Outlook for tribal homelands remains bleak in the Trump era

Wednesday, July 18, 2018

Citizens of the Mashpee Wampanoag Tribe celebrated a milestone this month -- their annual powwow took place on trust land for the first time in 97 years.

"Hosting our annual homecoming celebration on sovereign reservation land is truly empowering for our people," Chairman Cedric Cromwell said of the event, which took place July 6-8 at tribal headquarters in the town of Mashpee, Massachusetts.

But there might not much to cheer about when the 98th annual powwow rolls around. That's because the Trump administration, due to litigation, might be forced to do something unprecedented -- take the tribe's trust land out of trust.

The pending decision -- which has been in the works for almost two years -- would affect 151 acres in Mashpee as well as another 170 acres in the city of Taunton. That's where opponents of the tribe's stalled gaming facility put the trust land at risk with a lawsuit in federal court.

Seeing no light at the end of the tunnel, at least within the executive branch, the tribe has turned to Congress for assistance. If H.R.5244, also known as the Mashpee Wampanoag Tribe Reservation Reaffirmation Act, becomes law, the tribe's homelands would be safe from litigation once and for all.

The measure, which enjoys bipartisan support, is picking up some steam on Capitol Hill. The House Subcommittee on Indian, Insular and Alaska Native Affairs will take testimony from Cromwell -- and maybe even a top official from the Trump administration -- at a hearing next Tuesday.

Of the tribe's land, Cromwell said: "We have a sacred connection to it, which is why we are pushing hard to get legislation passed that would forever protect it."

Chairman Cedric Cromwell of the Mashpee Wampanoag Tribe, left, poses with Secretary of the Interior Ryan Zinke in a photo posted on Facebook on March 2, 2017.

Long before the bill dropped, Cromwell met Secretary of the Interior Ryan Zinke shortly after the former member of Congress joined the Trump administration in March 2017. "I am all about Tribal Sovereignty!" the chairman said he was told by the new Cabinet official.

But the tribe hasn't enjoyed much success with Zinke in charge. In fact, the Department of the Interior last year provided Cromwell with a draft decision that would have seen the land taken out of trust.

As that was happening, Indian Country was hit by new rules that tribes say will make it nearly impossible for them to restore their homelands. Despite near unanimous opposition, the Trump administration closed the comment period on the Fee-to-Trust Regulations (25 CFR 151) on July 2.

While the Bureau of Indian Affairs held a series of consultations around the nation, Cromwell closely followed the process. He attended a couple of the sessions and said he was alarmed about the prospect of his people losing their trust lands.

"To us it appears that the administration is poised to disestablish our reservation, take our land out of trust and make us landless again," Cromwell said in South Dakota on May 31.

"This would be the first time since the termination era that Interior has taken land out of trust and disestablished a reservation," Cromwell told fellow tribal leaders at the meeting. "I hope everyone in Indian Country sees what is happening to us."

Chenoa Peters delivers a farewell speech as the outgoing Mashpee Wampanoag Powwow Princess on July 8, 2018. Daycia Frye was selected as the new princess during the Mashpee Wampanoag Tribe's 97th annual powwow, held in Mashpee, Massachusetts. Photo: Mashpee Wampanoag Tribe

With Zinke a potential witness for the hearing on H.R.5244, the Trump administration might be forced to state its position on the matter. Endorsing the bill would not be a stretch, given that it is patterned after a similar law that was recently upheld by the U.S. Supreme Court.

In Patchak v. Zinke, the court confirmed that Congress can protect tribal homelands from litigation. But while the favorable ruling bears Zinke's name, it was only because he inherited the case from the prior administration, the one that had placed the Mashpee Wampanoag Tribe's land in trust in the first place.

"If our reservation is taken out of trust it will set a bad precedent for all of Indian Country," Cromwell said in South Dakota.

In addition to the proposed changes to the land-into-trust process, there have been other troubling signs from Washington. A day after the Senate confirmed Tara Sweeney as the first Alaska Native to lead the BIA, the Trump administration withdrew an Obama-era legal opinion that allowed tribes in her home state to restore their homelands for the first time.

Tara Sweeney, the Trump administration's nominee to serve as the Assistant Secretary for Indian Affairs, has vowed to advocate for tribal interests if she is confirmed to the post. Photo: Navajo Nation Washington Office

"The decision, together with the department's proposal to revise current land-into-trust regulations by placing additional hurdles in the way of tribes, once again into question this administration's commitment to rebuilding and restoring tribal homelands," Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs, said at a business meeting last week.

The BIA has sent letters to tribal leaders and Native corporation executives, inviting them to discuss the land-into-trust process in Alaska. The outreach is expected to take at least six months and will be followed by a review period that will last at least another six months, according to Interior's top legal official, the one who withdrew the favorable opinion without prior notice or consultation.

Though Sweeney, who is Inupiat, was confirmed almost three weeks ago, she has yet to arrive in D.C. to serve as as the Assistant Secretary for Indian Affairs, a political position at the Department of the Interior.

With the outlook for tribal homelands in the Lower 48 and Alaska seemingly bleak, the sponsor of the Mashpee Wampanoag Tribe's bill attempted to advance the ball -- or at least focus more attention on the issue. Rep. William Keating (D-Massachusetts) drafted an amendment that would prohibit the Trump administration from taking any trust land out of trust "unless at the request of an Indian owner."

Keating submitted his amendment for consideration in H.R.6147, the fiscal year 2019 funding bill for Interior, the BIA and other federal agencies. But it was withdrawn as the House Committee on Rules prepared the measure on Monday evening and as the House Committee on Natural Resources scheduled the July 24 hearing on H.R.5244.

Debate on the Interior funding bill, meanwhile, began in the House on Tuesday evening. It could gain passage in the chamber as soon as Thursday, according to the Majority Leader's schedule.

During the Obama administration, the BIA placed more than 500,000 acres in trust for tribes. Additionally, the equivalent of more than 2.1 million acres was restored to tribal ownership as part of the Land Buy-Back Program for Tribal Nations.

Daycia Frye was crowned the 2018-2019 Mashpee Wampanoag Powwow Princess at the Mashpee Wampanoag Tribe's 98th powwow on July 8, 2018. The event took place July 6-8, 2018, on tribal homelands in the town of Mashpee, Massachusetts. Photo: Mashpee Wampanoag Tribe

Since President Donald Trump came on board in January 2017, the landscape has shifted dramatically. Only about 16,000 acres has been placed in trust through April, a senior career official at the BIA told the Senate Committee on Indian Affairs.

That averages to about 1,066 acres per month, or about 12,800 acres a year, which pales in comparison to the achievements of the Obama era.

Between 2009 and 2016, the BIA placed an average of 58,860 acres in trust every year, or more than four times that seen so far under Trump.

The Land Buy-Back Program for Tribal Nations also has shifted significantly, with Trump officials accusing the Obama administration of spending too much money without making a dent in the fractionation of Indian lands.

"I don't think there's any tribal leader that would say, 'Gee -- I don't want free money,'" Jim Cason, a top political official at Interior, told the House Subcommittee on Indian, Insular and Alaska Native Affairs at a hearing in May 2017.

Cason, whose title at the department is Associate Deputy Secretary, is the official who was prepared to reverse course on the Mashpee Wampanoag Tribe's land-into-trust application over a year ago. But rather than take action, he asked the tribe and opponents for more information. A decision has yet to be reached.

House Subcommittee on Indian, Insular and Alaska Native Affairs Notice:
Legislative Hearing on Indian Affairs Bills (July 24, 2018)

Tribal Homelands - Patchak v. Zinke