June 13, 2020
I first saw #standwithmashpee on facebook in late March. The hashtag was spreading due to Secretary of the Interior David Bernhardt's recent executive action. On March 27, Bernhardt disestablished the Mashpee Wampanoag Tribe and took their land out of federal trust status; this was done during the beginning of the COVID-19 state of emergency and while litigation regarding the tribe's land status was pending. For the last couple of months, I have been following the Mashpee Wampanoag Tribe's case in the federal court of appeals. What have quickly emerged during these hearings and reports are fragments of suppressed and repressed history of European and Euro-American domination and hegemony toward Native Peoples. During the recent, resurgent wave of Black Lives Matter, and as statues of White war heroes and colonial explorers topple in our cities squares, a crucial companion process awaits us in the rekindling of forgotten and neglected histories. By standing with the Mashpee, and by supporting Indigenous sovereignty and liberation everywhere, we take part in the healing and restoration of peoples whose memories and identities have struggled to maintain integrity through trauma. This article is an attempt to do healing work through journalistic coverage. Please join me in lifting up Indigenous voices.
“Isn’t a decision not to act just as much an action as a decision to act?” asked Judge Paul Friedman. I had dialed in to a public line in order to attend this hearing, known as Mashpee Wampanoag Tribe vs. Zinke et al. The Mashpee were plaintiffs in a civil case that was now in the federal court of appeals. Since losing in a lower federal court in 2016, the Mashpee have maintained that they have a right to retain federal land-in-trust status of the 321 acres of land in Taunton and Mashpee, MA, that had been granted to them by the Department of the Interior. The Interior oversees the Bureau of Indian Affairs, and has the power to grant land-in-trust status to federally recognized status (more below).
Back in 2016, the Mashpee Wampanoag were defendants in a civil case brought by 24 Taunton residents who sued to prevent the construction of the First Light Casino in Taunton. The Mashpee did not the right to that land, the residents claimed, because in order to have land federally entrusted (a status that allows tribes to operate land without interference of state and local laws) an Indian tribe must meet the legal definition of “Indian,” spelled out in section 19 of the Indian Reorganization Act of 1934. That’s right. The Mashpee Wampanoag Tribe, the tribe that welcomed the Pilgrims in 1622 and taught them to work the land, were not Indian. And for the first couple of cases, the judges agreed, saying that the language in the 1934 Act’s definition was unambiguous. A tribe must have been “under federal jurisdiction” at the time of the Act, that is, as of 1934. And what did it mean to be under federal jurisdiction? The Mashpee Wampanoag Tribe was not federally recognized until 2007.
Mashpee Wampanoag Tribal Council Leader Cedric Cromwell
This brings us back to Judge Friedman’s question about action. When he asked whether a decision “to act” versus “not to act” held a qualitative difference, he was reflecting on the Morse Report of 1822, a federally commissioned review of Indian tribes in the United States. In the report, the author makes a direct recommendation on the question of Mashpee removal, and advises against it on the grounds that the Mashpee are important contributors to the local economy.
The defense, representing the Interior, believed that the decision not to remove the Mashpee from their lands showed a lack of authority on the part of the federal government. On June 6th, the date of his court opinion was issued, Judge Friedman expressed his official disagreement with this point. In addition, the judge found that the Department of the Interior had engaged in multiple misapplications of procedure. Judge Friedman issued a remand, or legal “return to sender,” to the Department of Interior, ordering them to reevaluate the Mashpee Wampanoag’s federal status according to a procedure consistent with the Deparment’s stated policy for examining federal status (known as the M-opinion).
Since 2016, some twists and turns have occurred, with different parts of the definition coming under scrutiny in different cases. Now, let's fast forward to March of 2020, when the current Secretary of the Interior, David Bernhardt, took the Mashpee Wampanoag Tribe’s land out of federal trust while litigation was pending. This was received as a treacherous, colonizing act and was attacked by many public figures, including Sen. Elizabeth Warren and Bernie Sanders.
So where does that leave the Mashpee? The Tribe’s status is still in the hands of the federal government, and the ultimate decision will set a precedent for the hundreds of tribes that were not federally recognized before 1934. At this point, knowing how to support the Mashpee Wampanoag is a matter of awareness. Recently, Sen Joe Kennedy III recently introduced the Tribal Reservation Pandemic Protection Act in order to combat the threat to the Mashpee under the Trump Administration. It is also important to follow #standwithmashpee and increase awareness in the event that future actions are needed.
Finally, it is important that we all be aware of the string of battles being fought by Indigenous Peoples in the United States and across the world, from South Dakota to Brazil. As we confront White Supremacy in all its forms, we cannot neglect the ongoing fight of Indigenous Peoples in this country. Together, we must support and fight fiercely for tribal sovereignty, tribal land rights, and for the dignity of all tribes and Indian nations across this country.