When he received the phone call from the Bureau of Indian Affairs at 4 p.m. on Friday, March 27, Cedric D. Cromwell had been hoping for good news.
Cromwell serves as president and chairman of the Mashpee Wampanoag Tribe. His term thus far has been trying: A week prior to the call, he declared a state of emergency for the Mashpee Wampanoag tribal nation in response to the COVID-19 pandemic. Schools were shut down, public buildings were closed, and he and the rest of the tribal council were scrambling to gather the resources their people would need to weather the crisis.
That afternoon, Cromwell, the tribe’s vice chair Jessie little doe Baird, and attorneys for the tribe gathered — separately — in their homes for a conference call with R. Glenn Melville, the deputy associate director at the U.S. Department of the Interior’s Bureau of Indian Affairs.
Melville informed them that he had some “bad news”: The Department of the Interior was taking their land out of trust.
The federal government bringing land in trust grants special protections and privileges to the land and the tribe that owns it. While in trust, land cannot be taken away from a tribe or sold to a non-Native without the approval of the federal government. It is not subject to state or local laws and taxes, because tribes are sovereign nations under U.S. law, and are therefore only subject to federal laws and regulations.
Taking land out of trust means the tribe loses its sovereignty over that land – it becomes subject to state and local laws, and the state gains the right to tax the land and take it away if those taxes are not paid.
“I said, ‘Why are you doing this? What is this about?’’ Cromwell recalls. “He says, ‘I’ve been instructed by the Department of the Interior Secretary to take your land out of trust.’’’ Cromwell and his attorneys repeatedly asked for more specifics. Melville gave the same response over and over again: that he was simply following instructions.
Before the call, the tribal leaders felt fairly confident. “We actually thought we were the first tribe in the country to finish our paperwork and ask for disaster declaration and relief,” Baird recalls. “So we thought the phone call was about our relief requests for COVID.”
Cromwell says he, Baird, and their attorneys felt blindsided by the news. The U.S. has not taken land out of trust since the 1950s, and the consequences of doing so are devastating. The tribe will no longer have sovereign control over its land, and its government and social services will have to be dissolved in the midst of a pandemic. While the tribe will still technically own their 321 acres, they no longer have the trust protections that keep any of their land from being taken away.
Just when Cromwell and Baird were gearing up to protect their community from COVID-19, they realized they would have to use much of their resources to protect their land as well.
“I got off the phone; we huddled with the attorneys,” Cromwell says. “Four o’clock on Friday, in the midst of a pandemic where the whole world is being impacted. And they take the time to call us, a trustee, and say, ‘We're going to de-establish you — destroy you.’”
The decision to disestablish the land is based in a long history of complicated federal-tribal relations. Although the Mashpee have lived in the Cape Cod area since before the first European settlers arrived, the tribe has only been recognized at the federal level for 13 years. It has held 321 acres of land in trust for only five of those years, during which time it has operated as a fully sovereign nation, maintaining its own police department, housing development projects, and Wampanoag-language elementary school.
“Land in trust” is a mechanism the U.S. government established to provide extra protections for tribal nations that had lost much of their land throughout the 19th and 20th centuries. Robert T. Anderson, the director of the Native American Law Center at the University of Washington and the Oneida Indian Nation Visiting Professor of Law at Harvard Law School, describes the process of bringing land into trust: First, tribes must own the land as property owners; they can then ask the Secretary of the Interior to take the land into trust. Once that happens, the land cannot be sold or taken away involuntarily without the consent of the federal government.
“That’s been a huge protection for tribes in the event that state or local taxes apply to the real estate and the tribe can’t pay it for some reason,” Anderson explains. “[The state] wouldn’t be able to take that property through any other mechanism without the consent of the federal government.”
Federal recognition is required to hold land in trust. In 1934, Congress passed the Indian Reorganization Act, which was intended to decrease federal control over Native tribes and allow them to largely self-govern. The IRA affirmed Native nations’ sovereign control over their lands, allowed them to purchase new land using federal loans, and authorized the Secretary of the Interior to accept additional tribal lands into trust and proclaim new reservations on those lands.
The IRA also created a register of tribes that were deemed “federally recognized.” Federal recognition means that tribes are recognized as having “a government-to-government relationship” with the United States, as well as “certain inherent rights of self-government” like tribal sovereignty, according to the Bureau of Indian Affairs website. They are also eligible for certain services and benefits.
If a tribe was too small or had not made a treaty with the U.S. at any point, it was not eligible to be included in the IRA’s list of benefits. There is a process through which tribes that are not on this register can gain federal recognition, but it is arduous and difficult. It requires tribes to have “established that you have been an Indian tribe since historical times, that you maintain the continuous governmental body with ministers control over your members, and you have a defined territory — even though you may not own it anymore,” Anderson explains.
The Mashpee won federal recognition in 2007, which allowed the Secretary of the Interior to take their land into trust in 2015 and grant them a reservation.
A recent lawsuit, however, reversed the Secretary’s decision. The 24 plaintiffs of the suit — led by David and Michelle Littlefield — claim the Department was wrong to take the Mashpee’s land into trust in the first place because the Mashpee did not fit the definition of “Indian” from the 2008 Supreme Court Case Carcieri v. Salazar.
Before the 2008 case, U.S. Secretary of the Interior Ken L. Salazar granted 31 acres of trust land to the Narragansett Tribe. Governor Donald L. Carcieri sued Salazar, claiming he did not have the authority to do so. Carcieri was concerned that the Narragansett would use the trust land to build a casino or another business that couldn’t be taxed by the state of Rhode Island. The tribe, whose ancestors have lived in the Rhode Island area for more than 30,000 years, has about 2,400 enrolled members; they purchased the 31 acres in 1991 in order to build a housing complex for the elderly. At the tribe’s request, the Department of the Interior took those 31 acres into trust in 1998.
However, the Supreme Court ruled that the Department of the Interior had no authority to take land into trust for tribes recognized after the 1934 Indian Reorganization Act.
Though the decision was a blow to the Narragansett Tribe, what was at stake was the 31 acre housing complex. Now, the 321 acres in question are the Mashpee Wampanoag Tribe’s entire land base. It is the last of the land that their ancestors inhabited for over 14,000 years, and they could very well lose it.
“They should have spoken to us with the Darth Vader voice,” Cromwell says. His voice drops an octave and he says, slowly with a dramatic flair, “‘I'm taking your land away.’”
Cromwell is speaking to us from his kitchen, which he says has become an impromptu office now that the tribal buildings are closed. A television plays in the background for part of the call, and at one point, a young girl’s voice interrupts. It’s his granddaughter, and Cromwell asks us to hold on and gets off the phone to help her with something.
“You got what you wanted? You got it? More? You sure? Okay, sweetheart.”
The tribal government currently being run from Crowell’s kitchen descends from the tribe that first greeted the pilgrims at Plymouth in 1621. The U.S. celebrates the Mashpee Wampanoag every November, with each Macy’s Thanksgiving Day Parade, first Thanksgiving pageant, and carved turkey.
“We were that tribe that sat down and first met [the Pilgrims], helped them through their first harsh winters, helped establish Plymouth with some of our land that was the anchor to building the United States of America,” Cromwell says. “And for this administration to say, ‘You, the Mashpee Wampanoag Tribe, you do not meet the definition of Indian tribe,’ is just unprecedented, absurd.”
The Mashpee has a history with Harvard, too. The University’s charter affirms its mission to educate the “English and Indian youth,” because Harvard’s Indian College, established in 1655, was home to four Native students. One of these students, Joel Iacoomes, was Mashpee – he was the College’s first valedictorian but was unable to receive his diploma because he died in a shipwreck heading from the Cayman Islands to Cambridge. He was finally honored with his posthumous diploma at a ceremony in 2011.
The Mashpee’s interactions with settlers, however, were also part of the reason they were never federally recognized. As was the case for many tribes in the Northeast, so many Mashpee died as a result of war and disease brought by European colonists that their numbers were decimated. Today, they boast only 2,600 enrolled citizens.
According to Baird, the Mashpee have been struggling for sovereignty for more than 300 years — since 1709, when they first sent a tribal citizen to file an agreement with the King of England. “We’ve endured every manner of designation,” Baird says. “Everything from traditional village to Indian plantation, to praying town, to Indian district, to incorporated town, and have had citizenship actually forced upon us, had our land alienated from us, had overseers given to us, have overseers removed from us, and through all of that we've managed to maintain our territory.”
Philip J. Deloria is a Professor of History at Harvard, whose research focuses on relations between American Indian peoples and the United States. He explains that there is a “common perception” that Natives in New England “more or less died or vanished. But the fact is, of course, that these people stayed, survived, persisted, resisted, found all kinds of ways to maintain cultural continuity.”
Even though they survived and continued to thrive as a tribe, the Mashpee were not recognized in the 1934 IRA because their population was so low and because they had not made a treaty with the U.S. at any point. After decades of attempting to reclaim land, they were finally able to gain federal recognition in 2007 and moved forward to get reservation land put into trust — the Obama Administration deemed them eligible in 2015. In the five years since then, they have put significant amounts of infrastructure in place: housing, healthcare, a tribal court, and a school that teaches the Wampanoag language.
All of this was at stake in the lawsuit led by the Littlefields.
“This was illegal. If they took land into trust for this tribe, it would be illegal,” says Michelle Littlefield in a 2018 WBSM TV interview. “And we said from day one, ‘If you do it, we’re gonna challenge it.’ And we did, and we won.”
In January of 2016, the federal government placed land in Taunton, Mass. in the Mashpee’s trust to be developed as a “commercial/industrial park” that would include a “400,000 ft. gaming complex,” according to court documents. The next month, the Littlefields and 22 other plaintiffs took the Mashpee to court, claiming that the BIA had “exceeded its statutory authority” by putting the land in trust.
“None of us were happy with the location,” Michelle said of the casino in the WBSM TV interview. “It was not fit for our community.”
Michelle and David Littlefield have been fighting the Mashpee casino project since 2012. The First Light Casino would have been built down the street from their home, and many of the other 22 plaintiffs are their neighbors: lawyers, a realtor, a school secretary, a retired softball coach. The majority of the plaintiffs are married couples, and appear to be white and middle class. One woman, Veronica Casey, was on the Miss Taunton Scholarship Pageant Committee that judged the Littlefields’ daughter, Lyndsey. Lyndsey won Miss Massachusetts and will soon move on to the Miss America pageant.
But the stakes of the lawsuit were more complicated than a desire not to live down the street from a casino. In fact, one of the plaintiffs, Francis Lagace, filed a request with the Massachusetts Gaming Commission in 2013 to open Taunton’s region of the state for commercial casino license applications because of “substantial delays associated with an Indian casino proposal.” The lawsuit was partially funded by Neil Bluhm, a Chicago developer who had planned to build a casino in Brockton, 20 miles from the Mashpee casino. Others, it seems, wanted to build a casino of their own. And in a Boston Globe article from 2016, David Littlefield said it was not the casino that he and Michelle were worried about. Rather, it was the “incredible arrogance” of the federal government in creating “an Indian reservation in their backyard.”
In an article from the Taunton Daily Gazette, Michelle said that she is primarily concerned with the Mashpee functioning as a sovereign nation, independent of state laws and regulations. She said that, as far as she is concerned, the land is no longer sovereign Mashpee Wampanoag Territory.
“It’s back on the tax rolls and should now be under state and local control,” she told the Gazette.
The Littlefields did not respond to requests for comment.
The federal government taking Mashpee Wampanoag tribal land out of trust will affect the tribe in innumerable ways. Mukayuhsak Weekuw — a Mashpee preschool specializing in Wôpanâak language instruction and a premier site of Indigenous language revitalization — might be shut down. The tribal court could lose its ability to hear criminal cases. The tribe’s autonomous healthcare system could be adversely affected. Their freedom over economic development could be hindered: Without land in trust, the tribe loses the authority it had to implement its own tax codes and regulate businesses on its land.
The tribe will also lose advantages that allowed it to provide affordable housing to its members. The Mashpee Wampanoag tribal land is situated half in the town of Mashpee and half in the town of Taunton; its borders lie in and around Cape Cod, an area known for its high tax rates. Before its land was taken out of trust, the tribe was considered a sovereign nation and was therefore exempt from state and local taxes, allowing it to provide its members with low income tax rates..
Having the land in trust also allowed the tribe to provide housing to its members: Because the tribe had been considered sovereign, it was allowed to set its own zoning regulations instead of being required to adhere to those of Massachusetts, which meant that it could fit in more houses per acre.
This enabled the creation of the Mashpee Wampanoag Village, a Low Income Housing Tax Credit Housing Project currently under construction in Mashpee. It has 42 units, with one house per half acre of land. The town of Mashpee’s zoning regulations typically require that each house be built on a full acre of property. The tribe’s sovereignty allowed the Mashpee Wampanoag to circumvent those regulations in order to make housing more available to its members. Now, that could all change.
“If we don’t match the zoning, and the permitting office doesn’t provide the same zoning permits for the same zoning that the town of Mashpee has, we’ve lost all that inventory right there,” Cromwell explains. “That’s $12 million worth of houses that goes up in flames because we don’t meet the local zoning laws.”
But Baird is especially concerned about the possibility that the tribal police could lose their jurisdiction over the land. Before the establishment of its own police force, Baird says that the tribe faced brutality at the hands of the local police.
“I watched one man that lived next door to me being beaten severely for fishing on his Aboriginal rights by the Mashpee Police Department,” Barid recalls. “And the County police have also killed a tribal member, unarmed. Shot him to death.” She fears what being brought back under the local police’s jurisdiction might mean for her tribe.
“I have a tremendous amount of respect for the Mashpee Wampanoag Tribe,” writes Scott W. Carline, chief of the Mashpee Police Department, in an emailed statement. “This holds even more true today. Moving forward I pledge to the Mashpee Wampanoag Tribe as well as all citizens, an open, accountable, accessible police department responsive to your needs and concerns,” he continues. “We will continually strive to earn your trust, reduce crime, and provide exceptional services while always treating you with dignity and respect.”
Still, Baird says that since the tribe’s own police force has held jurisdiction, the Mashpee have not had issues with police brutality. The police force they have now is made up of tribal citizens, so they often have a good relationship with the people they are serving.
“This would really undo a lot of incredibly powerful and positive work that Native people have done for the last 50, 60, 70, 80 years,” Deloria says of the reservation disestablishment. “This is the untold story of the pandemic — all the bad shit that is still going on in terms of undoing things that have been really positive for Native people.”
The ramifications of this legal decision could send ripples far beyond the Mashpee Wampanoag tribe.
“If they persist in this narrow interpretation of the Indian Reorganization Act of 1934, in terms of when the Department can take land in trust for tribes that are recognized, it could have an effect on about 35 tribes that are in a similar category to the Mashpee, having been recognized after 1934,” Anderson explains. The decision to consider the Masphee’s land ineligible for trust status would set a legal precedent to take land out of trust for other tribes across the country.
“This is an existential crisis for tribes,” says Jean-Luc Pierite (Tunica-Biloxi), President of the Board of the North American Indian Center of Boston. “What Chairman Cromwell alleges is that the federal government is doing this without a court order. If it can do this without a court order, then that signal is that our reservation lands are pretty much at the discretion of the Secretary of Interior. Any tribe that is recognized after 1934, let’s say, is in danger of losing their tribal lands.”
Pierite is currently researching the tribes that were federally recognized after 1934, and estimates that the number could near a hundred. If his estimation is correct, thousands of acres of Native land could be in peril.
“They’re trying to destroy us and erase us. And if they can do that, you know, now it’s precedent,” Cromwell says. “It’s a template for them to go across America and say, ‘Okay, one by one, one by one.’ And then next thing you know, Indigenous people of this land will be erased.”
As soon as Cromwell got off the Friday afternoon phone call, he convened a tribal council meeting. The council decided to seek both a preliminary injunction and a temporary restraining order on the U.S., protecting the tribe's land for the time being. During a virtual hearing with the Department of the Interior and the Department of Justice a few weeks ago, a judge approved the restraining order; a hearing is slated for mid-May.
The Mashpee have also staked their hopes on a bill currently pending in Congress. In January 2019, Massachusetts Congressman Bill Keating introduced H.R. 312 — The Mashpee Wampanoag Tribe Reaffirmation Act. If passed, the bill would reaffirm the Mashpee Wampanoag land as land in trust. Any actions relating to the land would be “promptly dismissed.”
“That bill passed in May of 2019 with overwhelming bipartisan support in the House of Representatives,” Cromwell says. He predicts that it will not pass in the Senate, however.
The Boston City Council has passed a resolution in support of Bill HR 312. When Kenzie Bok ’11, the city councilor for District 8, first heard about the reservation’s disestablishment, she and another counselor immediately met to co-write a resolution.
“In the middle of this crisis, the Trump administration came down with a decision that they were going to take the land of the Mashpee Wampanoag out of trust, which really threatens to tribe’s self governance and is a real slap in the face in the middle of this pandemic,” Bok says. “We needed to put the city council on the record in support of the tribe.”
The resolution followed a statement released by U.S. Senators Elizabeth A. Warren (D-Mass.) and Edward J. Markey (D-Mass.) that pledges to fight the reservation disestablishment. With about 6,000 Native people living in Boston, many of them Mashpee, the resolution was passed with support from a large majority of the City Council.
The Mashpee have also received support from other Native American tribes. The National Congress of American Indians, which represents over five hundred tribes and has been an important voice in policy debates about Native issues since 1944, has reached out with statements of support. Individual tribes and Native interest organizations have shown support through letters and on social media, posting the hashtag #StandWithMashpee.
The timeline of legal proceedings going forward is unclear. Besides the hearing in mid-May to address the tribe’s preliminary injunction on the U.S., Cromwell doesn’t know much beyond that. When we ask when all of these changes will take effect, he chuckles grimly and says, “to destroy us? I don’t have any dates on that at the time.”
In the meantime, he hopes for more support from Americans to get the disestablishment decision reversed. “We really need America,” Cromwell says. “Call the senators, and stand with us, and flood the news lines, flood Congress with this and say, ‘Stop it. Come on, stop, stop, stop.’ It's cruel and painful. Help my people. Just help us.”
— Magazine writer Anna Kate E. Cannon can be reached at email@example.com. Follow her on Twitter @akec_.
— Magazine writer Maya H. McDougall can be reached at firstname.lastname@example.org. Follow her on Twitter @mayamcdougall2.