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'A triumph' Interior Department withdraws appeal in Mashpee tribe's land-in-trust case

Jessica Hill Cape Cod Times

Published Feb 19, 2021 

In a big victory for the Mashpee Wampanoag Tribe, the U.S. Department of the Interior on Friday withdrew its appeal in U.S. District Court in the tribe's land-in-trust case.

“Today is sakôhsuwôk, a triumph,” said Jessie “Little Doe” Baird, the tribe's vice chairwoman, in a statement late Friday afternoon. The decision was a win "for the citizens of the Mashpee Wampanoag Tribe and our Ancestors who have fought and died to ensure our Land and sovereign rights are respected," she said.

The Department of Interior filed a motion Feb. 18 for the voluntary dismissal of its appeal, wrote Rachel Heron, attorney for the U.S. Department of Justice Environmental and Natural Resources Division. 

The case was part of a long battle for tribal sovereignty, which stemmed from a $1 billion casino the tribe wanted to build in Taunton.

U.S. Rep. William Keating, D-Mass., also hailed the decision Friday.

"The claim that the Tribe of the First Light, the Tribe of the First Thanksgiving was not an original Native American Tribe has always been disingenuous," he said in a statement. "And the Trump Administration’s sudden attempt to remove their land from trust last March — in the midst of a pandemic — was heartless. We’re reassured that the Biden Administration’s action today clearly reflects the best interest of justice ..."

The tribe had asked the interior secretary to put about 151 acres of land in Taunton into trust so it could build a casino, as well as another 170 acres in Mashpee. While the assistant interior secretary approved it in 2015, neighbors of the proposed casino and others filed a lawsuit in opposition. They argued the government did not have the authority to take the land into trust in the first place.

In 2018, the Department of the Interior reversed itself, arguing the tribe was not under federal jurisdiction when the Indian Reorganization Act of 1934 was established. The tribe appealed, but a federal judge in Boston ruled in favor of the reversal. 

Then in June 2020, U.S. District Judge Paul Friedman found that the 2018 decision was “arbitrary, capricious, an abuse of discretion and contrary to law.” He sent the case back to the Department of the Interior for “thorough reconsideration and reevaluation of the evidence.” 

“We look forward to being able to close the book on this painful chapter in our history,” Baird said in the statement. “The decision not to pursue the appeal allows us (to) continue fulfilling our commitment to being good stewards and protecting our Land and the future of our young ones and providing for our citizens.” 

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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.

Loans to Mashpee Wampanoag Tribe halted

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Loans to Mashpee Wampanoag Tribe halted

By Tanner Stening
Posted Mar 3, 2019

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.

https://www.capecodtimes.com/news/20190303/loans-to-mashpee-wampanoag-tribe-halted

Judge denies government request for stay in Cape tribe’s lawsuit

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Judge denies government request for stay in Cape tribe’s lawsuit

By Tanner Stening
Posted Jan 2, 2019

A federal judge denied the U.S. Department of the Interior’s motion to suspend proceedings in a lawsuit brought in September by the Mashpee Wampanoag Tribe, which is challenging the federal agency’s Sept. 7 decision on its trust land eligibility.

In light of the partial government shutdown, Interior Department attorneys requested a stay for officials to “answer or respond” to the tribe’s complaint until Congress passes a funding measure, saying that employees of the federal agency, as well as the Department of Justice, are prohibited from working except in “very limited circumstances,” according to the latest court filings.

Those circumstances include “emergencies involving the safety of human life or the protection of property,” attorneys wrote. The request to stay, filed Dec. 28, asked that the case be put on hold until appropriations were restored to the two departments.

Judge Rosemary M. Collyer denied the stay but granted another extension for the government to respond. The agency now has until Jan. 30 to respond to the lawsuit, according to a Jan. 2 order by Collyer.

Tribal attorneys filed the complaint Sept. 27 in the U.S. District Court for the District of Columbia challenging the Interior Department’s ruling earlier that month reversing an Obama-era decision to secure 321 acres of tribal land in Mashpee and Taunton into trust for the tribe.

That determination by President Donald Trump’s administration 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 2015 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.

Zinke left his post Wednesday after announcing his resignation in December amid multiple investigations into alleged ethics violations. He is being replaced by Deputy Interior Secretary David Bernhardt, who will serve as acting secretary.

The Department of Justice has asked for similar action in other cases with mixed results, including several high profile lawsuits against the Trump administration.

In some of the cases, judges have issued stays pending a resolution of the government shutdown while in others judges have ordered that litigation proceed without disruption.

https://www.capecodtimes.com/news/20190102/judge-denies-government-request-for-stay-in-cape-tribes-lawsuit

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