agency for reconsideration.

The tribe’s appeal of Young’s 2016 decision is still pending in the U.S. First Circuit Court of Appeals. The Interior Department will not take action with respect to the tribe’s land until that appeal is decided, Darling said.

In November, the appeals court approved a request by the tribe that it be allowed to file a status report within ten days of the Interior Department’s decision, according to court documents.

The lawsuit brought by the Taunton neighbors, as in similar cases, rested on the interpretation of four words: “now under federal jurisdiction,” a phrase that has frustrated tribes seeking trust status for newly acquired land with the federal government over the years, most notably the Narragansett Tribe’s efforts in Rhode Island, which resulted in the Supreme Court decision known as Carcieri v. Salazar.

David Tennant, an attorney representing the plaintiffs in the Taunton case, said Tuesday before Darling’s comments that he expects the federal agency to “unwind” the 2015 decision so that “it is consistent with (Friday’s) decision.”

“The land is not lawfully in trust; the land was not lawfully declared a reservation,” Tennant said. “We certainly expect the Interior to take steps to recognize that reality.”

If the Interior Department doesn’t move to take the land out of trust, his legal team will be back in court requesting that Young “order the agency do what they are required to do,” Tennant said.

“It’s not rocket science,” he said.

On Tuesday, Cromwell said Friday’s finding by the Interior Department is the first instance in which the Carcieri decision is being wielded by the agency to “terminate a tribe.” If it stands, it would be the first time since the Termination Era — a period from the 1940s to the 1960s when Congress pushed to end tribal independence by removing federal protections — that the federal government appears to be in a “detribalization mode,” he said.

“Our own country is attacking us,” he said. “America just attacked its own people.”

News of Friday’s finding and its potential effects is still reverberating across Indian Country.

On Tuesday, the National Congress of American Indians issued a statement condemning the Interior Department’s decision, saying it “severely restricts the (tribe’s) sovereignty and its ability to exercise meaningful self-governance.”

In addition, the organization criticized the agency for failing to consider the “totality of the tribe’s evidence” it says proved the Mashpee Wampanoag Tribe was under federal jurisdiction in 1934.

“The tribe’s reservation is now being threatened with disestablishment,” the statement says. “The tribe is effectively stripped of important ‘reliance interests’ that will affect the social service programs it provides to its citizens, as well as the economic development ventures (including gaming) that the tribe relies on to support critical tribal government functions and provide job opportunities to its people.”

If the land is taken out of trust, it could affect the tribe’s sovereignty, and it would be subject to state and local regulations and taxation, according experts in Indian law.

But those same experts have maintained that a reservation can only be disestablished by an act of Congress, specifically through legislation.

And Cromwell said the Interior Department doesn’t have a way to take the land out of trust.

“There’s no policy or regulatory structure in place,” Cromwell said. “There’s no vehicle for them to do that.”