“A Tribal land base is critical for the exercise of Tribal sovereignty, and for the protection and continuation of Tribal culture, and represents the foundation for Tribal economic development,” Cromwell has said. (Photo by Native Business Magazine)
‘A grave injustice’: Court denies Mashpee Wampanoag Tribe’s appeal — but the fight isn’t over yet.
The U.S. Court of Appeals in Boston has ruled against the Mashpee Wampanoag Tribe, which was previously granted land in trust in Massachusetts.
The federal appeals court’s determination on Thursday upheld a lower court decision that declared the federal government had not been authorized to take land into trust for the Mashpee Wampanoag Tribe in 2015. The lower court argued the Tribe was not qualified to take land into trust, because it wasn’t federally recognized in 1934, when the Indian Reorganization Act became law. The Cape Cod-based Tribe gained federal recognition in 2007.
The irony of the situation is not lost on the Mashpee Wampanoag Tribe, whose ancestors greeted the Pilgrims and aided their survival. It was their forebearers who signed the treaty with the settlers to share their land and natural resources, making the establishment of Plymouth Colony possible.
Despite the recent federal appeals court ruling, the Mashpee Wampanoag Tribe is undeterred and remains committed to its fight for land. A separate case pends in federal court in Washington, D.C.
“There’s no question that this is a grave injustice,” Mashpee Wampanoag Tribal Chairman Cedric Cromwell said in a statement. “We will continue to fight, as our ancestors did, to preserve our land base, our culture and our spiritual connection to our homelands.”
The 321 acres of land briefly restored to the Tribe represents a small fraction of the Tribe’s original lands, which stretched from Cape Ann into Rhode Island.
Land Is Identity, Culture and Economy
For the Mashpee Wampanoag Tribe, as with many Tribal Nations, land is about much more than a plot of Earth.
“Land is the blood and bone of our ancestors, and we always had the land,” Cromwell told Native Business last year. “It was part of our creation story.”
“When you’re standing on your land, there’s a place of identity, and that’s economy,” Cromwell continued. “Once you know who you are from an identity perspective and as a sovereign people, you’ll be able to prosper because now you stand on a place that you can call home. You stand on land that you own. You stand on a place that provides resources for all so that we can prosper.”
Since time immemorial, the Mashpee Wampanoag Tribe has called the land in Southeastern Massachusetts home. As the Tribe’s Vice Chair Jessie Little Doe Baird said at a rally in November 2018 in front of the U.S. Capitol, “My blood and bones are from Mashpee, as were my mother’s and her mother’s before her.”
And with that land came the thriving economy that Cromwell talks about.
“When you think about all the natural resources our Tribe had before the first settlers, if you want to use the word ‘rich’ and ‘wealthy’, we had that because we were able to provide for everybody,” Cromwell said. “It was a shared economy. That meant that everyone had shared wealth and nobody went hungry. Everyone had resources to provide for themselves, grow and prosper.”
The Tribe’s ancestors were there to welcome the Pilgrims when they landed at Plymouth Rock and helped to save the first colonists from starvation. The relationship between the Mashpee Wampanoag and the first European settlers is one of the oldest such relationships in the United States.
But despite this exchange that places the Tribe at the epicenter of United States history, the centuries that followed saw the Mashpee Wampanoag’s Tribal lands whittled away until the Tribe was left entirely landless. Thus, the fight to restore their homeland — and therein, their sovereignty — began.
For decades, the Mashpee Wampanoag Tribe organized, lobbied and pushed every lever in their power toward federal recognition. And in 2007, those decades of advocacy paid off when the Department of the Interior acknowledged their status as a federally-recognized Tribe, laying the groundwork for lands to be taken into trust, ending their long period of landlessness and giving them a place on which to exercise their inherent sovereign rights.
As Chairman Cromwell testified before the U.S. House of Representatives Subcommittee on Indian, Insular, and Alaska Native Affairs, “even before our recognition was restored, we began the process of re-acquiring historical land that could be set aside as a federally-protected reservation. In the late 1970s, we embarked on a long and ultimately successful effort to work cooperatively with the Commonwealth of Massachusetts, the Town of Mashpee and City of Taunton, and other stakeholders as part of our overall effort to find land within our historical homeland that could be taken into trust to serve as our reservation.”
Finally, nearly a decade after gaining federal recognition, the Department of Interior took land into trust and proclaimed it as the Mashpee Wampanoag’s reservation.
“The Department’s decision finally allowed Mashpee to have a land base on which we can exercise our sovereignty and provide for our people, build homes, and conduct the business of government,” Cromwell told Congress. “Our reservation includes our Meeting House, Government Center, burial grounds and cemeteries, Tribal museum, Tribal offices, conservation land, and cultural recreation land, and we are working on additional Tribal housing and economic development projects.”
The Mashpee’s victory was short-lived, however. Shortly after the Tribe got their long-awaited federal recognition, the Department’s decision was challenged in court by local residents. This began a long legal process which is still continuing five years later.
On September 7, 2018, the Department of Interior reversed its initial decision to hold land in trust on behalf of the Tribe — a decision that, if upheld, would set a dangerous precedent for Indian Country as a whole. In response, the Tribe filed a complaint in the Federal District Court for the District of Columbia challenging Interior’s decision as arbitrary, capricious, and contrary to the Department’s own administrative decisions and clear law.
“This would be the first time since the termination era that the United States acts to disestablish an Indian reservation and make a Tribe landless,” Cromwell said in his Congressional testimony.
Legal disputes continue to play out.
Cromwell previously told Native Business that the Tribe’s entire economy and well-being is tied to the trust status that is currently in a state of suspended animation. And while the Tribe fights to save its sovereignty in court, the Department of Interior’s actions have created confusion about the legal status of the Tribe’s reservation. Along with this confusion comes a wide range of damaging effects.
“What does [losing sovereignty] mean for economic development?” he said. “It’s over. It’s over. When you take our trust lands away, you take our resource management and economic development.”
“Now, as a sovereign Nation, we lose a component of our sovereignty,” Cromwell continued. “So the Indian Gaming Regulatory Act doesn’t apply anymore because that applies to initial reservation status and we have that. We’re building a billion-dollar facility that was going to provide 7,000 jobs, $30 million in infrastructure improvements, and $20 billion for the Commonwealth over the life of the contract, in addition to many years of prosperity to my people.”
And with this project now on hold as a result of the legal challenge, the impact continues to ripple through almost every aspect of the Tribe’s finances.
“Our economy is getting smashed,” Cromwell said. “Our debt services don’t get paid, which accumulates interest. In the meantime, the monies that we needed from the resort development would have spawned a portfolio of other businesses like financial services, like free trade zones with manufacture and distribution, stem cell management, and research on areas of health issues that impact our people.”
With the resort awaiting clarity on the Tribe’s legal status, the opportunities that these other businesses would have provided are similarly stuck in limbo. And Cromwell says that his people suffer as a result.
“What you are doing is trying to kill off a people when you take their trust lands,” he said. “Our people that are under-serviced can’t get a fair shake. They can’t get jobs. They can’t have an economy. And then they get set back dramatically.”
In addition to just the direct and indirect economic development opportunities that the resort would generate for the Tribe, Cromwell also told Native Business that other funds that were set to improve the lives of the Mashpee Wampanoag Tribe could be on the chopping block if they lose their trust status.
“There are EPA grants that are associated with trust lands, so when you take away trust status, that goes,” he said.
Another casualty could be the Tribe’s language immersion pre-school and kindergarten that is adding one new grade each year.
“We worked for 25 years to open up our language school,” Vice Chair Jessie Little Doe Baird, who was instrumental in bringing the school to fruition, said at the rally in November 2018. “We teach our subjects in our own language. We seek to protect our children from social ills through our language.”
The school, in particular, is a key part of the Mashpee Wampanoag Tribe’s future. In addition to helping to revive a language that had not been spoken in more than 150 years, studies have shown that children learning in their heritage languages that are multi-lingual speakers test an average of 30 percent higher in STEM subjects due to the cognitive advantages of multilingual language acquisition. Immersion education also provides protective factors for students against social pressures such as drug addiction, suicide (particularly for Native American children), and dropout rates.
If the Mashpee Wampanoag Tribe loses its trust land status, Cromwell says, the grants that make the school possible will dry up. As a result, the school would close — another dramatic blow to the Tribe’s future.
Another project — the Mashpee Meetinghouse Village Tribal housing project — is also in danger if the Tribe loses its sovereignty.
“Our housing development project is based on Low Income Housing Tax Credits per our sovereign trust land with 52 units that would provide quality housing for our elders and youth,” Cromwell said in late 2018.
In total, the Tribal housing project is set to provide a total of 140 bedrooms for a Tribe with high rates of low income and with an average rent of $2,400 per month for a three-bedroom home. It took over a decade to reach the point of construction. If the Mashpee Wampanoag’s trust status is revoked and the land converts to fee simple, the Tribe will lose the LIHTC funds and the planned development will suffer.
“We have many generations living in one household, so this would give everyone their own space which means quality of care, quality of sleep, quality of lifestyle, and quality of education,” Cromwell said.
While the Tribe certainly stands to lose everything if the Department of Interior’s decision is upheld, the region and Commonwealth as a whole also stand to lose key benefits.
In Cromwell’s testimony before Congress in 2018, he outlined a number of ways that protecting the Mashpee Wampanoag’s reservation lands would positively benefit the towns of Mashpee, Taunton, and the surrounding communities. He says that the Tribe has committed to $30 million in upgrades to the Taunton water system and roadways, $10 million per year to local first responders and Taunton city services, and $65 million to the Commonwealth for broader community development initiatives that will benefit Tribal and non-Tribal residents alike.
“Once implemented, these commitments made by the Tribe to the City of Taunton will represent the single largest urban renewal effort in Southeastern Massachusetts in a generation,” Cromwell previously said. “The Tribe is committed to working closely with the Taunton community and Southeastern Massachusetts as a whole to bring greater economic prosperity to our shared region, for the benefit of all.”
For decades, the Mashpee Wampanoag Tribe has fought to restore their homelands and provide for their people as they once did. Despite the U.S. Court of Appeals’ devastating ruling on February 27, 2020, the Tribe hopes a final resolution will return them to those halcyon days of prosperity.
It was the economy that their land and sovereignty provided that allowed the Mashpee Wampanoag to help those first settlers centuries ago and therein cement their chapter in the history of the United States — a country that is now trying to disestablish them. Today, the 2,877 citizens of the Mashpee Wampanoag Tribe are just hoping that they can continue to have their own small piece of the world where they can continue to live and prosper freely — for now and for generations to come.