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Who Trusts the Trustee?

Massachusetts’ Mashpee Wampanoag is under attack again, and all of Indian Country should be concerned

Who Trusts the Trustee?

Pandemic news in Indian Country: the Interior Department called Mashpee Wampanoag Chairman Cedric Cromwell to announce that the Mashpee Reservation was to be disestablished, and its land removed from trust.

The date of the call, March 27, 2020, was the first day that Covid-19 deaths in the United States exceeded 1,000 in a single day. The chairman thought the call’s purpose was to offer support in the tribe’s desperate fight against contagion. It was, instead, the next assault in a 400-year cruel war against Mashpee.

The department may have been surprised at the immediate outrage in Indian Country and beyond. Mashpee now must add land defense to its other immediate and urgent priorities.

How Did We Get Here—Again?

In 2009, the Supreme Court decision in Carcieri v. Salazar greatly diminished the ability of the secretary of Interior to acquire land to be held in trust on behalf of Indian tribes, by forcing an applicant tribe to prove that it had been “under federal jurisdiction” as of 1934.

The land-in-trust power was central to 75 years of Indian policy under the 1934 Indian Reorganization Act, whose stated purpose was to protect and restore native homelands—an explicit reversal of prior federal practice, which had dismantled native communities through assimilation, Indian schools, prohibition of cultural practices and dissolution of tribal land bases.

For the Mashpee Wampanoag, who had gained federal status in 2007, the Carcieri decision posed a significant barrier to rebuilding their nation.

Located in Eastern Massachusetts, the Mashpee Wampanoag have been engaged in an existential struggle to protect people and land since the first Europeans appeared in North America. The Wampanoag lost two-thirds of their people to a plague brought by the first European visitors.

When the Mayflower landed in 1620, the Pilgrims gave thanks for having found good, cleared, farmable land. Patuxet—the home of a recently deceased Wampanoag community—became Plymouth. American foundational stories recount how the Wampanoag nurtured those early weak and sickened settlers, culminating in the mythological “first Thanksgiving.”

But the Wampanoag gave so much more. They ceded land for the prosperity of the new settlement, and entered into the first North American treaty to ensure mutual peace and prosperity. As with virtually all native treaties, land and power tended to flow in one direction, and the Wampanoag were soon struggling to retain a foothold in their own homelands. The current Mashpee crisis is just the most recent stage of a 400-year-old ordeal.

Among the first native peoples to come into sustained contact with European settlers, the Wampanoag faced the consequences of colonization long before most other tribes knew it was coming. The historical record is rich with Mashpee efforts to preserve at least a remainder of their home. In 1685, Plymouth Colony confirmed a deed from Mashpee Sachems that set aside a 14-square-mile tract of land for the Mashpee people forever, “to be perpetually to them and their children, as that no part of them shall be granted to or purchased by any English whatsoever, by the courts allowance, without the consent of all the said Indians.”

For nearly 200 years, through repeated encroachments, despite hostile overseers and venal missionaries, after countless tribal petitions for help from the colony, the English crown and the commonwealth of Massachusetts, that land remained home.

Mashpee resisted removal and successfully controlled their land until 1870, when the commonwealth unilaterally removed tribal status and increasingly, pieces of their land came into the grasp of rich outsiders. The economic prize was Mashpee’s hardwood forest, the last remaining on Cape Cod. Mashpee land loss through allotment anticipated the federal policy by only 10 years.

But Mashpee remained, as it always has. It governed itself as an “Indian town” and stayed relatively isolated until development pressure in the mid-20th century. In the 1970s, the tribe’s attempt to protect its homeland through a land claim suit backfired in a storm of racist arguments that disqualified the tribe from establishing status to bring its claim. Losses continued over the next 30 years, while the tribe documented its continuous history and finally achieved federal recognition of its sovereign status in 2007. The tribe began to plan for housing, health care, education, language reclamation, nation building, and the hope of future economic security.

Then came the Carcieri case.

After having proven its 400-year survival to achieve federal acknowledgment, the tribe was now forced to prove its eligibility for the remedial provisions of the Indian Reorganization Act (IRA). It documented repeated instances in which the federal government exercised jurisdiction over the tribe and its people. To satisfy a separate test under the IRA, it documented the community’s continuous presence on the 17th century homelands that had been home to no other people from time immemorial through about 1960, well past the 1934 statutory criterion.

The Interior Department found that Mashpee had satisfied the second IRA test by showing that the people were present, in 1934, on the tribe’s reservation. Portions of that land comprised part of the newly declared federal reservation. In 2015, the land that had always anchored the people also anchored the Interior Department’s decision to acquire 321 acres in trust, to be used for housing, a government center, school, the tribe’s historic meeting house and cemetery, ceremonial grounds—and a casino.

Why is Mashpee a Target?

The tribe’s plans for the First Light casino resort, already derailed, are now secondary behind its quest to regain its land

Despite overwhelming local support for the tribe’s planned casino in Taunton, Massachusetts, gaming plans attract gaming opponents. Mashpee’s plans would have blocked a proposed commercial casino. A small “citizens’” group—proxy for the commercial developer—mounted a well-funded challenge.

Additional pressure emerged from competing gaming interests in Rhode Island, later shown to have ties to the Trump administration. Although the United States defended the Interior Department’s taking the land into trust, a Massachusetts district judge ruled against the action.

Then Donald Trump took office. Federal defense of the Mashpee decision ended abruptly, at both the Interior Department and the Department of Justice, which represents Interior in court. When Elizabeth Warren sought support for Mashpee through legislation, Trump tweeted his opposition. The policy switch is both telling and chilling.

The Massachusetts district court read the IRA to say that Mashpee did not qualify for trust land based on its 1934 reservation, unless it also satisfied the Carcieri requirement of showing that the tribe had been “under federal jurisdiction” in 1934.

Mashpee submitted additional evidence on the question to Interior. It answered the department’s inquiry about whether Massachusetts’ historic exercise of authority over the tribe might be a jurisdictional proxy for the United States, and generally showed it had met the standard established by the department in previous decisions, tracking the department’s comprehensive legal guidance, the “M-Opinion.”

None of that was enough—and maybe nothing would have been enough. In September 2018, Interior ruled that Mashpee had not established that it was under federal jurisdiction as of 1934. The tribe sought review in the U.S. district court for the District of Columbia, arguing that the action was arbitrary, capricious and contrary to law, in violation of the Administrative Procedures Act (APA). That case has been briefed by the parties (Tribe v. Interior Secretary) and is awaiting the court’s action.

Mashpee also seeks a political solution. In the years since the Carcieri decision, inter-tribal organizations, working together, have tried to achieve a “Carcieri fix” from Congress. A simple fix would abolish the chasm that now divides federally recognized tribes, a chasm created by Carcieri, and deepened by the Interior Department. It would ratify the trust land of tribes alleged, retroactively, to fall outside the Carcieri requirements.

In May 2019, a general Carcieri fix (HR 375) overwhelmingly passed the House of Representatives, as did a Mashpee Reaffirmation bill (HR 312), despite Trump’s express opposition. But both bills languish in Senate Majority Leader Mitch McConnell’s graveyard of congressional legislation. Mashpee supporters are intensifying their efforts to achieve remedial legislation—either bill will do.

Action has continued in the courts and at Interior. In late February, the First Circuit Court of Appeals rejected Mashpee’s appeal of the Massachusetts district court’s ruling against the tribe. The First Circuit construed the word “such” in the IRA as requiring the tribe to go back to prove “now” in another section of the IRA: back to the “under federal jurisdiction in 1934” gauntlet.

In early March of this year, as people around the U.S. were withdrawing into Covid-19 quarantine, the Interior Department withdrew the M-Opinion that for several years had formed the basis for determining whether a tribe was “under federal jurisdiction” as required by Carcieri, despite the opinion having withstood repeated judicial review. In its place, the department issued “guidance” that would dramatically narrow eligibility, particularly for first-contact tribes, and those like Mashpee having treaties with colonial powers that pre-date the United States: the early colonization penalty that keeps on taking.

Interior wasted little time turning “such” into a four-letter attack. Soon after the First Circuit ruled, Interior stated it had no choice but to take the land out of trust, announced that determination to the Mashpee chairman, and directed the Bureau of Indian Affairs regional director to give effect to that order.

Interior provided no legal authority for its unprecedented move to take land out of trust. The tribe sought an injunction from the same D.C. federal district court considering the APA action. The United States has promised not to act to remove Mashpee’s trust status for 45 days until the parties can brief and argue the now-urgent matter to the judge, who at the same time, will hear argument on the APA challenge.

A virtual hearing is scheduled for May 7.

Now What—And Who Should Care?

Mashpee faces much more than the trustee’s criminal neglect. Threatened are access to important federal programs and the ability to exercise basic self-determination. Subjecting tribally owned land to local jurisdiction and taxation is antithetical to tribal sovereignty. The action threatens the tribe’s low-income housing, immersion school, police force, tribal court and much more.

Certainly much more than the fight against a casino, in the middle of a pandemic it would cut off Mashpee’s access to Covid-19 emergency assistance. Rather than “termination,” the federal government now proposes “extermination.”

All tribes should care. All people of good faith should care. If the federal trustee is permitted to act with arbitrary cruelty, it will continue to do so. If the solemn governmental duty of holding land in trust can be so easily rescinded, it can happen again. The 1934 IRA meant to reverse federal policy of assimilation and land seizure. Less than 20 years after that, in a complete reversal, Congress began to terminate tribes—and, not incidentally, taking the rich resources that tribes had stewarded.

Federal policy reversed again in the 1970s to favor strengthening tribal governments. Some previously terminated tribes were “restored,” but not all. Federal Indian policy has long been subject to pendulum swings, from protective to destructive. Destruction of Mashpee’s territory may be only a first step—and a warning. Tribal lands still contain resources coveted by others. Tribal assertions of sovereignty and consultation rights can be inconvenient to those who would exploit those resources. Modern American government is increasingly intolerant of such inconveniences.

What to do?

Do not remain silent. Sign the petition supporting Mashpee legislation. Write your congressional representatives in support of Mashpee reaffirmation and a Carcieri fix. Stay awake and vigilant. The United States is declaring war on Indian Country under cover of plague. For 400 years and counting, plague has been a means to take Wampanoag territory. Land-taking didn’t end there in 1620, and won’t end there now. Be vigilant.

And wash your hands.