Hearing examines Mashpee Wampanoag's status before 1934 law

Kolby KickingWoman

Updated: A federal judge says a decision may be handed down in seven to 10 days

Kolby KickingWoman

Indian Country Today

A Wednesday hearing in a case involving whether the federal government can revoke the Mashpee Wampanoag Tribe’s reservation status focused largely on whether the tribe was “under federal jurisdiction” before the 1934 Indian Reorganization Act.

Attorney Tami Azorsky, representing the Cape Cod-based tribe, argued that the evidence put forward by the Mashpee Wampanoag showing it was under federal jurisdiction is the type of evidence that the U.S. Interior Department has used in the past to make that distinction. It includes federal reports, census records and proof of tribal members’ attendance to Bureau of Indian Affairs schools like Carlisle Indian School.

“When viewed in context and that together they are the types of evidence that in other cases the Secretary determined the tribe was ‘under federal jurisdiction,’ but in this instance dismissed each individually,” Azorsky said.

Azorsky added that the Interior Department has an obligation and responsibility to protect tribes.

“There still has to be an orderly process,” she said. “The tribe’s federal trustee rushing to judgment to disestablish this reservation when no procedure has been figured out yet, just doesn’t make sense and can’t be in the public interest.”

Sara Costello, representing the Interior Department, argued that the administrative record from prior court cases is on the side of the department. She added the tribe failed to meet the requirements of being “under federal jurisdiction” before the 1934 law, which was aimed at decreasing federal control of Native American affairs and increasing self-governance. 

“Ultimately, Interior found there was little, if any, evidence that demonstrated the United States took any action establishing or reflecting federal obligations to, responsibilities for or authority over the tribe in or before 1934,” Costello said.

Additionally, she stated it is Interior's view that the evidence submitted by the tribe is prohibitive and must be considered with other things.

The tribe was notified on March 27 that the Interior Department would be taking its more than 300 acres in Massachusetts out of trust. Tribes have the authority to tax, develop and manage reservation land, or land held in trust.

The tribe then asked the court for an emergency injunction and restraining order that would prevent Interior Secretary David Bernhardt from “disestablishing” its reservation.

Lawyers representing the tribe say the impacts of the department’s decision would be devastating for tribal members.

“The Mashpee’s sovereignty, jurisdiction, economy, health, culture and spiritual life would be dealt an irrecoverable blow if the Secretary has his way,” the court filing reads. “The harms run the gamut from the loss of access to crucial economic development, education, social services and health programs, to a reduced ability to battle the COVID-19 virus, to the loss of a crucial economic project that will never come back, to the likely consequential loss of the Tribe’s ancestral lands and spiritual home.”

On Tuesday, 25 members of Congress submitted a brief supporting the Mashpee Wampanoag. They included Native members of the House, Rep. Deb Haaland, Laguna Pueblo, D-New Mexico, Rep. Tom Cole, Chickasaw Nation, R-Oklahoma, and Rep. Sharice Davids, Ho-Chunk, D-Kansas.

They wrote that it is long-settled law that Congress has exclusive authority over Indian Affairs, and the executive branch cannot interfere with tribal lands unless Congress has clearly authorized it.

“Here, however, the Secretary acted without any congressionally-delegated authority whatsoever,” the brief states. “It is undoubtedly true that the Indian Reorganization Act delegates power to the Secretary to take land into trust, but nowhere does the Act so much as hint that the Secretary is empowered to remove land from trust status or vacate a determination to treat such lands as reservation lands.”

Presiding over Wednesday's hearing was Judge Paul Friedman, who at one point pressed Costello on the Interior Department’s position on what would happen to the land in question if he were to rule against the government.

Costello said that the Interior Department believes that if the case is remanded it becomes a pending application and would be subject to the new guidance of the M-Opinion from March 9, 2020.

M-Opinions are opinions from the Interior Solicitor, the department’s head attorney, which are a source for the department’s interpretations of particular laws.

The M-Opinion in question from March replaced a former M-Opinion from 2014 with new procedures that “better reflects Congress' and the Department's understanding in 1934 of the phrase ‘recognized Indian tribe now under federal jurisdiction.’”

The judge said the agency would have a tough time with him if the Interior enforced the 2020 guidance on the tribe and not commit to leaving the tribe’s land in trust pending the outcome of the remand.

“Basically you’re saying, ‘Heads I win, tails you lose,’” Judge Friedman said. “If I remand it to Interior, you want to apply a new guidance to them (Mashpee) which makes it harder for them to succeed.”

Costello responded and made clear that the Interior Department would abide by whatever ruling was handed down by the judge.

The public call-in line to listen to the hearing dropped during the allotted time for rebuttals for both attorneys and audio did not return. It is unclear what instructions, if any, Friedman gave at the end of the hearing, although at one point he said a decision may be passed down in seven to 10 days.

An Interior Department spokesman, Conner Swanson, previously told The Associated Press that a recent federal court decision required the agency to remove special land designations that were bestowed in 2015 under then-President Barack Obama. 

The U.S. Court of Appeals in Boston in February upheld a lower court ruling declaring the federal government had not been authorized to take land into trust for the tribe.

The Mashpee Wampanoag declined to challenge that decision but filed a separate lawsuit, which is pending before the federal judge. The United South and Eastern Tribes Sovereignty Protection Fund, an organization that represents 30 federally recognized tribes from the northeast and southern United States, recently filed a motion supporting the Mashpee Wampanoag.

Swanson has said the tribe remains federally recognized.

Mashpee Wampanoag Tribal Chairman Cedric Cromwell addressed Indian Country in a video posted to Facebook on Sunday. (Photo by Cedric Cromwell / Facebook)
Mashpee Wampanoag Tribal Chairman Cedric Cromwell addressed Indian Country in a recent video posted to Facebook. (Photo by Cedric Cromwell / Facebook)

While the restraining order put the disestablishment on hold, the tribe remains uneasy about what may come.

"While the Tribe is grateful for this temporary reprieve, we remain deeply concerned about the fate of our Reservation," Chairman Cedric Cromwell said in a statement March 31. "That said, the outpouring of support from both the Native and non-Native community gives us hope, and bolsters our courage. We thank everyone who stands with Mashpee. Your support is powerful."

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Kolby KickingWoman, Blackfeet/A'aniih is a reporter/producer for Indian Country Today. He is from the great state of Montana and currently reports and lives in Washington, D.C. Follow him on Twitter - @KDKW_406. Email - kkickingwoman@indiancountrytoday.com

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This story has been updated with details from Wednesday's hearing. The Associated Press contributed to this report.

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