Interior denies Mashpee trust land: ‘You do not meet definition of an Indian’
The room fell silent as Jessie Little Doe Baird gripped the podium, engraved with a “United States Senate” emblem, as she held back her tears before congressional and tribal leaders. Six days earlier she and her tribe, the Mashpee Wampanoag Nation, were informed they were no longer considered “Indian” so their reservation would be taken by the Department of Interior.
With Chairman of the Mashpee Wampanoag tribe at her side, Baird begged for support from tribal leaders and Indigenous women at the Tribal Unity Impact Days in Washington, D.C., on Sept. 12.
“Help me help my community, protect the women in my community, protect children in my community and keep our land under our feet with our jurisdiction and sovereignty in place,” said the Baird, who serves as vice chairman of the tribe.
On Sept. 7, the Department of Interior told the Mashpee Wampanoag tribe they didn’t meet the requirements to have their 321-acres of land placed into trust. The tribal nation wanted to use the land in the town of Mashpee for their government and the other land in the town of Taunton for the First Light Resort and Casino.
The decision, as described by Tara Sweeney, assistant secretary of Indian Affairs, serves as the liaison between the tribes and federal government, was told to the tribe in a letter that they were not “under federal jurisdiction” when the Indian Reorganization Act was passed in 1934. They also do not meet the definition of “Indian” as stated in the policy.
Baird pointed at Sweeney during her address wanting the crowd to know who was behind the decision. Sweeney had taken her position as assistant secretary at the Department of the Interior earlier this summer. As the first Alaskan Native to hold the position in Indian Affairs, Sweeney is a member of the Native Village of Barrow and the Iñupiat Community of the Arctic Slope.
“This is a face to the name that spoke to you on the phone Friday. I got very little notice as a tribal leader that this call was coming. The plaintiffs that said that they didn't mind Indian gaming, they just didn't want Indians in their neighborhood.”
Baird also said the decision about the tribe was “very disrespectful,” as she had said such a major decision was posted on Facebook before the tribe knew.
“I am telling you as I told you on Friday, as one Indian woman to another, you did a wrong thing. I can love and respect you as an Indian woman, but we need to stick together. We're an endangered people, and that decision was a wrong decision. Someone said earlier today we have to make decisions that are good and right and moral, not just politically correct and sometimes that means taking the kick for the decision we make on behalf of another and I'm asking you to reconsider the behavior of the department and the action because what happens to us in Massachusetts is going to spread right across the country,” Baird said.
“And there are tribes in Alaska that were recognized after 1934, too. You got to think about what you're doing.”
Tribal leaders question the decision
Shinnecock tribal leader Lance Gumbs asked what makes a tribe “under federal jurisdiction?” Gumbs, who’s tribe gained federal recognition in 2010, said everyone is asking what constitutes “under jurisdiction” or “under federal jurisdiction” and “who is making this determination as to what under jurisdiction means?”
Cheryl Andrews-Maltais, chairman of the Aquinnah Wampanoag tribe of Gay Head, the neighbor to the Mashpee Wampanoag, told Sweeney that her decision to sign off on such an act is “very distressing.”
“It has an impact on us as the only other federally-recognized tribe from the Commonwealth of Massachusetts as well as the rest of the Indian Country, and this is setting the precedent that should not be moving forward,” Andrews-Maltais said.
The National Congress of American Indians released a statement after the decision saying they are “extremely disappointed in this decision, as it reflects the obvious failure of the Federal Government to uphold its trust responsibility to Indian tribes.”
“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 Tribe is effectively strippped of important ‘reliance interests’ that will affect the social service programs it provides to its citizens, as well as the economic development ventures (including gaming) that the Tribe relies on to support critical tribal government functions and provide job opportunities to its people.”
Sweeney said she understands the challenges of Indian Country because she grew up in rural Alaska under similar harsh conditions.
“I signed up for this job because I want to move the needle in Indian country,” she said. “While many of you in this room may not know me, I hope to get to know you and then you will understand that yes, I do work for the Department of Interior and yes, I am the assistant secretary for Indian Affairs and I will be that advocate inside the administration and I want to leave my door open so that we can have that working relationship. We may not agree all the time, but my door will always be open.”
According to the Center for Presidential Transition, the job description of Assistant Secretary states, “The mission of the Office of the Assistant Secretary of Indian Affairs is to oversee and protect more than 55 million acres of land held in trust by the United States for American Indian and Alaska Native tribes, and uphold the federal government’s statutory and treaty responsibilities to those communities.”
This decision isn’t President Trump’s fault, said Cedric Cromwell, tribal chairman. Although, the chairman did say this administration is trying everything in their power to undo what the Obama administration did.
Cromwell said the BIA supported the Mashpee Wampanoag Tribe Reservation Reaffirmation Act until the day he testified in front of the Internal Indian Affairs Committee on July 22.
He said Darryl Lacounte, the BIA Acting Director at the time, told him “things have changed over the last 24 hours” and the agency went “neutral” on the bill. Lacounte told him the White House did that.
“We’re getting punished for national politics when the process should be what’s in place to preserve tribal homelands for tribes,” said Cromwell referring to the Trump administration being anti-Elizabeth Warren and the tribe having a senate bill she signed onto. Warren is the senator of Massachusetts.
There’s also the history between Trump and Native American casinos.
Cromwell believes it’s the people under Trump who didn’t receive a proper education in Indian policy, American history, Indian history, and don’t understand tribal rights.
“They get the jobs to manage Indians and tribal nation and then they make a big mistake like this and it makes the president look bad,” he said. “They don't walk in our moccasins so they can't understand it and they'd look at technical legal arguments that are jaded and played towards the word ‘no’ versus the natural conclusion based on the combination of our submissions towards land into trust. It is supposed to be a ‘yes’ because they are the Bureau of Indian Affairs and they got the Indian Reorganization Act that was established for self-determination, not extermination.”
Effects on the tribe
Mark Harding, Mashpee Wampanoag tribal citizen, said “The community as a whole is taking it hard. We had outpouring of support not just from the tribal community, but the surrounding community. These are connecting towns to our reservation and they were asking, ‘What can we do?’ and ‘How can we do it?’ That was heart-touching.”
Harding thinks of how this decision could affect his two foster children. The 5-year-old twin boys attend the local Wampanoag language immersion school. He says his twins often come home to their dad and tell him what words they learned and look up more words to learn at home.
“If we lose that status, the funding goes away for the school and they no longer have the ability to go to the school,” said Harding, who is also the president of the Mashpee Wampanoag Community Development Corporation. The language immersion school just received a five-year, $1.4 million grant from the U.S. Department of Education.
Harding’s corporation was created to build economic opportunities throughout the tribe. He says any of the initiatives “utilized the status of having land as a tribal reservation.”
“A lot of our economic development in the last couple years is being thrown out and we’re scrambling to adjust to get this cleaned up. We’ve had such a painstaking process to get our federal recognition so we could be on par with other tribal nations we work with and communicate with.”
Some of the establishments in danger include the tribe’s projected 42-unit housing project, the language immersion school and police department that help the 2,600 enrolled tribal members.
The tribe’s growth has much to do with their 2007 federal recognition, said Cromwell, who was elected as chairman in 2009. Cromwell points out that the casino provides the tribe with economic resources that can provide healthcare, education, housing, funding to combat homelessness, and provide resources to fight opioid and substance abuse.
“Because when you have those resources, you can get the right support services and mechanisms in place to fix those problems,” he said.
Scholarship money is also huge for their college students. More students have graduated from high school and college now than ever before and many of those students who received funding are also coming back to work for the tribe because there’s an opportunity for employment.
History of the Mashpee
The Mashpee has had a complex history with the government for years as a “landless tribe.”
Starting from the first contact of the Mayflower, which was the beginning of the United States to what their tribal status, and now with the current lands in trust.
In the fall of 1620, the Mayflower landed in current-day Provincetown, Massachusetts, the town at the end of the Cape Cod hook. Colonists aimed for Virginia, where the British crown allowed them to settle, but the ship was thrown off course with the bad weather and navigational difficulties.
Colonists explored the land, occupied by the Wampanoag, and decided to build a colony at Plymouth including their shelter for the winter. According to Jessie Little Doe Baird, the Wampanoag granted the first Indian land title to the settlers for their colony.
Writers of American history books and tribal members say the Wampanoag Nation is the tribe that helped the settlers get through the brutal winter.
A year later, leader of the Wampanoag Massasoit made an agreement with the English. He and Plymouth governor John Carver negotiated an agreement that they would not hurt one another. The longest time period this country has seen peace, said Baird.
This is where the first Thanksgiving starts, according to American history books. (Read more about in a previous story published by Indian Country Today, What Really Happened at the First Thanksgiving? The Wampanoag Side of the Tale.)
Since the late 1700s, the tribe’s status as an “Indian tribe” has been denied and accepted on a case-by-case basis. The jury considered the Mashpee an Indian tribe when the District of Mashpee was established in 1834 and same district was partitioned in 1843.
From 1834 to 1870, the Town of Mashpee was an Indian District, according to tribe’s approved federal acknowledgement paperwork.
Land ownership issues started to rise in 1869, the same year the Mashpee were granted U.S. citizenship by the governor of Massachusetts in 1869. Once they become citizens, individual tribal citizens could own their own land and sell it. At this time, Natives did because government officials needed land to extract natural resources or build railroads.
Baird said the Wampanoag have been the experiment tribe since day one because next came the 1887 General Allotment Act for the rest of Indian Country. An act named after Sen. Henry Dawes of Massachusetts, who was a huge supporter.
For many decades, the Mashpee lands shrunk to what they are fighting for right now. These trust lands hold their museum, community government center, a future housing project, church, and burial grounds.
The tribe owns two acres of non-trust land in Mashpee and another parcel in Middleborough, where they pay taxes on them. This base land was acquired after they submitted their trust-land application.
In the occasions they were not an Indian tribe, according to the jury, were when the Mashpee wanted to take back their ancestral lands in 1870 and 1976.
In 1870, the town of Mashpee was incorporated into the Commonwealth of Massachusetts. The same year that the tribe was not considered a tribal nation.
The 1950s and 60s is dubbed the Indian Termination and Relocation Era due to the federal government policies created to eliminate tribes and further assimilate Native Americans. Truman was one of those presidents. Philleo Nash, a former commissioner of Indian Affairs for John F. Kennedy and Lyndon B. Johnson, said it himself in an 1967 interview.
Nash spoke of President Truman’s solution to the Indian problem was “to wipe out the reservations and scatter the Indians and then there won’t be Indian tribes, Indian cultures, or Indian individuals.”
Around the 1970s, when the American Indian Movement came in full force in holding the government accountable for treaties with tribes, the Mashpee Wampanoag nation started their fight for tribal status, tribal land, and tribal sovereignty.
In the 1978 case against the Town of Mashpee, the tribe said the Indian Nonintercourse Act was violated. Lands couldn’t be sold to non-Indians without federal consent under this policy.
“What happened was a lot of people were coming into town and taking jobs tribal members always had whether that be the tax collector, the selectman, the dog catcher, the highway surveyor or chief of police,” Harding said who has been involved in tribal politics and has lived in Mashpee for more than 25 years.
The following year, the New Seabury Corporation came in trying to build residential developments, and the tribe fought back. The court saw multiple layers to the case and wanted to address each individually. The first was the tribe’s federal recognition, which the court didn’t find they were an “Indian tribe,” according to the law.
From then on the Mashpee filed land suit after land suit, and got denied each time due to their tribal identity.
The 2009 Carceri v. Salazar case is a huge contributor to the Mashpee’s current situation.
In the Carceri case, the Narragansett nation purchased land in Rhode Island to build housing for the elders. The tribe requested the Interior to take the land into trust. Narragansett couldn’t get their land placed into trust because state officials and the Supreme Court said tribe needed to be recognized before 1934.
Hillary Tompkins’, a former solicitor under the Obama Administration, wrote in her opinion that tribes do not have to be federally-recognized before 1934 in order to have their land taken into trust. This helped get the Mashpee’s land into trust in 2015.
Since 1934, more than 140 tribes have been recognized by the federal government. There are 325 reservations, includes federal reservations and off-reservation trust lands.
That means the tribes who gained recognition after 1934 and had lands put into trust after 1934 may be in trouble.
Proof of their existence
The tribe waited for more than 30 years on their federal recognition application, according to Baird and Cromwell.
A wait that tribes have always endured. A wait that should not happen, said Rep. Tony Cárdenas at the Tribal Unity Impact Days.
He said Baird reminded him of “something that really bothers me about how sovereign nations in this country have to wait 10, 20, 30, 40, 50, and 60 years to get something done in Washington,” Cárdenas said. “It is supposed to be a government-to-government relationship and it's really not a relationship. It is not in any way on equal footing.”
In their 14,000-page trust-lands application, the Mashpee included documents to show that their children attended boarding schools and the tribal citizens who served in American wars.
One of those tribal citizens was 97-year-old Chief Vernon Lopez who fought and survived in the Battle of Normandy in 1944. Mashpee woman Alicia Birchett fought and died in the Iraq War and the tribe had more than 30 men fight in the American Revolutionary War.
**“**My tribe is well-documented in protecting this country and who we are as Mashpee Wampanoag,” Cromwell said.
It took the Mashpee 30 years and a 54,000-page application to become a federally-recognized tribe. They gained that recognition in 2007.
The tribes trust-lands application was passed by the Obama Administration in 2015.
Now under the Trump Administration that decision has been reversed. A move that many are dubbing the “new Termination era,” or some on social media call this the possible “extermination era.”
The Mashpee Reservation Reaffirmation Act was introduced earlier this year. The act ensures the land taken into trust was approved in 2015 and holds the government accountable for their laws made for tribal nations, including the Mashpee. Mashpee leaders and supporters hope the bill passed soon.
Supporters of the Mashpee are campaigning #StandWithMashpee and planning marches and protests to help gain more supports. Dates and locations are unknown.
Another solution Cromwell looked to is “extending the olive branch” to President Trump and inviting him to take at a look at the Mashpee Wampanoag community.
Nedra Darling, a spokeswoman for the Bureau of Indian Affairs, told the Cape Cod Times, “Consistent with our practices and procedures, the department will continue to hold the tribe’s land in trust until a final court order is imposed.”
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