Friday, December 26, 2008


As 2008 draws to a close (an Annus Horribilis by any measure) and 2009 draws closer, it's gotten me thinking about beginnings.

If you want a clear understanding of how the idea of a resort bingo hall in Middleboro began, read this article in CommonWealth (Fall 2007), it offers a very good, accurate overview of the major events in the Middleboro resort bingo hall timeline, and it is definitely worth revisiting in light of what we now know about the activities of Mr. Marshall during the final stages of obtaining federal recognition for the Mashpee Wampanoag tribe. It is also salutary to consider the murky beginnings of the resort bingo hall project as we consider what the impact of the guilty plea may be, on Middleboro's partnership with the tribe and its financial backers.

A reading of this article should also make clear to everyone why we need to pay attention to what our representatives are doing on our behalf. If we as a community had been paying closer attention, I argue that we would not have been in the position of feeling that anything was "inevitable" in the summer of 2007. Perhaps we would to this day retain the major bargaining chip -- the land itself. Even proponents of the project (or the subsequent deal) understand that possession of the land was the community's main leverage, and that the community sold it very cheaply.

The essay by Mr. James Lynch, included in Carverchick's post, offers a useful dissection of the truth (defined as that which is supported by evidence from the historical record) --from the assertions (defined as public utterances by tribal leaders and Middleboro advocates of the Resort Bingo Hall project) --of the historical beginnings of the present-day Mashpee Wampanoag tribe. It paints a very clear picture of the historical development of the present-day Mashpee Wampanoag tribe and is very useful and informative reading for anyone interested in the resort bingo hall issue.

Most importantly, it outlines what the historical record says about the links between the Mashpee Wampanoag tribe and the land in Middleboro. In short, that there aren't any, beyond those created in 2007 by the sale of the land on Precinct Street to the tribe's financial backers.

Many reading the news over the past 2 weeks who are interested in the final outcome of the resort bingo hall project may well ask, How did the tribe get into this position? How was their then-chairman able to carry out the illegal activity that he has admitted to in his guilty plea? The recent editorial by Ms. Paula Peters, a current member of the Mashpee Wampanoag Tribe and former Cape Cod Times reporter, gives some insight into the conditions within the tribe that enabled Mr. Marshall to pursue his strategy. She calls on tribal members to put an end to those conditions once and for all on February 8. One can only hope that the members of the tribe heed her call.

It is interesting to read the counterpoint offered in Mr. Michael Decker's opinion piece in response to Ms. Peters. In it, he asks if it is indeed possible to avoid the taint of corruption, given the convoluted nature of the federal recognition process, and the financial opportunities available to those who achieve federal recognition, thanks to IGRA. He also makes some interesting observations about how the Mashpee Wampanoag tribe had fared under Massachusetts stewardship:

The Wampanoag were under the stewardship of the commonwealth of Massachusetts for 200 years. That's an undeniable fact. Subsequently, they were known as a state tribe. As far as we can see, the tribe did well under the commonwealth's stewardship. They established a town, Mashpee, learned the language, learned new trades and occupations, accepted Christianity and married settlers and immigrants for over 12 generations.

Finally, in relation to Mr. Decker's opinion piece, I'd like to bring to your attention a very interesting (if somewhat lengthy) article, again by Mr. James Lynch, giving an historical perspective on the concept of tribal sovereignty. The points Mr. Decker makes about the Mashpee Wampanoag tribe are echoed by Mr. Lynch in this article. The article appeared in the Fall 2006 supplement to the One Nation United Newsletter, and provides a clear overview of the historical development of this important concept. I'll summarize what I feel are the key points below, but Mr. Lynch's article is worth reading in its entirety.

Lynch demonstrates the fluid and cyclic nature of the political relationship between recognized tribes and the United States. During the course of the past 300+ years, he shows how tribes that were once

distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States…

were ultimately transformed into dependent wards of individual states, subject to the jurisdiction of those states.

Lynch then states "what Congress giveth, Congress may also [taketh] away," and outlines the legal basis for this change in status. Ultimately, the evolution of the political relationship between recognized Indian tribes and the Federal government led, in 1871, to Congress ceasing to recognize Indian tribes as sovereigns by the simple expedient of denying to itself the right to recognize such relationships, via an amendment to the 1871 Indian Appropriation bill. This in its turn led to a rather important shift in the relationship between tribes, and the United States government, as explained by Lynch:

Prior to [the 1871 amendment], Congress did not exert any direct legislative control over recognized sovereign tribes. After the enactment of the 1871 amendment, Congress for the first time had the legal right to exert full plenary powers over Indian tribes that came under Federal jurisdiction.[emphasis mine]

Lynch argues that, after the 1871 amendment, "the political status of Indian tribes was on a level parallel to that of a community", but with one important distinction. Instead of being a community subordinate to a state’s jurisdiction, Indian tribes had now became communities subordinate to the plenary powers of Congress itself.

By 1901, Lynch explains, there were in effect, no sovereign Indian tribes within the United States. All Indian tribes were subject to the jurisdiction of either the individual states in which they resided, or were subject to the jurisdiction of the Federal government.

Having outlined the historical development of the concept of sovereignty as applied to Indian tribes and their relationships with the United States government, Lynch then asks, "Where does this concept of tribal sovereignty stand today?" He then goes on to explain:

Tribes today are certainly being urged towards “inherent” self-government. the [purpose of] The Bureau of Indian Affairs in its post 1978 acts of tribal recognition (which are not congressionally sanctioned) was to simply declare an Indian community as a tribe for purposes of receiving Federal benefits, not to bestow political power outside the tribal community.[emphasis mine]

Yet when the political term "government–to-government relationship" began being used to describe federal/tribe relationships it began an erosion of the intent of the 1871 Amendment, which stipulated that relations between Indian tribal communities and the Federal government [were] to be regulated only by contracts, not treaties, and only with the approval of Congress.

According to Lynch, erroneous use of the term 'sovereign' began to appear in [descriptions of] tribal ‘community’ powers. "Most notably its usage began creeping beyond Cohen’s incorrect concept of ‘inherent sovereignty’"

Lynch explains that the concept of ‘inherent sovereignty’ was developed by Cohen in his seminal Handbook of Federal Indian Law, published in 1941. In Lynch's view, "The concept is roughly synonymous with just being a ‘little bit pregnant.’" Lynch argues,“It appears that Cohen ignored the implication of the term sovereignty and its notions of supreme or absolute authority.” He states that Cohen may have been misled by the erroneous “sovereign power more or less absolute” concept articulated in United States v. Montoya, and that Cohen ignored the findings regarding the absolute nature of sovereignty in Cherokee v. Georgia. According to Lynch, Cohen apparently did not fully understand the intent of Congress when it enacted the 1871 amendment: the political reduction of tribes from entities having sovereignty to the status of communities, and the establishment of Congress’ right to exercise complete plenary power over those tribes as communities (in place of what had been the right of individual states to exercise plenary power over tribes located within their borders). In developing his concept of ‘inherent sovereignty’, Lynch states that Cohen also ignored the 1886 US. v. Kagama decision. Lynch goes on, “If Cohen had instead framed his concept as ‘inherent self government’ [instead of ‘inherent sovereignty’] he would have been right on the mark.”

Lynch argues that there is no basis for the application of Cohen’s flawed concept to of inherent sovereignty to tribal community powers, he then states: "it appears that a conscious act of promoting a ‘self-fulfilling prophecy’ is in play. In other words if you repeat something that is not true often enough it gains the aura of truth." We in Middleboro are intimately familiar with "self fulfilling prophecy" - we've seen it in action for the past 19 months.

Lynch goes on to conclude that the concept of sovereignty is not the only thing at work. There is also "tension between states rights and [the rights of] of the Federal government.:"

Lynch concludes:

On the basis of the preceding arguments, by recognizing a tribe, the Federal government is not declaring a tribe ‘sovereign.’ It is merely removing this recognized Indian community and its lands from state jurisdiction and placing it under the plenary authority and control of Congress. No sovereign nation has been created. So we come back to the statement or rhetoric, “we are a sovereign nation.”

As Lynch says:


Things to ponder as the old year passes, and a new one dawns.


Gladys Kravitz said...

Thank you.

History is fluid. If allowed,
it will reinvent itself as necessary to the detriment or benefit of the era that follows it.

If accompanied by the potential for large sums of money, numerous avenues to power, good marketing, public sympathy, and a myth of inevitability - it will adapt all the faster.

As it has here.

Nocasino said...

Thank you Fiferstone for very important blog.

The facts of this deal should be studied by generations of Middleboro residents to warn them of what can happen when we are not vigilant in our duties as citizens, to watch the people in power.

My hope is that those involved will be punished to the fullest extent of the law when the truth is revealed.