Mashpee Wampanoag Chairman Cedric Cromwell

Mashpee Leader Says the Carcieri Ruling is ‘the Modern-Day Dawes Act’

Gale Courey Toensing
7/26/11

When Massachusetts Sen. Henry Dawes sponsored his landmark piece of federal legislation – the General Allotment Act of 1887, also known as the Dawes Act – he was putting forward a strategy to break up Indian nations by dispossessing them of their land, which had already proven successful with the Mashpee Wampanoag Tribe under a Massachusetts state law.

Now the Mashpee Wampanoag Tribe is urging Congress to pass a “clean Carcieri fix” so that it can restore some of the land that was wrongfully taken from it under the discredited allotment policy. The U.S. Supreme Court’s “misguided” ruling in Carcieri v. Secretary of the Interior is a replay of the sovereignty-destroying Dawes Act, said Mashpee Wampanoag Chairman Cedric Cromwell in an interview with ICTMN.

“The reality is it’s come back full circle to what the intent of the Dawes Act was, which was to dissolve the sovereignty of American Indian people. This Carcieri ruling is a modern-day attempt to do just that,” Cromwell said.

Testifying at a July 12 hearing by House Subcommittee on Indian and Alaska Native Affairs on two proposed Carcieri fix bills – HR 1291 sponsored by Rep. Tom Cole (R – Okla.) and HR 1234, sponsored by Rep. Dale Kildee (D-Mich.) – Cromwell told legislators that an Indian tribe cannot exercise its sovereignty without a land base.

“Indian tribes have always been, and today continue to be, land based cultures—communities inextricably connected to the soil, water, and air around us, to the plants and animals that ensure our survival, and to the places we call home,” Cromwell said. “In our view, our lands hold much more than mere economic value but rather have great cultural, religious, and – in the modern era, especially – political significance. Our lands are where we live, where we gather together, and where we exercise our inherent sovereign rights as pre-Constitutional peoples.”

Tribal leaders and some legislators have been trying for two years to enact a “clean Carcieri fix” – legislation that would reaffirm the Secretary of the Interior’s authority to place land into trust for all federally recognized Indian tribes. The fix is needed to repair the controversial 2009 U.S. Supreme Court’s ruling in Carcieri v. Secretary of the Interior in which a majority of justices concluded that the Interior Secretary does not have the authority to take land into federal trust for Indian tribes that were not “under federal jurisdiction” in 1934 when the Indian Reorganization Act was passed. Although the Wampanoags were the first people to meet the initial wave of European settlers who colonized what came to be known as New England, the tribe didn’t receive federal acknowledgment until 2007 and so it is affected by the Carcieri ruling, which has virtually frozen hundreds of land into trust applications, including the Mashpee tribe’s. Thus, the Carcieri ruling poses a severe hardship to restoring Mashpee’s tribal land base.

As part of the Wampanoag Confederacy, the Mashpee Wampanoags had a vast aboriginal territory – approximately 55 square miles from Cape Cod to the Narragansett Bay in present day Rhode Island to the Merrimack River near Gloucester, Massachusetts. But state legislation enacted in 1842 – a precursor to the federal Dawes Act – gave 60-acre “allotments” to individual members as privately-owned taxable land that they could sell. The Massachusetts law effectively deprived the tribe of thousands of acres of a commonly owned land base and destroyed its reservation. “The Mashpee experience thereafter foreshadowed the effect that the Allotment Act had throughout Indian country. Once communally held lands were made alienable, desperately poor tribal members would in short time lose their parcels,” Cromwell said.

Today, the tribe owns only 140 acres of fee land (or privately owned land) and not a single acre is held in trust by the federal government, Cromwell said. “Mashpee must restore its land base with trust lands protected by the federal government and continue to strengthen its culture and community,” he said, but “the confusion in the wake of the Carcieri decision is substantially impeding the tribe’s effort.”

The IRA was enacted specifically to repair some of the damage wrought by the Dawes Act, which had reduced Indian lands from 156 million acres to 48 million acres between 1881 and 1934. During the 75 years after the IRA was enacted, the Interior Department restored millions of acres of Indian lands back to tribes. The Carcieri decision has virtually frozen that process.

Mashpee’s pending land into trust application with the Interior Department is for its 140 acres of fee land, but the tribe is in the process of identifying additional lands to include for its initial reservation, Cromwell said. “We want to make sure we get what we need for housing, health, education and aboriginal rights as well as economic development,” he said.

Being the first indigenous people to come into contact with the settler-colonists, the Mashpee Wampanoag Tribe has a unique history regarding its land. The Plymouth Bay Colony issued deeds to the Wampanoags in 1671 – ironically, deeding the Wampanoags’ land back to them, Cromwell observed. The deeds confirmed the Wampanoags’ 55 square mile territory and stipulated that the land could not be sold to non-tribal members without the unanimous consent of the entire tribe. Like other under-told stories of resistance by northeastern tribes, the Mashpee Wampanoags actively resisted encroachment on their lands by the settler-colonists through repeated petitions to the legislature and other means, but ultimately, tribal resources to fight legal battles were limited and the tribe’s beautiful coastal land on Cape Cod proved to be an irresistible lure to the wealthy leisure class. The tribe’s loss of control of Mashpee Town in the 1970s was the final blow.

“As Mashpee Town development accelerated, the tribe and its members continued to lose land, the environment continued to degrade, and the tribal members, forced out of town government, received no benefit,” Cromwell said.” Later arrivals developed the town into its present identity as a resort community. Tribal members cannot afford to live among the mansions, marinas and golf courses that now crowd our coastline. Tribal efforts to establish housing have been delayed and frustrated by the inability to acquire trust lands.”

The Carcieri ruling was a “terrible, terrible misguided mistake,” Cromwell said. “The Carcieri decision is the greatest threat to tribal sovereignty since the General Allotment Act, and opens the possibility of condemning tribes to live with the benighted Indian policies of the 19th century (and) raising the specter of two classes of tribes, with one class permanently deprived of land. Along with other recently re-affirmed tribes, we are the ones who need land the most so we can begin to provide economically for our people,” Cromwell said.

Cromwell said the Supreme Court judges were ill informed, or they misunderstood Indian law, or they were completely ignorant about the Indigenous Peoples of the country and the intent and purpose of the Dawes Act – which was to dissolve Indian sovereignty – or its remedy, the IRA, Cromwell said. The ruling has already generated expensive, time-consuming lawsuits challenging land into trust decisions and that will continue until it’s fixed, Cromwell said.

“While we don’t want the whole country back, we need our sovereign land so that we can provide governance and services to our people. It was the right thing to do back then in 1934 and it’s the right thing to do today,” Cromwell said.

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