Dueling Historical Documents To Determine Mashpee Tribe's Reservation Fate
By: Brian Kehrl
The Mashpee Wampanoag Tribe throughout the late 18th and 19th centuries was in regular correspondence with state officials in Boston. The state appointed overseers to the tribe in 1788, then called them back in 1834 when the tribe demanded more autonomy under an oppressive system.
When the tribe had a problem, time and again it went to Boston, not Washington, which would seem to suggest that the tribe was under state, not federal jurisdiction.
Not so, the tribe argues in a set of documents released by the federal government under a public records request.
Just because the tribe had a relationship with the state government does not mean it was not also under federal jurisdiction, even if the federal government did not realize that it had jurisdiction over the tribe, according to a report filed recently as part of the tribe’s land-into-trust application to create a reservation in Mashpee and Taunton.
Citing historical documents as well as decisions by both the US Supreme Court and by the US Department of Interior in approving other Indian reservations, the tribe argues that on several occasions it proved a relationship with the federal government and so qualifies as having been under federal jurisdiction.
Congress has not declared the tribe not under federal jurisdiction, so under federal jurisdiction it was and so it remains, according to the tribe’s argument.
The most recent, supplemental section of the tribe’s “Carcieri report” comes after opponents to the tribe’s proposed casino in Taunton submitted to the Interior department historical documents of their own that show federal officials denying federal jurisdiction over the tribe.
The opponents, in a letter from Middleborough attorney Adam M. Bond, provided an 1899 letter from the US commissioner of Indian affairs addressed to a lawyer from Massachusetts that denied any federal “supervision or control” over tribes in the original 13 states.
The claims from each side amount to dueling historical documents, and dueling translations of a long and complicated history. And they may well determine the course of the tribe’s immediate future.
The tribe’s report is intended to prove the US Interior department’s power to take land into trust for the Mashpee tribe, a power that became uncertain in 2009 with the Supreme Court’s decision in the Carcieri v. Salazar case. The Court found that the Interior department cannot create reservations for tribes “not under federal jurisdiction” in 1934, when a landmark federal law establishing the reservation system was passed.
The Carcieri decision changed the landscape for the Mashpees and countless other tribes across the country, who previously did not have to prove their position under federal jurisdiction in 1934, as they now do. The Mashpee tribe was federally recognized in 2007, but federal jurisdiction is not the same as federal recognition.
So the Mashpee tribe and its consultants set about trying to prove that it was under federal jurisdiction in 1934.
A Decisive Argument
The result is the tribe’s Carcieri report, 39 pages of legal and historical arguments, plus 15 separate exhibits, and three supplemental reports. In total there are more than 200 pages of documents.
Successfully making the federal jurisdiction argument is widely seen as one of the most significant obstacles to the tribe’s plans for a reservation in Mashpee and Taunton.
Seeing that the property in Taunton and Mashpee is declared a “reservation” is in turn key to the tribe’s plans for economic development in the Silver City and housing and other services closer to home. Simply owning the land does not exempt it from local zoning and state regulation or make it eligible for millions of dollars of federal assistance, as a reservation declaration does. Only if the land in Taunton is established as a reservation can the tribe open an Indian casino there.
The Carcieri argument was at the crux of questions about whether, if the state waits for the tribe to pursue federal approval, southeastern Massachusetts will fall behind the other two regions in the state and will not see the development of a resort casino.
With the gaming commission’s vote last week to allow commercial casino operators to bid on the southeastern Massachusetts license previously reserved for the tribe, attention now turns from whether the commission believes the tribe’s reservation will be approved in a timely manner directly to whether the federal government will approve it.
At least in the near term, the scenario is simple: if the tribe can prove that it was under federal jurisdiction in 1934, it has a good shot of getting its reservation in Mashpee and Taunton approved. If it cannot, unless Congress takes action to change federal law or approve the reservation on its own, the tribe will likely not have a reservation and not have a casino.
The Carcieri Ruling And The Mashpee Wampanoag Tribe
The US Bureau of Indian Affairs has said in correspondence to the tribe that the tribe’s application is a priority and that it is under active review. In a letter to the tribe last month, an attorney for the BIA said the agency is making “substantial progress” in its review of the application. The BIA had previously said it would have a decision early this year; exactly when a decision will be forthcoming remains unclear.
The tribe’s original Carcieri report was filed last September. Two supplemental reports were filed in November, and a third was submitted late last month.
The Enterprise requested the report from the tribe last year but was not provided a copy. A federal Freedom of Information Act Request filed by the Enterprise in January and seeking copies of the report was delayed by attorneys for the tribe, who argued the historical reports should be confidential. The tribe’s hold on the documents was lifted last month, and the federal government released the documents earlier this month.
The tribe last week provided the second and third supplemental reports upon the request of the Enterprise.
The Tribe’s Case
The tribe makes two separate arguments for meeting the requirement: that its members qualify as “all persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction” and that its members were “Indians residing on an Indian reservation in 1934,” both of which would make it eligible for a reservation.
(The report does not touch on a third option for proving eligibility, regarding whether tribe members at the time were “Indian persons of one-half or more degree of Indian blood.”)
As one of several points of evidence, the tribe describes its relationship with the British Crown before the US government was formed. The tribe had “treaty relations” with Great Britain, including a right to fish and hunt on its land in Mashpee, and after independence the new federal government automatically took over the legal responsibility of maintaining those treaties.
The tribe sent a representative to England in 1760 to complain about its treatment by colonists. The king in response issued an order calling for an amendment to colonial law protecting the Mashpee and allowing a measure of self-government.
“Clearly, the Crown’s representatives intended to set aside Mashpee territory for the Mashpee subject to colonial superintendence, thus effectively creating a reservation. This reservation continued to exist up to and after 1934,” according to the report. “Even though not denominated as such, this extensive, negotiated treaty between the Tribe and the Crown effectively constituted treaty relations.”
Also, a federal law that has already once altered the course of the tribe’s fortunes in recent history, the 1790 Nonintercourse Act, created a “special relationship” between Washington and Mashpee. The Nonintercourse Act, which prevents the sale of Indian lands without the express approval of Congress, is the same law the tribe cited in its ultimately unsuccessful land suit in the 1970s.
“Even though these tribal plaintiffs were no longer in possession of their tribal lands, the United States’ obligations under the Nonintercourse Act continued such that the United States was liable for its failure to perform its statutory duties. Stated otherwise, federal jurisdiction continues even though the tribe may have lost possession of the property right first giving rise to federal jurisdiction,” according to the report.
The report notes on many occasions that the tribe believes the state’s creation of the Town of Mashpee in 1870, which removed communal tribal ownership of most property in town, was illegal under federal law.
As further evidence, the tribe notes that the federal government several times through the 19th century applied federal Indian policy to the Mashpees, including sending Mashpee Indians to a federal re-education school in Pennsylvania and actively considering the Mashpee tribe for relocation. Other tribes were relocated under the same policy, but the Mashpees were not removed because a federal official determined that its close ties to the land here and tribe members’ “public utility” as “whalemen” would have made it inappropriate. “They are tenacious of their lands,” the federal official wrote in 1816.
Key to the tribe’s argument is that Indian tribes, once they are under federal jurisdiction, do not lose that position unless Congress takes action to terminate it. So, if there is evidence of the tribe being under federal jurisdiction before 1934, then it would continue to be in 1934, so long as Congress did not stop it. Congress has not terminated federal jurisdiction over the Mashpee tribe.
Altogether, the tribe argues that it was under federal jurisdiction continuously from 1789 to present, including in 1934, and that its members lived on an Indian reservation in 1934, making it eligible for a formal reservation declaration today.
The BIA has already found at least two tribes to be under federal jurisdiction in a Carcieri analysis even though they were not federally recognized at the time, the Cowlitz Indian Tribe in Washington state and the Tunica-Biloxi Tribe in Mississippi and Louisiana. The Mashpee tribe leans heavily on the parallels between the other two approvals and its history.
For example, in the Tunica-Biloxi decision, the BIA agreed that the tribe legally had a treaty with the United States. The southern tribe had a formal treaty with Spain when its land was included in the Louisiana Purchase.
Even if the federal government was not aware of or did not believe it had jurisdiction over the tribe, its legal responsibilities still existed, according to Arlinda Locklear, an attorney for the tribe.
Ms. Locklear, a prominent Indian law lawyer in private practice in Washington, DC, said she and attorney Judith Shapiro, a Washington, DC-based lawyer in private practice, authored the Carcieri report. Ms. Locklear was hired as special counsel for the tribe for the Carcieri analysis, she said. Ms. Shapiro has done legal work for the tribe in other areas as well.
According to the report, “First, these documents show that, through a remarkable exchange of correspondence, federal officials were made aware of the Tribe’s reservation and the state’s persistent attempts to dispossess the Tribe without federal consent. Yet, federal agents did nothing to protect the Tribe, notwithstanding the United States’ clear legal obligation to do so.”
As for the Mashpee tribe’s history of a relationship with the state government in Boston, Ms. Locklear said that federal courts have ruled on more than one occasion that such ties or even the state claiming jurisdiction do not trump the federal government’s responsibility to tribes.
“There is nothing in the existence of a relationship with the state government that debilitates or negates a relationship with the federal government,” she said. “It is not at all uncommon for reservations to exist where both state and federal governments both have obligations and supervisory authority.”
Denial Of Responsibility
It is the question of state versus federal jurisdiction that is at the heart of the contradictory evidence provided by the tribe’s casino opponents.
In a letter from Mr. Bond, the attorney who worked closely on the tribe’s earlier proposal to build a casino in Middleborough, the opponents point out that even a top federal agent plainly said that the tribe was not under federal jurisdiction in 1899. Mr. Bond’s letter was sent to the BIA in Washington, as evidence against the tribe’s application, as well as to Governor Deval L. Patrick. It was also provided to the gaming commission before its decision on commercial bids for the southeastern license.
The 1899 letter is specifically about other tribes in New England, not the Mashpee, but it offers a general assessment of tribes in the original 13 colonies:
“No treaties or agreements were ever made with them by the general government, nor has it ever exercised any supervision or control over them. Their political status is unknown, but it is presumed that they are citizens and subject to the laws of the several States in which they reside, and entitled to the rights and privileges of such citizenship...Their political condition is, therefore, radically different from that of what might be termed the ‘plains’ Indians, that large body of persons in the western section of the country who became subjects or wards of the government with the accession of territory ceded by France in 1803...”
The opponents also note that the Mashpee tribe is not on a list of tribes produced by the federal government in 1939. No tribes on that list are from the original 13 colonies.
A separate letter from a federal official in 1937 to the Mashpee chief states that the tribe was not eligible for federal assistance because it was not under federal jurisdiction at the time.
“This notice to the Mashpee Wampanoag could not have been clearer,” Mr. Bond wrote. “We respectfully submit that based on the consistent position taken by the department over the last more than 100 years that the Wampanoags were not under federal jurisdiction (both before and after 1934), that an immediate rejection of the Tribe’s land in trust application is required at this time.”
Jurisdiction Without Knowing It
However, in the most recent report submitted by Ms. Locklear and the Mashpee tribe, the tribe directly responds to the opponents’ claims.
Whatever relationship the tribe had with the state government in Boston had no bearing on the federal government’s jurisdiction over the tribe, according to the supplemental report. Only an act of Congress could have released the federal government of its jurisdiction.
Here the Mashpee tribe again references the Interior department’s Tunica-Biloxi decision. A federal official likewise wrote a letter stating that the Tunica-Biloxi was under state control and it was never recognized by the federal government.
Yet the US Interior department in its decision on the Tunica-Biloxi reservation application in 2011 decided that the Tunica-Biloxi tribe was under federal jurisdiction and so could have land placed into trust.
“As noted in the Tribe’s Carcieri Memorandum, this was the correct result for the Tunica-Biloxi Tribe and is the correct result for Mashpee,” according to the report.
In an interview, Ms. Locklear said that just because a federal official took a position regarding the federal jurisdiction of either the Mashpee or the Tunica-Biloxi tribe does not mean it was legally correct. “It was just a mistaken view, is how the [Interior] department put it,” she said. Federal officials have long tried to shirk their responsibility to tribes, she said.
Ms. Locklear pointed to a concurring opinion submitted by Justice Stephen G. Breyer in the Supreme Court’s Carcieri case to show that there may have been tribes who were under federal jurisdiction in 1934, even if the federal government did not explicitly say so.
“That is because a tribe may have been ‘under Federal jurisdiction’ in 1934 even though the Federal Government did not believe so at the time,” Justice Breyer wrote in his opinion. “We know, for example, that following the Indian Reorganization Act’s enactment, the Department compiled a list of 258 tribes covered by the Act; and we also know that it wrongly left certain tribes off the list.”
To date the Interior department has not declined a single tribe making a claim of federal jurisdiction under Carcieri, Ms. Locklear said.
Mr. Bond, in turn, said he is not surprised that the Interior department would have ruled in favor of the other tribes in similar situations, as the federal agency may well be seeking to re-establish the authority that it lost under the Carcieri decision. And the Tunica-Biloxi’s status was different because it was not located in one of the original 13 states, which were given different control over their property than future states organized by the federal government.
“No one has argued that Congress can’t give the Mashpee land into trust by an act of Congress, but that is not bloody likely,” he said.
If nothing else, Mr. Bond said his evidence should prove that the tribe will not have a reservation “any time soon.” Relying on a concurring opinion written by a single justice, rather than the majority opinion, leaves the issue open to interpretation, he said.
“Their response is making my point for me,” he said. “There are two sides to the argument, and where there are two sides, there is litigation. And where there is litigation, it takes years and years.”