Cedric Cromwell, the chairman of the Mashpee Wampanoag Tribe, appeared on the NECN program “The Take With Sue O'Connell” on September 10, 2018, to discuss the Trump administration's unprecedented homelands decision. Photo: Mashpee Wampanoag Tribe

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'Land is not lawfully in trust': Opponents seek action on Mashpee Wampanoag Tribe

Wednesday, September 12, 2018

Indian Country is entering uncharted territory with the Trump administration's decision affecting the homelands of the Mashpee Wampanoag Tribe.

A spokesperson for the Bureau of Indian Affairs told Indianz.Com on Tuesday that the tribe's reservation will remain in trust pending the resolution of litigation in federal court. But opponents in Massachusetts are prepared to take action if the Department of the Interior doesn't do something about the land.

“The land is not lawfully in trust; the land was not lawfully declared a reservation,” attorney David Tennant told The Cape Cod Times. “We certainly expect the Interior to take steps to recognize that reality.”

“It’s not rocket science,” added Tennant, who is representing the plaintiffs in Littlefield v. U.S. Department of the Interior, the case that has cast significant doubts about the tribe's reservation.

So far, the BIA hasn't explained how it will implement the "science" behind the unprecedented decision from Tara Sweeney, the recently-installed Assistant Secretary for Indian Affairs at Interior. The tribe's land -- about 150 acres in the town of Mashpee and another 170 acres in the city of Taunton -- was declared to be a "reservation" in January 2016 but the Trump administration official did not detail how that action will be unraveled.

“There’s no policy or regulatory structure in place,” Chairman Cedric Cromwell told The Cape Cod Times. “There’s no vehicle for them to do that.”

Today in Washington D.C. Mashpee Wampanoag Vice-Chair Jessie “Little Doe” Baird speaking in-front of National Congress...
Posted by Mashpee Wampanoag Tribe on Wednesday, September 12, 2018

Mashpee Wampanoag Tribe on Facebook: NCAI Tribal Impact Unity Days

According to the tribe and legal experts, only Congress can dismantle a reservation once it has been placed in trust. That hasn't happened since the dark and destructive termination era of the 1950s and 1960s.

"This decision severely restricts the Mashpee Wampanoag Tribe’s sovereignty and its ability to exercise meaningful self-governance. In addition, the tribe’s reservation is now threatened with disestablishment," the National Congress of American Indians said in a widely-read statement on Tuesday.

Congress can take action to protect the tribe's land from further litigation and clarify that it remains in trust. The bipartisan Mashpee Wampanoag Tribe Reservation Reaffirmation Act (H.R.5244 | S.2628) would do just that.

"Today’s action by the Trump administration is yet another deal the federal government is reneging on with Native Americans, and it underscores why Congress must pass our legislation: so that the Mashpee Wampanoag do not lose their home at the hands of the federal government,” Sen. Ed Markey (D-Massachusetts) and Sen. Elizabeth Warren (D-Massachusetts), the sponsors of S.2628, said in a joint statement on Friday.

Mashpee leaders are in Washington, D.C., to advocate for passage of the bill. Chairman Cromwell and Vice Chair Jessie “Little Doe” Baird addressed NCAI's previously-scheduled Tribal Impact Unity Days on Capitol Hill on Wednesday amid the uncertainty.

In a column on the tribe's website, Baird noted that "while the tribe struggles to ensure that these lands are not taken out of trust -- we, along with 8 other sister tribes, paved the way for the formation of these United States via treaties and Indian Land Title granted to the Pilgrims on lands within the very same territory that is now being stripped away."

The House Subcommittee on Indian, Insular and Alaska Native Affairs took testimony on H.R.5244 on July 24. The next step would be a markup session before the entire House Committee on Natural Resources.

S.2628 has been referred to the Senate Committee on Indian Affairs but a hearing has not been scheduled. The Senate could always take up H.R.5244 if that version advances in the House.

Protecting tribal homelands through legislation was the subject of a long-running case known as Patchak v. Zinke. In February, the U.S. Supreme Court held that such an approach was a lawful exercise of Congressional powers.

Historically, Congress has not needed to intervene. That's because the BIA used to win every single land-into-trust challenge until recent legal developments, including Patchak.

In a prior stage of that case, then known as Salazar v. Patchak, the Supreme Court held that anyone can file a lawsuit challenging a land-into-trust decision even after the land has been placed in trust. Previously, opponents had to take action before the land was actually acquired.

And then there's Carcieri v. Salazar. In that ruling, the Supreme Court held that a tribe must have been "under federal jurisdiction" in 1934 in order to benefit from the land restoration provisions of the Indian Reorganization Act.

The decision is now being used against tribes, like Mashpee, who had to wait decades for the United States to acknowledge their status. And since legal challenges can proceed even after their lands have been placed in trust, tribes are stuck in a new legal limbo.

Tribes have long called for a Carcieri "fix" but Congress has declined to approve one amid objections from states and local governments. Some tribes also have lobbied against a so-called "clean" fix as they have tried to limit competition to their existing gaming facilities or protect areas they deem to be their exclusive or primary aboriginal territories.

Amid the uncertainty, the the tribe is hosting a community gathering on Friday at its headquarters in Mashpee to discuss the future of its homelands. The tribal government building is located on land that is still in trust, as of Wednesday.

And as of early Wednesday afternoon, the Trump administration has not provided any additional information to the judge handling Littlefield v. U.S. Department of the Interior, the land-into-trust lawsuit.