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“This is a tremendous blow to our tribe, without whom America’s earliest settlers would not have survived. It should also alarm tribal nations all across Indian Country.” —Mashpee Chairman Cedric Cromwell
Interior said the Mashpee—descendants of indigenous Americans who gathered with the Pilgrims in celebration of the first Thanksgiving in 1621— failed to prove it was “under federal jurisdiction” in 1934. Interior also said Mashpee did not meet IRA’s definition of “Indian.” The decision was a major setback to the Mashpee, which was granted federal recognition in 2007 and was looking to casino gambling revenues to fund government services for some 2,600 tribal citizens. “This is a tremendous blow to our tribe, without whom America’s earliest settlers would not have survived,” Mashpee Chairman Cedric Cromwell says. “It should also alarm tribal nations all across Indian Country. “I do not believe that our country—this great nation that our tribal citizens have fought and died for—wants to return to the dark days of taking sovereign Indian land away from indigenous communities. “If neither Congress nor the federal courts weigh in to stop this, the Trump administration will return the Mashpee Wampanoag once again to landlessness, force us to close our schools and social service programs and lead us back to despair and hopelessness.” Interior’s decision illustrates the often-volatile ebb and flow of federal Indian policy from one administration to the next, particularly when it comes to providing trust lands for indigenous communities.
Sweeping Pendulum Following a virtual moratorium on tribal trust lands under President George W. Bush (2001 to 2009), Interior under Obama placed some 600,000 acres in trust for Indian governments. The pendulum is again swinging the other way. The Trump administration is taking a hard line on land-trust applications from tribes, particularly when it involves casino gambling. “The administration is obviously not excited about having land taken into trust,” says John Echohawk, a Pawnee and director of the Native American Rights Fund. “As you recall, the Bush administration had problems with that, too. “This all revolves around Carcieri and what constitutes federal jurisdiction in 1934. The Obama administration had issued guidance on that and Mashpee Wampanoag met that criterion. But this administration says they don’t. “Tribes have to deal with whatever federal policy is out there,” Echohawk says. “That’s kind of the way it’s been.” The Mashpee decision is believed to be the brainchild of Interior Associate Deputy Secretary James Cason, a Trump appointee and veteran of the Bush administration. Cason, while serving under Bush, was the author of a controversial “commutability standard” in placing land in trust for casinos.
Meanwhile, proposed Interior changes to Code of Federal Regulations (CFR) 151 governing land acquisitions have also come under fire from tribal leaders who contend the rule changes threaten to make the already painfully bureaucratic process longer and more difficult and costly for tribes. “These proposed changes are dramatic,” writes Michigan State University law professor Matthew Fletcher, a citizen of the Grand Traverse Band and author of the website Turtle Talk. “If you are a tribe that doesn’t have a large consolidated land base, these proposed changes will make it harder to have lands placed into trust,” Fletcher says. “They will also put more of a financial burden on tribes seeking to place land into trust, and further politicize this process.”
Tribes ‘Abandoned’ By Interior Mashpee has the backing of Taunton officials and most of its citizens. It also had guaranteed funding for the resort from Malaysian gambling giant Genting Group. After years of efforts to achieve federal recognition and trust lands, ground was broken for the 900-room hotel, casino and water park in 2016. But the project was placed on hold later that year, when District Court Judge William Young, ruling on a lawsuit filed by a group of citizens, remanded the case back to Interior to determine whether Mashpee fit the IRA definition of “Indians” residing on a reservation and assess whether the tribe was “under federal jurisdiction” in 1934. That decision came down September 7 in a 28-page ruling signed by Assistant Secretary for Indian Affairs Tara Sweeney, who had assumed her position only two months earlier. Although the Wampanoag have lived in Mashpee for centuries and were recognized as a tribe by the state and federal governments, Sweeney ruled the federal government never held official authority over the tribe through treaties or other actions as required in Carcieri. The land remains in trust status pending a court edict. “We have been utterly abandoned by our federal trustee,” Cromwell says. Mashpee filed a complaint in Federal District Court for the District of Columbia challenging Interior’s failure to protect the tribe’s reservation, calling the ruling “arbitrary, capricious, and contrary to the department’s own administrative decisions and clear law.” The tribe is also looking to federal legislation—the Mashpee Wampanoag Tribe Reaffirmation Act—to protect its reservation trust status. But the bill is facing opposition from Rhode Island Democrats seekNOVEMBER 2018 www.ggbmagazine.com
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