18th-century pact an ace in Mashpee tribe's pocket?
The Mashpee Wampanoag Tribe is banking on a 250-year-old agreement with King George III as a key to overcome what experts have called the biggest hurdle to building a $500 million casino in Taunton.
The tribe argues in a document filed with the federal Bureau of Indian Affairs that it has been under federal jurisdiction since this country's inception because of the deal with the king. It also asserts that the United States has repeatedly failed in its responsibility to protect the Mashpee Wampanoag, leaving it "impoverished and nearly landless."
TRIBE TIMELINE
1665 - Mashpee becomes the first deeded Indian town with the assistance of sachems Tookenchosen and Webquash and the Rev. Richard Bourne. The deed restricts the sale of land without permission of the South Sea Indians, the tribe's name at that time.T
1685 - Tribe successfully petitions the Plymouth Colony to recognize the deed, which stipulates Mashpee as a reservation.
1694 - Colony appoints overseers to "outlaw the sale of liquor to the Indians."
1763 - Wampanoag school teacher Reuben Cognehew visits England where King George III grants Mashpee the unique status of "Indian district." Agreement gives tribe control over local government and fishing rights.
1789 - U.S. Constitution goes into effect, which requires it to uphold the "treaty" between the king and tribe.
1790 - U.S. Congress passes the Nonintercourse Act, which stipulates Indian rights to their land.
1822 - The Secretary of War directs the Rev. Jedediah Morse to visit and inspect Indian tribes to determine which ones should be moved to Oklahoma. He reports that Mashpee removal would not be appropriate because of ties to the whale industry, among other things. "Their local attachments are strong; they are tenacious of their lands," he wrote in part.
1870 - Massachusetts incorporates Mashpee as a town and allots its land to tribe members, though some land, including the meetinghouse and cemetery, remained common lands.
1934 - Congress approves the Indian Reorganization Act, which restores tribe rights to self-govern. Mashpee petitions for inclusion in that act, but not considered under federal jurisdiction.
1975 - Mashpee Wampanoag files suit against property owners in federal court seeking restoration of tribal lands.
1978 - After losing the land suit, tribe files its application for federal recognition.
2007 - Tribe is recognized by the federal government.
2009 - U.S. Supreme Court questions authority of the Department of the Interior to take lands into federal trusts for tribes recognized after 1934 - the "Carcieri decision."
2011 - Interior Department approves taking land in trust for the Cowlitz tribe, saying it can show it was under federal jurisdiction on and before 1934.
2012 - Mashpee tribe amends its land in trust application to include Taunton.
Source: Mashpee Wampanoag application for land in trust
"Now, as the tribe's trustee, the department can and should reverse this shameful history by accepting the proposed land in trust," the document states.
The legal arguments are made in a nearly 60-page document submitted along with the tribe's application to have 146 acres in Taunton and 170 acres in Mashpee taken into federal trust by the Department of the Interior. It comes as the federal Bureau of Indian Affairs is reviewing the tribe's application and expects to rule on part of it by the end of this month.
The 1763 agreement with King George III, which tribe attorneys equate to a treaty, is one of a half-dozen arguments aimed at showing why a 2009 ruling by the U.S. Supreme Court known as the Carcieri decision does not apply to the Mashpee Wampanoag. The ruling called into question the Interior Department's authority to take land in trust for tribes recognized after the 1934 Indian Reorganization Act. The act restored certain rights to tribes, including self governance.
The Mashpee tribe was federally recognized in 2007.
The Times obtained a copy of the document through a tribal source in advance of its release publicly by the bureau.
Tribe leaders have said the 2009 ruling does not apply to the Mashpee tribe, but this report provides the first details of how the tribe hopes to get beyond it.
The Mashpee Wampanoag legal argument was authored by Arlinda Locklear and Judith Shapiro.
Locklear is described in a Duke University biography as a Native American law pioneer who worked toward getting federal recognition for her own tribe, the Lumbee in North Carolina, and in 1984 was the first American Indian woman to argue before the Supreme Court, according to the profile.
Shapiro has practiced Indian gaming law for 25 years, according to her firm's website, including work for the Mohegan tribe in Connecticut.
Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell declined to answer specific questions about the tribe's application because it remains under review.
"I can say that the information we have presented to the Department of Interior is compelling, and supports the fact that our people have inhabited present-day Southeastern Massachusetts, including the Taunton area, for thousands of years," Cromwell said in a statement. "In addition, it proves that our tribe satisfies all requirements for our land to be taken into trust."
The Carcieri decision, so named because it involved an ongoing dispute between Rhode Island Gov. Donald Carcieri and the Narragansett tribe, centered on the phrase "now under federal jurisdiction."
In a concurring opinion, Supreme Court Associate Justice Stephen Breyer gave tribes like the Mashpee hope by saying if they could prove they were under federal jurisdiction prior to 1934 through a treaty, they might have a case for trust lands. In 2011, the bureau approved the trust application of the Cowlitz tribe in Washington, which was federally recognized in 2000, on those grounds.
The Mashpee tribe contends that it meets standards established in the Cowlitz decision, especially in light of the agreement between the king and the tribe to protect Mashpee lands and fishing rights.
In 1763, Wampanoag school teacher Reuben Cognehew traveled to England to complain that Colonial overseers were not doing enough to protect the tribe's land.
The king granted the Mashpee tribe the authority to "annually elect a moderator and five overseers, three of which were to be Mashpees, a town clerk, treasurer, and one or more constables. The overseers were to regulate fisheries, lease lands, and apportion land and meadow among the Mashpee proprietors themselves."
When the U.S. Constitution was enacted 23 years later, the federal government took over the responsibility for enforcing that agreement, the tribe asserts. "As the Supreme Court has long held, the United States, upon acquisition of territory from another sovereign, is bound by the rights and property confirmed to tribes by that sovereign, whether those appear in treaty or statute," the report says.
The report argues that the tribe was under federal jurisdiction well before 1934 and after, even though the federal government didn't recognize it officially until 2007.
Not only was the tribe under federal jurisdiction, but there is no evidence the federal government attempted to end its control — standards established in the Cowlitz decision, the report says. "Federal jurisdiction continues unless and until explicitly terminated by Congress," it reads.
When Mashpee was incorporated as a town in 1870 and its land allotted to tribe members, that constituted an illegal act by the state, the report says. "The United States had a legal responsibility to protect the tribe in occupation of its lands and failed to do so at the time."
Evidence of the Mashpee tribe being under federal jurisdiction goes beyond the 1763 agreement with the British crown, according to the document. The Mashpee tribe's fishing rights are similar to those of the Stillaguamish tribe, which are cited by the Interior Department in the Cowlitz decision.
The Stillaguamish were recognized in 1976.
The report also points to tribe members attending a school for American Indians only called the Carlisle Indian Industrial School in Pennsylvania as proof of federal control over tribe members. The tribe was also included in federal census counts in the early part of the 20th century.
Also, the federal government investigated the tribe and decided not to move it in the 1820s, as it did other tribes — an exercise of federal authority over the Mashpee Wampanoag, the attorneys contend.
One potential problem for the tribe is that when it petitioned to be included in the Indian Reorganization Act of 1934, an official at the Indian Office concluded the Mashpee tribe was not under federal jurisdiction.
"This federal official was obviously ignorant both of the prior federal relationship with the tribe and of the continued existence of the tribe's reservation "»," the tribe's attorneys argue. The tribe should have qualified because it had occupied territory "continuously and without interruption."
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