[House Report 116-54]
[From the U.S. Government Publishing Office]


116th Congress   }                                       {      Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                       {      116-54

======================================================================



 
         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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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]