Twenty-five members of Congress have signed on to an amicus brief in support of a battle by the Massachusetts tribe that welcomed the Pilgrims to prevent the Trump administration from effectively disinheriting it and dashing its long-stalled plans for a casino.
The fight moved to federal court in March when the Mashpee Wampanoags asked for an emergency injunction and temporary restraining order from U.S. District Judge Paul Friedman of the District of Columbia. This was after the Wampanoags were informed by the Bureau of Indian Affairs in 2018 that the Department of the Interior had ordered the bureau to rescind the status of their 321-acre reservation as land held in trust for the tribe by the federal government.
Only once since 1953 has the government reversed a tribe’s reservation status, and why the Interior Department is targeting the Wampanoags is unclear.
What is known is that the pro-Indian culture that prevailed at the department under the Obama administration has been under concerted attack since the Trump administration took office in January 2017, a reality that prompted the U.S. House of Representatives earlier this year to pass a resolution specifically preserving the Wampanoags’ trust status. The measure is now in the Senate, which has yet to act on it.
The administration’s case for disinheriting the tribe appears to rest with a 2009 U.S. Supreme Court ruling in a similar land dispute, Carcieri v. Salazar, that pitted the state of Rhode Island against the Narragansett Tribe’s plans to build a casino. The court found for the state, ruling that federal recognition belonged only to those tribes named in the Indian Reorganization Act of 1934. Theoretically, this invalidates land in trust agreements with tribes like the Narragansetts that were recognized after that time. The Narragansetts still have no casino.
The Wampanoags won federal recognition in 2007 and on that basis secured an agreement with the city of Taunton in southeastern Massachusetts for an expansive casino on its newly awarded trust land. The project, however, was hit with court challenges from residents who opposed it, and it stalled after affiliates of Malaysia’s Genting Group withdrew financial backing.
Yet it doesn’t appear all that far from the heart of the Wampanoags’ current troubles.
Donald Trump was a vehement opponent of Indian gaming when he owned casinos in Atlantic City, and the Wampanoag project was opposed by Trump allies who wanted to build a casino in Rhode Island. The Obama administration approved the Taunton plan, but its opponents would go on to win a ruling in the First U.S. Circuit of Appeals striking it down on the grounds the Wampanoags didn’t met the federal recognition standard set by the Supreme Court in Carcieri.
The victors in that case are also intervenors in the current land in trust case, a fact the government has withheld to Friedman’s displeasure. The judge also blasted a March 5 memo issued by the Interior department which ostensibly provides guidance for withdrawing the tribe’s trust status, calling it one of the worst written documents he has read, with grammar and spelling errors throughout.
“And you can tell your client that. It’s a joke,” the judge told the government’s lawyers. “I don’t know how anyone could take that as guidance because it’s incomprehensible and so convoluted that it couldn’t guide any lawyer in the field. And it took three lawyers from Interior to write that𑁋thing.”
The casino issue aside, what’s at stake for the Wampanoags now is the survival of their right to self-determination if their lawyers don’t prevail in their arguments that the tribe should not be governed by the administration’s determination to interpret Carcieri in much stricter terms than the Obama administration did.
“This rush to take the land out of trust when there isn’t even a procedure to do so, it doesn’t make sense,” said Tami Lyn Azorsky, an attorney representing the tribe.
The tribe is facing not only the loss of its land. There are concerns about who will oversee health and human services for its members if it loses recognition, how zoning for members’ housing will be affected, and what happens to the tribe’s tax benefits.
It’s a question Friedman has raised with attorneys for both sides: “What happens to a tribe that has a reservation or has a physical or geographical presence that is not in trust or no longer in trust?”
Interior’s lawyers responded by saying the tribe would still be eligible for some government benefits without providing any details.
Signees to the amicus brief include Massachusetts’ two U.S. senators, Elizabeth Warren and Edward J. Markey, both Democrats, and 23 members of the House of Representatives, including three Native Americans, Sharice Davids, a Kansas Democrat, Democrat Deb Haarland of New Mexico and Republican Tom Cole of Oklahoma. The one other Native American in Congress, Republican Rep. Markwayne Mullin of Oklahoma, did not sign.
The brief contends the administration is infringing on the powers of Congress by attempting to exert unlawful authority over Indian tribes.
“When it comes to Indian lands, congressional power is at its apex, and the Executive Branch is forbidden to disturb tribal lands unless Congress has directed or permitted it in clear and unambiguous terms,” it says.
The government argues that Friedman has no jurisdiction in the matter and must defer to the Interior Department.
