A group called the "Coalition to Restore American Values" produced a campaign advertisement attacking Sen. Elizabeth Warren (D-Massachusetts), a leading Democratic candidate for president, due to her support of the Mashpee Wampanoag Tribe.

Mashpee Wampanoag Tribe stands alone in battle for homelands

Thursday, January 30, 2020

The Mashpee Wampanoag Tribe is heading to court next week to defend the status of its reservation in Massachusetts.

The reservation was placed in trust by the Bureau of Indian Affairs during the Obama era. The Trump administration has since reversed course and has told the tribe that it cannot follow the fee-to-trust process that was authorized by the Indian Reorganization Act.

As a result, the tribe will be standing alone at the 1st Circuit Court of Appeals next Wednesday. The federal government, despite its role as a trustee to Indian nations, has essentially abandoned the Mashpee people, whose ancestors helped some of the first European settlers survive in a new land more than 400 years ago.

"Appellant has suffered through centuries of land loss, oppression, and near-extinction at the hands of colonial governments and the United States, and thus is emblematic of the tragic histories of Indian Tribes which Congress sought to remediate through the IRA," the tribe said in its brief to the 1st Circuit.

Chairman Cedric Cromwell of the Mashpee Wampanoag Tribe addresses the #StandWithMashpee rally at the U.S. Capitol on November 14, 2018. Photo by Indianz.Com (CC BY-NC-SA 4.0)

The IRA reversed the disastrous policy of allotment by authorizing the BIA to acquire lands in trust for tribes. But the language in the law has been interpreted by the U.S. Supreme Court, in a decision known as Carcieri v. Salazar, in a very narrow manner.

According to Carcieri, the fee-to-trust process is available only to those tribes that were "under federal jurisdiction" in 1934,when the IRA became law. Despite the Mashpee people's long relationship with colonial governments, they didn't gain formal recognition until a favorable BIA determination was finalized 2007.

Thanks to Carcieri, opponents of the tribe's plan for a casino convinced a federal judge to rule that the tribe can't restore its homelands through the IRA. The ruling is the subject of the appeal before the 1st Circuit, with the hearing scheduled for 9:30am on February 5, according to the court's calendar.

Though the federal government won't be there, it's not entirely off the hook. As part of a separate lawsuit, the tribe is suing the Trump administration for refusing to confirm the status of the reservation when the issue was presented to the BIA a second time.

In addition to the litigation, the tribe has turned to another branch of government for help. Bipartisan legislation in the U.S. Congress would confirm that the reservation -- consisting of about 321 acres, far smaller than the lands the Wampanoag people once controlled -- is in trust and can't be disputed in court.

The Democratic-controlled U.S. House of Representatives passed H.R.312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act, by a vote of 275 to 146 on May 15. A large number of Republicans who might have otherwise supported the bill defected after President Donald Trump invoked the name of a Native woman in a derogatory manner and told them to vote against it.

H.R.312 now awaits passage in the U.S. Senate, which is in Republican hands. The bill has yet to be granted a hearing even though similar tribal homelands legislation was approved by both chambers of Congress on a bipartisan basis and signed into law by Trump as recently as last month.

Trump's opposition to the Mashpee bill stems from his long-running political rivalry with Sen. Elizabeth Warren (D-Massachusetts), who supports the tribe's efforts. She is a leading Democratic candidate for president, hoping to unseat the current occupant of the White House later this year.

Turtle Talk has posted documents from the 1st Circuit proceeding in Littlefield v. Mashpee Wampanoag Indian Tribe.