Tribal Chairman Says Mashpee Land Claims To Include Town Property

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By: Geoff Spillane and Brian H. Kehrl
Published: 07/20/12

 Where is the land that Governor Deval L. Patrick has committed to help settle on behalf of the Mashpee Wampanoag Tribe? Is it South Cape Beach? The Massachusetts Military Reservation? Attaquin Park? Property outside of Mashpee?

The guessing game is on, and all bets are off.

More than a week after the governor and the tribe reached agreement on a compact outlining terms under which the tribe can operate a destination resort and casino in Taunton, blindsided town officials and residents still have little or no information about a land claim provision that was tucked away in the pact.

The signed compact states that the commonwealth will next year use its best efforts to resolve unsettled title claims “involving land and water in and around Mashpee,” with the goal of conveying some publicly-held land and water to the tribe.

To date, there has been no contact between town officials and tribal leaders to discuss the land claims.

The town’s legislative contingent has also been kept in the dark about the issue. State Representative Randy Hunt (R-Sandwich) said that he has not been told of any specific land that may be targeted, nor had he been contacted by Mashpee Town Manager Joyce M. Mason, which he found surprising given the passion surrounding this issue.

“I will vote for the compact, but we should at least have a letter detailing what this side deal is all about, and who it will affect—people need to know and understand what this is all about,” Rep. Hunt said.

Ms. Mason has referred all inquiries to the Boston office of Town Counsel Patrick J. Costello.

A spokesman for State Senator Daniel A. Wolf (D-Harwich) told the Enterprise that his office has not yet been able to obtain any additional information regarding the land claim provision, either.

State Representative David T. Vieira (R-Falmouth) did not return a call for comment.

Senate Vote Delayed

The Mashpee Wampanoag Tribe yesterday came close to meeting its final state-mandated deadline needed to keep its preferred status for obtaining a gaming license in Southeastern Massachusetts, but it will have to wait a bit longer to celebrate.

As the Massachusetts Senate was set to take up the vote yesterday, Senator Mark Montigny (D-New Bedford) used an obscure legislative procedure to temporarily stop action on the bill. As of press time, the vote had not yet been rescheduled.

On Wednesday, the Massachusetts House of Representatives approved the compact by a vote of 121-32, with all members of the Barnstable County delegation voting in favor of the pact.

Under terms of the Expanded Gaming Act passed by the Massachusetts Legislature late last year, by July 31 the tribe is required to identify land for the complex, hold a referendum vote in the host community, complete a revenue-sharing and regulatory compact with the governor, and receive approval from the Massachusetts Legislature.

'Correct Some Wrongs’
In an interview this week, tribal council Chairman Cedric Cromwell said that the tribe is looking forward to reaching out to the town to begin discussions, but it was premature to mention specific properties. He did, though, confirm that town-owned land, along with state and federal property, will be part of the negotiations.

“We have a great relationship with the Town of Mashpee and look forward to having a discussion regarding land, water, and fishing rights, because we were the first people of this land,” Mr. Cromwell said.

Vice chairman Aaron Tobey Jr. echoed Mr. Cromwell’s statement that the tribe wants to be a good neighbor, but said that he sees the upcoming resolution efforts as an opportunity to “correct some wrongs.”

The mention of town-owned land by the tribal leaders has led many, including Mr. Costello, to dust off their copies of a 2008 intergovernmental agreement (IGA) between the town and tribe and give it another read.

“The Town of Mashpee clearly and unequivocally does not believe that town-owned lands can be subject to new land claims by the tribe. The IGA is completely enforceable and we consider it to be legally binding,” Mr. Costello said.

“This town administration been dedicated to working with the tribe, and we had a great deal of discussion during the IGA process, during which the tribe agreed to release any claims against town-owned or private property,” he added, noting that the Commonwealth of Massachusetts has no legal right to convey any land owned by the Town of Mashpee to another party.

In an interview earlier this year, Mr. Costello noted that the town has already made good on one of its main promises in the agreement: deeding the Old Indian Cemetery and the Old Indian Meetinghouse, as well as three other parcels, to the tribe.

“Both parties negotiated that agreement in good faith, with each party giving considerable concessions to the other,” Mr. Costello said.

Nonetheless, the provision in the compact and the tribe’s stated interest in town land raises questions about the strength of the landmark 2008 IGA.

In the deal the tribe agreed, “To hereby waive and release any and all claims, rights, interests, and/or entitlements relating to real property located within the geographical boundaries of the Town of Mashpee and owned by private (non-governmental) property owners or by the Town, its agencies, commissions and authorities.”

To support their faith in the agreement, town officials have pointed to an April 2008 letter to the town and the tribe from Carl J. Artman, assistant secretary for Indian affairs in the US Department of Interior at the time.

The letter is key because certain intergovernmental agreements with tribes must be approved by the Interior Department in order to be fully valid.

Mr. Artman wrote that the deal could not technically be approved by the Interior Department because the tribe’s land was not yet in trust. But he said the sections that require approval looked good.

“Based on my preliminary review of the proposed agreement, it appears that it satisfies the foregoing standards, and would receive Departmental approval at the time the subject lands are acquired in trust,” Mr. Artman wrote.

However, according to Robert T. Anderson, professor of law and director of the Native American Law Center at the University of Washington School of Law, Mr. Artman’s letter makes no reference to the tribe’s release of land claims. The only matter addressed in the letter is the tribe’s agreement to give up rights to its property in Mashpee, including opening a casino, a matter that would require federal approval once the land is in trust.

“As the letter from Assistant Secretary Artman sets out, federal law generally requires secretarial approval of agreements that encumber tribal land for more than 7 years only if the land is held in trust by the United States, or is subject to a federal restriction on alienation. Other agreements between Indian tribes and other entities are not generally subject to federal approval requirements,” Mr. Anderson wrote in an e-mail to the Enterprise.

“Indian land claims are complex and depend on the unique facts of each situation. Some claims have been successful, but most have settled either before or after litigation. The settlements have been ratified by Congress,” he wrote.

As a council member Mr. Cromwell abstained from the vote on the agreement, along with his wife, council member Cheryl Cromwell. Other than Mr. Tobey, who cast the lone vote against the agreement, all the other tribal council members supported the deal.


A spokesman for the US Bureau of Indian Affairs did not return a call seeking comment this week about the validity of the agreement and the tribe’s forfeiture of claims to private- and town-owned land in Mashpee.

How The Deal Came About
The deal was struck following a time of intense negotiations between the town and the tribe. The town had recently filed an objection to the tribe’s land-into-trust application, a move condemned by tribal leaders.

The concessions made by the tribe were widely considered to be given in exchange for the town’s pledge to support the tribe’s land-into-trust application. At the time the tribe was pursuing a casino in Middleborough and did not want friction with Mashpee to disturb its off-Cape plans. As part of the deal, the town agreed to withdraw its opposition to the reservation application.

The tribe in the late 1970s sued to reclaim thousands of acres of publicly and privately held land in Mashpee during a land claim suit.

Descendants of the tribe were deeded much of present-day Mashpee in the 17th century, but the land was divided, sold, and often taken for nonpayment of taxes after Mashpee was turned from an Indian District to a town in 1870.

The tribe’s suit was based on allegations that the land sales were illegal based on a 1790 federal law that prohibited selling Indian land without the approval of Congress.

The land suit was ultimately dismissed on the argument that the Mashpees did not qualify as a tribe and so could not sue under the 1790 law.

When the tribe obtained federal recognition, many in town feared the tribe might return to the land suit.
Compared to what many expected following the tribe’s federal recognition, the tribe sought a relatively small amount of land in the arrangement. The tribe’s land trust application includes approximately 140 acres in Mashpee.

If the town-tribe agreement were to fall apart now, and the town chose to oppose the tribe’s still-pending land application for property in Mashpee and the casino site in Taunton, the town would not likely be able to single-handedly defeat the effort. But it could create delays in the approval that the tribe can ill afford given the competitive statewide race for a casino.

The tribe has also backed out of its agreement with Middleborough, a deal from the same time period that contained similar language to the Mashpee pact.

The agreement was approved by separate votes by tribe members, the tribal council, the board of selectmen, and Town Meeting.

At the time the agreement was approved, Mr. Cromwell and Mr. Tobey were both members of the tribal council, though they had not yet been elected chairman and vice chairman. Both men participated in the final round of negotiations with the town after the resignation of Glenn A. Marshall from the chairman position.

Mr. Tobey was against the deal, arguing that before giving away their rights the tribe should push for more land from the town, according to interviews with town officials at the time of the agreement.

As a council member Mr. Cromwell abstained from the vote on the agreement, along with his wife, council member Cheryl Cromwell. Other than Mr. Tobey, who cast the lone vote against the agreement, all the other tribal council members supported the deal.

Correction: A previous version of this article misidentified the name of the law professor who reviewed a copy of the US Bureau of Indian Affairs letter. The correct name has been replaced above.

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