The federal government issued a devastating blow to the Mashpee Wampanoag Tribe’s efforts to protect its reservation.
The US Department of the Interior on Friday, September 7, ruled that the tribe was not under federal jurisdiction at the time of the 1934 Indian Reorganization Act of Congress, a decision that could disestablish the reservation in Mashpee and Taunton.
In a release issued last Friday, Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell called the executive branch decision a “grave injustice” and a “tremendous blow.”
Mr. Cromwell also said that the tribe would continue the fight for its reservation despite the disappointing decision. He called on Congress to pass a bill pending in the US House and Senate that would secure the tribe’s land.
Opponents of the tribe’s aspirations are hailing the decision as an end to their battle, which has lasted several years.
“We won. We are grateful. It is over,” concludes a long Facebook post from East Taunton resident Michelle Littlefield, who has been the lead plaintiff in a lawsuit against the federal government and tribe.
The tribe will host a meeting at 6 PM today for tribe members and nonmembers alike at its headquarters at 483 Great Neck Road South. The event is billed as a grassroots meeting to brainstorm ways to petition Congress to protect the tribe’s land.
The Interior Department granted the tribe land in trust in 2015, and then declared the land a reservation shortly after.
Following the landmark decision creating the reservation, a group of East Taunton residents filed a lawsuit, claiming the department breached its authority. Federal district court Judge William G. Young agreed with the East Taunton residents in 2016, but he also remanded the case back to the Interior Department to give the agency an opportunity to revise its decision.
After receiving thousands of pages of testimony and evidence submitted by both the tribe and East Taunton plaintiffs, the Interior Department ruled in the remand that the tribe was not under federal jurisdiction at the time of the Indian Reorganization Act of 1934, and was thus not able to receive land in trust.
While the tribe had proved its members have lived in Mashpee for centuries, even recognized by the state and federal government, the department ruled that the federal government never held official authority over the tribe through any treaties or other actions—a requirement, according to recent court rulings on the issue.
The assistant secretary to the US Bureau of Indian Affairs, Tara Sweeney, sent her ruling on the case to the tribe on September 7.
The decision has raised several questions, including what the next move will be for the tribe. The tribe has pending an appeal of Judge Young’s decision, which it filed in April last year. The suit has been pending as all parties waited for the Interior Department’s decision.
As of the date of decision, the tribe had 10 days to file a report on the lawsuit in the US Court of Appeals on the First Circuit. The tribe could also challenge the Interior Department’s decision.
Last Friday’s ruling also brings about uncertainties about the tribe’s land.
According to the plaintiffs’ attorney, David H. Tennant, the tribe’s land in Mashpee and Taunton is no longer legally considered in trust. Mr. Tennant said the land was never “lawfully” transferred into trust, so therefore it is not in trust currently. However, a deed still exists in the county recorder’s office that describes the land as in trust, and the attorney said that the Interior Department will have to change the deed.
“If Interior won’t do it, we will ask Judge Young to do it,” Mr. Tennant said.
The Town of Mashpee is acting as though the land remains in trust. Mashpee Town Manager Rodney C. Collins said that until further notice, the land will be treated by the town as a reservation.
“As far as the town is concerned, the land remains in trust,” Mr. Collins said. “The ruling has no impact at this particular time.”
Without land in trust, questions have arisen about what could happen locally. The town is supplying emergency services on the tribal reservation through a series of protocols for local and state police and emergency personnel.
Additionally, some town officials have expressed fears that without land in trust, the tribe could pursue a land claim lawsuit similar to that of the 1970s and 1980s. The Mashpee Board of Selectmen held a meeting in executive session on Tuesday, September 11, to discuss the issue.
The ruling also brings about questions about funding, housing, education and other issues associated with self-determination for the tribe. A reservation allows tribes to acquire certain grants and federal funding. Projects dependent on the funding include a large proposed housing development on Meetinghouse Road.
In a press release issued Friday, Mr. Cromwell suggested that the tribe’s focus would turn to pushing Congress to pass bills pending in the US House of Representatives and US Senate that would override the East Taunton lawsuit and reaffirm the tribe’s reservation.
“We have been on this land for 12,000 years and we are not going anywhere,” Mr. Cromwell said. “This only underscores the urgency of passing the Mashpee Wampanoag Tribe Reservation Reaffirmation Act immediately. We implore Congress to act now.”
The bill, H.R. 5244 in the House, had its first hearing in July at a subcommittee in the US House of Representatives Committee on Natural Resources. Congressman William R. Keating of Bourne (D-Massachusetts), the sponsor of the bill, would not speculate on when the legislation might pass through the House or Senate.
In the short term, he said that Republicans in the House seemed more focused on keeping the government funded through the month, and would then likely focus on campaigns for the November election. “They’ve been facing some pressure,” Mr. Keating said.
Still, the Congressman said he is optimistic due to the small breadth of the bill. Because the legislation is unique to this tribe, it could move forward quickly. The bill, he said, received a hearing sooner than many bills do, and he further noted that it has strong bipartisan support. At the July hearing, Republicans and Democrats voiced support of its passage.
Rep. Keating called the Interior Department’s decision unfortunate, but he crafted his bill with the knowledge that the executive agency might make that decision.
When the Interior Department initially ruled in the tribe’s favor in 2015, it agreed to acquire land in Mashpee and Taunton under a specific section of the Indian Reorganization Act of 1934. The section lays out the definitions of Indian detailed in the act.
The first definition reads “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” In a case that made its way to the Supreme Court known as Carcieri, the high court found that “now” in that definition referred to 1934, the time of the Indian Reorganization Act.
The Mashpee tribe was not recognized until 2007, so the Interior Department used definition two in the act: “all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation.”
The department found the second definition of Indian to be unclear as to whether the phrase “such members” referred to the first definition of Indian—as in being recognized at the time of 1934—or whether it meant tribes living continuously on a reservation as of or before 1934. The tribe had shown substantial evidence that its members had lived on a reservation in Mashpee for centuries, including in 1934, which was recognized by the state and colonies.
But Judge Young found the second definition to be unambiguous.
“With respect, this is not a close call: to find ambiguity here would be to find it everywhere,” Judge Young wrote in his ruling in July 2016.
The judge stated that the second definition was consistent with the first, meaning descendants in the second definition referred to federally recognized tribes. Judge Young then allowed the Interior Department to reassess the tribe’s eligibility for a reservation under the first definition of the Act, or under his interpretation of the second definition.
In that process, the tribe filed hundreds of pages of written argument and thousands of pages of evidence.
Tribal attorneys argued that the tribe had been under jurisdiction since 1789, the US automatically having succeeded to “treaty-like” obligations of the British Crown to the tribe. The tribe pointed to colonial deeds from Wampanoag sachems conveying lands to the tribe in perpetuity.
The tribe also used several federal documents to reinforce its argument, including the Morse Report from 1822, a report by the Reverend Jedidiah Morse, a US geographer, who spent four months visiting and compiling information on hundreds of tribes around the country, so the government could help tribes progress; the Schoolcraft Report published in 1851 that was used to inform Congress on tribes living within Massachusetts; and several other reports.
The tribe also used the argument that tribe citizens had attended Carlisle Indian Industrial School, supervised by federal officials.
The tribe also argues that Massachusetts acted as an agent for the federal government to carry out federal obligations, and that the state’s exercise of authority over the Mashpee was “quintessentially federal in nature.”
Bureau of Indian Affairs assistant secretary Ms. Sweeney noted Massachusetts authority over the tribe but argued it did not ultimately constitute federal jurisdiction.
“I agree that Commonwealth’s actions taken on behalf of the Mashpee Tribe addressed issues similar to Federal legislation enacted for the benefit of tribes elsewhere,” she writes. “But that is not enough for the ‘under federal jurisdiction’ inquiry. The tribe provides no evidence to show that the Commonwealth ever acted at the request of the Federal Government.”
Ms. Sweeney further states that while many of the reports the tribe used in its argument show that the federal government was aware of the Mashpee tribe, none proved the federal government exercised jurisdiction.
The assistant secretary did agree that using the Carlisle School could help prove jurisdiction, but that the school was not enough.
She noted that the Cowlitz Tribe, which was granted land in trust, used the school as an example but the tribe also “relied on a wide range of other evidence covering an extended period of time,” which included government-to-government treaty negotiations.
“The record before me contains little indicia of Federal jurisdiction beyond the general principle of plenary authority,” Ms. Sweeney concluded, “and little if any evidence demonstrating that the United States took any actions establishing or reflecting Federal obligations, duties, responsibilities for or authority over the Tribe in or before 1934.”
While Friday’s ruling has an obvious impact in Mashpee, the state casino industry has also heeded the news and reacted. The tribe has looked to build a casino on its reservation land in Taunton.
Joe Baerlin, spokesman for Mass Gaming and Entertainment, praised Friday’s decision, saying that it reaffirmed an existing law regarding the land-in-trust designation. Mass Gaming and Entertainment has pursued a casino in Brockton, but state regulators have delayed action on the application as they wait to hear a ruling on the Mashpee tribe.
“The ramifications of this several-year delay in adjudicating this decision has meant that the Commonwealth has been losing millions of dollars of tax revenue to out of state casinos in Connecticut and now Rhode Island, with the Twin River casino in Tiverton, Rhode Island, just across the street from Fall River, Massachusetts,” Mr. Baerlin stated in a release issued Saturday morning, September 8. “The new Tiverton casino, which just opened, is now poised to take even more tax revenue away from Massachusetts.”
The Massachusetts Gaming Commission, which reviews casino applications, has yet to schedule a hearing on either casino project.
“We continue to closely monitor developments but do not have a Region C update from the Commission at this time,” read a statement from Elaine Driscoll, a spokesperson for the commission. The state regulating board has granted casino permits for two of the state’s three casino regions—A and B—and have waited on the tribe for Region C.
Meanwhile, East Taunton residents involved in the lawsuit challenging the original 2015 Interior Department decision are hailing the agency’s decision as a final blow to the proposed casino.
Lead plaintiff Michelle Littlefield celebrated Friday’s decision. She has appeared on radio shows throughout the region. On Saturday morning, her Facebook page showed a photo of a cake with words written in red frosting: “We did it!”