Mashpee leader: Carcieri fix must be ‘retrospective, prospective’ – and speedy
By Gale Courey Toensing
Story Published: Aug 5, 2009
Story Updated: Jul 31, 2009
WASHINGTON – A legislative fix to the U.S. Supreme Court’s “very terrible and bad” Carcieri ruling should provide a clear and solid affirmation that all federally recognized tribes past and future have an inalienable right to trust land – and it should be enacted by the end of this year.
That was the message Cedric Cromwell, the chairman of the Mashpee Wampanoag Tribe, brought to a consultation session with Assistant Secretary of Indian Affairs Larry Echohawk in Arlington, Va. July 8.
The session was one of three consultation meetings the federal agency has held with Indian nations to get their input on potential legislation to repair the high court’s damaging February ruling that the Interior secretary does not have the authority to take land into trust for nations federally recognized after the 1934 Indian Reorganization Act.
Land into trust opponents are already taking advantage of the ruling to try to stop Indian nations from securing the land they need for economic development, housing, health care, education facilities and their citizens’ other social needs.
In Tulsa, for example, City Councilor Bill Christiansen began organizing a fight against efforts by the Muscogee (Creek) Nation to place two parcels of land into federal trust, arguing the city would lose more property and sales taxes if the BIA grants more land into trust for the tribe.
The Carcieri land into trust roadblock is particularly ironic for the Mashpees, given that their ancestors were the indigenous people who met and welcomed the first wave of English settler-colonists on the shores of Cape Cod in 1620, helping them survive the harsh northeastern woodlands winter.
“That’s one of the reasons why Americans are here today. The Supreme Court did something very terrible and bad in its Carcieri decision, and I can’t understand how they can sleep at night knowing what they did was so hurtful to our people,” Cromwell said. “All federally recognized tribes should be able to take land into trust via the secretary of the Interior Department, retrospectively and prospectively, now and hereafter, so that someone does not manipulate the Indian Reorganization Act again, because that’s exactly what the Supreme Court did.”
The Mashpees received federal recognition in 2007 after spending 32 years in the BIA queue.
When the first settler-colonists arrived in the “New World,” the Wampanoags’ dominated the southeastern part of what became Massachusetts and their territory extended from Narragansett Bay and the Pawtucket River to the Atlantic coast, including Nantucket and what became Martha’s Vineyard.
Today, the tribe is landless. But the inherent sovereignty of Indian nations is land-based, Cromwell said.
“You take land into trust so that you can be a sovereign and provide for your people. It shouldn’t ever be two classes of Native American peoples – nations with land in trust and those that don’t have land. The 1994 amendment to the Indian Reorganization Act said just that – that all tribes should be treated equally.”
In his written testimony, Cromwell asked Echohawk to support immediate legislative relief through Congress to ensure that all federally recognized tribes have full and equal access to the benefits of the IRA.
“Indian country needs the active support of the Interior Department and of the rest of the Obama administration. We ask that the administration formally request that Congress act on a legislative fix by this fall. We seek a commitment to work with the House and Senate to ensure that the legislative fix becomes law by the end of this year.”
Cromwell said all the nations are speaking with one voice on the issue, and the Interior Department appears to back them up.
“Interior Department Secretary Ken Salazar said he wants a fix for the situation and before they do the fix, he asked the Assistant Secretary Echohawk and Interior Solicitor Hilary Tompkins to get out there and have these consultation sessions. So I’m hopeful, because before they make any decision they do have to hear from the tribes around what our concerns are.”
It was the first time Cromwell presented testimony to the federal agency. Elected in February, Cromwell replaced former Chairman Glenn Marshall, who was convicted on various charges of embezzlement and sentenced to three-and-a-half years in prison after pleading guilty in February.
A week before the Washington area consultation session, Cromwell was decked out in a feathered headdress and ribbon shirt, drumming and dancing at the Mashpee Wampanoags’ 88th Annual Powwow, a three-day event over the July 4 weekend.
A former senior directing manager at Fidelity Investment where he handled a $100 million portfolio, Cromwell said the transition from tribal mode to Washington mode is nothing new. He said Indians have had to be successful navigating both worlds for a long time.
“I wore a suit in Washington; however, I wore a wampum bolo to represent who I am as a Mashpee Wampanoag. Growing up in Boston, I was always a Mashpee living in an Indian household in the middle of an urban environment. The theory is one foot in a moccasin and one foot in a shoe. Native Americans have to be able to interpret and understand the non-Native world to be successful in the non-Native world, which dominates our environment. It’s like speaking two languages.”
The pow wow was a huge success, drawing more than 7,000 people from all over the northeast and beyond.
A high point of the event is the unique Mashpee fireball game, a traditional medicine game played on Saturday night after dark in which two teams of players throw, grab and kick a flaming ball of fire made of kerosene-soaked deer skin and other materials by a tribal member. Teams score by getting the ball past a goal post.
Cromwell said he played the game this year for his father, who passed away.
The pow wow theme of “honoring tribal medicine” was particularly appropriate for the tribe, which is trying to heal the wounds and divisions left in the wake of Marshall’s criminal activities.
“Honoring tribal medicine was really understood and received well by folks,” Cromwell said. “It’s important for people to walk away with good feelings about the tribe.”
Mashpee seeks negotiations with casino investors
The Mashpee Wampanoag Tribe is going forward with its land into trust application with the Interior Department for a 500-plus acre casino site despite a tribal council vote not to reaffirm its development services contract with the casino investors.
The council voted June 10 not to reaffirm the terms of its agreement with South African casino development partners Sol Kerzner and Len Wolman, owners of Trading Cove Associates. The duo formed Trading Cove at Mashpee to develop a billion-dollar casino resort on 539 acres in Middleborough, Mass., that tribal leaders hope to put into trust.
The tribe, which was recognized in 2007, owns around 200 acres of land around Mashpee, Mass., but has no reservation or trust land.
The Middleborough property belongs to Trading Cove. If the tribe’s land into trust application is successful the property ownership will transfer to the nation. An Environmental Impact Study, required by the land into trust process, has not been completed.
“We still have the agreement. I can’t go into details because of confidentiality provisions. What I can say is our tribal council voted on a motion to reaffirm the development services agreement with the investors and the motion failed at the table unanimously. What it means is we want to sit down with the investors and negotiate the terms of an agreement so that it’s better in line with the tribe’s financial goals,” Mashpee Chairman Cedric Cromwell said.
Kerzner and Wolman are the high-powered casino investors who developed the Mohegan Sun resort in Connecticut and the Twin Rivers Casino in Rhode Island. TCAM stopped making monthly payments to the tribe in May, a month before the tribal council vote. Also in May, Twin Rivers filed for bankruptcy, telling the court the casino’s survival depended upon it being permitted to eliminate its money-losing dog races and operate the casino 24 hours a day.
Trading Cove’s decision to cut payments to Mashpee followed the Supreme Court’s Carcieri ruling, which casts doubt on the ability of Indian nations to get land into trust if they were not federally recognized in 1934 when the Indian Reorganization Act was passed. The Mashpee Wampanoags were recognized in 2007.
Kerzner and Wolman forged the Mashpee development agreement with former Mashpee Chairman Glenn Marshall in 2006. Marshall is currently serving a prison term of three-and-a-half years and three years’ probation on an array of federal charges including social security fraud, tax evasion, making illegal campaign contributions and embezzlement of more than $400,000.
Marshall was also involved with former Republican lobbyist Jack Abramoff, who pleaded guilty Jan. 3, 2006, to one count of conspiracy to commit honest services fraud involving public officials and fraud involving his Indian nation clients; one count of honest services fraud involving public officials; and one count of tax evasion. Abramoff defrauded his Indian clients out of tens of millions of dollars.
Although Marshall’s involvement with Abramoff remains murky, a Justice Department sentencing memorandum of former Interior Deputy Secretary Steven Griles documents a contribution made in February 2003 during Marshall’s tenure of $50,000 to a faux environmental organization whose executive director, Italia Federici, acted as a go-between for Abramoff and Griles. Federici was convicted of obstructing the Abramoff investigation and tax evasion.
A report on the Gambling Compliance Web site says the nation’s current tribal council members, most of whom were elected in February, have taken a skeptical view of the contract Marshall signed with Kerzner and Wolman.
Based on a casino that would generate more than $700 million a year, the investors would reap $40 million a year while the tribe would get about $15 million a year – an unfair distribution of revenues, the tribe’s new leadership says, according to report.
University of Massachusetts professor and gaming industry expert Clyde Barrow agrees.
“It’s not a very good deal for the tribe.”
A spokeswoman for TCAM told Gambling Compliance, “Under the terms of our agreement with the tribe, which is in full force and effect, we do not feel it would be appropriate at this time for us to comment on any pending matters with the tribe.”