Land-trust case raises red flags across Indian Country
MASHPEE, Mass. — A modest courthouse and a fledgling police force, a housing development for American Indian families and a school where students are taught exclusively in the tribe’s ancestral language. These are the visible signs of an independent tribal nation that has grown on the famous vacation getaway of Cape Cod in recent years.
But the future of those and other developments is uncertain as the Mashpee Wampanoag — the tribe whose ancestors broke bread with the Pilgrims nearly four centuries ago — awaits a decision from the Interior Department on whether it can continue to govern a slice of its historic lands.
The U.S. Department of Interior is reconsidering its 2015 decision to place some 300 acres into trust for the tribe. A federal judge who sided with local residents challenging the declaration sent it back to the agency for reconsideration in the final months of President Barack Obama’s administration in 2016.
Land in trust is a special status in which the federal government holds the title to the property and allows the tribe to make its own decisions on how to develop the tax-exempt land and its natural resources.
“It’s incredibly frustrating,” says Jessie “Little Doe” Baird, the tribe’s vice chairwoman. “We’ve been struggling to keep land under our feet since the 1600s.”
The case — and separate regulatory changes contemplated by the Trump administration in the way tribes apply for trust lands — has raised red flags across Indian Country.
Apart from instances in which tribes request it, the federal government hasn’t removed a tribe’s land trust status since the notorious Termination Era of the 1940s through the 1960s. Back then, Congress sought to end tribal independence by removing federal protections and pushing for the assimilation of American Indians, say Native American groups and federal Indian law experts.
“While it’s not exactly the same, this brings back those same types of concerns, that those lands that have been seen as secure and protected are potentially not as secure as they were before,” said Derrick Beetso, senior counsel for the National Congress of American Indians, the largest organization representing tribal communities.
Two dozen tribes, from the Apache in the Southwest to the Sioux in the Dakotas, have written letters in support of legislation in Congress proposed by Massachusetts lawmakers to enshrine the Mashpee Wampanoag tribe’s land status.
The tribe’s leaders have also been visiting other tribal territories in recent months to voice their concerns with the Trump administration’s proposed changes to the land into trust process, which it sees as a direct response to its tortured legal case. The tribe’s appeal of the 2016 court decision remains in federal court pending the Interior Department’s action.
“This could be just the beginning,” Baird said. “If it can happen to us, it can happen to anyone.”
The proposed revisions weren’t prompted by a specific tribe, said Nedra Darling, spokeswoman for the Bureau of Indian Affairs, stressing that there’s no timeframe for making regulatory changes. The agency’s initial proposal was withdrawn after tribes objected.
Those draft regulations would have, among other things, given the public 30 days to appeal any land trust decision and stated explicitly that the Interior Department would comply with any court orders, rather than appeal them.
Tribes argue the Interior Department must commit to defending its land trust decisions — all the way to the U.S. Supreme Court, if necessary — since opponents critical of the loss of taxable land frequently go to great lengths to keep lands out of tribal hands.
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 Baird, the tribe’s vice chairwoman.
The tribe would also probably have to halt work on a 143-bedroom housing development for tribal elders and families to seek local permits and approvals, she said. The tribe has already built roads, underground infrastructure and a wastewater treatment plant for the project.
And it would almost certainly have to go back to the drawing board on its planned $1 billion casino and hotel complex on a 170-acre industrial park it owns in Taunton, a city some 50 miles away from its Cape Cod base. The tribe, backed by Malaysian gambling company the Genting Group, broke ground on the project in 2016 but halted work after residents, backed by a rival casino company, Chicago’s Rush Street Gaming, successfully sued in federal court.
Paying back taxes is also a possibility, since the tribe and its members would again be subject to state and local taxes, said Robert Anderson, director of the Native American Law Center at the University of Washington in Seattle.
The closest comparisons to the Mashpee’s situation, he said, are the experiences of Menominee Tribe in Wisconsin and the Klamath Tribes in Oregon during the Termination Era.
The Menominee lost a lumber mill and a hospital and had to sell some land to pay local taxes after they lost trust status. The Klamath took per-capital payments for its land and lost their reservation. Both have since regained federal recognition and some land, Anderson said.
The threat of losing sovereign territory is deeply personal for many in the 3,000-member Mashpee Wampanoag tribe, said Kevin “Rising Eagle” Frye, the tribe’s police chief.
Elders like his 96-year-old father, Milton Frye, helped secure federal recognition, which finally came in 2007 and was a critical step in securing trust land, he said. Newer generations, like his 22-year-old son, Kevin Frye Jr., a newly minted Barnstable County deputy sheriff, hope to one day take their place in the tribe’s growing government.
“There was so much pride when our tribe’s flag was raised for the first time over sovereign land. So this is really tough. This is something our families have fought so hard for,” Frye Sr. said. “But at the same time, it doesn’t change my job. I have to keep dealing with each day as it comes.”