"My Land, My Future": young tribal citizens take part in a #StandWithMashpee rally at the U.S. Capitol on November 14, 2018. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Land Acquisitions | Legislation | Litigation

Democrats opposed bill to protect homelands of Mashpee Wampanoag Tribe

Friday, January 11, 2019

Two Democrats opposed legislation to protect the homelands of the Mashpee Wampanoag Tribe because they feared it would help an Indian nation in their own backyard.

Sen. Sheldon Whitehouse (D-Rhode Island) and Sen. Jack Reed (D-Rhode Island) threatened to block passage of the Mashpee Wampanoag Tribe Reservation Reaffirmation Act in the last session of Congress, according to a letter obtained by The Washington Times. Their opposition could help explain why the bill never got a hearing in the Senate despite widespread support for it in the House.

“We will be obliged to use all avenues to block this legislation if there is an attempt to move it,” the two Democrats told Sen. Chuck Schumer (D-New York), who is the Senate minority leader, in the letter, The Times reported.

The Mashpee Wampanoag Tribe Reservation Reaffirmation Act was written to prevent the Trump administration from taking the tribe's reservation in Massachusetts out of trust. It also would require the dismissal of any legal challenges to the tribe's homelands.

But it was a different Indian nation that the Democrats in the neighboring state of Rhode Island were worried about. They contend the Narragansett Tribe would seek the same protections for its homelands.

“As a result, federally recognized tribes in Rhode Island would argue that they hold the same standing as the Massachusetts tribe and request that similar legislation be introduced on their behalf,” the one-page letter stated.

The Supreme Court's Carcieri ruling has created an unfair, immoral obstacle to many tribes. Sign Brian Lightfoot Brown's petition and let Congress know it's time for a fix. @UrbanN8VWarrior https://t.co/2azNvnfLWT pic.twitter.com/6M8x3UXbG0
— indianz.com (@indianz) October 1, 2018

The letter was written on July 11, 2018. Two weeks later, the House version of the bill was received favorably during a hearing of the House Subcommittee on Indian, Insular and Alaska Native Affairs.

During the hearing, Democrats explained that Congress could resolve the matter by addressing the U.S. Supreme Court's decision in Carcieri v. Salazar. The uncertainty created by the ruling is preventing both the Narragansett Tribe and the Mashpee Wampanoag Tribe from having their homelands restored through the land-into-trust process.

"Until we finally pass a Carcieri fix, we will have to continue addressing this issue on a tribe-by-tribe basis," said Rep. Ruben Gallego (D-Arizona), who at the time was serving as chairman of the House Subcommittee on Indian, Insular and Alaska Native Affairs.

The Narragansett Tribe has a reservation in Rhode Island that has been held in trust following the passage of a land claims settlement act in 1978. The law does not preclude the tribe from following the land-into-trust process.

The Carcieri decision instead focused on the Indian Reorganization Act of 1934 which ties the land-into-trust process to tribes that were "now under federal jurisdiction," with "now" meaning 1934. The Narragansetts, whose federal recognition wasn't formalized until 1983, do not meet that standard, the justices concluded.

"We hold that the term 'now under federal jurisdiction' .. unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934," Justice Clarence Thomas wrote for the court on February 24, 2009. "None of the parties or amici, including the Narragansett Tribe itself, has argued that the tribe was under federal jurisdiction in 1934."

Carcieri did not mention any other Indian nations but it has since been cited repeatedly in the courts to challenge other land-into-trust applications. The Mashpee Wampanoag Tribe, whose plans for a casino were mentioned in the Rhode Island letter, remains in limbo as a result.

A new version of the homelands bill, H.R.312, was introduced on Tuesday. Like the prior one, it enjoys bipartisan support.

A companion has not been introduced in the Senate thus far in the 116th Congress, which only began a week ago. The prior one was sponsored by Sen. Ed Markey (D-Massachusetts).

But even if the Mashpee bill never moves forward, nothing prevents the Narragansett Tribe from asking for help. That's because Congress already did something similar for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe.

Hiawatha Brown of the Narragansett Tribe: “We were the last to come into this federal system. We are going to be the first to be removed. It’s apparent.” #StandWithMashpee pic.twitter.com/SqyZaQx26O
— indianz.com (@indianz) November 14, 2018

The 2014 law reaffirmed the trust status of the tribe's homelands in Michigan. It also required the dismissal of a long-running lawsuit, an approach that was upheld as valid with the Supreme Court's recent decision in Patchak v. Zinke, which represented a victory for Indian Country.

But Whitehouse and Reed, who did not mention the Gun Lake law in their letter, aren't the only politicians in Rhode Island who are opposing the Mashpee homelands bill. The state's governor and the other members of its U.S. Congressional delegation also raised objections.

“We were the last to come into this federal system," Hiawatha Brown, a council member for Narragansett Tribe, said at a #StandWithMashpee rally at the U.S. Capitol last November. "We are going to be the first to be removed. It’s apparent.”