Monday, March 9, 2009

The Tribes In The Media: Mashpee Wampanoag Land Request Uncertain

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This installment of The Tribes In The Media is an article in The Cape Cod Times about the effect of the recent US Supreme Court's decision on the Mashpee Wampanoag's ability to have land taken into trust as reservation land.

High court ruling has tribes scrambling
By George Brennan
Cape Cod Times
March 08, 2009

Nearly two weeks after the U.S. Supreme Court defined "now" in a decision that cripples the efforts of the Mashpee Wampanoag and many other tribes to build casinos, American Indians across the country are looking to define "fix."

The nation's highest court, in a decision known as Carcieri v. Salazar involving the Narragansett tribe of Rhode Island, ruled the U.S. Department of the Interior doesn't have authority to take land into federal trust for Indian tribes recognized by the federal government after 1934 — the year the Indian Reorganization Act became law.

Mashpee Wampanoag tribe and casinos Several days after the Feb. 24 decision, Interior Secretary Ken Salazar issued a statement saying he was disappointed in the ruling. "The department is committed to supporting the ability of all federally recognized tribes to have lands acquired in trust," he said in the brief statement.

Indian law experts say the ruling is a fatal blow to the Mashpee Wampanoag plans for a Middleboro casino.

That is, unless Congress moves to reverse the decision with a new law.

There are indications Congress will at least look at a so-called "Carcieri fix." U.S. Rep. Nick Rahall, chairman of the House Resources Committee, has promised to call a hearing on the issue. U.S. Sen. Byron Dorgan, chairman of the Senate Indian Affairs Committee, met with tribe leaders from across the country Thursday, but his spokesman said a fix won't come quickly.

Salazar has reiterated publicly that the trust issue needs to be addressed. "We will move forward and will need your help," he told the National Congress of American Indians last week at a conference in Washington, D.C., attended by the new leaders of the Mashpee Wampanoag.

The tribe doesn't believe the decision applies to them because the Mashpee Wampanoag were recognized by the state long before 1934 and federal recognition just reaffirmed their storied history. "(The federal government) has a fiduciary and moral responsibility to treat all tribes equally," vice chairman Aaron Tobey said.

While it's true that the Supreme Court decision may not affect all tribes recognized after 1934, making that claim could just lead to lengthy and costly legal battles, according to attorney Heidi McNeil Staudenmaier, an Indian gaming expert with an Arizona law firm.

Cromwell and Tobey said the Mashpee Wampanoag are committed to the effort in Congress. "It was encouraging to see leaders of tribes all focusing on one issue and trying to work in collaboration on one issue," Tobey said.

Expect opponents of Indian casinos to push back. "I'd like to see them fix reservation shopping," said Rich Young, president of two groups that oppose the proposed Indian casino in Middleboro.

The Mashpee tribe made no mention of Middleboro in its extensive application for federal recognition, Young said, but after the tribe was acknowledged in 2007 and cut a deal with South African casino moguls Sol Kerzner and Len Wolman, the tribe asserted ancestral ties to the town more than 40 miles from their headquarters in Mashpee. "That's reservation shopping," Young said. "They decided on a piece of land that was going to be the most profitable, plain and simple."

It's unclear how many tribes have requested off-reservation casinos. A BIA spokeswoman could not provide that information by deadline after repeated requests, but published reports indicate there are more than 30 applications in the pipeline for casinos as far as 1,000 miles away from a tribe's main reservation.

The Mashpee tribe has said they're not applying for an off-reservation casino. They've applied to put land into trust for an "initial reservation" that includes 140 acres in Mashpee and 539 acres in Middleboro. The tribe's royal family is buried in Middleboro and the tribe has spiritual ties to an area known as Betty's Neck in the neighboring town of Lakeville, according to the tribe.

While it may be debatable whether reservation shopping applies here, it's a practice some in Congress, chief among them Sen. John McCain, the former chairman of the Senate Indian Affairs Committee, have been critical of and moved unsuccessfully to change in the past.

The so-called "Carcieri fix" gives those who support changes to Indian gaming regulations a bargaining chip.

"If they try to do something that involves amending the (Indian Gaming Regulatory Act), that's going to open a can of worms," Staudenmaier said.

In an interesting twist, tribes could face opposition from other tribes, she said. "There are a lot of tribes that are opposed to reservation shopping," Staudenmaier said. "They take their lands as they see them. They don't go out looking for land in the urban areas."

But Steven Light, co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota, said some of the vocal critics of Indian gaming regulations, such as McCain, are no longer in the powerful positions they once held.

In January 2008, the Department of the Interior denied casino land trust applications from 12 tribes, including a Wisconsin-based tribe backed by Kerzner and Wolman that sought to develop an off-reservation casino in the Catskills of New York. It was a strong message from the Bush administration about off-reservation gaming.

But there is a new administration in Washington, D.C., which made efforts to reach out to American Indians on the campaign trail and in appointing a tribe member to a key White House position in the Office of Intergovernmental Affairs, Jodi Archambault Gillette.

"What isn't a test for President Obama these days?" Light said. "All the indicators are that he is supportive of tribal interests, but that doesn't mean in any way that given the political climate, you'd see the President Obama administration say off-reservation gaming is great."

Though Indian gaming was at the heart of the Jack Abramoff lobbying scandal, Light said any proposed fix could ramp up lobbying once again.

"It depends on what general direction the wind is blowing when the hearings start up," he said. "If the wind is blowing in the tribe's favor, the big corporate players don't need to get involved."