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‘Mashpee Nine’ Documents Wampanoag Struggle and Vindication

A new book and documentary film, Mashpee Nine, by Paula Peters, tells a story of "cultural justice" that grew from injustice.

A new book and documentary film, Mashpee Nine, by Paula Peters, tells a story of "cultural justice" that grew from injustice, followed by outrage, activism, and vindication for a group of Wampanoag drummers and a community practicing ancient Wampanoag ways.

The story begins with a July 29, 1976, midnight police raid, SWAT style, on a camp for Mashpee children at the site of a recreated 17th century Wampanoag village. The drummers—some in tents for the night, others talking around the fire—were set upon, handcuffed and arrested by police in riot gear with dogs. The police destroyed the camp and damaged village structures and gardens.

Mashpee Nine tells the story within the larger context of Wampanoag existence in what people today call "Cape Cod"—from first contact with the English boat people, through the intervening centuries, to the events and aftermath of a police raid.

The Mashpee Wampanoag still live in their homelands—nearly four centuries after the boat people arrived and began the Christian colonial assault on the northeast coast of Turtle Island. This fact becomes a central lesson in "Mashpee Nine."

In 1621, the Wampanoag made a Treaty with the Pilgrims, agreeing to live peaceably so long as each respected the other. That history has been told so many times in so many different ways it has acquired mythological status in America and around the world: Who has not heard at least one version of "the first thanksgiving"?

Other parts of the history are not mythological: epidemic from one or more diseases brought to the area by earlier boat people severely weakened the Wampanoag in the year prior to the Treaty; encroachment of the Massachusetts Bay Colony, which claimed jurisdiction all the way to the Pacific Ocean (!);"King Philip's War," the desperate effort to throw off colonial domination; Puritans selling Wampanoag men, women, and children into slavery; the Christianization program that allowed "praying Indians" to claim immunity from colonial destruction; and, ultimately, survival of the Wampanoag in Mashpee and the islands.

Mashpee Nine tells the story of a modern epidemic of anti-Native racism on Cape Cod, Massachusetts, and the survival—and triumph—of Native people practicing traditional ways in their own lands. Peters presents the story as a retrospective of the 1976 event: the drummers charged with "excessive noisemaking"; two also charged with "disorderly conduct" and "assault and battery on a police officer"; one charged with threatening to murder a police officer.

The police action brought tensions to a head that had been building for years as the non-Native population of the area burgeoned, buying up land and closing Wampanoag access to fishing, hunting, and gathering grounds. By 1965, the Mashpee Wampanoag were becoming a minority in their own land.

Three hundred years earlier, 1665, the Mashpee had maneuvered within the colonial legal structure in an effort to secure additional protection for their territory, through an act designating Mashpee a "plantation" for "praying Indians."

But, like other "guarantees" issued by the invader legal systems—including a federal law requiring treaties to deal with Native lands—the "forever" agreement of the Massachusetts colonists was short lived. "Overseers" appointed by the colonists clear-cut trees for fuel and arranged land grabs that began the process of shrinking Native-held territory—the template for the "reservation" system later developed under U.S. law.

In 1870, a Massachusetts law declared Mashpee territory to be a "town" within the "state," and converted ownership of lands into individual "title"—a trial run for the "Indian allotment" process that became U.S. law in 1887. The federal Dawes Allotment Act was named for its chief sponsor, Massachusetts Senator Henry Dawes.

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Despite these immense pressures, the Mashpee Wampanoag persisted in their homelands. Neither disease, slavery, war, allotment, nor removal succeeded in wiping them out. Today, the Wampanoag carry on their lives with full consciousness of their historic position and role as "People of the First Light / People of the Dawn."

In 2007, the Mashpee were "recognized" by the U.S. government, on terms that also acknowledged their historic rights to hunt, fish, and gather in their traditional territories. These rights continue to be challenged by some officials in nearby towns, despite having been upheld by Massachusetts courts.

"Mashpee Nine," after framing the police raid in the larger historical context of Mashpee Wampanoag survival, focuses on the trial that followed the arrests. Some of the drummers considered pleading to minor charges to put the incident behind them. But the community rallied, shock turned to outrage, and they determined to stand up for themselves against racist, anti-Native forces.

When local government leaders refused to take responsibility for the police raid, the community began preparations to support the drummers at their criminal trial in state court. Coincidentally—plans had been in the works for months—one month after the arrests, the Mashpee Wampanoag Tribal Council filed a civil lawsuit in federal court to regain traditional lands taken in violation of the 1790 U.S. Non-Intercourse Act.

Mashpee's federal lawsuit against the Town of Mashpee—though dismissed by the District court judge—still ripples through the politics of the area. The suit was being handled by NARF (Native American Rights Fund), as part of a broader effort to assert Native control of ancestral lands in the northeast part of the continent. That story has been told by Paul Brodeur in "Restitution: The Land Claims of the Mashpee, Passamaquoddy, and Penobscot Indians of New England."

Suffice it to say that the combination of defending traditional drummers against state criminal charges of "noisemaking" and suing for land taken in violation of federal Indian law stirred up Native enthusiasm and non-Native dread.

The first question for the drummers was how to find affordable representation. The answer came in the person of Lew Gurwitz. Lew had years of experience around Indian Country, defending what he called "political trials"—including those confronting members of the American Indian Movement after Wounded Knee.

I knew Lew and introduced him to "Chiefy" Mills, one of the drummers who was a student at UMass Amherst, where I was teaching. The two hit it off, as Lew made clear he would represent the drummers on a pro-bono basis and would go beyond individual defenses to argue for their right to engage in cultural and spiritual practices. The group agreed.

Lew was a powerful litigator. I helped some with research and writing, but he ran the trial. His first motion was to dispense with the Bible for swearing in the drummers' testimony. He persuaded the judge to allow them to swear on a Medicine Pipe. This act emphasized both that the men stood on their own traditions of truth telling and rejected the dominating complex of law and legal theory rooted in the doctrine of Christian Discovery that underpins U.S. federal Indian law.

Through a painstaking gathering of evidence and careful examination and argument at trial, Lew whittled away allegations supporting the serious charges, resulting in those being dropped or dismissed. Ultimately—immediately after closing arguments—the judge found all nine drummers not guilty of any charges.

Mashpee Nine—the book and film—packs a punch. It demonstrates that Indigenous Peoples across the continent—east and west of the Mississippi—confront the same issues: pressures to give up their lands and waters, assimilate and disappear into the long colonial project. It shows how one group mounted a successful defense of their traditional ways in their own territory.

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.