Tara Sweeney, the newly-installed Assistant Secretary for Indian Affairs, poses with Secretary of the Interior Ryan Zinke at Department of the Interior headquarters in Washington, D.C. Photo: U.S. DOI

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Trump administration takes Indian Country back to termination era

Monday, September 10, 2018

Less than two months into the job, the new leader of the Bureau of Indian Affairs has set an ominous tone for the Trump administration's dealings with tribal nations.

Tara Sweeney, the recently-installed Assistant Secretary for Indian Affairs, issued a decision on Friday that paves the way for a reservation to be taken out of trust for the first time since the termination era. The victim in this age of self-determination and sovereignty is the Mashpee Wampanoag Tribe, whose homelands in Massachusetts are now on the chopping block.

But the People of the First Light aren't accepting Washington's dictate without a fight. An emergency council meeting is taking place at tribal headquarters on Monday to address what Chairman Cedric Cromwell described as an "unbelievably grave injustice.'

"We have been on this land for 12,000 years and we are not going anywhere," Cromwell declared after receiving the negative decision.

Key to the effort is legislation in Congress which would prevent the reservation from being taken out of trust. With the executive branch willing to walk away from any responsibilities, passage of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act appears to be the only hope for success.

“The decision by the Trump administration to move forward with denying the Mashpee Wampanoag a right to their ancestral homeland and to keep their reservation is an injustice," Sen. Ed Markey (D-Massachusetts) and Sen. Elizabeth Warren (D-Massachusetts), the sponsors of S.2628, said in a joint statement on Friday.

"America has a painful history of systematically ripping apart tribal lands and breaking its word," the lawmakers added. "We cannot repeat that history."

Mashpee Wampanoag Tribe Chairman Cedric Cromwell, left, and elder Vernon Lopez celebrate approval of the tribe's land-into-trust application on September 18, 2015. The Trump administration has since reversed course. Photo: Mashpee Wampanoag Tribe

The Wampanoag people's place in history is well known. The tribe's ancestors welcomed the first European settlers to the Americas almost 400 years ago and helped them thrive, an event commemorated with the annual celebration of Thanksgiving.

But the decision issued by Sweeney, who joined the Trump administration at the end of July after promising to advocate for the trust responsibility, paints a different picture of the tribe's relationship -- or lack thereof -- with the United States. In the 28-page document, she said there was "little if any evidence" which showed that the tribe was "under federal jurisdiction" in 1934.

The year 1934 is critical because that's when the Indian Reorganization Act came into existence. Section 5 of the law authorized what is known as the land-into-trust process in order to reverse the effects of allotment, another highly-destructive federal policy which saw tribes lose 90 million acres of their homelands in less than 50 years.

But decades of litigation by states and local governments led to a significant weakening of the law. In 2009, the U.S. Supreme Court, in a case known as Carcieri v. Salazar, held that a tribe must have been "under federal jurisdiction" in 1934 in order to benefit from the land restoration provisions of the IRA.

According to Sweeney, an Alaska Native who hails from a state where the Trump administration recently suspended the land-into-trust process, the Mashpee Wampanoag Tribe fails to meet the "jurisdiction" in 1934 test. Even though the BIA, said the tribe retained its self-governance when it formally recognized the tribe in 2007, she concluded that the federal government did not take enough actions to demonstrate the type of trust relationship she has said she is "committed" to upholding.

"The record demonstrates that the Mashpee Tribe had significant relations with the Commonwealth as a colony and state for nearly two centuries; that the Commonwealth's exercises of authority over the tribe were extensive and pervasive; and that the laws enacted by the Commonwealth for the benefit of the tribe were often similar in substance to federal laws enacted for the benefit of tribes," Sweeney wrote in reference to the Commonwealth of Massachusetts, whose origin is directly tied to the establishment of the Pilgrim colony in 1620, more than a century before the United States came into being.

"Nevertheless the record contains practically no evidence of any dealings with the federal government in that period," Sweeney continued.

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

Sweeney's decision is her first major policy one since she became the Assistant Secretary for Indian Affairs. It comes less than two months after a different BIA official claimed ignorance of any attempt to take the tribe's land out of trust

"I have heard no plans to do this," Darryl LaCounte, the "acting" director of the BIA, said in testimony to Congress on July 24.

And when asked whether such a move would be unprecedented, LaCounte had to reach back decades to recall the last time it happened.

"My best guess would be in the 50s, when the termination era took place," said LaCounte, who is a career employee at the BIA.

The BIA approved the Mashpee Wampanoag Tribe's land-into-trust application in September 2015, during the Obama administration. The decision was cognizant of Carcieri but it instead focused on a different section of the Indian Reorganization Act in order to justify the acquisition of 150 acres in the town of Mashpee and another 170 acres in the city of Taunton.

The tribe, despite its lack of federal status, had a "reservation" in 1934, then-Assistant Secretary Kevin Washburn said in a decision that broke new ground at the time.

Posted by Mashpee Wampanoag Tribe on Saturday, September 8, 2018

"Mashpee is Wampanoag Territory," an image posted on Facebook read after the the Mashpee Wampanoag Tribe learned that its reservation in Massachusetts is on the chopping block.

Opponents of the First Light Resort and Casino, the tribe's $1 billion gaming project in Taunton, weren't satisfied with that response and went to court. A federal judge agreed that the original analysis was insufficient in light of Carcieri and ordered the BIA to reconsider.

But before the ruling came down, the BIA had already declared the tribe's lands to be a "reservation." Sweeney's decision on Friday does not explain how the Trump administration plans to unwind that action.

And as of early Monday afternoon, the Department of Justice had not filed any new documents in Littlefield v. U.S. Department of the Interior to explain the legal status of the reservation.

The tribe could always return to court to dispute the BIA's unfavorable interpretation of its status. But Chairman Cromwell is also advocating for action on the homelands bill.

"We implore all citizens, tribal and non-tribal, to stand with us in calling on Congress to ensure our reservation is not taken away," Cromwell said.

The House Subcommittee on Indian, Insular and Alaska Native Affairs took testimony on H.R.5244 at the hearing where BIA Director LaCounte appeared. He did not offer an outright endorsement or opposition to the measure, which is identical to S.2628, the Senate version.

Every member of the Congressional delegation from Massachusetts has signed onto the Mashpee Wampanoag Tribe Reservation Reaffirmation Act. A number of Republicans are co-sponsoring the House version.

Federal Register Notices

Proclaiming Certain Lands as Reservation for the Mashpee Wampanoag (January 8, 2016)
Land Acquisitions; Mashpee Wampanoag Tribe (September 25, 2015)
Final Environmental Impact Statement for the Proposed Fee-to-Trust Transfer of Property and Subsequent Development of a Resort/Hotel and Ancillary Facilities in the City of Taunton, MA and Tribal Government Facilities in the Town of Mashpee, MA by the Mashpee Wampanoag Tribe (September 5, 2014)
Land Acquisitions: Appeals of Land Acquisition Decisions (November 13, 2013)

House Subcommittee on Indian, Insular and Alaska Native Affairs Notice

Legislative Hearing on Indian Affairs Bills (July 24, 2018)