Mashpee tribe sues Interior Department over land decision

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Mashpee tribe sues Interior Department over land decision

By Tanner Stening 

Complaint calls agency’s recent reversal ‘arbitrary’ and ‘capricious.’

MASHPEE — In a new chapter of a long-running legal saga, the Mashpee Wampanoag Tribe is now suing the U.S. Department of the Interior in an effort to defend the validity of a prior decision by the agency to take its land into trust, according to court documents.

Tribal attorneys filed a lawsuit in federal court Thursday challenging a Sept. 7 determination from the department that reversed an Obama-era decision to secure 321 acres of tribal land into trust. The latest ruling declared that the tribe was not under federal jurisdiction in 1934 — the year the Indian Reorganization Act was passed.

The new complaint, which was filed in U.S. District Court for the District of Columbia against the department and Interior Secretary Ryan Zinke, alleges that the agency “failed to apply established law” by “contorting relevant facts and ignoring others to engineer a negative decision” with respect to the tribe’s land.

The suit alleges that the recent department decision “indefensibly reverses course” from the administrative decisions it has made for other tribes in regard to federal jurisdiction and “badly ignores” the case law interpreting what that phrase means, documents show.

“The (tribe) therefore files this complaint to challenge the department’s 2018 decision and correct (its) arbitrary, capricious and unlawful actions,” the suit states. The suit goes on to reassert evidence that the tribe submitted during its bid for federal recognition and throughout the course of the lawsuit to prove it was under federal jurisdiction.

In a statement, Mashpee Wampanoag Tribal Chairman Cedric Cromwell said his tribe has been “utterly abandoned by our federal trustee.”

“We are urgently petitioning the United States Congress and the federal courts to end this nightmare — to prevent what appears to be an intentional return to the dark days of the termination era, when tribal lands were taken out of trust and the federal relationship with tribal governments disavowed,” Cromwell said.

The Interior Department took 321 acres in Mashpee and Taunton into trust for the tribe in 2015, declaring it a sovereign reservation. Under such designation the federal government holds the title to the property but the tribe may decide how to develop or use the land for its own benefit.

The tribe’s plans included a $1 billion casino in Taunton, but neighbors of that proposed resort sued the Interior Department in 2016.

A federal judge ruled that the secretary of the Interior did not have the authority to take the land into trust because the tribe was not under federal jurisdiction and was therefore unqualified under a definition of “Indian” used by Interior officials. The judge sent the case back to the department for further review.

Before its revised ruling earlier this month, the department had been deliberating whether Massachusetts had exercised authority over the Mashpee tribe in a manner that could be seen as a substitute for the federal jurisdiction requirement under the 1934 law. The decades-old statute remains the primary governing tool over Indian affairs, promoting self-determination and self-government.

The lawsuit, as in similar cases, rested on the interpretation of four words: “now under federal jurisdiction,” a phrase that has vexed tribes seeking trust status for newly acquired land with the federal government through the years, most notably the Narragansett Tribe’s efforts in Rhode Island, which culminated in the Supreme Court decision known as Carcieri v. Salazar.

But the Carcieri decision never established the criteria by which a tribe could demonstrate it was under federal jurisdiction, prompting the Interior Department’s solicitor to issue an interpretation of the ambiguous phrase in 2014.

In her written interpretation, Hilary Tompkins rejected the idea that there is one “clear and unambiguous meaning” of “under federal jurisdiction,” writing that the only information available to help decipher what Congress meant by the phrase was gleaned from a Senate hearing on May 17, 1934 — that it was intended as “a means of attaching some degree of qualification to the term ‘recognized Indian tribe.’” She concluded that the Interior Department would continue to take land into trust on the basis of a two-part inquiry that would “fill in gaps where Congress has been silent.”

In a letter sent to Cromwell on Sept. 7, Assistant Secretary of Indian Affairs Tara Sweeney wrote that after reviewing the evidence and submissions, the state’s history of exercising authority over the tribe provided no indication of federal authority sufficient to prove it was under federal jurisdiction.

While the evidence “demonstrates a federal awareness of the Massachusetts Indians and the Commonwealth’s regulation of their affairs, it does not establish or reflect any federal actions taken on behalf of, or for the benefit of, the Mashpee Tribe or its members as such,” Sweeney wrote. Because the tribe was not “under federal jurisdiction” in 1934, it did not qualify under the Indian Reorganization Act’s first definition of ‘Indian’ nor under the second definition, as interpreted by the U.S. District Court in Massachusetts, she wrote.

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http://www.capecodtimes.com/news/20180927/mashpee-tribe-sues-interior-department-over-land-decision

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Tribe member confronts Interior official

By Tanner Stening
Posted Sep 12, 2018 

Mashpee Wampanoag Tribe official says Interior Department made “wrong decision”

The Mashpee Wampanoag Tribe’s second-in-command got a chance Wednesday to tell the head of the federal Bureau of Indian Affairs how she felt about a Trump administration finding that the Cape tribe didn’t qualify to have its land taken into trust.

“You did a wrong thing,” Mashpee Wampanoag Tribal Vice Chairwoman Jessie “Little Doe” Baird told Assistant Secretary of Indian Affairs Tara Sweeney during a meeting of the National Congress of American Indians in Washington, D.C. “I can love and respect you as an Indian woman, but we need to stick together.”

In August, Sweeney was sworn in as the first Alaska native to hold the position.

On Friday, Sweeney sent a letter to Mashpee Wampanoag Tribe Chairman Cedric Cromwell informing him of the agency’s determination that the tribe was ineligible to have land taken into trust because it was not under federal jurisdiction at the time of the passage of the Indian Reorganization Act in 1934.

In a video posted on the tribe’s Facebook page that was later taken down, Baird is seen speaking to Sweeney during a meeting of the National Congress of American Indians, telling her that the department’s finding was “a wrong decision.”

Sweeney, who was standing before a lectern listening, appeared to nod several times.

“We have to make decisions that are good, right and moral, not just politically correct,” Baird said.

Baird asked Sweeney to reconsider Friday’s ruling.

“Because what happens to us in Massachusetts is going to spread across the country,” she said. “You’ve got to think about what you’re doing.”

The Interior broke its silence on the ruling on Tuesday; a spokeswoman for the agency said it will keep the 321 acres of reservation land in Mashpee and Taunton in trust until the conclusion of a lawsuit brought by neighbors of the tribe’s proposed $1 billion casino in Taunton.

“Consistent with our practices and procedures, the department will continue to hold the tribe’s land in trust until a final court order is imposed,” Bureau of Indian Affairs spokeswoman Nedra Darling said.

Cromwell has repeatedly said a negative ruling from the Interior Department would indicate that it is poised to disestablish the tribe’s reservation.

Members of the tribe are on Capitol Hill this week for “Tribal Unity Impact Days,” a two-day event hosted by the NCAI, which issued a statement on Tuesday objecting to the decision. The organization is demanding an “immediate response” from the Interior to clarify its land policies toward Indian tribes.

Earlier in the day, Baird and Cromwell addressed an assembly of tribal nations and their representatives.

Baird was visibly emotional when discussing the tribe’s long history, dating back 12,000 years in the region, and its many difficulties in attaining federal acknowledgement.

“We waited 30 years for an answer after we applied,” she said, adding that the tribe has worked hard since that time. “Our application for federal acknowledgement turned into a 54,000-page application, the largest one in history because they kept asking us for more.”

The trust lands application was 14,000 pages, she said, listing off the housing, education programs, court system and other advances the tribe has made.

“All of these things are going to go away with this decision and we are asking Indian Country to stand up and support us,” she said.

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Interior: Mashpee tribe’s land remains in trust pending appeal

By Tanner Stening
Posted Sep qq, 2018

MASHPEE — The U.S. Department of the Interior will continue to hold the Mashpee Wampanoag Tribe’s land in trust until a legal challenge to its status is finalized, a spokeswoman for a division of the agency said Tuesday.

“Consistent with our practices and procedures, the department will continue to hold the tribe’s land in trust until a final court order is imposed,” said Nedra Darling, a spokeswoman for the Bureau of Indian Affairs.

On Friday, the Interior Department sent a letter to tribe Chairman Cedric Cromwell informing him of the agency’s determination that the tribe was ineligible to have land taken into trust because it was not under federal jurisdiction at the time of the passage of the Indian Reorganization Act in 1934 and therefore didn’t qualify under a definition of “Indian” spelled out in the law. Interior officials had previously found in 2015 that the tribe qualified under another definition allowing the federal government to take 321 acres of land in Mashpee and Taunton into trust on the tribe’s behalf.

The Department of Interior was sued in 2016 by neighbors of a $1 billion casino project the tribe proposed for its reservation land in Taunton. U.S District Court Judge William Young ruled in 2016 that the federal government did not have the authority to take the land into trust in the way it had, remanding the decision to the agency for reconsideration.

The tribe’s appeal of Young’s 2016 decision is still pending in the U.S. First Circuit Court of Appeals. The Interior Department will not take action with respect to the tribe’s land until that appeal is decided, Darling said.

In November, the appeals court approved a request by the tribe that it be allowed to file a status report within ten days of the Interior Department’s decision, according to court documents.

The lawsuit brought by the Taunton neighbors, as in similar cases, rested on the interpretation of four words: “now under federal jurisdiction,” a phrase that has frustrated tribes seeking trust status for newly acquired land with the federal government over the years, most notably the Narragansett Tribe’s efforts in Rhode Island, which resulted in the Supreme Court decision known as Carcieri v. Salazar.

David Tennant, an attorney representing the plaintiffs in the Taunton case, said Tuesday before Darling’s comments that he expects the federal agency to “unwind” the 2015 decision so that “it is consistent with (Friday’s) decision.”

“The land is not lawfully in trust; the land was not lawfully declared a reservation,” Tennant said. “We certainly expect the Interior to take steps to recognize that reality.”

If the Interior Department doesn’t move to take the land out of trust, his legal team will be back in court requesting that Young “order the agency do what they are required to do,” Tennant said.

“It’s not rocket science,” he said.

On Tuesday, Cromwell said Friday’s finding by the Interior Department is the first instance in which the Carcieri decision is being wielded by the agency to “terminate a tribe.” If it stands, it would be the first time since the Termination Era — a period from the 1940s to the 1960s when Congress pushed to end tribal independence by removing federal protections — that the federal government appears to be in a “detribalization mode,” he said.

“Our own country is attacking us,” he said. “America just attacked its own people.”

News of Friday’s finding and its potential effects is still reverberating across Indian Country.

On Tuesday, the National Congress of American Indians issued a statement condemning the Interior Department’s decision, saying it “severely restricts the (tribe’s) sovereignty and its ability to exercise meaningful self-governance.”

In addition, the organization criticized the agency for failing to consider the “totality of the tribe’s evidence” it says proved the Mashpee Wampanoag Tribe was under federal jurisdiction in 1934.

“The tribe’s reservation is now being threatened with disestablishment,” the statement says. “The tribe is effectively stripped of important ‘reliance interests’ that will affect the social service programs it provides to its citizens, as well as the economic development ventures (including gaming) that the tribe relies on to support critical tribal government functions and provide job opportunities to its people.”

If the land is taken out of trust, it could affect the tribe’s sovereignty, and it would be subject to state and local regulations and taxation, according experts in Indian law.

But those same experts have maintained that a reservation can only be disestablished by an act of Congress, specifically through legislation.

And Cromwell said the Interior Department doesn’t have a way to take the land out of trust.

“There’s no policy or regulatory structure in place,” Cromwell said. “There’s no vehicle for them to do that.”

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Interior Department deals blow to Mashpee Wampanoag Tribe

By Tanner Stening
Posted Sep 7, 2018

MASHPEE — The Trump administration on Friday delivered an unprecedented and potentially crushing blow to the Mashpee Wampanoag Tribe.

After more than two years of legal uncertainty, the U.S Department of the Interior — the agency charged with protecting tribal trust assets — issued a finding that it could not keep 321 acres of land taken into trust for the tribe under the Obama administration, casting an ominous shadow on the Cape tribe’s future and its proposed $1 billion casino in Taunton.

The Interior Department was sued in 2016 by neighbors of the planned casino-resort after the agency took the tribe’s land into trust in 2015. A federal judge ruled that the Secretary of the Interior did not have the authority to take the land into trust because the tribe was not under federal jurisdiction at the time of the passage of the Indian Reorganization Act in 1934 and therefore did not qualify under a definition of Indian used by Interior officials.

Since the 2016 U.S. District Court ruling, the agency has been considering whether Massachusetts had exercised authority over the Mashpee tribe in a manner that could be viewed as a surrogate for the federal jurisdiction requirement under the 1934 law.

That law remains the primary governing tool over Indian affairs, promoting self-determination and self-government.

The lawsuit, as in similar cases, rested on the interpretation of four words: “now under federal jurisdiction,” a phrase that has vexed tribes seeking trust status for newly acquired land with the federal government over the years, most notably the Narragansett Tribe’s efforts in Rhode Island, which culminated in the Supreme Court decision known as Carcieri v. Salazar.

But the Carcieri decision never established the criteria by which a tribe could demonstrate it was under federal jurisdiction, prompting the Interior’s solicitor to issue an interpretation of the ambiguous phrase in 2014.

In a letter sent Friday to Mashpee Wampanoag Tribal Chairman Cedric Cromwell, Assistant Secretary of Indian Affairs Tara Sweeney wrote that after reviewing the evidence and submissions, the state’s history of exercising authority over the tribe provides no indication of federal authority sufficient to prove it was “under federal jurisdiction.”

While the evidence “demonstrates a federal awareness of the Massachusetts Indians and the Commonwealth’s regulation of their affairs, it does not establish or reflect any federal actions taken on behalf of, or for the benefit of, the Mashpee Tribe or its members as such,” Sweeney wrote. “Because the Tribe was not ‘under federal jurisdiction’ in 1934, the Tribe does not qualify under the IRA’s first definition of ‘Indian.’ Nor does it qualify under the second definition, as that definition has been interpreted by the United States District Court for the District of Massachusetts.”

Mashpee signed Remand Decision byCape Cod Times on Scribd

Having struck out in federal court and with the executive branch, the tribe’s road to maintaining its land and the resulting economic benefits are narrowing. Hopes for the future of the tribe’s land now rest with legislation pending before Congress that would reaffirm the reservation outright, ending the ongoing litigation and preventing future legal challenges to it in court.

That legislation was introduced by U.S. Rep. William Keating, D-Mass., and a twin bill has been introduced in the Senate. Keating said Friday’s ruling was what congressional leaders feared, blaming Trump administration officials for “turning their backs” on the historic tribe, which traces its roots back some 12,000 years in the region.

“This tribe held the first Thanksgiving,” he said. “This is clearly on the doorstep of the Trump administration.”

Keating said Trump’s Justice Department “should be appealing” the ruling.

“We’ll be moving forward with our legislation,” Keating said.

In a statement, Cromwell said the ruling was a “tremendous blow” to the tribe and a “grave injustice initiated by an out-of-state casino developer,” referring to Chicago-based Neil Bluhm, who is backing a competing casino proposal in Brockton and who had initially thrown financial support behind the lawsuit brought by neighbors of the tribe’s planned Taunton casino

“I am asking people of good will and all those concerned with justice for the indigenous people of this land — the first Americans — to stand with us in calling on Congress to protect our reservation and ensure we are don’t become the first Tribe since the dark days of the Termination Era to lose its land,” Cromwell said.

Federal Indian law experts have said the Interior Department must seek congressional approval to take the land out of trust. The federal government issued a proclamation of the tribe’s reservation after it was taken into trust and it is unclear what the removal of trust status would mean for the reservation, according to the experts.

“All of this is unsettled because there’s not much precedent here,” said Gregory Ablavsky, professor of law at Stanford University Law School.

The removal of trust status must come through federal legislation, he said.

Robert Anderson, director of the Native American Law Center at the University of Washington School of Law, previously said a ruling against the tribe “would be totally inconsistent with federal Indian policy since the 1950s.”

Within Indian Country, the ruling is telling regarding the current administration’s land policies toward Indians, according to Derrick Beetso, general counsel for the National Congress of American Indians.

Michelle Littlefield, a plaintiff in the 2016 lawsuit, wrote in a text message that Keating’s legislation would reaffirm “a no decision,” suggesting the Interior Department’s original decision had been voided by Friday’s ruling.

“It’s over,” she wrote.