Gettin' Mighty Deep!

Mashpee Wampanoag's historic ties chided by some

January 31, 2013

 

By GEORGE BRENNAN

 

Reaction to the Mashpee Wampanoag Tribe's claims of significant historic ties to Taunton was swift and in some cases predictable.

 

"Put your full waders on. It's starting to get deep," Middleboro Selectman Allin Frawley, a casino opponent, posted on his Facebook wall linking to a Sunday Cape Cod Times story reporting the claims.

 

The Times obtained copies of two widely anticipated reports contained within the tribe's application to have 146 acres in Taunton and 170 acres in Mashpee taken into trust by the Department of the Interior.

 

One report claims historic and modern ties to Cohannut, which encompasses modern-day Taunton, as part of the larger Pokanoket tribe. The other, prepared by tribe lawyers, attempts to demonstrate the Mashpee tribe was always under federal jurisdiction so a 2009 U.S. Supreme Court ruling, known as the Carcieri decision, would not prevent the tribe from getting land.

 

Documentation included in the reports has never been used previously either in the tribe's pursuit of federal recognition or in its aborted attempt to get land into trust for the casino it proposed for Middleboro, she said.

 

"I don't know anyone in the United States named King George," she said, a reference to the tribe's report that it had an agreement — equivalent to a treaty — with the British crown in 1763 protecting Mashpee land from English settlers. The report argues the deal should have been enforced by the United States, which is responsible for any treaties for sovereign land it takes over.

James Lynch, a Connecticut-based historian working on behalf of a state-recognized tribe known as the Pocasset, said the Mashpee tribe isn't connected to the Pokanoket, as it asserts. He says the Mashpee tribe was isolated to Cape Cod. He said there was no treaty and that the tribe's documented history shows that it was under state, not federal, control.

 

Lynch said he's not being paid by the Pocasset tribe, but does work on their behalf pro bono because he feels they are "getting screwed" by the Mashpee tribe and Wampanoag Tribe of Gay Head (Aquinnah) invading their turf.

 

It's the Pocasset, not the Mashpee or Aquinnah tribes, which is tied to the land in Southeastern Massachusetts from Cape Cod to Narragansett Bay in Rhode Island, he said.

 

The Pocasset tribe filed a petition to become federally recognized two years ago, Lynch said.

 

The process took the Mashpee tribe 30 years to complete.

 

Last week, Lynch filed official opposition to the Mashpee application with the Bureau of Indian Affairs, even though he's yet to see the actual report.

 

In the report he concludes Mashpee and the Aquinnah were compelled "to invent and embellish a past" to achieve "an economic agenda."

 

In its report claiming ties to Taunton, the Mashpee tribe attempts to deflect expected criticism by pointing out that the Pocasset have come alive only after the 1988 Indian Gaming Regulatory Act gave tribes the right to build casinos on tribal land. Mashpee's application to be recognized predated the casino law by 11 years.

 

"A newly-formed tribe (that is post-IGRA), calling themselves Pocasset, also claimed ownership of the Watuppa Wampanoag Indian Reservation," the tribe report states. "However, this group was and is not recognized by any existing historic Wampanoag tribes nor have they demonstrated any sustained control over the Watuppa Reserve."

 

It was Mashpee Wampanoag member Amelia Bingham and other "traditionally-minded Wampanoag" who opened the 277 acres known as the Watuppa Wampanoag Reservation within the Freetown-Fall River State Forest for ceremonial uses, the report asserts.

 

In an interview Tuesday, Lynch disagreed, saying a reservation was created in the early 1700s for the Pocasset.

 

"There was never a cessation of the reservation use," he said.

 

The state Department of Conservation and Recreation website makes no mention of a specific Wampanoag tribe. In 1976, Gov. Michael Dukakis signed an executive order strengthening control over the land by tribe members.

 

Lynch has written letters to the editor to the Times and other newspapers in Southeastern Massachusetts opposing the tribe. In 2009, he was hired for $5,000 by Halifax selectmen to disprove the Mashpee tribe's ties to Middleboro, where it planned to build a $1 billion casino.

 

Lynch has been described by tribes as a "hired gun," employed to poke holes in research done by tribes seeking federal recognition. In a lawsuit brought by New York against the Shinnecock tribe, his credentials were called into question because he lists himself as a "Ph.D (abd)" on his curriculum vitae, which means "all but dissertation." His work was called "slipshod" and "replete with errors," according to court documents filed in that Shinnecock case.

 

Lynch said it's "par for the course" for defense attorneys to pick apart expert witnesses. He said he did not complete his doctorate because of family issues, but doesn't think it's misleading to include the reference on his resume.

 

In a 2009 case involving the Unkechaug Nation in New York, a federal judge questioned Lynch's motivation.

 

"Mr. Lynch found adversely to the tribe's federal recognition in nine matters in which he was retained by clients opposing tribal recognition," the court document states. "In the one matter in which Mr. Lynch found in favor of federal tribal recognition, he was retained by a client that supported tribal recognition."

 

Lynch defended his work. "I don't invent the facts. The facts are there. My job is to find them and present them," he said.

 

It's unclear how much weight the Bureau of Indian Affairs will give to Lynch or any other comments opposed to the Mashpee tribe's claims. Nedra Darling, a spokeswoman for the bureau, had no immediate comment.

 

The Mashpee Wampanoag produced a letter earlier this month from the bureau that indicates a decision on whether to consider the tribe's application under the "initial reservation" designation is imminent. The bureau has also stated that it will act early this year on whether Carcieri affects the application, according to the letter.

 

In March, the state gaming commission will re-evaluate the tribe's progress clearing its federal hurdles. At that point, the commission could open up the Southeastern Massachusetts region — for which the Mashpee Wampanoag were given a first chance to build a casino — to commercial bidders.

 

http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20130131/NEWS/301310346

 

Is Mashpee Wampanoag Tribe 'under federal jurisdiction?'

GUEST OPINION: Is Mashpee Wampanoag Tribe 'under federal jurisdiction?'

By James P. Lynch

Posted Jan 17, 2013

 

Purchase this photo

Taunton Gazette

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