Court Decisions Lead to Legal Uncertainty for Massachusetts Tribe, Critics Blame Trump Administration

In this Monday, June 25, 2018 photo a wooden sign advises motorists of the location of Mashpee Wampanoag Tribal lands in Massachusetts. The Mashpee Wampanoag Tribe says an unfavorable decision from the U.S. Interior Department on its tribal reservation status would effectively shut down certain government operations, including the tribe's …
AP Photo/Steven Senne

The status of the 321-acre Mashpee Wampanoag reservation in Massachusetts is in limbo following a series of court decisions, but the tribe and others in the state are blaming the Department of the Interior and, in turn, President Donald Trump.

The Department of the Interior decided in 2015 that the federal government would hold the tribe’s land “in trust,” which gives the tribe the legal status and autonomy to decide how to tax, develop, and manage its territory.

WBUR Massachusetts radio station reported on the developing story:

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.

But things changed recently, according to Conner Swanson, a spokesman for DOI, who said in the WBUR report that a court decision required the agency’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,” Swanson said. “On March 19th, the court of appeals issued its mandate, which requires Interior to rescind its earlier decision.”

But, Swanson said, it does not change the tribe’s status and the final outcome is unknown.

“This decision does not affect the federal recognition status of the Tribe, only Interior’s statutory authority to accept the land in trust,” Swanson said. “Rescission of the decision will return ownership of the property to the Tribe.”

But WBUR reported on those who blame the Trump administration for the legal limbo, including tribe Chairman Cedric Cromwell who put his message to the tribe online on Friday when the DOI announcement was made.

“Today’s action was cruel and it was unnecessary,” Cromwell said. “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?”

WBUR also reported on an email Jean-Luc Pierite, head of the North American Indian Center of Boston, to the Mashpee Wampanoag tribe, calling it an “existential crisis” and could affect other tribes’ status.

“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,” WBUR reported, although this contradicts DOI’s explanation,

But Cromwell believes it is Congress, not DOI, that should make the decision about the fate of its reservation.

“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].”

Rep. Bill Keating (D-MA) said in the WBUR report that he has reintroduced the Mashpee Wampanoag Tribe Reservation Reaffirmation Act to solidify federal recognition of the land trust and 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.”

“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.

Follow Penny Starr on Twitter.

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