Mashpee Wampanoag Termination: Time to expose federal Indian law

Thursday, April 16, 2020  

We have long known that federal Indian law "trust doctrine" is not trustworthy.

The US Supreme Court admitted this fact in 2011, when Justice Samuel Alito said, "Throughout the history of the Indian trust relationship, we have recognized that the organization and management of the trust is a sovereign function subject to the plenary authority of Congress. …the Government has often structured the trust relationship to pursue its own policy goals." [United States v. Jicarilla Apache Nation, 564 U.S. 162, 175-176].

The untrustworthy federal Indian law trust doctrine was fully on view in the March 28, 2020, termination of Mashpee Wampanoag trust land status. The US Interior Department, following a February decision by the First Circuit Court of Appeals in Littlefield v. Mashpee Wampanoag Indian Tribe [951 F.3d 30, 33], revoked the "trust" status approved in 2015.

Sen. Bernie Sanders (I-VT) statement: "I stand with the Mashpee Wampanoag Tribe in their fight to restore lands that belong to them & oppose the disgraceful decision by the Trump Administration to disestablish their lands held in trust by the Department of Interior." @SenSanders pic.twitter.com/WIXHlM0yuM

— indianz.com (@indianz) March 29, 2020

Supposedly, under the federal Indian law "plenary power doctrine," only the US Congress has power to terminate trust land status. That point was also made by Justice Alito in the Jicarilla case. The Mashpee termination decision by Interior shows that no part of federal Indian law is trustworthy, even the parts that declare Congress has full authority over "Indian affairs."

"Trust doctrine" and "plenary power doctrine" go way back to the beginning of federal Indian law and its roots in "Christian discovery doctrine." The earliest case, Johnson v. McIntosh (1823), declared the US owned all Native lands on the basis of "Christian discovery doctrine." The second case, Cherokee Nation v. United States (1831), said the US was the "trustee" for Native nations. The third case, Worcester v. Georgia (1832), said US power over Native peoples was "supreme."

Democratic presidential candidate Joe Biden is promising to fight for a #Carcieri fix in order to prevent the Mashpee Wampanoag Tribe and other Indian nations from losing their homelands. @JoeBiden #StandWithMashpee https://t.co/bRBM69y5Vo

— indianz.com (@indianz) March 31, 2020

The courts have affirmed these basic federal Indian law doctrines of domination over and over again. Even the liberal wing of the Supreme Court goes along with them. In 2005, Justice Ruth Bader Ginsburg said, "Under the 'doctrine of discovery' … title to the lands occupied by Indians when the colonists arrived became vested in the … United States." [City of Sherrill, N.Y. v. Oneida Indian Nation of New York, 544 U.S. 197, 204 n.1].

Justice Ginsburg wrote those words to justify a decision that the Oneida Nation had no jurisdiction over its own ancestral lands because they were not in "trust" by the US. The Mashpee are now in the same position. They have no jurisdiction over their own lands, where they have lived since time immemorial, because the US refuses "trust" status.

The Mashpee and Oneida cases were decided under the 1934 Indian Reorganization Act, which said the US can "acquire lands for Indians." But after you see the untrustworthiness of federal Indian law doctrines, you might ask, "Why do Native nations need a US 'trust' to exercise jurisdiction over their own lands? Can Native nations only exist under US domination?"

Native nations pre-exist the US; they are not really part of the US structure. The US Supreme Court admitted this fact too. In 1991, Justice Antonin Scalia said, "it would be absurd to suggest that the tribes surrendered immunity [under] a [constitution] to which they were not even parties." [Blatchford v. Native Village of Noatak & Circle Village, 501 U.S. 775, 782].

It's high time that we understood federal Indian law and quit using superficial language that Native nations are "partners" with the US. A real partnership is based on treaties, not federal agency decisions and bogus court doctrines.

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Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.

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