A U.S. district court judge has chastised attorneys for the Dept. of the Interior for filing an “incomprehensible” memorandum in a case that threatens the tribal sovereignty of the Mashpee Wampanoag. Due to an apparent technical glitch that cut off the press and public from listening in on the full session, the outcome of the May 20 court hearing, held via Zoom, is not yet known.
Interior’s recent move appears to be motivated by President Donald Trump’s belief that a proposed casino on the Wampanoag reservation in Taunton would threaten his allies’ financial interests in Rhode Island casinos.
At the D.C. district court hearing, the Interior Dept.’s lawyers presented new criteria for evaluating tribal land applications, which would require the tribe to prove it was under federal jurisdiction in 1934. Judge Paul Friedman pointed out that these criteria would make it effectively impossible for the Wampanoag to maintain their reservation.
“This is one of the worst written documents I’ve ever read from any government agency,” said Friedman during the hearing. “It’s a joke.”
The memo was full of errors and “couldn’t guide any lawyer in the field,” Friedman said. “You’re going to have a tough time with this judge.”
During the hearing, Wampanoag attorney Tami Azorsky argued that the tribe was under federal jurisdiction for decades before 1934. She cited examples such as Wampanoag students who were sent to an Indian boarding school, where decisions about their health, education, and religious practices were made by a federally appointed superintendent. Azorsky also referred to several reports on the tribe by the federal government, one of which considered relocating it westward.
The audio conference allowing the press and public to listen in on the proceedings cut out before the conclusion. Steven Peters, a member of the tribe, said that no one has been able to learn the outcome. Azorsky did not return calls from the Independent seeking information about the judge’s ruling.
On March 27, the Interior Dept. informed Mashpee Wampanoag tribal leadership that their 320-acre reservation would be disestablished and taken out of federal trust. Removing the reservation, divided between Mashpee and Taunton, from trust would undermine the tribe’s sovereignty.
David Silverman, a professor of American colonial and Native history at George Washington University, told the Independent that if the reservation is disestablished, “the government can continue to provide the tribe with funds for educational, public health, and cultural revival initiatives. But the tribe wouldn’t be able to have a housing complex for its low-income residents, a police force to keep order, or a school for language revitalization.”
Taking the land out of trust would also mean the tribe’s planned casino in Taunton would not be allowed to operate.
A fix to this legal battle would require an act of Congress, which has long been in the works. A bill filed by U.S. Rep. Bill Keating, which affirms the status of the Wampanoag tribe, passed the House last May with bipartisan support.
Trump then intervened, tweeting a warning to the Senate.
“Republicans shouldn’t vote for H.R. 312, a special interest casino Bill, backed by Elizabeth (Pocahontas) Warren,” Trump wrote. “It is unfair and doesn’t treat Native Americans equally!”
Keating, who represents Cape Cod in Congress, believes that special interests prompted Trump’s action. He pointed out that lobbyists and advisers close to the president have interests in casinos in Rhode Island that would face competition from the Wampanoag casino in Taunton.
“It’s corrupt. It’s despicable,” Keating said.
Rhode Island Connection
Opponents of the bill have argued that it would hurt two casinos across the state line in Rhode Island, both of which have ties to Trump. The Washington Post reported last year that George Papanier, president of Twin River Worldwide Holdings, which operates the Rhode Island casinos, used to work at the Trump Plaza Casino in Atlantic City.
Matt Schlapp, who lobbies for Twin River, is married to Mercedes Schlapp, the president’s director of strategic communications. He is head of the American Conservative Union, a supporter of the president.
Silverman said that the administration would likely not have intervened if casinos weren’t involved.
There is a history of conflict between the president and Native-owned casinos. “This is not the first time interest groups, lobbyists or the president have challenged tribes’ protected federal status as sovereign nations to block the construction of competitive casinos,” wrote Camille Erickson of the Center for Responsive Politics a year ago. In the 1980s and ’90s, Trump owned casinos in Atlantic City. During that time, he challenged the constitutionality of the Indian Gaming Regulatory Act in court in an attempt to eliminate competition from the Mashantucket Pequot tribe’s Foxwoods Resort Casino in Connecticut.
Silverman said of the current case, “It’s just craven cronyism, with an undercurrent of racism, that has characterized so many other policies of this administration.”
Interior Secretary David Bernhardt, who was appointed by Trump last year, made the March call to Mashpee Wampanoag leadership informing them their land would be taken out of trust. In a statement on the tribe’s website, Chairman Cedric Cromwell wrote that the move came as a complete surprise to tribal leadership, who were in the midst of confronting the coronavirus pandemic.
Holding land in trust ensures it will be protected for posterity. It’s also important for First Peoples to manage resources, police their community, and live in a way “that’s consistent with their values and interests,” Silverman said.
If the Dept. of Interior wins and the new criteria are adopted, then First Nations across the U.S. could be at risk losing their land as well.
Silverman pointed out that many tribes on the East Coast and in California were recognized only in recent decades. For groups that have reclaimed their patrimony and embarked on cultural and economic revitalization, “All of that is at risk,” Silverman said. “They’ll be quaking in their boots.”