Mashpee Wampanoag Tribe loses appeal in homelands case

Monday, March 2, 2020

The Mashpee Wampanoag Tribe cannot restore its homelands through the land-into-trust process, a federal appeals court ruled last week in a major blow to plans to open a casino in Massachusetts.

In a unanimous opinion issued barely a month after arguments in the case, the 1st Circuit Court of Appeals said the tribe failed to show that it was "under federal jurisdiction" in 1934. The tribe did not gain formal recognition of its status until 2007, long after that date.

As a result, the Bureau of Indian Affairs cannot go against the "unambiguous" language of the Indian Reorganization Act, a three-judge panel of the court determined. The 22-page decision affects the tribe's proposed casino site, as well as its headquarters, some 321 acres altogether.

“There’s no question that this is a grave injustice,” Chairman Cedric Cromwell said in response to the ruling. “Much of this case revolved around the ambiguity of two words – ‘now’ and ‘such.’ We will continue to fight, as our ancestors did, to preserve our land base, our culture and our spiritual connection to our homelands.”

Indianz.Com Audio: Littlefield v Mashpee Wampanoag Indian Tribe - 1st Circuit Court of Appeals - February 5, 2020

Though further appeals are possible, the fight will continue in the political sphere, Cromwell noted. Passage of H.R.312, the Mashpee Wampanoag Tribe Reservation Reaffirmation Act, would ensure that the tribe's lands are indeed in trust.

The Democratic-controlled U.S. House of Representatives approved H.R.312 by a vote of 275 to 146 on May 15. The bill has not yet been taken up by the U.S. Senate, which is in Republican hands.

Additionally, a second lawsuit is pending in federal court. The tribe sued the Trump administration after the Bureau of Indian Affairs changed course and determined that the fee-to-trust process is not available to the People of the First Light, whose ancestors helped the first Europeans survive at Plymouth in the early 1600s.

While the case is before an entirely different court in Washington, D.C., the 1st Circuit's ruling does not bode well for the tribe. Language in the decision gives strong weight to the BIA's line of thinking.

"Because the IRA unambiguously forecloses the BIA's interpretation," Judge Sandra Lynch wrote for in the decision, "the Secretary lacked authority to take land into trust for the benefit of the tribe."

The Mashpee Wampanoag Tribe leads a march from the National Museum of the American Indian in Washington, D.C., to the U.S. Capitol on November 14, 2018, Photo by Indianz.Com (CC BY-NC-SA 4.0)

Lynch also pointed out that the U.S. Supreme Court, through a decision known as Carcieri v. Salazar, prevents the BIA from looking at other ways to help the tribe restore its homelands. During the Barack Obama administration, the agency had relied on a different section of the IRA when it took the 321 acres in trust.

"We hold that the plain meaning of the IRA's text precludes the BIA's interpretation of that section," Lynch wrote for the court.

The BIA, however, has not taken the tribe's reservation out of trust, something that hasn't happened since the termination era. Current regulations do not provide a mechanism for the agency to do that.

Congress could rectify the situation by enacting a "fix" to Carcieri. On the same day H.R.312 passed the House, the chamber approved H.R.375 to ensure that all tribes -- regardless of date of federal recognition -- can follow the fee-to-trust process at the BIA.

But as with the Mashpee bill, the Senate has yet to take up the Carcieri fix.

"If this bill can become law, it would right a huge wrong in Indian Country. It would correct a blatant injustice," Brian Lightfoot Brown, a citizen of the Narragansett Tribe, wrote on Indianz.Com last week.

The Narragansetts, whose federal recognition was formalized in the 1980s, were the first ones impacted by Carcieri despite their long history of relations with colonial governments. The Supreme Court prevented the tribe from acquiring land for a housing project in neighboring Rhode Island.