September 18, 2015 is a day the Mashpee Wampanoag Tribe will long remember: when Kevin Washburn, the assistant secretary for Indian affairs, announced a determination to accept 321 acres in trust for the tribe.
The determination was not made lightly. Much of the 137-page Record of Decision is devoted to a detailed explanation of the assistant secretary’s analysis and conclusion that Mashpee is eligible, under the Indian Reorganization Act (the IRA), to have land held in that status. Mashpee’s accomplishment, in the face of recent obstacles to trust applications, is firmly rooted in its ancestors, whose steadfast attachment to their homeland created a record satisfying a relatively obscure provision of the IRA.
Securing new trust land has never been easy for Indian tribes. Establishing trust land for gaming is much harder, particularly within the narrow constraints imposed by the Indian Gaming Regulatory Act (IGRA) which, with few exceptions, does not permit gaming on lands acquired in trust after the law’s 1988 enactment.
But now, even the IGRA limitations seem minor compared to the nearly impenetrable roadblock created by the Supreme Court’s decision in Carcieri v. Salazar, 555 U.S. 379 (2009). The Carcieri court invented a new and repressive interpretation of the 1934 Indian Reorganization Act, finding that the secretary’s authority to accept lands in trust for tribes “recognized and now under federal jurisdiction” was limited to tribes “under federal jurisdiction” as of June 18, 1934, the date the IRA was enacted.
The direct loss in Carcieri was borne by the Narragansett tribe, whose plans for elder housing were crushed; but it soon became clear that all of Indian trust land acquisition was in jeopardy.
The Department of the Interior has had to reevaluate its trust acquisition authority, and to complete such analysis as a threshold for all trust applications. Congress and the courts have been attempting to address the issue for nearly seven years.
Congressional efforts have not succeeded, and have been repeatedly obstructed by interests seeking to limit expansion of Indian gaming, either entirely or in specific market areas. In addition, there will always be challenges to efforts to by the federal government to enhance tribal sovereignty. Extensive intertribal support for a congressional “Carcieri fix” has been undercut by pockets of opposition, tribal and otherwise, and various legislative efforts have languished.
The Carcieri decision has fueled attacks in a broad range of cases. Tribes have a wide range of traditional enemies. The tribes most directly targeted by Carcieri-based arguments are those that have achieved federal acknowledgment only after 1934. In part, these attacks are based on a fundamental misunderstanding of the Carcieri decision:
The Supreme Court did not hold that the IRA required a tribe to be “recognized” as of 1934, rather it required that a “recognized” tribe, as a separate matter, be “under federal jurisdiction” as of 1934, so as to comply with the court’s interpretation of the IRA language. Thus, the Interior Department has, over the past several years, undertaken an exacting exercise to determine whether an applicant tribe had demonstrated it was “under federal jurisdiction.”
The department’s first such analysis, for the Cowlitz tribe (acknowledged in 2002), determined that the tribe had met its burden, demonstrating Cowlitz’s historical interaction with the federal government in the decades from 19th century treaty negotiations and leading up to the magic 1934 date. Thereafter, the Interior solicitor issued a rare legal opinion detailing a standard for determining existence of “federal jurisdiction” that closely tracked the Cowlitz analysis.
That opinion strengthened the Cowlitz decision, but focused on evidence specific to Cowlitz and other Western tribes, making it perhaps less applicable to other regions. (The Cowlitz ruling has withstood judicial review, although an appeal is pending.) The United States accepted the Cowlitz tribe’s land into trust status in March 2015 and declared Cowlitz’s reservation status last November.
Along the East Coast, a number of tribes have achieved federal recognition through the Interior Department’s acknowledgement process. These tribes had faced colonization early, entered into treaties with European powers, and thereafter were extensively “administered” by colonial and state governments, despite the 1789 constitutional centralization of Indian affairs power in the then-new federal government. Mustering evidence of federal jurisdiction is different for Eastern tribes, and more difficult than for Western tribes having a shorter period of dominating settlement.
The Mashpee Wampanoag tribe, having dealt with colonizing powers for more than 150 years before the birth of the republic, has a rich history of resistance to displacement. The tribal community benefited from their ancestors’ use of foreign land laws to their own advantage, staying in place on lands their leaders had deeded to the community forever, along with all the necessary hunting and subsistence rights—in effect, a self-created reservation. That reservation became the first step to building a future.
The IRA grants the secretary authority to accept trust land for two categories of tribal communities in addition to those under federal jurisdiction in 1934. The second and third categories contemplate building trust land bases for half-blood Indian communities, and for Indians of a tribe living on a reservation in 1934. Mashpee’s history reflects an ancient and continuing reservation community still very much in place in 1934. That history is the foundation for the September decision to accept trust title for Mashpee lands, and for the creation of a federal Mashpee reservation.
In establishing its eligibility, Mashpee was fortunate. Historic leaders of the Mashpee Wampanoag had the foresight to create permanent deeds from themselves to the tribal people and to record those deeds among the others establishing land rights in the Plymouth colony. Unlike most recorded deeds of the period, these protected, rather than terminated, tribal rights. Mashpee was fortunate to have strong, tenacious ancestors who continued to occupy traditional homelands in traditional ways despite centuries of pressure from settlers.
They did so despite overbearing overseers, infringing neighbors, and outright hostility from their neighbors. Those lands provided sanctuary for other displaced Wampanoag people. The lands and waters permitted them to live and prosper in their own, traditional ways.
Mashpee land tenure was acknowledged by the English Crown and its colonial government, and after the Revolution, by the Commonwealth of Massachusetts—for a time. When Massachusetts attempted to break up the community by allotting, taxing and selling off tracts of Mashpee land, the people stayed anyway. And stayed. Mashpee’s long and detailed history of a people inseparable from their land, and a self-governing tribal entity that used the town government structure to serve and protect its people, supported the 2015 determination that the tribe had demonstrated its eligibility under the IRA.
Mashpee now has land in trust. The tribe can move on with its plans for tribal housing, cultural and resource protection, and much needed economic development. The creation of its federal reservation has historic significance, both in reversing the centuries of land loss and in highlighting a path that other tribes might use to restore their tribal land bases.
It is fitting that the tribe whose reservation was allotted before federal policy of breaking up reservations was established, should benefit from the IRA, whose stated goal was to restore some of the tribal lands lost through allotment. There may be other tribes whose history can support this approach.
With only a year left in the Obama administration, the Interior Department has a stated goal of acquiring 500,000 acres of new trust land; to date it has achieved about 300,000 acres toward that goal. We are fortunate to have a government team that takes its trust responsibility seriously, bypassing Carcieri on a path to secure tribal homelands.
