Chairman Cedric Cromwell of the Mashpee Wampanoag Tribe addresses the #StandWithMashpee rally at the U.S. Capitol on November 14, 2018. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Trump administration lands in trouble for threatening tribe's sovereignty

Indian Country is declaring victory after a federal judge blasted the Trump administration for threatening the sovereignty of the Mashpee Wampanoag Tribe and breaking its promises to the People of the First Light.

In a series of decisions, Judge Paul L. Friedman unleashed the "trouble" he warned about just a couple of weeks ago. He ordered the Department of the Interior to take yet another look at the tribe's request for a reservation, holding that Assistant Secretary for Indian Affairs Tara Sweeney acted in an "arbitrary and capricious" manner by disapproving the land-into-trust application in one of her first major actions of the Trump era.

But Friedman wasn't done with the lashing. He said Secretary of the Interior David Bernhardt, who is Sweeney's boss, "went back on his word" by ordering the tribe's reservation in Massachusetts to be taken out of trust -- in the middle of the COVID-19 pandemic -- after pledging not to do so.

"If the land is taken out of trust, then the Mashpee Tribe will lose its sovereignty over the land in its entirety," Friedman wrote in one of three actions he took on Friday. "The total loss of sovereign authority, self-government, and jurisdiction over the land is unquestionably an irreparable harm."

The development comes less than three weeks after Friedman trashed the Trump administration for changing course on Indian Country homelands policy during the worst public health crisis in decades. It brings major relief to the Mashpee people, whose ancestors helped the first European settlers survive 400 years ago but whose future well-being has been put in doubt by official Washington.

“The DC District Court righted what would have been a terrible and historic injustice by finding that the Department of the Interior broke the law in attempting to take our land out of trust,” Chairman Cedric Cromwell said in a statement on Friday. “We will continue to work with the Department of the Interior — and fight them if necessary — to ensure our land remains in trust.”

Leaders of the National Congress of American Indians and the United South and Eastern Tribes joined Cromwell in cheering the victory. They called on the Trump administration to stop undermining the sovereignty of a fellow Indian nation.

"The Mashpee Wampanoag relationship with the United States is one of political equality, derived from their inherent sovereignty, powers, and authority that long predates the United States," said NCAI President Fawn Sharp. "No federal agency or civil servant has the authority to diminish or in any way undermine that unique political relationship and standing."

“The Department of the Interior was under no order to take the land out of trust, and so to attempt to rob the Mashpee of their homelands is nothing short of shameful," added President Kirk Francis of USET's Sovereignty Protection Fund.

But the judge's rulings are more than just legal fodder. A day after the May 19 hearing in the case, NCAI, USET and three other major Indian Country organizations called on Assistant Secretary Sweeney to resign, citing her handling of the Mashpee case as one of her "consistent and repeated failures" as the official who promised to advance tribal interests, not set them back.

In their letter to Secretary Bernhardt on May 20, Sharp, Francis and other Indian leaders noted: "just days after the United States declared COVID-19 a national pandemic, and before the court had issued any decision requiring Interior to take Mashpee’s lands out of trust status – Sweeney took actions to disestablish Mashpee’s reservation entirely."

"This type of unilateral assault on Tribal lands has not occurred since the Termination Era more than 60 years ago," the letter continued. In addition to NCAI and USET, the Association on American Indian Affairs, the Great Plains Tribal Chairman’s Association and the Midwest Alliance of Sovereign Tribes called on Sweeney to step down for breaking promises "over and over again."

Sweeney, who is the first Alaska Native person to serve as Assistant Secretary and only the second woman in history in the post, has not publicly reacted to the demand, nor has anyone else from Interior. A request for comment about the matter went unanswered by the department's media team.

The last time tribes took aim at an Assistant Secretary was during the Republican Ronald Reagan era. Ross Swimmer, a citizen of the Cherokee Nation, was accused of undermining the sovereignty of tribes by trying to transfer their monetary trust assets to a private bank without their consent. He later resurfaced during the Republican George W. Bush years, and continued to face tribal opposition when he was appointed to oversee those same trust funds.

Interior's only defense of Sweeney, who is Inupiat and a citizen of both the Native Village of Barrow and of the Inupiat Community of the Arctic Slope, came in response to her handling of an $8 billion COVID-19 relief fund promised to tribes more than two months ago. The Trump administration has determined that a portion of the money should go to Alaska Native corporations, which are for-profit entities that do not enjoy a government-to-government relationship with the United States.

Tribal nations, whose sovereignty predates the existence of the U.S. government, have accused Sweeney of a conflict of interest because she served as a high-ranking executive at Arctic Slope Regional Corporation, the wealthiest Alaska Native entity, before joining the Trump team. She promised to recuse herself from any matters affecting her former employer but Interior won't say whether she has continued to abide by that pledge.

"Assistant Secretary – Indian Affairs Tara Sweeney is committed to supporting all American Indians and Alaska Natives, and to suggest she has personal motives or that she is attempting to divert funds away from American Indians is completely false," an April 16 statement from Interior read.

Sweeney, though, has her defenders: executives from other Alaska Native corporations. Like Arctic Slope, their entities stand to benefit financially should they gain access to the $8 billion coronavirus relief fund. A federal judge is hearing arguments on the matter on Friday.

"Assistant Secretary Sweeney is an honorable person, and a tireless advocate for ALL Native people," a spokesperson for CIRI, one of the Alaska corporations, told Indianz.Com in April. "We are disappointed at the mere suggestion of impropriety on her part."

Sweeney has repeatedly described herself as an "advocate" for Indian Country. But she previously admitted that she was unable to carry out that role with respect to the Mashpee Wampanoag Tribe.

"I walked into this decision," Sweeney said at NCAI's annual convention in October 2018, a month after determining that the tribe could not restore its homelands through the fee-to-trust process at the Bureau of Indian Affairs.

Earlier this year, her explanation was much the same. Sweeney told Mashpee Vice Chairwoman Jessie "Little Doe" Baird that her supposed advocacy efforts were overruled by the legal team at Interior.

"I have to tell you that the Solicitor's Office sets the position for the department," Sweeney said at NCAI's winter session in February. "My role is one of advocacy, and advocacy for clarity and decision-making."

"In my discussions with the Solicitor, I continue to advocate that Indian Country deserves to have transparency in the process," Sweeney continued. "Indian Country deserves to have decisions rendered in a timely manner and that there's clarity in how we make decisions."

But Judge Friedman has not seen much transparency. In early May, he blasted the Solicitor's Office for withdrawing a legal opinion affecting tribal land applications without telling him.

Then, at the hearing later in the month, he said the March 5 legal memorandum in which the Solicitor's Office laid out new criteria for evaluating applications was "one of the worst written documents I've ever read from any government agency."

"For them to be talking about grammar, when they don't know the first thing about grammar, when they have typos throughout the whole thing, when they don't know how to spell [U.S. Supreme Court] Justice Stevens' name, is a joke," Friedman said during a hearing that took place via video and teleconference because the COVID-19 pandemic has shut down the federal courthouse in the nation's capital.

"And you can tell your client that," Friedman told a government attorney. "It's a joke, that March 5 document."

“I don’t know how anyone could take that as guidance, because it’s incomprehensible and so convoluted that it couldn’t guide any lawyer in the field," added Friedman, who previously worked as a federal government attorney.

Thanks to Friedman, the guidance won't be applied to the Mashpee Wampanoag Tribe. He instead ordered Interior to apply the criteria set forth in M-Opinion 37029 to the tribe's application instead of the newer document, which he said would make it more difficult for the tribe to succeed.

Sweeney, in her September 2018 record of decision (ROD) against the tribe, had in fact relied on M-Opinion 37029, which was developed during the Obama era. But Friedman said her analysis was "contrary to law" because she rejected key evidence submitted by the tribe, such as federal census counts of the Mashpee people, as well as enrollment of Mashpee students in federal Indian schools.

"The Secretary’s incorrect application of the M-Opinion – evaluating the evidence in isolation and failing to view the probative evidence “in concert” – taints every category of evidence that the Secretary discussed in the 2018 ROD," Friedman wrote in his decision.

The tribe's reservation in Massachusetts consists of about 321 acres. It includes 151 acres in the town of Mashpee, the location of tribal headquarters, and another 170 acres in the city of Taunton, where a gaming establishment is in limbo as a result of the changes in policy at Interior.

In a separate memorandum, Friedman barred Interior from taking any actions to undo the legal status of the reservation pending re-evaluation of the tribe's land-into-trust application.

"This is an important victory for the Mashpee Wampanoag Tribe, and for justice. The Mashpee Wampanoag have a right to their ancestral homeland no matter what political games the Trump administration tries to play," Sen. Elizabeth Warren (D-Massachusetts), a former Democratic candidate for president, and Sen. Ed Markey (D-Massachusetts) said in a joint statement on Saturday.

"We are glad that the court acknowledged the importance of the arguments we made in the bicameral, bipartisan amicus brief we filed with our colleagues opposing the U.S. Department of the Interior's cruel actions," Warren and Markey said of a filing signed by more than two dozen members of the U.S. Congress.

"The fight is not yet finished, though," the lawmakers continued. "We continue to stand with the Mashpee Wampanoag Tribe, and we will continue to hold this administration accountable."

Relevant Documents: Mashpee Wampanoag Tribe v. Bernhardt
Opinion | Order | Memorandum Opinion and Order

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