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Mashpee tribe sues Interior Department over land decision
By Tanner Stening
Complaint calls agency’s recent reversal ‘arbitrary’ and ‘capricious.’
MASHPEE — In a new chapter of a long-running legal saga, the Mashpee Wampanoag Tribe is now suing the U.S. Department of the Interior in an effort to defend the validity of a prior decision by the agency to take its land into trust, according to court documents.
Tribal attorneys filed a lawsuit in federal court Thursday challenging a Sept. 7 determination from the department that reversed an Obama-era decision to secure 321 acres of tribal land into trust. The latest ruling declared that the tribe was not under federal jurisdiction in 1934 — the year the Indian Reorganization Act was passed.
The new complaint, which was filed in U.S. District Court for the District of Columbia against the department and Interior Secretary Ryan Zinke, alleges that the agency “failed to apply established law” by “contorting relevant facts and ignoring others to engineer a negative decision” with respect to the tribe’s land.
The suit alleges that the recent department decision “indefensibly reverses course” from the administrative decisions it has made for other tribes in regard to federal jurisdiction and “badly ignores” the case law interpreting what that phrase means, documents show.
“The (tribe) therefore files this complaint to challenge the department’s 2018 decision and correct (its) arbitrary, capricious and unlawful actions,” the suit states. The suit goes on to reassert evidence that the tribe submitted during its bid for federal recognition and throughout the course of the lawsuit to prove it was under federal jurisdiction.
In a statement, Mashpee Wampanoag Tribal Chairman Cedric Cromwell said his tribe has been “utterly abandoned by our federal trustee.”
“We are urgently petitioning the United States Congress and the federal courts to end this nightmare — to prevent what appears to be an intentional return to the dark days of the termination era, when tribal lands were taken out of trust and the federal relationship with tribal governments disavowed,” Cromwell said.
The Interior Department took 321 acres in Mashpee and Taunton into trust for the tribe in 2015, declaring it a sovereign reservation. Under such designation the federal government holds the title to the property but the tribe may decide how to develop or use the land for its own benefit.
The tribe’s plans included a $1 billion casino in Taunton, but neighbors of that proposed resort sued the Interior Department in 2016.
A federal judge ruled that the secretary of the Interior did not have the authority to take the land into trust because the tribe was not under federal jurisdiction and was therefore unqualified under a definition of “Indian” used by Interior officials. The judge sent the case back to the department for further review.
Before its revised ruling earlier this month, the department had been deliberating whether Massachusetts had exercised authority over the Mashpee tribe in a manner that could be seen as a substitute for the federal jurisdiction requirement under the 1934 law. The decades-old statute remains the primary governing tool over Indian affairs, promoting self-determination and self-government.
The lawsuit, as in similar cases, rested on the interpretation of four words: “now under federal jurisdiction,” a phrase that has vexed tribes seeking trust status for newly acquired land with the federal government through the years, most notably the Narragansett Tribe’s efforts in Rhode Island, which culminated in the Supreme Court decision known as Carcieri v. Salazar.
But the Carcieri decision never established the criteria by which a tribe could demonstrate it was under federal jurisdiction, prompting the Interior Department’s solicitor to issue an interpretation of the ambiguous phrase in 2014.
In her written interpretation, Hilary Tompkins rejected the idea that there is one “clear and unambiguous meaning” of “under federal jurisdiction,” writing that the only information available to help decipher what Congress meant by the phrase was gleaned from a Senate hearing on May 17, 1934 — that it was intended as “a means of attaching some degree of qualification to the term ‘recognized Indian tribe.’” She concluded that the Interior Department would continue to take land into trust on the basis of a two-part inquiry that would “fill in gaps where Congress has been silent.”
In a letter sent to Cromwell on Sept. 7, Assistant Secretary of Indian Affairs Tara Sweeney wrote that after reviewing the evidence and submissions, the state’s history of exercising authority over the tribe provided no indication of federal authority sufficient to prove it was under federal jurisdiction.
While the evidence “demonstrates a federal awareness of the Massachusetts Indians and the Commonwealth’s regulation of their affairs, it does not establish or reflect any federal actions taken on behalf of, or for the benefit of, the Mashpee Tribe or its members as such,” Sweeney wrote. Because the tribe was not “under federal jurisdiction” in 1934, it did not qualify under the Indian Reorganization Act’s first definition of ‘Indian’ nor under the second definition, as interpreted by the U.S. District Court in Massachusetts, she wrote.
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