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Lawsuit challenges tribe-town pact
Posted Aug 20, 2018
Unilateral action to amend reservation bill called unconstitutional.
MASHPEE — The former vice chairman of the Mashpee Wampanoag Tribal Council is suing Chairman Cedric Cromwell and one of his attorneys in tribal court, questioning the constitutionality of a decision to amend legislation that would end a legal challenge to the tribe’s reservation, according to documents obtained by the Times.
Aaron Tobey Jr. filed the action Monday, alleging the tribal council never got the chance to vote on a town-proposed amendment to the bill. The amendment adds language about a 2008 intergovernmental agreement between the town and the tribe. Tobey said there are still questions as to whether that agreement is legally enforceable.
The federal legislation was introduced by U.S. Rep. William Keating, D-Mass., earlier this year, and a twin bill was introduced in the Senate. If passed, it would reaffirm the tribe’s reservation status and effectively bar future legal challenges to the land in federal court.
Town lawyers worked out a deal with tribal attorneys to amend Keating’s bill to include language about the agreement after town officials said they worried about “legal ambiguities,” citing fears the tribe would reopen land claims that bitterly divided the two governments in 1976.
The new language spells out a commitment that the tribe will not reopen those claims against the town.
The suit alleges Cromwell and tribal attorney Rebekah Salguero were involved in negotiations with the town of Mashpee “to address issues with the federal process of placing land into trust” and “in adopting an amendment to legislation before the United States Congress without authority from the Tribal Council,” according to documents.
Cromwell declined to comment on the suit through a spokesman Monday, and Salguero did not immediately respond to a call requesting comment.
Section 2 of the tribe’s constitution states that the tribal council is empowered to, among other things, “negotiate and enter into contracts and agreements with tribal, foreign, federal, state and local governments, private persons and corporate entities.”
In a letter addressed to Keating dated Aug. 21, Tobey asks the lawmaker to place the amendment in abeyance until the tribal council has a chance to vote on it.
“Let me restate that to date, no such vote has occurred, and yet the matter is being represented on Capitol Hill as if it has tribal council approval,” Tobey writes.
In 2008, then-council member Cromwell voted against the agreement before abstaining, documents show. Tobey, who was also a council member, voted against it.
Should the legislation pass with the amended language, it would enshrine the town-tribe agreement in federal law, which Tobey says could jeopardize the tribe’s federal rights by fastening them to the terms of the agreement.
“The proposed amendment makes the honey taste bitter,” Tobey said.
Since losing a bid to unseat the chairman in last year’s election, Tobey has become a prominent critic of Cromwell, calling for more transparency of tribe finances and criticizing attempts to raise the salaries of council members, including Cromwell’s.
Selectman Andrew Gottlieb, who did not respond to a request for comment Monday, said previously that he always viewed the agreement as “binding and enforceable.”
“We think the agreed-upon language that we settled on with the tribe lawyers a couple weeks ago is in the town’s and the tribe’s best interest in that it preserves the tribe’s trust status and recognizes and reaffirms all prior agreements with the tribe,” he said last month.
Gottlieb also said previously that the tribe’s legal counsel had represented to town attorneys that the tribal council agreed with the amendment.
http://www.capecodtimes.com/news/20180820/lawsuit-challenges-tribe-town-pact
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