BOSTON – Memories of the 1980s loom large in recent news from New England
tribes.

Some well known political figures were in the headlines, one making a
comeback, another announcing a farewell, as tribal lawyers carried
arguments over the decade’s settlement acts into higher courts.

SHADOWS OF THE SETTLEMENT ACTS

The cost of recognition for New England tribes in the ’80s was a series of
settlement acts compromising their sovereignty to varying degrees. Several
cases derived from these acts reached higher courts in recent weeks.

The Narragansett Indian Tribe went before a three-judge panel of the U.S.
Court of Appeals Sept. 17 to argue its suit over the July 2003 Rhode Island
state police raid on its newly opened smoke shop. Last December, the U.S.
District Court in Providence upheld the legality of the raid in a
widely-criticized decision. Rhode Island maintained it had the right to
enforce collection of its sales tax on cigarettes, which it said did not
unduly impinge on tribal government. It said the 1978 land claims
agreement, which led to the later federal recognition of the Narragansetts,
subjected “settlement land” to state civil and criminal law. Attorney
Douglas Luckerman, representing the Narragansetts, replied that the smoke
shop employees were tribal agents. “Tribal government commercial
enterprises are immune in the same way tribal governments are,” he told the
panel.

Luckerman, a specialist in New England settlement act cases, had a busy two
weeks. Just nine days earlier, he appeared before the Massachusetts Supreme
Judicial Court, its highest legal authority, to defend a favorable ruling
for the Wampanoag Tribe of Gay Head (Aquinnah), the state’s only federally
recognized tribe. State lower courts had held that the federal settlement
act for the Wampanoags did not waive the tribe’s inherent sovereign
immunity from suit. Under the immunity doctrine, more limited than the idea
of sovereignty but deriving from it, governments cannot be sued in court
unless they give their consent.

The Wampanoag tribe refused to be taken to court in a zoning dispute with
its neighbors, and Luckerman successfully argued to a local judge that
Congress had not included waiver language in its settlement act that the
legislators had applied to the Maine tribes. Under stiff questioning from
the six Supreme Court justices, Luckerman maintained that the 1983
settlement negotiations between the tribe and local governments did not
give up powers that were not expressly waived in the 1987 federal
legislation.

On the contrary, James Quarles of the white shoe Hale and Dorr law firm
argued that the Wampanoags were trying to go back on the original deal,
which he helped negotiate. “The tribe, while desirous of holding on the
benefits of its bargain, wishes to avoid what it apparently now sees as a
burden,” he said.

The court’s decision is expected within three months.

PENOBSCOT VETERAN RETURNS

Veteran tribal leader James Sappier will return as governor of the
Penobscot Indian Nation of Maine after narrowly defeating incumbent Gov.
Barry Dana in a recent tribal election. Sappier was tribal governor in the
late ’70s when the Penobscots brought land claim suits for one third of
Maine and negotiated a still controversial Settlement Act. For the last
nine years, he headed tribal liaison programs for the New England region of
the Environmental Protection Agency, retiring at the end of July.

Dana was twice elected to two-year terms during a period of emotional
conflict with the state government. A week after he first took office in
2000, he was hit with a contempt of court order that threatened to put him
and the governors of the two Passamaquoddy tribal governments in jail for a
year. The tribes refused to allow paper companies in environmental
litigation to examine internal tribal documents, calling it an infringement
of sovereignty. The contempt order was dropped when Maine’s highest court
ruled that the Maine Indian Claims Settlement Act subjected the tribes to
state control in its dealings with non-Indians.

The EPA later denied the tribe federal protection in controlling upstream
pollution by paper mills, a decision from which Sappier was recused. The
Penobscot and Passamaquoddy tribes took another severe loss in Nov. 2003
when state voters rejected a referendum that would have allowed them to
build a $600 million casino.

Sappier was elected by a vote of 276 to 245. Only one of six council
members was returned.

MOHEGAN TRADITIONALIST ELECTED

Bruce “Two Dogs” Bozsum, Cultural Programs manager for the Mohegan Tribe in
Uncasville, Conn., is taking a seat on the tribal council after a lopsided
victory in a recent special election. A pipe carrier and frequent presenter
of invocations at inter-tribal conferences at the Mohegan Sun, Bozsum has
been a highly-visible advocate for traditional culture. During his campaign
he criticized tribal plans for out-of-state gaming investments. He won by a
mail-in ballot of 349 to 117.

The same ballot chose a nine-member Council of Elders, which has been in a
long-running conflict with the tribal council over questions of
jurisdiction left vague by the Mohegan constitution. The tribal council is
up for re-election next year, amid rumors of a challenge to current
Chairman Mark E Brown, an advocate of sharing Mohegan casino wealth with
other tribes across the nation in carefully selected business ventures.

MASHANTUCKET PEQUOT VISIONARY STEPS DOWN

Richard A. “Skip” Hayward, vice chairman of the Mashantucket Pequot Tribal
Nation and the guiding spirit behind development of its successful Foxwoods
Casino Resort in the 1980s, will not seek re-election in the November
tribal election, his brother told the New London Day newspaper. Hayward was
highly praised by former associates for the vision that brought the
Mashantuckets federal recognition in 1983 and by the end of the decade
developed a full-scale resort out of a high-stakes bingo hall. But the
tribe backed away from other ambitious projects inspired by his work as an
Electric Boat Company shipbuilder, such as a shipyard to build
state-of-the-art ferries. In 1998 he was defeated for re-election by
Kenneth Reels, and the shipyard went into mothballs.

Hayward remained as president of the tribally owned Fox Navigation Company,
which operated a ferry service from Long Island to Manhattan. In spite of
its dramatic role in helping evacuate lower Manhattan after the 9/11
attacks, the service was later suspended. Hayward has not been active in
the council for several years.