News from Massachusetts

November 3, 2001
Indians' quest meets with delays, abuses
The process of tribal recognition is seriously flawed, experts say.
By SEAN GONSALVES

The federal recognition process for tribes is caught in a quagmire of financial influence, marred by long delays, and administered by an underfunded Bureau of Indian Affairs, a federal study has found.

"Weaknesses in the process create uncertainty about the basis for recognition decisions. The end result could be that the resolution of tribal recognition cases will have less to do with the attributes and qualities of a tribe ... and more to do with the resources that petitioners and third parties can marshal," the General Accounting Office draft report said. 

Yesterday, U.S. Sen. Edward Kennedy, D-Mass., released a statement acknowledging the report.

"I'm troubled by the GAO report. Massachusetts has several tribes involved in the recognition process, and these delays and abuses are unacceptable," the statement said.

While stopping short of any promises to intervene on behalf of any tribe, Kennedy's statement continued: "Congress and the (Bush) administration need to work together to make the process fair for all tribes, and give the agency the resources it needs to implement long overdue reforms."

On Cape Cod, the Mashpee Wampanoag have been attempting to gain federal recognition since the 1970s. Their pursuit of such status has been a source of concern for local developers and property owners who fear federal recognition for the tribe will revive land claims the tribe made in Mashpee.

The case was dismissed and tribal leaders have repeatedly said they have no plans to revive the suit.

Mashpee Wampanoag Tribal Council President Glenn Marshall hasn't read the report, but said yesterday he wasn't surprised by the findings. 

While he acknowledged that dealing with the Bureau of Indian Affairs can be a frustrating endeavor, Marshall said he is still confident that it's only a matter of time before his tribe is granted federal recognition.

"It's not a matter of if Mashpee gets recognized. It's a matter of when," he said of his tribe, which has about 1,000 members on its rolls. 

For several years now, the Mashpee Wampanoag petition for federal recognition has been stalled in the third spot on Bureau of Indian Affairs list of tribes waiting for "active consideration." 

The conclusions of the GAO report echo widespread criticisms of the federal recognition process. The report notes that while there is "less certainty about the basis of recognition decisions," gambling run by Indians has surged, with tribal gaming revenues surpassing even Nevada and Atlantic City. The possibility of tribes entering the gaming industry may be coloring the recognition process.

Only about two dozen tribes earn the bulk of gambling money, and Connecticut's two Indian-owned casinos - the Mohegan Sun and Foxwoods casinos capture 20 percent of the annual business.

The Aquinnah Wampanoag of Martha's Vineyard, who were federally recognized in 1987 by an act of Congress, are pursuing opening a casino in Southeastern Massachusetts after having failed to do so several years ago.

Connecticut state Sen. William H. Nickerson, R-Greenwich, a critic of the tribal recognition process, called on Congress to immediately order a halt to the recognition of new tribes.

"The report ... is a confirmation of what many have found to be the case," Nickerson said. "The process as now constituted is utterly inadequate. ... You can't put applications into a broken meat grinder."

Although Marshall agrees that Bureau of Indian Affairs policies and practices need to be looked at carefully, he said a hidden agenda may be at work that doesn't bode well for tribes seeking federal recognition.

"Everyone is talking about Indian gaming but I don't hear them talking about non-native gaming. I don't hear them talking about Atlantic City and Nevada," he said.

"Some tribes have used the money from gaming to become politically astute and used that political prowess for the best interest of their people, just as any sovereign nation would ... They talk about Indian gaming like it's a plague. But if you went to any pub or barroom I can guarantee there is a baseball, basketball and football pool and all kinds of other gambling going on. If people are anti-gaming, they should be anti-gaming across the board," Marshall said.

Marshall, who has said that his tribe would never pursue gaming on Cape Cod but might consider it somewhere else in the state, added that tribes pursue gaming because Native American communities need economic development.

"If you could show a tribe an economic engine that would produce the kind of money gaming does, then most tribes wouldn't bother with gaming," Marshall said.

Concern over recognition grew when Kevin Gover, who headed the Bureau of Indian Affairs under President Clinton, overruled professional staff in a number of key decisions, siding with tribes shortly before he left office. 

Neal A. McCaleb, who now heads the bureau, reversed some of Gover's rulings last month, including a preliminary recognition granted the Nipmuc Indians, who hope to build a casino on the Massachusetts-Connecticut border.

The GAO report suggests there are problems both with the complicated decisions made by the bureau's staff of genealogists, anthropologists and historians who must assess whether a group is really an Indian tribe, and with political appointees such as Gover, who overrule them.

"Leaving key aspects open to interpretation increases the risk that the criteria may be applied inconsistently to different (tribes)," the report states.

The report was requested by six members of the House of Representatives, including Connecticut Republicans Rep. Nancy L. Johnson, Rep. Christopher Shays, and Rep. Rob Simmons. None of the sponsors was from Massachusetts.

Gover, now a lawyer in private practice in Washington, D.C., recently said federal recognition is about restoring aboriginal rights to Indians - not about gambling. In "contentious cases," it is entirely appropriate for the Bureau of Indian Affairs head to step in and make the recognition decision, he said. He predicted the existing process of recognizing Indian tribes will collapse and the courts will have to step in and straighten it all out.

Kyle Sullivan, spokesman for U.S. Sen. John Kerry, D-Mass., said yesterday it was too early to say if the senator would get directly involved in reforming the Bureau of Indian Affairs at this time, but added that Kerry is watching the situation closely.

"We are aware of the report, but we haven't had a chance to fully digest it yet," Sullivan said. "The findings are disappointing but not totally unexpected.

Tribal Council president Marshall said despite the GAO report, which hasn't been officially released yet, he has no plans to call Kerry or Kennedy's offices asking them to intervene on the tribe's behalf.

"We want to stand on the merits of our own petition," Marshall said. 

"I think Congressman Delahunt is an open, honest and fair guy. I wouldn't ask either of the senators to intervene but I would go for Delahunt doing what he thinks is proper to get their (Kennedy's and Kerry's) support. He is the guy who represents us and he is doing a great job," he said.

Delahunt could not be reached for comment yesterday.

The GAO report estimated that it could take 15 years to resolve petitions of the 13 tribes being "actively considered" for recognition. Regulations say the process is designed to take two years. Overall, there are 198 Indian groups at some stage of the tribal recognition process.

By Associated Press, July 31, 2001  
Tribe gears up with another effort to bring a casino to Mass. 

BOSTON (AP) The Wampanoag Indian Tribe, which has been trying since 1993 to open gambling facilities in Massachusetts, has assembled a new team for another effort in Southeastern Massachusetts. 

The Wampanoags have quietly drawn up a roster of advisers in Boston, New York and Washington, D.C., some of whom will register as the tribe's lobbyists within days, The Boston Globe reported Tuesday. 

The tribe, whose past casino efforts were backed by Miami-based Carnival Hotels and Casinos, has joined forces this time with the Tunica-Biloxi Indians, a tribe the owns the Paragon Casino in central Louisiana. Details of the financial agreement between the two tribes has not been made public. 

The tribe also is negotiating real estate deals on two privately owned properties in the New Bedford-Fall River area, a tribal council member and two members of the tribe told the paper. 

Mayor Frederick Kalisz of New Bedford was informed only Monday afternoon of the negotiations. 

Kalisz's office released a statement on Tuesday saying that Wampanoag officials told the mayor on Monday and again on Tuesday morning that there is no site currently under consideration, and that considering a location is ''premature'' until the legislature supports such a proposal. 

The statement also said that the city is willing to discuss New Bedford's role in siting a casino in Southeastern Massachusetts, but that the tribe must first receive legislative approval and that a casino would be only one source of regional economic revitalization among many. 

Jason Kauppi, Acting Gov. Jane M. Swift's spokesman, said she would review any proposal sent to her. 

The tribal sources told the Globe they will take their proposal to the state Legislature for a vote, rather than push it through with only the governor's approval. To that end, the tribe has hired William Coyne, a longtime Beacon Hill lobbyist. 

The tribe also has retained the Boston law firm Nutter, McClennen & Fish for legal advice, and they've secured Deloitte & Touche, one of the nation's largest accounting firms, to complete a study on the impact of gaming on Massachusetts. 

The tribe also hired a national engineering firm and casino architect to design the buildings, and brought on board Chlopak Leonard Schechter and Associates, a public relations consulting firm operating out of New York and Washington. 

Fourteen years ago, the Bureau of Indian Affairs formally recognized the Wampanoags, who claim to have lived in the Gay Head area of Martha's Vineyard for more than 10,000 years. The 996-member tribe still is the state's only federally recognized tribe. 

Nipmucs become state's second recognized tribe 
By Sean P. Murphy, Globe Staff,  January 20, 2001 

In one of the last acts before turning the lights out on the Clinton administration, federal officials last night gave the Nipmuc Indians of Massachusetts formal recognition, advancing the tribe's chances of opening casinos in the Bay State.


It was 8:30 p.m. when Michael Anderson, acting assistant secretary of interior, signed papers making the Nipmucs only the second federally recognized tribe in Massachusetts.


The Nipmucs - actually the Hassanamisco band of the tribe - say their ancestors have lived for centuries in Central Massachusetts and northeast Connecticut. They say they are interested in opening a casino, much as the Mohegan and Mashantucket Pequot tribes of Connecticut have done.


A second band of that group, the Chaubunagungamaug Band of Nipmuck, was denied federal recognition by Anderson, based on a finding it had failed to show it existed as a distinct Indian community from historic times to present.


The Hassanamisco band first filed for recognition in 1980, representing some 2,000 members. The Hassanamisco Nipmuc Nation is based in Sutton; the Chaubunagungamaug band in Dudley.


''All I can say is it's been a long time waiting for this,'' said Nipmuc Chief Walter Vickers last night. ''But something like this is worth waiting for.''


Vickers said his late father took up the cause of seeking recognition 30 years ago, long before opening casinos was an option for tribes.


Edwin Morse, chief of the band that was denied, said his group would continue fighting for recognition. ''The process is far from over,'' he said. ''We are committed to fighting for what we know is ours.''


A 180-day period now begins during which comment on the decisions may be made by interested parties, followed by a 60-day period for the tribes to respond.


While there are still considerable obstacles to overcome for any tribe to open a casino in Massachusetts, federal recognition gives the Nipmucs the presumptive right to operate gaming facilities on their reservation, under regulations to be negotiated with the state. In the case of the Nipmuc, the tribe is expected to create a reservation, either through purchased land, legal claims to ancestral lands, or through a negotiated settlement with the state.


With the phenomenal success of the Foxwoods and Mohegan Sun casinos in recent years - each taking in more than $1 billion a year - about a dozen groups have stepped up existing claims of being descendants of historic tribes, or made new ones. Under the Indian Gaming Regulatory Act, such tribes may operate casinos even in states where such gaming is prohibited.


Kevin Gover, who resigned last month as assistant interior secretary, was accused of succumbing to political influence last year in reversing the decisions of his researchers in giving preliminary recognition to two Connecticut groups who say they are authentic tribes. A third Connecticut tribe - Gover's former client in his private law pratice - had a negative finding against it reversed during Gover's tenure.


Gover announced last month he was recusing himself from the Nipmuc case because he was joining the influential Washington law firm Steptoe & Johnson. At about that time, Steptoe & Johnson was approached by the Nipmucs about representing the tribe, according to officials at the Bureau of Indian Affairs.


Neither band has acknowledged approaching the firm.


The only federally recognized tribe in Massachusetts is the Wampanoags, which have negotiated for many years concerning opening a casino in Southeast Massachusetts.


Whether a tribe must get approved to open a casino from the governor only or from both the governor and the Legislature is an open question. Attorney General Thomas F. Reilly has said a casino must be approved by the Legislature; federal law says only that states must negotiate in good faith with tribes.


Recognition of the tribe comes at a tense time, when the success of Indian casinos in Connecticut, combined with the threat of land claims, has fueled conflicts between tribes and their neighbors.


Like the area of Connecticut that Foxwoods has transformed into a gambling mecca, the tribes' location along the Massachusetts-Connecticut border is mostly rural, dominated by dairy farms and small manufacturing firms. Chaubunagungamaug land claims could come on both sides of the state border, but Hassanamisco leaders have said they are looking only at claims in Massachusetts.

Nipmuc tribal decision delayed 
Lawyer withdraws from the process
By Sean P. Murphy and Ellen Barry, Globe Staff, 12/14/2000 

Just days before he was to decide whether to recognize two Massachusetts groups as tribes - and thus give them the potential to operate gambling casinos - the head of the Bureau of Indian Affairs has taken himself out of the process because he may soon go to work for a law firm representing one of the Massachusetts groups.


Kevin Gover, a politically connected lawyer who has been criticized for approving recognition of tribes over the objections of his agency's professional staff, was prepared to announce his final decision regarding two bands of the Nipmuc tribe this week.


His recusal will delay the closely watched decision indefinitely, a bureau spokeswoman said. The two Nipmuc groups have said they hope to build casinos near the Massachusetts border with Connecticut.


Gover, who has been in the middle of numerous controversies over tribal recognition, recused himself on Monday because he is negotiating to start work next month at Steptoe & Johnson, one of Washington's most influential law firms. Nedra Darling, spokeswoman for the Bureau of Indian Affairs, said Steptoe & Johnson either now or may in the future represent one of the Nipmuc bands.


That's news to the Nipmuc tribes, both of which said they are unaware of any ties to the law firm. Representatives of both groups said they remain determined to gain recognition, and will withhold comment on the consequences of Gover's move.


The case is the latest illustration of the conflicting interests and close dealings surrounding the tribal recognition process - in which the opportunity to tap into potentially billions of dollars of casino revenues turns on the actions of a few political appointees in the Bureau of Indian Affairs.


Gover, a onetime fund-raiser for President Clinton, represented another New England tribe - the Golden Hill Paugusetts - before being apppointed by Clinton as assistant secretary of Interior for Indian Affairs in 1997. The Golden Hill tribe is an 82-member group intent on building ''the world's largest casino'' in Bridgeport, Conn.


Before Gover's arrival at the BIA, the Golden Hill Paugusetts had been turned down three times for recognition by professional BIA researchers who found deficiencies in their genealogies.


Two years after Gover's arrival, the bureau took the unprecedented step of reopening the Golden Hill case. Gover recused himself, assigning the case to his deputy, Michael Anderson, another political appointee.


The Nipmuc decision will now fall to Anderson, the bureau said.


Gover also reversed the recommendations of the professional staff of two other would-be casino operators - the Eastern Pequots and the Paucatauk Eastern Pequots, backed by Donald Trump.


Gover has said his decisions on the tribes were made on the merits, not influenced by other factors. He said a final decision on the Golden Hill case will not be made until after he leaves office.


Still, Gover, a Pawnee Indian who attended one of the famous fund-raising coffees hosted by Clinton at the White House, has acknowledged the effect of money and political influence on the recognition process, which authenticates Indian groups and is the key procedure for tribes to gain the right to open casinos.


Gover earlier this year recommended that the process be taken out of the BIA's hands. ''The stakes these days are just much, much higher than they were when the process originated back in the 1970s and 1980s,'' he said. ''I, too, am concerned about the effect of money on the process.''


Lon Bouknight, managing partner of Steptoe & Johnson, declined comment yesterday. Interior Secretary Bruce Babbitt, who oversees the BIA, was once a member of the firm, and his former chief of staff, Tom Collier, heads the section for Indian law.


The Chaubunagungamaug band of the Nipmuc is based in Sutton; the Hassanamisco Nipmuc Nation is based in Dudley. The tribes, if recognized, are likely to sue for return of ancestral lands.


If either Nipmuc group is deemed an authentic, historical tribe, each would join Massachusetts' single federally recognized tribe, the Wampanoags. 


The newly recognized tribes would come into being at a tense moment, when the success of Indian casinos in Connecticut, combined with the threat of land claims, has fueled conflicts between tribes and their neighbors.


The Boston Globe this week presented a series of stories highlighting the political influence involved in Indian gaming.


Like the area of Connecticut that Foxwoods has transformed into a gambling mecca, the tribes' location along Massachusetts-Connecticut border is mostly rural, dominated by dairy farms and small manufacturing. Chaubanagungamaug land claims could come on both sides of the state border, but Hassanamisco leaders have said they are looking only at claims in Massachusetts.


The two contemporary bands of Nipmucs, many of whom are close relatives, split angrily in 1996, a year after they reached the final stage in the BIA's recognition process. They number about 2,000 in all. 


In the past, both Nipmuc groups have expressed interest in gambling operations. 


This story ran on page B01 of the Boston Globe on 12/14/2000.