Secretary Of Interior Orders Mashpee Wampanoag Reservation 'Disestablished,' Tribe Says
S E E D E D C O N T E N T
The federal Bureau of Indian Affairs told the Mashpee Wampanoag tribe on Friday that the tribe's reservation will be "disestablished" and its land taken out of trust, per an order from Secretary of the Interior David Bernhardt, tribe Chairman Cedric Cromwell announced in a post on the tribe's website.
"Today's action was cruel and it was unnecessary. The Secretary is under no court order to take our land out of trust. He is fully aware that litigation to uphold our status as a tribe eligible for the benefits of the Indian Reorganization Act is ongoing," Cromwell wrote. "It begs the question, what is driving our federal trustee's crusade against our reservation?"
Having land "held in trust" by the federal government effectively affords a tribe special legal status and autonomy to decide how to tax, develop and manage a plot of land. The decision to take land into trust is typically made by the Department of the Interior, which had OK'd the trust status for the Mashpee land in 2015.
But in February, the tribe suffered a legal defeat when the U.S. Court of Appeals in Boston upheld a lower court decision declaring the federal government had not been authorized to take the land into trust. That ruling marked another major development in what has been a lengthy legal battle over the land.
As The Associated Press reported:
The case was a largely semantic debate centered on whether the tribe could be considered "Indian" under the 1934 [Indian Reorganization Act], which created the process for taking lands into trust for tribes, among other things.
Despite the ruling, those 321 acres remained in trust because a separate federal court case is still pending, according to the AP.
In an email to the leadership of the Mashpee Wampanoag Tribe, Jean-Luc Pierite, head of the North American Indian Center of Boston, called the federal government's action an existential crisis for all tribes federally recognized after 1934. (The Cape Cod-based Mashpee Wampanoag Tribe gained federal recognition in 2007.) The department's move without a court order signals that reservations across the United States could be taken out of trust at the discretion of the secretary of the interior, Pierite said.
"For the federal government, it could mean a situation in which hundreds of tribes seek reaffirmation through an act of Congress, as the Massachusetts delegation has done," Pierite said.
Pierite said the interior secretary's move is based on the 2009 Supreme Court ruling Carcieri v. Salazar , which established that the federal government cannot take land into trust for tribes that weren't "under federal jurisdiction" in the year 1934.
Conner Swanson, a spokesman for the Department of the Interior, said the tribe remains federally recognized, and that there was in fact a court decision mandating the department's action.
"In Fall 2015, Interior issued a decision approving a trust acquisition for the Tribe. Subsequently, both a federal district court and a federal circuit court panel comprised of former Supreme Court Justice David Souter, former Chief Judge Sandra Lynch, and Senior Judge Kermit Lipez, found there to be no statutory authority for this decision. The Tribe did not petition for a panel rehearing or a rehearing en banc," he said. "On March 19th, the court of appeals issued its mandate, which requires Interior to rescind its earlier decision. This decision does not affect the federal recognition status of the Tribe, only Interior's statutory authority to accept the land in trust. Rescission of the decision will return ownership of the property to the Tribe."
Cromwell argued, however, that no court mandate had been issued that told the Department of the Interior to take the land out of trust.
"We know that Congress is the only group that has a plenary authority to do that. So the court did not issue a mandate," Cromwell said. "So this is very nefarious activity by the [interior secretary]."
Massachusetts U.S. Rep. Bill Keating, who represents the South Shore, South Coast, Cape and Islands and who earlier had reintroduced the Mashpee Wampanoag Tribe Reservation Reaffirmation Act to solidify federal recognition of the land trust, called the interior secretary's action "one of the most cruel and nonsensical acts I have seen since coming to Congress."
"The Secretary should be ashamed," Keating said in a statement. "This also calls out the need for the Senate to act on the dual bipartisan proposals led by myself and [Oklahoma U.S. Rep. Tom Cole], which would rectify this issue."
In addition to the tribe's members potentially having to pay back taxes, losing its land trust could spell other changes. As The Associated Press reported earlier :
If the Mashpee Wampanoag loses trust status for its 321 acres, the tribe's four-judge court and two-member police department would likely have to be shut down, because they would no longer be operating on sovereign land, said [Jessie "Little Doe"] Baird, the tribe's vice chairwoman.
The House was originally supposed to vote on the bill in early May 2019, until a critical tweet by President Trump led its sponsors to pull it from the House floor. The bill eventually passed with a vote of 275-146. Almost all Democrats voted for it, and most Republicans voted against it.
Cromwell said the Trump administration has been actively working against the Mashpee Wampanoag Tribe, and that this move has left the tribe scrambling to determine what exactly the impacts will be.
"The secretary walked away from us, and it's never happened before in the history of this country," he said. "They did nothing to help support us at all."
"My tribe [is] just gonna continue to fight for our land, including going through proper channels like the courts. This isn't the end for us," Cromwell said.
In his statement, Cromwell affirmed the tribe's commitment to survival despite adversity.
"We have survived, we will continue to survive," he wrote. "These are our lands, these are the lands of our ancestors, and these will be the lands of our grandchildren. This Administration has come and it will go. But we will be here, always. And we will not rest until we are treated equally with other federally recognized tribes and the status of our reservation is confirmed."
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Just to ask the question - where does BIA think they have the authority to disestablish tribal authority/sovereignty? Only Congress has that authority. Hell, not even the President can do that without Congressional approval.
Wow. This is outright theft. I hope the tribe fights and prevails.
Is anyone really surprised that the Trump Administration is evil and corrupt?
This move is really all about the tribe having a casino on this land.
Always follow the money.
You have to be fuckin’ kidding; that’s what this about? Why don’t we just write up another worthless treaty to throw in the trash...there is little difference. It is theft, pure and simple.
Not kidding at all Larry.
Yep.... follow the money.
I wonder why this administration is pushing this. It seems everything was fine so I don't understand this certain push. Why is donald so against this that he is tweeting about it causing republicans to stop any vote on it. Saying it eventually passed the house (along party lines) I have to think it is sitting in the McConnell kill pile in the senate.
The only thing that comes to my mind is some wealthy developer has eyes on the land.
Trump still bears a grudge all these years after his casino battle where he lost in court. Such a petty man.I don't think this will stand and will certainly be challenged in court.
There was this guy named John Marshall, some kinda mucky-muck Supreme Court Judge 200 years ago, who wrote an opinion for three very famous SCOTUS cases dealing with Native Americans and their land titles called the Marshall Trilogy.
Interestingly to me and others is that the first case dealt with property that his father, Thomas Marshall, while a SCOTUS justice, purchased 786,000 acres of land from the Illini tribes WITHOUT GOVERNMENT PERMISSION. Little bit of contradiction here?????
Of note to me, and to all first year law students in the "Property" class, is the mention, in all three cases, of "Aboriginal Title" to the lands the Native Americans resided on. Essentially, tribes/nations can have "occupancy" of the lands, but they don't OWN the lands. However, in his basic contradiction, he states, in his opinions, that NO ONE, except Congress, can disestablish Aboriginal Title to those lands.
The Mashpee lands have not been disestablished by Congress and the BIA does not have that authority - per Justice Marshall - as they are not Congress.
Looking forward to seeing what our modern day SCOTUS will say.
Looking forward to seeing what our modern day SCOTUS will say.
Historically there seems to be an overreaching plan to eventually absorb all Indian land. there needs to be clear, concise and complete laws making it glaringly obvious that Indian land is untouchable.
Unfortunately, Congress has developed this "plenary" policy from the Commerce Clause of the Constitution that "gives" them the authority to dictate/manage any and everything the Indian people can/can not do.
Although Native Americans have been held to have both inherent rights and rights guaranteed, either explicitly or implicitly, by treaties with the federal government, the government retains the ultimate power and authority to either abrogate or protect Native American rights. This power stems from several legal sources. One is the power that the Constitution gives to Congress to make regulations governing the territory belonging to the United States (Art. IV, Sec. 3, Cl. 2), and another is the president's constitutional power to make treaties (Art. II, Sec. 2, Cl. 2). A more commonly cited source of federal power over Native American affairs is the COMMERCE CLAUSE of the U.S. Constitution, which provides that "Congress shall have the Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (Art. I, Sec. 8, Cl. 3). This clause has resulted in what is known as Congress's "plenary power" over Indian affairs, which means that Congress has the ultimate right to pass legislation governing Native Americans, even when that legislation conflicts with or abrogates Indian treaties. The most well-known case supporting this congressional right is Lone Wolf v. Hitchcock , 187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299 (1903), in which Congress broke a treaty provision that had guaranteed that no more cessions of land would be made without the consent of three-fourths of the adult males from the Kiowa and Comanche tribes. In justifying this abrogation, Justice EDWARD D. WHITE declared that when "treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress , and that in a contingency such power might be availed of from considerations of governmental policy."