Past Decisions Set Course For Mashpee, Aquinnah Casino Positions Today

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By: Elsa H. Partan
Published: 07/13/12

 Each faced with development encroaching on their native lands in the 1970s, the Mashpee Wampanoag Tribe and its sister tribe on Martha’s Vineyard, the Wampanoag Tribe of Gay Head (Aquinnah), made different decisions about whether to sue, settle, or stand by and let it happen. Those decisions 30 years ago set the stage for the strikingly different positions in which the two tribes find themselves today in competing for the same license to open a casino in southeastern Massachusetts.

While the Mashpee appear poised to clinch a casino deal with the state, the Aquinnah have been all but locked out of the process on Beacon Hill. The new state gaming law allows for one casino in Southeastern Massachusetts, with a set aside for a federally recognized Native American tribe, and makes no provisions for an agreement with more than one tribe.

“We decided to go the long way so we wouldn’t lose our aboriginal rights,” said Mashpee Wampanoag Chief Vernon (Silent Drum) Lopez. “The Aquinnah just accepted the settlement. Now they are regretting it.”

The Mashpee Wampanoag waited three decades to be recognized in 2007 by the US Bureau of Indian Affairs. Through that process, the Mashpee maintained all rights afforded to federally recognized Native American tribes, including gaming and avoiding most state and local regulations on their proposed reservation.

The Aquinnah took a shorter route, signing on in 1983 to a congressional settlement, which provided $4.5 million and the transfer of 238 acres of land in exchange for giving up some of the rights the Mashpees maintained. That includes giving up their right to pursue a casino, according to state officials, a position the Aquinnah have challenged. The Aquinnah say that the 1988 Indian Gaming Regulatory Act supercedes their settlement terms.

The tribes have largely avoided talking about each other in public during the casino process, but it is clear that the Aquinnah are challenging the Mashpees as the sole tribe in position to become the owners of a casino.

According to The Vineyard Gazette, the Aquinnah have announced their intent to file a lawsuit against the state regarding the casino negotiations.

The two Wampanoag tribes claim common ancestors and a common history. Cousins, aunts, and uncles still keep in touch across the water. Aquinnahs come to Mashpee’s pow wow, and Mashpees attend funerals of Aquinnah elders they knew. Whatever the bonds of culture and friendship, however, the Mashpees have not included the Aquinnah in their plan to create a $500 million resort-style casino in Taunton. The Mashpee tribe briefly considered including Aquinnah in a casino bid two years ago but decided against it, according to Mashpee tribe members.

The Aquinnah have countered the Mashpees with their own proposals for a casino in Freetown or Lakeville, each of which has failed to gain traction. The Vineyard tribe has also said it may build a small gaming facility on the island, should it continue to be shut out of the state licensing process. Otherwise, failure by the Aquinnah to crack into the casino negotiations leaves a lawsuit to be their only other likely recourse, a possibility that would entail one Wampanoag tribe suing to stop its relatives from success.

In recent interviews, eight Mashpee tribe members described how decisions to forgo a land claim settlement with the federal government in the 1970s has led to their relatively strong position today. Nearly all the Mashpees who talked to the Enterprise said the Aquinnah had given up important aboriginal rights to their land when they settled with the federal government, something that the Mashpee tribe was careful not to do. Details of exactly how the Mashpees were launched on the path away from a settlement are not perfectly clear, but the consequences of that course are reverberating around the region today.

Mashpees Break From Settlement Trend
Some of the seeds for the tribes’ decisions go back to the mid-1970s, when Native Americans from across the Northeast gathered at the Wigwam Hotel, what is now Zachary’s Pub on Great Neck Road North. The Narragansett Tribe of Rhode Island and the Passamaquoddy, Penobscot, and Maliseet tribes of Maine gathered with Mashpee and Aquinnah Wampanoags to discuss the settlement offerings from the federal government. The Mashpee tribe was preparing to sue the Town of Mashpee and private landowners to win back land claimed by the tribe.

“I was just out of college,” said John A. Peters, a Mashpee Wampanoag Tribe member who is now executive director of the Massachusetts Commission on Indian Affairs. “It was a feeling that we were trying to bring something back for our people. There was an ongoing civil rights movement and the Black Power movement was going. All of that motion was in the air.”

The Narragansett Tribe ended up settling with the federal government in 1978, and the Maine tribes settled in 1980, under the Indian Land Claim Settlement Act. The Narragansetts received $3.5 million while the Maine tribes received $81.5 million. All gave up some aboriginal rights to their traditional lands. The Aquinnah Wampanoag pursued the same path, receiving the 1983 settlement and winning federal recognition in 1987.

“There were a lot of fiery meetings about it,” Mr. Peters said, recalling Mashpee in the 1970s. “There were different opinions in the tribe but the majority thought we should seek our land.”

The Mashpee tribe filed a lawsuit against the Town of Mashpee and private landowners in 1976, which ultimately failed. There was no federal process for recognizing Indian tribes when the Mashpees first filed their application. By the end of the process, they had provided thousands of pages of documentation about their culture, history, and genealogy.

Whether the Mashpee Wampanoag Tribe would have preferred a settlement at some point seems lost to history. Almost universally, the decision to pursue the land suit and forgo a settlement is now seen by tribe members as a noble journey.

How The Decision Was Made
When it comes to why the Mashpees did not settle when other New England tribes did, two different versions exist.
In one account, the Mashpee tribe rejected the idea of a cash settlement. In “The Mashpee Indians: Tribe on Trial,” author Jack Campisi describes a meeting at the White House in September 1977 in which Mashpee Wampanoag Tribal Council President Russell Peters shot down the idea of a monetary payment.

In the scene, President Jimmy Carter had appointed an old friend, retired judge William B. Gunter, to make a recommendation for resolving the problem. Mr. Gunter asked Mr. Peters and Chief Earl (Flying Eagle) Mills Sr. how much money it would take.

“One million, two million, or what?” Mr. Gunter is quoted as saying. “Peters stated that the Mashpees were not seeking a monetary settlement. He said they wanted their land and their waters returned to the tribe to be preserved for future generations of Mashpees,” Mr. Campisi writes.

In the second narrative, the Mashpee tribe was interested in a cash settlement, but the idea was killed by the Mashpee Board of Selectmen. That account is reflected in the book, “Restitution: The Land Claims of the Mashpee, Passamaquoddy and Penobscot Indians of New England,” by Paul Brodeur.

Mr. Brodeur, a reporter for The New Yorker magazine at the time, writes that a US Senate subcommittee had drafted last-minute legislation in September of 1977 that would have given clear title to all lands occupied by private homes or businesses in return for a federal payment to the tribe of $4 million. It was the Mashpee selectmen who refused to approve the legislation, not the tribe members, according to Mr. Brodeur.

There was support for settling within the tribe, recalled John Peters. “It was the selectmen’s opposition and the opposition of their lawyer, James St. Clair. They were saying you couldn’t separate the private landowners from the settlement and only include public lands. It was all or nothing.”

Whether the Mashpee Wampanoag Tribe would have preferred a settlement at some point seems lost to history. Almost universally, the decision to pursue the land suit and forgo a settlement is now seen by tribe members as a noble journey.

“We couldn’t see into the future, but our instincts told us that there were was something better ahead, and that we should wait,” said Mr. Lopez, the Mashpee chief. Mashpee tribe members often point out that pursuing federal recognition in the ‘70s had nothing to do with getting a casino, as the law that allowed for Indian gaming wasn’t passed until 1988.

“Of course, we didn’t know what the road ahead held for us, but it was clear that the only course to take was to pursue federal recognition,” Mr. Lopez said.

By 1983, the Mashpees had clearly soured on the idea giving up aboriginal rights in a monetary settlement. In a letter dated December 13, 1983, the Mashpee tribal council told the Aquinnah tribe that it did not support the Aquinnah’s proposal under the Massachusetts Indian Land Claim Act. Top among their concerns was that the settlement was worded so broadly that it might have been seen as including the Mashpee and Aquinnah tribes together, even though the Mashpees had no part in it, according to Mr. Peters.

Further, the Aquinnah were giving up too much, the Mashpees said. The settlement, “eliminates all Indian claims of any kind, whether possessory, monetary, or otherwise, wither aboriginal or under recognized title involving lands and waters in the Town of Gay Head, and that effectively clears the titles to all land in Gay Head of any such claims, whether asserted in the past, present or future,” according to the letter.

We are not saying that [the Aquinnah] are wrong, by no means...But sometimes patience is a virtue and it paid off for us.

                Joan Tavares Avant                                         Former Tribal Council President

Not everyone agrees that Mashpee is better positioned for the future as a result of its decisions in the past.

“They [Aquinnah] have a beautiful community building,” said Mashpee elder Amelia G. Bingham. “And what have we got? We’ve got nothing. We owe everything to everyone under the sun. This debt will be passed down to my great-grandchildren.”

Mr. Mills is also skeptical that a casino will benefit the Mashpee tribe.

“To me, the Aquinnahs still got a good deal,” even though they gave up some rights, he said. “There were things the feds help you with, like economic development.”

No Invitations
A rare public spat between the two tribes flared up in 2010, when the Mashpee tribe and then the Aquinnah tribe both proposed casinos at separate locations in Fall River. The Aquinnah charged that the Mashpee proposal would have forced the city to abandon prior plans for a biotechnology park, marking the Aquinnah proposal superior.

The chairman of the Mashpee Wampanoag Tribal Council discussed collaboration on a casino with his counterpart at the Aquinnah tribe prior to the Fall River conflict, according to John Peters. The Mashpee tribe decided it would be too complicated to figure out who was in charge, he said. Besides, such a deal did not appear to make sense financially, Mr. Peters suggested. It is unclear whether the feeling was mutual between the two tribes.

The chairman of the Aquinnah Wampanoag Tribal Council did not return numerous messages seeking comment for this story.

A spokesman for Mashpee Tribal Council Chairman Cedric Cromwell did not respond to a request for comment on whether the two tribes have discussed working together.

So many people have asked why Aquinnah is not working together with Mashpee on a casino that the Aquinnahs have listed it under the “Frequently Asked Questions” section on its gaming authority website.

“We are separate Tribes, with different governments and constituent populations,” the site states. “As a Federally Recognized Tribe, each Tribe is a sovereign nation with the right to game under its own authority under the [Indian Gaming Regulatory Act].”

Mr. Mills (Chief Flying Eagle) said the relationship between Mashpee and Aquinnah is not as strong as it was when he was young in the 1940s and ‘50s.

“They don’t seem to be connected in the way we were years ago,” he said. “We used to take a boat over there and play baseball. They’d come over here and go rabbit hunting. I keep in touch with everyone still, but sometimes when someone passes away, word doesn’t get to me quickly. Those channels aren’t open like they used to be.”

Mashpee Wampanoag Tribe member Morgan J. Peters provided some recent history of the relationship between the two tribes. Many in the Mashpee tribe felt hurt when the Aquinnah hosted a conference in the mid-1990s for “federally recognized communities only,” he said. Mashpee tribe members were excluded, as their federal recognition was not yet a reality. One dinner was held in Mashpee even though the Mashpees were not invited.

“The Aquinnah thought they were a little bit special,” Morgan Peters said.

Around 2005, a member of the Aquinnah tribe also suggested that the new Wampanoag language courses should only be for members of federally recognized tribes, an idea that was quickly dismissed but left some bruised feelings, Mr. Peters said.

Mr. Peters confirmed that, in recent years, the question of including Aquinnah in a casino deal came up.

“I think it was broached, and it was rejected,” he said. “The resounding attitude was, ‘Why should they ride on our coattails?’ There was no benefit to including Aquinnah, and Aquinnah had made no attempts to include us.”

Additional reporting was provided by Geoff Spillane and Brian H. Kehrl.

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