Mashpee Wampanoag Tangled in Federal (Anti-)Indian Law Mumbo-Jumbo

By Peter d'Errico

On September 7, 2018, the U.S. government – through the person of Tara Sweeney, Interior Department Assistant Secretary for Indian Affairs – wrote a letter to Mashpee Wampanoag Chairman Cedric Cromwell informing him that the Mashpee “do not satisfy” a federal Indian law definition of “Indian” and are therefore not eligible to hold reservation lands. The letter reverses a 2015 Interior Department approval of Mashpee reservation lands.

Think about it! One of the most famous Native Nations in the “new world” – the Nation who helped the English Christian Pilgrims establish their Plymouth Colony in America – are not “Indian” enough to have a reservation! The Mashpee have survived 400 years of invasion and domination by the Christian colonizers and their descendants. They have tenaciously held onto their homelands, despite repeated efforts to destroy their bonds with these lands.

The Mashpee continue to live as a Native Nation in the very lands they have held since time immemorial. But the U.S. says they don’t “satisfy” the legal rules to have their land rights acknowledged.

The Interior Department reversal came about after a federal judge in Massachusetts bought the arguments of some opponents of Mashpee land in a 2017 lawsuit. The decision, Littlefield v. United States Dep't of Interior , said that “despite their … acknowledgement by the federal government, … the Mashpees are not considered ‘Indians’ because they were not under federal jurisdiction in June 1934.”

The Littlefield decision is based on the precedent of a 2009 U.S. Supreme Court case, Carcieri v. Salazar , which ruled that the Narragansett are not eligible to have a reservation for the same reason – i.e., they were not “under federal jurisdiction in 1934.” What is this legal mumbo-jumbo all about?!

Honor song as the Mashpee Wampanoag Tribe prepares to march to the US Capitol #StandWithMashpee pic.twitter.com/r5QJ2gvpHM — indianz.com (@indianz) November 14, 2018

First, you have to remember that federal Indian law is a field of law designed by the United States to dominate Native Nations. The rules of federal Indian law are rooted in a trilogy of early 19th century Supreme Court cases beginning with Johnson v. McIntosh (1823), which decided that the U.S. owns all Native lands by virtue of the doctrine of “Christian Discovery.” As the Johnson decision puts it, Christian colonizers have "a right to take possession [of Native lands], notwithstanding the occupancy of the natives, who were heathens.”

The Johnson case was bolstered by the decision in Cherokee Nation v. Georgia (1831), which declared that Native Nations are not independent sovereigns because “They occupy a territory to which we assert a title.” The Cherokee decision coined a phrase that survives to this day – “domestic, dependent nation” – and describes Native Nations as being like “wards” of the U.S. This language is now referred to as the “trust relation.” You can see why this U.S. “trust” is not really trustworthy!

The third case in the original trilogy, Worcester v. Georgia (1832), is sometimes interpreted as a “pro-Native” departure from the first two decisions, because the decision contains a sentence saying, "Discovery…could not affect the rights of those already in possession.” But when you read that sentence in the context of the whole case, you see that Worcester does not depart from Johnson and Cherokee Nation.

The Worcester decision describes Natives as “occupants” – not owners; it says the U.S. has “complete ultimate title” of Native lands. The real significance of the Worcester decision is that it declared federal supremacy over the states in dealing with “Indian affairs” and disposing of Native lands. Out of this decision has come the notion of federal “plenary power.”

Jumping ahead to 1934, we find the enactment of the Indian Reorganization Act (IRA) – the law under which the Mashpee (and the Narragansett before them) sought to acquire reservation lands. The IRA is often viewed as “pro-Native” because it shifted away from land allotment and reservation destruction policies in U.S. law.

But the IRA did not acknowledge Native ownership of their lands; it maintained that the U.S. owns Native lands and it also aimed to overthrow traditional Native governments and replace them with “tribal councils” modeled after business corporations. The provision of the IRA at issue in the Mashpee and Narragansett cases authorizes the Secretary of the Interior to acquire land and hold it “in trust for [an] Indian tribe.” This provision seemed to promise reservation lands for the Mashpee and Narragansett.

But the IRA land provision comes with a catch phrase. It defines “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” The Supreme Court Carcieri decision denying the Narragansett reservation focused on the word “now.” It said the IRA land provision only applies to Native nations that were “under Federal jurisdiction” at the time of the passage of the IRA in 1934.

"We are now in a termination era": Tribes are calling on Congress to stop the Trump administration from undermining the federal government's trust and treaty responsibilities. #StandWithMashpee https://t.co/vG9XEg9xwG pic.twitter.com/lIgY79wJVs — indianz.com (@indianz) November 14, 2018

Carcieri denied the Narragansett reservation on the ground that the Narragansetts were not “under Federal jurisdiction” in 1934. The Littlefield decision followed the Carcieri precedent and ordered the Interior Department to reconsider its 2015 approval of a Mashpee reservation. When Interior reviewed its decision, Mashpee provided evidence that the U.S. did in fact acknowledge their collective rights in land and natural resources and did exercise federal jurisdiction in and before 1934. The Mashpee evidence included federal management of funds; inclusion in censuses; enrollment of Mashpee children at boarding schools; and provision of health care. The Interior letter rejects all these instances as irrelevant.

The Interior letter says that the federal government claims a “paramount power” over all Native lands and peoples. It refers to all three original federal Indian law cases and says, “a fundamental tenet of Federal Indian law [is] that national power over Indians arises … from inherent powers originating in colonial prerogatives derived from discovery….”

But – and here’s the kicker – Interior says that even though the federal government claims total jurisdiction, the instances shown by Mashpee were not exercises of the jurisdiction. For example, Interior admits that the Mashpee were included an 1820 report of “tribes within the jurisdiction of the United States… potentially (Interior’s emphasis) subject …to removal and resettlement,” the Mashpee were not “removed.”

The logic of the Interior letter is perverse: The fact that the Mashpee were not “removed” and remained in their homelands means they are not eligible to have a reservation! Interior puts it this way: The evidence shows that Mashpee is "’subject to federal Indian policy, that is, within the jurisdiction of the United States,’ [but] not that it was ever subjected to such authority by the Federal Government.”

The letter adds, “The issue … is whether the Federal Government took any action or series of actions in the exercise of its plenary power over a tribe.” Apparently, Mashpee would be eligible to have a reservation only if they had been removed!

Similarly perverse, Interior says the fact Mashpee children were put into the Carlisle Indian School – the template for the infamous Bureau of Indian Affairs boarding school system – does not show an “exercise of federal jurisdiction” over the Mashpee, but only over “some of its members.”

The Interior Department denial of Mashpee reservation lands is an egregious example of the “now you see it, now you don’t” quality of federal Indian law. It should be called federal anti-Indian law. If you’re concerned enough to raise your voice, you can take political action by supporting the Mashpee Reservation Reaffirmation Act, a bi-partisan congressional bill – H.R. 5244 S.2628 . This bill would exercise the so-called congressional “plenary power” in federal Indian law to reaffirm the 2015 Interior decision approving a Mashpee reservation.

Federal Court Decision

Federal Register Notices

Peter d'Errico graduated from Yale Law School in 1968; was Staff Attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970; taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002; and is a consulting attorney in Indigenous litigation.

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