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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 was still pending, according to the AP.
Benjamin Wish, an attorney for the tribe, said in a statement on Monday that the Department of the Interior's justification for disestablishing the tribe is based in a false reading of the court decision.
“No court has ever ordered the Department to take the Tribe’s land out of trust," he said. "The District Court did not so order. The First Circuit did not so order. In fact, neither court ordered anyone to do anything.”
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."
With reporting from WBUR's Elie Levine, Quincy Walters, Carrie Jung, Jack Mitchell and the Associated Press.
This article was originally published on March 28, 2020.
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