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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.”