'First time since termination era': Tribe's trust land remains at risk in Trump era

The Trump administration won't stand in the way of bipartisan legislation to protect the homelands of the Mashpee Wampanoag Tribe from litigation.

In testimony to Congress on Tuesday, a top Bureau of Indian Affairs official suggested only minor changes to H.R.5244, also known as the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. The bill, if it becomes law, ensures that the tribe's trust land in Massachusetts will remain in trust.

"Administering trust lands is an important responsibility that the United States undertakes on behalf of Indian tribes," Darryl LaCounte, the "acting" director of the BIA, told the House Subcommittee on Indian, Insular and Alaska Native Affairs at the highly-anticipated hearing on the bill.

While the statement didn't represent a full-blown endorsement of the bill, it marked an important step for the tribe, whose homelands have been placed at risk by a lawsuit in federal court. Chairman Cedric Cromwell said passage of H.R.5244 will ensure the Department of the Interior won't do something unprecedented and take the tribe's land out of trust.

"This would be the first time since the termination era that the department has acted to disestablish an Indian reservation," Cromwell told lawmakers, harkening back to the destructive federal policy which saw tribes lose countless acres of their lands.

Indianz.Com on SoundCloud: Legislative Hearing on Indian Affairs Bills

Republicans and Democrats alike also expressed support for the measure, which is patterned after a federal law that was recently upheld by the U.S. Supreme Court. Some highlighted the tribe's contributions to American history.

"This bill is critical for the rights and benefits of the Mashpee Wampanoag Tribe, " said Rep. William Keating (D-Massachusetts) , the sponsor of H.R.5244. "The tribe is known as People of the First Light, who were an integral part of our country's history and their assistance to the Pilgrims in Plymouth."

But Rep. Doug LaMalfa (R-California) brought up the elephant in the room He asked when the Trump administration plans to make a decision on the tribe's trust land after a federal judge, almost two years ago, ordered another look at the issue.

The BIA official was unable to provide a substantive answer.

"I can't speak directly to it," LaCounte said. "I don't know the answer to that but I will find out."

LaMalfa, the Republican chairman of the subcommittee, got more direct anyway. He asked whether the tribe's land will in fact be taken out of trust.

"Not to my knowledge," LaCounte responded. "It is in trust right now. Not to my knowledge."

Mashpee Wampanoag Tribe Chairman Cedric Cromwell, left, and elder Vernon Lopez share the good news about the tribe's land-into-trust application on September 18, 2015. Photo: Mashpee Wampanoag Tribe

Despite the lack of clarity from the executive branch, Rep. Ruben Gallego (D-Arizona), the top Democrat on the subcommittee, blamed Congress for the impasse. He called on lawmakers to pass a fix to the Supreme Court's "misguided" decision in Carcieri v. Salazar.

The decision has "led to more and more of these kinds of attacks on established tribal lands," Gallego said.

In the 2009 ruling, the justices held that the BIA can place land in trust for tribes that were "under federal jurisdiction" in 1934. The Mashpees gained final acknowledgment of their status in 2007 after a lengthy review process.

"Until we finally pass a Carcieri fix, we will have to continue addressing this issue on a tribe-by-tribe basis," Gallego said.

But Gallego also got LaCounte to confirm the severity of the tribe's situation. He asked when was the last time the federal government "disestablished" a reservation.

"My best guess would be in the 50s, when the termination era took place," LaCounte said.

The BIA approved the tribe's land-into-trust application in September 2015, during the Obama era. The decision largely ignored Carcieri because then-Assistant Secretary for Indian Affairs Kevin Washburn focused on a different section of the Indian Reorganization Act in acquiring the lands for the tribe.

In July 2016, Judge William G. Young determined that approach was insufficient and sent the matter back to Interior for further proceedings. A new president was elected a few months later and a revised decision has not been issued, though a draft provided to Cromwell a year ago stirred fears of losing the land, consisting of about 150 acres in the town of Mashpee and another 170 acres in the city of Taunton, where plans for a gaming facility prompted the litigation.

"Does the department plan on doing this?" asked Rep. Don Young (R-Alaska), a former chairman of the subcommittee and the chairman emeritus of the larger House Committee on Natural Resources.

"I have heard no plans to do this," LaCounte said.

"The bill would stop it, right?" responded Young, who has served in Congress for more than 40 years.

"Yes," LaCounte said.

House Committee on Natural Resources on YouTube: Subcommittee on Indian, Insular and Alaska Native Affairs - Legislative Hearing on Indian Affairs Bills - July 24, 2018

The next step for H.R.5244 would be a markup in the House Committee on Natural Resources. Thanks to the panel's work, the House has approved a slew of tribal homelands legislation so far in the 115th Congress.

The companion version of the bill is S.2628. It has been referred to the Senate Committee on Indian Affairs but has not yet been granted a hearing.

The Senate, though, could always take up H.R.5244 if it gains passage in the House.

"It's very honorable and just that Congress could act on passing this bill," Chairman Crowmell said, "to clear up any uncertainty and ambiguity so that our people can continue to thrive and prosper."

House Subcommittee on Indian, Insular and Alaska Native Affairs Notice:
Legislative Hearing on Indian Affairs Bills (July 24, 2018)

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