Mashpee Chairman Cedric Cromwell testfying on Tuesday, July 24, 2018
Published September 12, 2018
WASHINGTON — The National Congress of American Indians disagrees strongly with the Department of the Interior’s recently announced decision affecting the tribal homelands of the Mashpee Wampanoag Tribe.
In the decision, the Department (DOI) failed to consider the totality of the Tribe’s evidence in determining whether or not the Tribe was “under the jurisdiction” of the Federal Government in 1934. Instead, the Tribe was unfairly expected to prove that each individual submitted piece of evidence on its own proved that the Tribe was under federal jurisdiction, rather than viewing the collective evidence presented by the Tribe and then making a determination based on all of the assembled facts.
DOI rendered this unfounded decision despite the fact the Tribe presented evidence that Mashpee Wampanoag children, enrollees of the federal Carlisle Indian School in Pennsylvania, were subjected to the most repugnant policies toward Indians during that era – the forced removal of Native children from their tribal homes so they could be stripped of their cultures and languages. The Tribe also presented evidence that the Office of Indian Affairs considered the Tribe in several large policy discussions, including whether to remove certain groups of Indians from their reservations. In addition, the Tribe provided evidence that a United States (U.S.) Attorney represented the Tribe’s interests in court, but DOI suggested that the Tribe needed to show the actual authorization from the Federal Government enabling the U.S. Attorney to take the case, or some other comparable indicia that a U.S. Attorney was acting on behalf of the Federal Government other than his title at the time he provided the Tribe his services.
Furthermore, the Tribe presented evidence that its lands and people were included in various federal reports documenting Indian tribes at various points in history. However, the decision rejects this clear evidence of federal jurisdiction by inexplicably claiming that these federal reports – in some cases commissioned by Congress – somehow do not constitute “exercises” of federal jurisdiction. DOI also failed to mention the plenary authority exercised by the Federal Government over Indian tribes (as that term is used in the Constitution), much less applicable canons of construction, both of which should have been material factors in making this momentous decision.
This decision severely restricts the Mashpee Wampanoag Tribe’s sovereignty and its ability to exercise meaningful self-governance. In addition, the Tribe’s reservation is now threatened with disestablishment. The Tribe is effectively stripped of important “reliance interests” that will affect the social service programs it provides to its citizens, as well as the economic development ventures (including gaming) that the Tribe relies on to support critical tribal government functions and provide job opportunities to its people.
NCAI is extremely disappointed in this decision, as it reflects the obvious failure of the Federal Government to uphold its trust responsibility to Indian tribes. NCAI demands an immediate response from the Department as to whether this decision indicates that the Administration’s current land policy towards Indian tribes is one of “how to get to no.”