The people who shared their food—and their lands—with some of the first European settlers in North America are once again in danger of losing what is theirs. A 2,600-member tribe based in Mashpee, Massachusetts, has been laboring to secure a permanent homeland since before the Revolutionary War, but unless Congress enacts legislation to secure the reservation, or an appellate court reverses a US district court’s decision, the Mashpee will once again be virtually homeless. The ongoing legal battle, which has pitted the tribe against a coalition of non-Native locals, a right-wing group, and a casino mogul, represents the first time in nearly six decades that the government has rescinded trust land, and other tribes are watching closely, fearful that the same fate could befall them. Some tribal leaders call the Mashpee situation the first step toward a new era of terminating tribes altogether
The Mashpee were part of the Wampanoag confederacy, which first encountered the Pilgrims in 1620; the Mashpee band was one of nine tribal signatories to the first treaties with the group. The Wampanoags were killed off en masse in King Phillip's War, and the Mashpee fell under the domain of first the English, then the Americans (some Mashpee fought on the American side in the Revolutionary War).
Over the following centuries, the Mashpee have gained—and lost—tracts of land at least twice. A bookkeeping error by the Bureau of Indian Affairs (BIA) resulted in the tribe being left off a list of tribes in 1849, and Massachusetts compounded that error by eliminating Mashpee as an “Indian district” in 1870. But regardless of designation, Mashpee children were still swept away to Indian boarding schools.
After a 30-plus year battle, the tribe was finally restored to federal recognition in 2007. Shortly after that, the Mashpee Wampanoag Tribe asked for two parcels of land that it had purchased, 171 acres in Mashpee and 150 acres in nearby Taunton, to be given reservation status—a process known as “land into trust.”
These parcels were taken into trust by the US Department of the Interior via the BIA on September 18, 2015, about eight years after the tribe’s application. When a parcel of land becomes a reservation, the tribe enacts its own ordinances regulating zoning, housing, education, and other priorities. State laws have no standing on a reservation.
It’s been good for the tribe. “We established our own court system and police,” said Mashpee Vice Chairwoman Jessie “Little Doe” Baird. “We’re building a 143-bedroom housing project with our own zoning and permitting ordinances. We opened our own school, where we’re teaching children from pre-kindergarten to first grade.” The tribe just received a $1.4 million grant from the US Department of Education to expand the Wôpanâak Language Reclamation Project, where children are learning the Wampanoag language, to fifth grade. The tribe is also working on projects to promote clean air and water. All of this is now imperiled by the reversal of the trust land decision.
In September, the Department of the Interior used an alternative interpretation of the Indian Reorganization Act of 1934 (known as IRA) to avoid conflicting with a noted court case, Carcieri v. Salazar, which had been decided in 2009, two years after the Mashpee’s initial application. In that case the Supreme Court interpreted the IRA—one of the foundations of modern Indian law—to mean that only tribes that were federally recognized by the US government as of June 1, 1934 were eligible for reservation status. The law in part states, “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.”
The roots of the dispute go back to 2012, when the Mashpee announced plans to build a resort and casino on the Taunton land. A group of non-Native residents who didn’t want the casino in their town organized a group called “Preserving Taunton’s Future.” They launched a now-defunct website, stoptauntoncasino.com (a link to an archived copy can be seen here), which opposed a town referendum on the tribe’s plan. Michelle Littlefield, who is not a Mashpee tribal member or a Native American, explained during an interview with NPR affiliate WBUR that June why the group opposed the casino: traffic, closeness to an elementary school, and the tribe’s closure of an industrial park on the land. After voters approved a referendum in favor of the casino, Littlefield and her group started searching for a way to stop the casino. And they found it in the Carcieri decision.
The residents, including Littlefield, filed a suit February 2016 to force the Department of the Interior to rescind the tribe’s trust land status based on Carcieri. That July, a US district court ruled that the tribe wasn’t eligible for reservation land. The judge gave the Interior Department and the tribe an opportunity to present more evidence to back up their assertion that the Mashpee are eligible for trust land under the second route in the Indian Reorganization Act, since the Mashpee were residing on their longtime reservation—set aside for them by the state of Massachusetts—in 1934. However, the agency has since declined to pursue further appeals. The tribe is currently pursuing appeals on its own.
The lawsuit has been at least partially funded by billionaire real estate and gaming developer Neil Bluhm of Chicago, whose own plans for a casino in nearby Brockton was nixed by the state gaming commission in April 2016. (Bluhm has since reapplied for a gaming license.) Littlefield did not tell VICE how this arrangement came about other than to say that the Taunton group had interviewed their current attorney, David Tennant, and “negotiated an agreement by which attorney Tennant would represent the 25 plaintiffs in this matter.”
“The bottom line for us is that the federal government violated laws when it put land into trust for the Mashpee tribe. For us it is about the law, and nothing else,” Littlefield wrote in an emailed statement. “If there was anything political about this decision, we would have seen a different result, given the amount of time and money the tribe has spent in DC.” She also asserted that Taunton is not traditional Mashpee land but that of other Wampanoag tribes like the Pocasset and Pokanoket. (Tribal officials did not respond to this statement by press time.)
There’s yet another player at this table: The Citizens Equal Rights Alliance, known as CERA. It’s been labeled as an anti-Indian group by several human rights groups including the Southern Poverty Law Center. The alliance has provided support to the Taunton group, as confirmed by Lana Marcussen, the group’s attorney. “We believe that the federal government should not be disrupting communities to attempt now to remedy what they did wrong in the past,” Marcussen said. ”It is just another federal power play to preserve power that should have ended with the Civil War.” (This is a reference to the idea that the Civil War was fought over states’ rights and not slavery.)
But the foundation of the Mashpee’s trust land tribulations lies in the Carcieri decision, which has been a thorn in the side of tribal governments, federal agencies, and Indian legal experts alike.
“The real problem is in the Carcieri decision, and the analysis that the majority in the Supreme Court applied to the IRA,” Eric Eberhard, a law professor at the University of Washington and a noted Indian law expert, said. “From my perspective the court did not correctly interpret the IRA’s language.”
It’s more than just a tribal casino that’s at stake. Baird recounted what else the tribe will lose if all appeals are exhausted, and the land reverts to private land ownership status. “We would lose our police force and our court,” she said. “We’d lose the school, because it’s in our tribal building.” How the tribe receives funding would also be in jeopardy. “We did what was asked with us and now we’re being told to feel bad… I have a problem with that.”
Baird said that there are 127 tribes who have been recognized after 1934 and got reservations, and all of them are theoretically at risk of losing that land. She said it “smells like the beginning of a new termination era.” She’s referring to the notorious federal Indian policies of the mid-20th century, when tribes—and their reservations—were summarily terminated and funding stopped. Eberhard said that some tribes have still not recovered from that traumatic experience even after being restored, and several them have yet to have their recognition restored.
Taunton Mayor Thomas Hoye also feels the tribe’s frustration. His town stands to receive about $15 million yearly in revenue sharing with scheduled increases when the casino is complete. The plan also calls for improvements to two major southeastern Massachusetts highways that the state hasn’t had the funds to complete. Hoye said that he’s been to Washington several times to talk with the Bureau of Indian Affairs. “It would be good if they got their act together at the BIA,” said Hoye. “The government hasn’t taken land out of trust in decades—there’s no process [to do so].”
There are other options on the table, though. Local US Representative Bill Keating is pushing a congressional bill, HR 5244, which will “reaffirm” the Mashpee’s trust land. This would effectively render the Carcieri decision moot in that tribe’s case. The bill has won bipartisan support as a solution to the Mashpee’s dilemma.
“I hope Congress does the right thing and passes the bill,” Eberhard said. But he also added a cautionary note: “The atmosphere is not favorable for tribes to take land into trust.” The tribe’s only other option, he says, is to file an appeal with the First Circuit Court of Appeals.
Other tribes are rallying to the Mashpee’s cause, and some supported the tribe during a rally in Washington last week. The Shinnecock Nation, a Long Island, New York, tribe which was recognized in 2010, notes on its Facebook page that it was planning on sending a busload of natives to the rally.
“If Mashpee loses there [sic] already established Trust Lands it will mark a return to the Termination Era this country launched against tribes from the 1940s thru the 1960s,” Shinnecock Nation trustee Lance A. Gumbs wrote on Facebook. “This is a case that could greatly affect tribes recognized after 1934 and their ability to acquire any additional lands into restricted fee or trust into the future.”
“I’m resentful about opposition to an Indian casino,” Baird said. “There doesn’t seem to be a problem with gaming until brown people start [casinos].” Only a few of the 60-plus Wampanoag confederacy communities are intact, Baird said, but “people are upset that we have the nerve to survive... They are OK with us governing ourselves until we want to talk about something besides the next powwow.
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