Chairman Cedric Cromwell of the Mashpee Wampanoag Tribe addresses the #StandWithMashpee rally at the U.S. Capitol on November 14, 2018. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Law | National | Politics | Trust

Tribal land bills advance despite damage caused by Trump's 'racist' tweet

Thursday, May 16, 2019

By Acee Agoyo

Correction and Clarification: The United South and Eastern Tribes is not lobbying in favor of, or against, H.R.312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. The sentence about the organization's activities has been corrected.

WASHINGTON, D.C. -- The Democratic-controlled House of Representatives approved one of Indian Country's longest-running legislative priorities on Wednesday even as Republicans revolted against a closely-related bill opposed by President Donald Trump.

By a vote of 323 to 96, lawmakers in the chamber approved H.R.375, which ensures that all tribes, regardless of the date of federal recognition, can restore their homelands through the land-into-trust process. The action marked the first time since 2010 that such a measure, also known as a "fix" to the U.S. Supreme Court decision in Carcieri v. Salazar, has cleared either the House or the Senate.

Yet while the roll call looks promising -- a quarter of the House voted in favor of H.R.375 -- it reinforces the challenges that tribes and their advocates face in the Trump era. Republicans supported the bill, but only by a narrow margin, and they ditched a second tribal land measure in droves after the leader of their party told them to.

"We have seen the president, through his tweets, trying to sink an entire Native American tribe in the name of special interests, dirty lobbying and outright bigotry," Rep. William Keating (D-Massachusetts) said of Trump's controversial missive.

The tweet, according to Keating, was "racist." In it, Trump took aim indirectly at the Carcieri fix by targeting H.R.312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act, and by invoking the name of a Native woman, Pocahontas, in a derogatory manner.

Indianz.Com on SoundCloud: U.S. House of Representatives - H.R.375 #CarcieriFix - May 15, 2019

H.R.312 happens to be a Carcieri fix too, just on a more narrow basis. It ensures that the homelands of the Mashpee Wampanoag Tribe can't be taken out of trust but Trump derided it as "special interest casino Bill" because it has been supported, in the past, by one of his political rivals.

"Some members of this body are eager to let him get away with it," Keating said in reference to the president's 24-word social media post. "But not me, not my co-sponsors, and not the majority of this House."

The May 8 tweet resulted in H.R.375 and H.R.312 being pulled from consideration in the House that same day. It drew condemnation from the National Congress of American Indians and the United South and Eastern Tribes, some of whose members have been lobbying for both measures in hopes of bringing more certainty to the land-into-trust process and in order to prevent the federal government from taking a tribe's land out of trust for the first time in decades.

"In 2018, the administration issued a decision that would take the Mashpees' reservation out of trust," said Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation, without specifying that the decision was issued under Trump's watch.

"This marked the first time since the termination era that a tribe has lost their trust land," added Cole, referring to the destructive federal policy that resulted in about 2.5 million acres of tribal property being lost between the 1940s and the 1960s.

"Frankly, from my standpoint," continued Cole, who is the sponsor of H.R.375 and a co-sponsor of H.R.312, "an attack on trust land anywhere threatens trust land everywhere."

Indianz.Com on SoundCloud: U.S. House of Representatives - H.R.312 #StandWithMashpee - May 15, 2019

Indian bills, especially ones that enjoy bipartisan support, typically pass the House with overwhelming support from both parties. That happens regardless of which party is in charge of the chamber.

Both H.R.375 and H.R.312, in fact, were originally going to be brought up under a procedure that reflected how stand-alone tribal bills have been treated as non-controversial for the past decade.

After Trump's tweet, however, only the Carcieri fix was brought up under a suspension of the rules, which requires a bill to pass with the support of at least 2/3rds of the House. While the vote on H.R.375 met that threshold, the outcome shows the damage that was inflicted on Indian Country's legislative priority by the occupant of the White House.

Nearly as many Republicans voted against the H.R.375 (88) as those who were for it (101), with only 13 votes separating the two camps. Trump, in essence, gave more members of his party permission to say no to the Carcieri fix because of its connection to H.R.312.

The connection was gladly exploited by one Republican during debate on Wednesday.

"H.R.375 has ridden alongside H.R.312 largely unnoticed, and no one has pointed out two crucial facts. One, that it exists as a contingency plan in case its sister bill, H.R.312, fails. And two, that its effect would be national rather than local," said Rep. Paul Gosar (R-Arizona), who led opposition to both measures.

"H.R.375 and H.R.312 are two heads of the same snake, one large, one small," added Gosar, who once called Native Americans "wards of the federal government" and refused to apologize for the inaccurate comment.

"Senator Warren, regardless, will get her casino if either bill passes," Gosar concluded, happily pointing out the reason why H.R.312 is under fire. It's because Sen. Elizabeth Warren (D-Massachusetts), who is hoping to defeat Trump as the Democratic presidential nominee in 2020, has supported the Mashpee Wampanoag Tribe's efforts.

The House just passed two bills to protect tribal land rights. After years of broken Republican promises to address the land into trust issue, we're moving forward and righting historic wrongs. I said @NRDems would fight for Native American rights. This is what that looks like. pic.twitter.com/Y7aDPxKsh8
— Raul M. Grijalva (@RepRaulGrijalva) May 15, 2019

Trump's attack led to H.R.312 being brought up under a rule. It was the first time in recent memory -- perhaps about 10 years and maybe more -- that a stand-alone tribal bill was subjected to such scrutiny, another sign of how the tweet inflicted damage on Indian Country.

"Bipartisan legislation to help a tribe like the Mashpee would normally pass the House without issue," Keating observed on Wednesday. "Just two weeks ago, we passed a parallel Republican-led bill for a tribe in California without a single member objecting -- not a peep from the other side."

That bill is H.R.317, which protects the Santa Ynez Band of Chumash Indians from having some of its lands being taken out of trust, just like the Mashpee measure. It's title is remarkably similar too -- it's called the Santa Ynez Band of Chumash Indians Land Affirmation Act.

But unlike H.R.312, the Chumash bill was brought up under a suspension of the rules. In a sign of its non-controversial nature, it passed the House without even going through a recorded vote, a route that is frequently taken for stand-alone Indian Country legislation.

In contrast, more debate was required on the Mashpee bill, as was a roll call. And after Trump's tweet, Republicans weren't afraid of saying no to something they liked just a short while ago.

A staggering 144 Republicans voted against H.R.312, according to the roll call. Only 47 supported it, far fewer than the ones who voted for H.R.375.

As a result, both bills are in danger going forward on Capitol Hill. The Republican leaders of the Senate are already on record as refusing to bring up legislation that lacks backing from their party.

After 10 years of unnecessary turmoil, NCAI thanks the House of Representatives for passing a “Carcieri clean fix,” (H.R. 375) addressing the land into trust conflict. NCAI hopes the Senate will also pass this legislation, marking a big win for all of #IndianCountry pic.twitter.com/2fPaaPk8b0
— NCAI (@NCAI1944) May 15, 2019

With a Carcieri fix in reach for the first time since the Obama era, tribes and their advocates are hoping for a different outcome.

"NCAI’s hope is that our champions in the United States Senate will get behind this bill for a swift passage," the largest inter-tribal organization said in a statement on Wednesday. "Its passage would be a monumental win for Indian Country as tribal government land bases are part of the foundation of tribal sovereignty."

Rep. Raúl Grijalva (D-Arizona), the chairman of the House Committee on Natural Resources, is also expressing optimism. A Carcieri fix languished in the committee for years until Democrats took control in January.

“Putting these issues off has already led to years of unnecessary misery for Indian Country, and tribes are tired of broken Republican promises to move tribal bills, so let’s get these done in the Senate and move on,” Grijalva said in a statement. “These should not be controversial issues, but we’ll have to see what Senate Republicans have in mind. Native Americans have waited too long for Congress to act, and I’m proud to say today that the House has done its part under a Democratic majority.”

On February 24, 2009, the Supreme Court issued its Carcieri decision. The case is named for the Republican governor of Rhode Island who challenged the way the land-into-trust process has worked in the decades since it was authorized by Congress through the Indian Reorganization Act of 1934.

For the first time, a tribe must show that it was "under federal jurisdiction" in 1934 to qualify for the land-into-trust process. The requirement is considered unfair for those like the Mashpee, which gained federal recognition in 2007 despite having a long relationship with colonial, state and federal entities.

"All tribal nations deserve to receive equal treatment under the IRA," NCAI said on Wednesday.

H.R.375 clears up the uncertainty by stating that “any federally recognized Indian tribe” can follow the land-into-trust process. That would include the Narragansett Tribe, whose rights were diminished by the Carcieri ruling.

Due to that connection, Rep. David Cicilline (D-Rhode Island) and Rep. James Langevin (D-Rhode Island) were among the small number of Democrats -- 8 total -- who voted against the Carcieri fix.

Statement from Rep. Tom Cole (R-Oklahoma) on passage of H.R.375 in US House of Representatives on May 15, 2019. Cole's bipartisan bill ensures all tribes, regardless of the date of federal recognition, can restore their homelands through the land into trust process. #CarcieriFix
— indianz.com (@indianz) May 15, 2019

“Despite a misguided Supreme Court opinion 10 years ago that jeopardized ownership of tribal trust lands and questioned the authority of the Secretary of Interior, I am encouraged progress has been made to reverse it and rightly restore 75 years of past precedent,” said Cole.
— indianz.com (@indianz) May 15, 2019

“While the federal government & tribal nations have at times had a battered and troubled relationship, this legislative action in the House symbolizes desire to keep the promises made to tribes, respect their sovereign status & repair damage done,” said Cole, who is Chickasaw.
— indianz.com (@indianz) May 15, 2019

Despite bringing parity to all tribes, the language in H.R.375 doesn't resolve the doubts facing Mashpee, which is why H.R.312 was drafted.

In addition to affirming the trust status of the tribe's reservation, the bill requires any litigation to be dismissed. Congress did the same for another tribe in 2014 and the Supreme Court later sanctioned the approach as constitutional in a decision known as Patchak v. Zinke, which was issued during Trump's second year in office.

Only two Democrats voted against H.R.375: Cicilline and Langevin. Both remained silent about the Carcieri fix because speaking up might require involving the tribe in their home state.

In contrast, they were honest about the reason they were vocal about a tribe in neighboring Massachusetts. Both said the First Light Resort and Casino would hurt Rhode Island's gaming interests.

"This bill will allow the Mashpee Tribe to open a massive off-reservation casino right on the border of Rhode Island and Massachusetts, nearly 40 miles away from their historic tribal lands in Cape Cod," Cicilline asserted.

"This bill will have enormous impacts on my home state of Rhode Island," Langevin said. "The intent of this bill is to allow for the construction of a new casino resort near the state line between Rhode Island and Massachusetts, which would rival the existing casinos in our state."

Reaction from Chairman Cedric Cromwell on passage of H.R.312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act in US House of Representatives on May 15, 2019. #StandWithMashpee pic.twitter.com/puvqsbYnIk
— indianz.com (@indianz) May 15, 2019

"This is a Big Step for My Tribe, The People of The First, The Mashpee Wampanoag Tribal Nation!!
Powerful Day for My people!!
Onward to the Senate!!
Thank You for your Patience, Love and Continued Support!!"
— indianz.com (@indianz) May 15, 2019