The history of the Mashpee Wampanoag Tribe will again be on trial next week in a case which contests a finding by the Trump Administration’s Interior Department that the tribe was not “under federal jurisdiction” in 1934.
Oral arguments in the case brought by the tribe against the Interior Department in 2018 will be presented over video-teleconference, due to the COVID-19 pandemic, in a Washington DC district court on Thursday, May 7. Judge Paul L. Friedman will preside.
The tribe alleges in the lawsuit that a 2018 decision by the Interior Department that found that the tribe does not meet the “under federal jurisdiction” requirement as laid out in the Indian Reorganization Act of 1934 is “arbitrary, capricious, and contrary to law.”
The status of the tribe’s 321 acres of reservation land in Mashpee and Taunton, which has been held in trust by the federal government since 2015, hinges on a ruling from Judge Friedman.
An emergency motion filed by the tribe in the case postponed a March 27 order by the Interior Department to disestablish the tribe’s reservation, pending a decision in the Washington DC court.
The Interior Department order followed a judgement in the First Circuit Court of Appeals in Boston in late February, which found against the tribe and in the favor of the plaintiff Littlefield party, a group of residents from Taunton, where the tribe planned to build a $1.5 billion casino on reservation land.
The circuit court upheld the earlier 2016 US District Court decision that the Obama Administration lacked the authority to place the tribe’s land in trust under the second definition of “Indian” under the Indian Reorganization Act.
The original 2016 decision by the district court in Boston remanded the question of whether the tribe fit the first definition of “Indian” to the Interior Department. The department answered in the negative in 2018, leading the tribe to bring the Washington DC lawsuit against the department.
The first definition of “Indian” under the Indian Reorganization Act states that the act “shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.”
In 2009, the US Supreme Court in a 6-3 decision found that the word “now” in that definition meant “in 1934.” Therefore, to qualify for land in trust, a tribe must have been considered “under federal jurisdiction” in 1934.
In 1934, no official list of tribes “under federal jurisdiction” existed and, congressional records from the proceedings, which produced the 86-year-old law, suggest little in the way of the meaning of the phrase.
In 2018, when the Interior Department found that the tribe did not qualify as “under federal jurisdiction” in 1934, the department relied upon a two-prong analysis for interpreting the phrase, known as the M Opinion, issued by the Obama-era Interior Department after the Carcieri decision.
The department has since revoked the M Opinion and, in March, replaced it with new guidance for interpreting the phrase “under federal jurisdiction.”
According to briefs filed ahead of next Thursday’s hearing, oral arguments will argue the legal interpretation of the phrase and whether or not the Interior Department acted in a manner that was “arbitrary, capricious, and contrary to law” when it determined the tribe not to be “under federal jurisdiction” in 1934.
The arguments will consist of 75 minutes per side with the Interior Department ceding part of its time to the Littlefield party, the residents from Taunton who intervened in the case.
Uncontested in the Washington DC lawsuit is the fact that the Mashpee Wampanoag Tribe is a federally recognized tribe. After a 30 year process with more than 50,000 pages in documentation, the tribe received official federal recognition in 2007.
The 2018 Interior Department decision that the tribe was not “under federal jurisdiction” in 1934 states: “The Department based its decision on evidence showing that the Tribe’s members and ancestors had substantially maintained consistent interaction and significant social relationships from the time of first sustained contact with Europeans in the seventeenth-century, through the colonial and Revolutionary eras, and up until the present time.”
Ahead of the upcoming hearing, the vice chairman of the Mashpee Wampanoag Tribal council, Jessie (Little Doe) Baird, recalled the painstaking work she and other tribal members did to submit documents and evidence to gain federal recognition in 2007 and to provide evidence to inform the 2018 Interior Department decision.
“When a tribe is federally acknowledged, they are not created,” Ms. Baird said. “It means that the federal government is acknowledging that there is a separate nation, a separate people, a separate government… that has been in existence since the time of first contact.”
“Every tribe is always under federal jurisdiction,” she said. “We’ve been through one land fight and one sovereignty fight after another for the last 400 year, this is unfortunately business as usual.”
Much of that 400 years of history is on display in the case that will play out in Washington D.C. on Thursday.
Among the hundreds of pages of briefs and exhibits submitted by the tribe, is evidence that tribal members appeared on federal census rolls, listed as Indians, in 1880, 1890, 1900, 1910, 1920 and 1930.
Tribal Council member David W. Weeden noted the existence of the Indian Non-Intercourse Acts, federal laws dating to 1790 and still in place today, which prohibited the conveyance of an Indian tribe’s land to non-Indians unless ratified by Congress.
Though the tribe was deeded the land that is now the Town of Mashpee in 1665 and retained much of it through the 19th century, the federal government never acted to enforce the Non-Intercourse Acts when the land shifted to the possession of non-Indians.
“The federal government is negligent in their trust responsibilities and yet the burden of proof is being put on Mashpees,” Mr. Weeden said.
“It’s kind of like a ponzi scam where they’re putting the burden on the tribe, you’re putting the burden of truth on the people who have lost everything, you’re not even looking at or discussing the trust responsibility,” he said. “They should have been exercising their jurisdictional authority.”
Also, between the years 1904 and 1918, more than a dozen children of the Mashpee Wampanoag Tribe attended the Carlisle Indian School, a federal Indian school in Pennsylvania where students were forbidden to speak their native languages.
Ms. Baird said that amid the COVID-19 pandemic, the outcome Thursday’s hearing has broad implications for the tribe with its close linkage to the order from the Interior Department to remove the tribe’s land from trust.
The disestablishment of the land would complicate the operation of the Wôpanâak Language Reclamation school, would subject an affordable housing project under construction on reservation land to external laws that it does not meet, disestablish the tribe’s police department, and dampen the federal funding received.
The public can listen to the oral arguments scheduled for May 7 at 10 AM via a teleconference line at 877-848-7030. The access code is 8204797.