The Loophole Narrows

The latest clarification of Section 20 of the IGRA will make it very difficult, if not impossible, for the Mashpee Wampanoag tribe to claim the 500 or so acres in Middleboro as an initial reservation, primarily because of provision (d) of this newly-revised section (emphasis mine):
(d) If a tribe does not have a proclaimed reservation on the effective date of these regulations {5/23/08 – fiferstone}, to be proclaimed an initial reservation under this exception, the tribe must demonstrate the land is located within the State or States where the Indian tribe is now located, as evidenced by the tribe's governmental presence and tribal population, and within an area where the tribe has significant historical connections and one or more of the following modern connections to the land:
(1) The land is near where a significant number of tribal members reside; or
(2) The land is within a 25-mile radius of the tribe's headquarters or other tribal governmental facilities that have existed at that location for at least 2 years at the time of the application for land-into-trust; or
(3) The tribe can demonstrate other factors that establish the tribe's current connection to the land.

The Mashpee Wampanoag application for land into trust for the Middleboro parcel fails on all of the points above. I’ll examine them point-by-point:

(1) The land in Middleboro is NOT where a significant number of tribal members reside. Most of the members of the Mashpee Wampanoag Tribe reside in and around Mashpee. I will now quote the relevant sections from the Mashpee Wampanoag’s application to take lands in both Mashpee and in Middleboro into trust as the “initial reservation” now under review in the Department of the Interior. In the executive summary of the Mashpee Wampanoag application to take land into trust as their initial reservation, page 7, paragraph 2, the following is stated:

…The tribe currently has 1,531 members, of whom over half—826—live in Barnstable County (i.e. within approximately 10 miles of the Town of Mashpee). Another 88 tribal members live within Plymouth County (which includes Middleborough) and 70 live in neighboring Bristol County for a total of 984 members living within an approximate 50 mile radius of Mashpee Town.

The tribal population pie chart looks like this

(numbers are the number of tribal members indicated in the application for each county, the “Elsewhere” figure has been arrived at by subtracting the sum total number of tribal members residing in both Barnstable and Plymouth counties from the total number of tribal members cited in the above quote from the application).

I don’t think you can call 5% of the tribe’s overall membership (the 88 tribal members living in Plymouth County, which includes Middleboro) a “significant number of tribal members” as required in item (1). However, you can call the 53% of the tribe’s overall membership (the 826 who live in Barnstable County and in and around Mashpee), a “significant number.”

(2) The Land in Middleboro is not located within a 25-mile radius of the location of tribal headquarters (483 Great Neck Road in Mashpee). The land in Middleboro is located within 44.53 miles of the location of the tribal headquarters. The Tribe’s application includes a Mapquest printout that gives the distance between the tribal headquarters at 483 Great Neck Road and the Middleboro parcel at 438 Plymouth Street as 43.46 miles, the application also includes a Google map printout that gives that same distance as 40.2 miles, see application, tab 10 for both maps. None of the maps provided by the Tribe as documentation of the distance between their tribal headquarters and the Middleboro parcel indicate a distance within the new 25-mile radius guideline.

The Middleboro parcel is also not within a 25-mile radius of the location of any of the Tribe’s other governmental facilities in Mashpee. See the application, tab 7, Chart—“Lands to Be Taken Into Trust in Mashpee” showing parcels and maps for lands to be taken into trust in Mashpee.

(3) Other Factors: Although the tribe can point to the IGA signed by the now-deposed rapist-congressional liar and the Middleboro BOS as an “other factor” that establishes a current connection for the tribe to the land in Middleboro, that connection can and should be challenged. At the same meeting at which the town voted to allow the Board of Selectmen to sign the IGA, it also indicated, by a majority vote, that it did not want to have a casino in Middleboro.
Finally, the most important issue is that the land in Middleboro DOES have significant and documentable historic ties to the Massachuset tribe. It was part of the 26 Men’s Purchase parcel acquired in 1661 from Wamatuck, a direct descendent of Chickataubut of the Massachuset tribe.

Shown on the map below are the 26 Men’s Purchase and the area occupied by the Initial Reservation & Destination Resort Casino, superimposed over a map of Modern-day Middleboro. (Thanks to CDPLakeville for permission to use this graphic)

Obviously, the 539 acre +/- parcel the Mashpee Wampanoag Tribe wishes to take as an initial reservation in Middleboro is located within the boundaries of the 26 Men’s Purchase acquired from Wamatuck of the Massachuset tribe. For this reason alone, it should be impossible for the Department of the Interior to approve the Mashpee Wampanoag request to take the land in Middleboro into trust for an initial reservation and Destination Resort-Bingo Hall.

Therefore, the Middleboro “initial reservation” fails on all 3 of the points outlined in Section 20:

(1)The overwhelming majority of the members of the Mashpee Wampanoag tribe live in and around Mashpee, not in and around the proposed “initial reservation” in Middleboro. A fact stipulated in several places within the application for land into trust submitted by the Mashpee Wampanoag Tribe themselves.

(2) The land in Middleboro lies well beyond the 25-mile radius limit from the location of the Tribe’s headquarters or other governmental facilities imposed by the newly-adopted guidelines in Section 20. This application is currently under review and must meet these new, more stringent Section 20 guidelines.

(3) No only do the Mashpee Wampanoag have no significant historical and cultural connections to the proposed land in Middleboro, and not only do they not claim to have any significant historical and cultural connections to that land within their DOI application, they are also overstepping the historic and cultural connections of another tribe in making their claim on the Middleboro land. Finally, the Mashpee Wampanoag’s only modern connection to the Middleboro parcel is tenuous at best and remains sharply contested.

It should now be clear to all why the hurry last summer. The hope of the backers and the Mashpee Wampanoag Tribe was that the land into trust process could be well underway (with the initial DOI review completed?) before the revisions to Section 20 were signed into law. However, the horse has left the barn, the new standards have been approved and are now part of IGRA, and the Mashpee Wampanoag’s application must meet them. When it comes to the Middleboro land, it should also be abundantly clear that as far as the land in Middleboro is concerned, it cannot.