[House Report 116-54]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-54
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MASHPEE WAMPANOAG TRIBE RESERVATION REAFFIRMATION ACT
_______
May 10, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Grijalva, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 312]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 312) to reaffirm the Mashpee Wampanoag Tribe
reservation, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mashpee Wampanoag Tribe Reservation
Reaffirmation Act''.
SEC. 2. REAFFIRMATION OF INDIAN TRUST LAND.
(a) In General.--The taking of land into trust by the United States
for the benefit of the Mashpee Wampanoag Tribe of Massachusetts as
described in the final Notice of Reservation Proclamation (81 Fed. Reg.
948; January 8, 2016) is reaffirmed as trust land and the actions of
the Secretary of the Interior in taking that land into trust are
ratified and confirmed.
(b) Application.--Notwithstanding any other provision of law, an
action (including an action pending in a Federal court as of the date
of enactment of this Act) relating to the land described in subsection
(a) shall not be filed or maintained in a Federal court and shall be
promptly dismissed.
(c) Applicability of Laws.--All laws (including regulations) of the
United States of general applicability to Indians or nations, Indian
Tribes, or bands of Indians (including the Act of June 18, 1934 (25
U.S.C. 5101 et seq.)), shall be applicable to the Tribe and Tribal
members, except that to the extent such laws and regulations are
inconsistent with the terms of the Intergovernmental Agreement, dated
April 22, 2008, by and between the Mashpee Wampanoag Tribe and the Town
of Mashpee, Massachusetts, the terms of that Intergovernmental
Agreement shall control.
PURPOSE OF THE BILL
The purpose of H.R. 312 is to reaffirm the trust status of
certain lands of the Mashpee Wampanoag Tribe and other
purposes.
BACKGROUND AND NEED FOR LEGISLATION
Prior to 2009, the Department of the Interior had long
construed the Indian Reorganization Act (IRA) to authorize the
Secretary of Interior to place land into trust for any tribe,
so long as the tribe is federally recognized at the time of the
trust application. However, in 2009, the U.S. Supreme Court
held in Carcieri v. Salazar, 555 U.S. 379 (2009), that the
Secretary's authority to place land into trust for tribes under
the IRA had to be informed by whether the tribe meets one of
the IRA's three definitions of ``Indian,'' and it then
considered whether the Narragansett Tribe met the first
definition which applies only to tribes ``now under federal
jurisdiction.'' Reversing 75 years of agency practice and
federal court case law, the Court determined that ``now'' meant
in 1934 rather than at the time the Secretary exercises the
authority. Subsequent related events have resulted in a very
real danger the Mashpee Wampanoag Tribe will be the first tribe
this century to be stripped of its sovereign rights to land.
The Mashpee Wampanoag Tribe is one of two federally
recognized tribes of Wampanoag people in Massachusetts. Their
people have inhabited present-day Massachusetts and eastern
Rhode Island for more than 12,000 years. The Tribe has existed
as a distinct community since at least the 1620s. As such, the
Mashpee's relationship with the federal government is one of
the oldest in the United States. Their history includes contact
with the Pilgrims and, according to their tradition,
participation in the first Thanksgiving in 1621.
Like many tribes, the federal government failed to protect
Mashpee's historical lands such that eventually all of their
lands were taken from them over time. In 1977, the Mashpee took
legal action by filing suit in federal court claiming that
their land had been taken from them illegally. However, the
judge declared that the Mashpee were not federally recognized
and so did not meet the legal definition of a tribe. On that
basis, the court dismissed the case--not on the merits, but on
procedural standing grounds. The Tribe subsequently petitioned
the federal government for recognition in 1978, and in 2007 the
Bush Administration extended formal recognition to the
Tribe.\1\ However, they remained landless.
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\1\U.S. Dep't of the Interior, Bureau of Indian Affairs, Office of
Federal Acknowledgment, Petitioner #015: Mashpee Wampanoag, MA, https:/
/www.bia.gov/as-ia/ofa/015-mashpe-ma.
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In 2012, the Tribe filed a land-into-trust application with
the Bureau of Indian Affairs (BIA) for approximately 170 acres
in the Town of Mashpee, MA, and an additional approximately 150
acres in the City of Taunton, MA, both within the Tribe's
historical homelands. The Tribe's applications were bolstered
by the full support of both local jurisdictions and by the
Commonwealth of Massachusetts. In 2015, the application was
approved, and the land was taken into trust; the two parcels
together were proclaimed the Tribe's reservation land by the
Department of the Interior in 2016. The Department relied on
the second definition of Indian in the IRA to take these
actions. The Tribe constructed a government center on the land,
which includes its school, courtrooms and multi-purpose rooms,
and a medical-clinic facility. The Tribe even broke ground to
construct and operate a 400,000-square foot casino and resort
in Taunton under a Class III gaming compact between the Tribe
and the State of Massachusetts that had been reviewed and
approved by the Department of the Interior. Any resulting
gaming would be the product of the robust and longstanding
consideration process established in the widely applicable
Indian Gaming Regulatory Act.
In 2016, a group of Taunton residents, backed by an out-of-
state commercial gaming company, filed a Carcieri suit in
federal court to challenge Interior's action.
Initially, the Executive Branch defended its decision to
create the Mashpee reservation. In March 2014, the Office of
the Solicitor at the Department of the Interior issued a legal
memorandum interpreting Carcieri as well as the intent of the
IRA. It concluded that, even with the Carcieri ruling, ``[t]he
Department will continue to take land into trust on behalf of
tribes under the test set forth herein to advance Congress'
stated goals of the IRA to provid[e] land for Indians.'''\2\ On
July 28, 2016, the U.S. District Court for the District of
Massachusetts ruled that the Secretary of Interior lacked
authority to acquire the Mashpee land in trust based on the
second definition of ``Indian.'' In particular, the court found
that the second definition is dependent on the first
definition, and that the Department's decision had not
considered whether the Tribe met the first definition. The
Tribe and the Department of Justice appealed the court's
construction to the First Circuit, but the case was remanded to
the Department of the Interior to consider whether the Tribe
meets the first definition.\3\
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\2\U.S. Dep't of Interior, Solicitor's Opinion M-37029, The Meaning
of ``Under Federal Jurisdiction'' for Purposes of the Indian
Reorganization Act (Mar. 12, 2014), https://www.doi.gov/solicitor/
opinions.
\3\Littlefield et al. v. Department of the Interior, D. Mass., No.
16-10184-WGY.
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However, in May 2017, the Department of Justice under the
Trump Administration inexplicably withdrew from the litigation
and is no longer defending the status of the Tribe's land.
Then, on September 7, 2018, the Department of the Interior
issued its first Carcieri decision in which it refused to
reaffirm its own authority to confirm the status of the Tribe's
lands in trust. The agency decision would mark the first time
since the Termination era that the United States acts to
disestablish an Indian reservation and render a tribe landless.
These attacks on the reservation and on the Tribe's very
status have wreaked havoc and imposed extreme hardship on the
Tribe. The legal uncertainty that has been imposed by these
events is forcing the Tribe to borrow thousands of dollars
every day just to keep its government running and has resulted
in devastating cuts to essential services and massive layoffs.
Since a significant number of tribal members rely on the Tribe
for employment, the tribal unemployment rate has skyrocketed.
The Tribe has had to essentially dissolve their police force
and lay off all tribal court staff. The Mashpee are also in the
process of shutting down their elder services and addiction
treatment programs, they and are on the brink of having to shut
down their Wampanoag language immersion school serving
preschool and school-aged children.
H.R. 312 would reaffirm the status of the Mashpee Wampanoag
reservation and make clear that the Tribe is entitled to be
treated the same way as other federally recognized tribes. This
legislation is urgently needed to protect the Tribe's
reservation lands and to ensure the Tribe has the resources to
continue functioning as a sovereign government. Congress has
enacted similar ``land reaffirmation'' laws before.\4\ This
bill in no way exempts the Tribe from the Indian Gaming
Regulatory Act.
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\4\See Pub. L. No. 113-179, Gun Lake Trust Land Reaffirmation Act;
Pub. L. No. 115-121, Thomasina E. Jordan Indian Tribes of Virginia
Federal Recognition Act.
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H.R. 312 is widely supported in Indian Country, with the
Committee having received letters of support from over fifty
individual tribes and pan-tribal organizations. Additionally,
the bill has strong local support, including from the Town of
Mashpee and the City of Taunton; their respective chambers of
commerce; the Commonwealth of Massachusetts; numerous members
of both the Massachusetts House and Senate; the Mayflower
Society; and many local businesses and business leaders.
COMMITTEE ACTION
H.R. 312 was introduced on January 8, 2019, by
Representative William R. Keating (D-MA). The bill was referred
solely to the Committee on Natural Resources, and within the
Committee to the Subcommittee for Indigenous Peoples of the
United States. The Subcommittee held a hearing on the bill on
April 3, 2019. On May 1, 2019, the Natural Resources Committee
met to consider the bill. The Subcommittee was discharged by
unanimous consent. Chair Grijalva (D-AZ) offered an amendment
in the nature of a substitute, consisting of the text of H.R.
312, as introduced. Representative Paul Gosar (R-AZ) offered an
amendment designated Gosar #1 to the amendment in the nature of
a substitute. The Gosar amendment was not agreed to by a roll
call vote of 10 yeas and 26 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The amendment in the nature of a substitute offered by
Chair Grijalva was adopted by voice vote. The bill, as amended,
was ordered favorably reported to the House of Representatives
by a roll call vote of 26 yeas and 10 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
HEARINGS
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress, the following hearing was used to develop or
consider H.R. 312: Subcommittee for Indigenous Peoples of the
United States legislative hearing held on April 3, 2019, at
2:00 p.m.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office.
The Committee has requested but not received from the
Director of the Congressional Budget Office a statement as to
whether this bill contains any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
RULEMAKINGS AND EXISTING PROGRAMS
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program
PREEMPTION
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes to existing
law.
DISSENTING VIEWS
H.R. 312, the Mashpee Wampanoag Tribe Reservation
Reaffirmation Act, is a $500+ million bailout for a foreign
corporation. The bill contradicts a Supreme Court decision and
aims to reverse federal court decisions on this matter to build
a massive 400,000 square foot off-reservation gaming complex
for the benefit of Genting, a foreign Malaysian gaming company.
More specifically, H.R. 312 ratifies a discretionary action
taken by the Obama Administration Bureau of Indian Affairs
(BIA) to hold land in trust for the Mashpee Tribe under a
certain law even though a federal court has determined that
such law does not authorize the Secretary to hold land in trust
for such tribe. The bill also orders courts to dismiss any
pending lawsuit concerning the lawfulness of the BIA action.
The bill creates two reservations for the Mashpee Tribe of
Massachusetts. One reservation will be in the Town of Mashpee,
the tribe's historic reservation lands. No casino will be
allowed ``within the geographical boundaries of the Town of
Mashpee.'' The other reservation will be 50 miles away from
Mashpee in the City of Taunton. This site is not part of the
tribe's historic reservation and was selected by the tribe and
Genting for a billion-dollar casino project because of its
proximity to the Providence, Rhode Island casino market (20
miles distant).
In 1988, Congress enacted the Indian Gaming Regulatory Act
with the intent to restrict casinos to tribes' original
reservations. By placing land in trust for gaming in Taunton,
H.R. 312 creates an off-reservation casino, which is
inconsistent with Congressional intent. This is often called
``reservation shopping'' and it is an abuse of the Indian
Gaming Regulatory Act. The tribe's lawyers knew that
reservation shopping was a political headache, so they went to
the previous administration to obtain the two reservations
through administrative action. A federal judge, however, ruled
what the previous Administration did was unlawful, so now they
need legislation to authorize the off-reservation casino.
The bill is opposed by the State of Rhode Island, and it's
opposed by local citizen groups in Taunton--the ones who
successfully won the lawsuit that H.R. 312 would nullify. At
the Committee hearing on the bill, the State of Rhode Island
testified that H.R. 312 will cause the State significant harm
with regard to revenues for education, infrastructure and
social programs.
The Wampanoag Tribe of Gay Head (Aquinnah) is also
``strenuously opposed'' to the passage of H.R. 312 and
expressed ``serious concerns about the legislation'' in a May
17, 2019, letter to Natural Resources Committee Chairman Raul
Grijalva.
H.R. 312 is a financial bailout for Genting. The tribe is
swamped with a $500+ million debt to Genting, and there's no
way the tribe can ever pay this back and still make enough
money to sustain itself. Genting, therefore, will be the real
owner of the project, not the tribe. This kind of arrangement,
where the creditor practically controls the financial future of
a debtor-tribe, is contrary to the Indian Gaming Regulatory
Act, which requires every tribal casino to be 100% tribally-
owned.
Moreover, the American Principles Project also reported on
the ties between convicted lobbyist Jack Abramoff and the
Mashpee Wampanoag Tribe stating, ``The expansive Abramoff
investigation uncovered major corruption within the Mashpee
Wampanoag tribe. Its chief, Glenn Marshall, pled guilty in 2009
to multiple federal charges, including embezzling tribal funds
and campaign finance violations committed while working with
Abramoff to secure federal recognition of the tribe [in
2007].''
If H.R. 312 is passed, Congress will declare that years of
fighting and victories by local stakeholders never happened.
Congress will also take the view that current federal law
shouldn't apply to the Mashpee Tribe.
The bill was opposed by 10 of the 13 voting Republicans
during the Natural Resources Committee markup of this bill,
including Ranking Republican Rob Bishop. These Members are
joined by Americans for Limited Government, American Principles
Project, Coalition for American Values, Eagle Forum, the
Governor of Rhode Island, the Wampanoag Tribe of Gray Head
(Aquinnah), Congressman David N. Cicilline (D-RI), Congressman
James R. Langevin (D-RI) and President Donald Trump.
This opposition was enough to have the bill pulled from
consideration by the House of Representatives under the
suspension of the rules procedures one week after it was
considered in Committee with no bill report or score from the
Congressional Budget Office. Now, the Democrat Leadership plans
to use a closed rule to get this controversial bill out of the
House of Representatives. Given that H.R. 312 authorizes an
off-reservation casino, bails out a foreign corporation from
major financial problems of its own making and reverses the
judgment of a federal court, it is no wonder that the Majority
had to resort to these drastic measures.
Paul A. Gosar, D.D.S.,
Member of Congress.
[all]