IF FEDERAL LAW prevents the Mashpee Wampanoag from securing an Indian reservation in Massachusetts, then there’s something wrong with federal law.
Members of the tribe greeted the Pilgrims. They’ve lived continuously in Southeastern Massachusetts ever since. The federal government recognizes them as a tribe, and they have almost 3,000 members.
Still, the Mashpee Wampanoag may be on the brink of losing reservation status for their land in Mashpee and in Taunton, where the tribe hopes to build a casino. Stranger yet, that rejection appears to be the legally correct decision — highlighting a defect in federal law that makes it impossible for Native American tribes recognized after 1934 to obtain a reservation.
That 1934 cut-off, though, is arbitrary. Congress should restore a pathway to a reservation for the tribes it affects, including the Mashpee Wampanoag.
Under federal law, authorizing a reservation is a separate formality from winning federal recognition as a tribe. The Mashpee Wampanoag received their recognition in 2007. But faced with the 1934 rule, the Obama administration had to employ a novel legal theory in 2015 to justify designating their land as an Indian reservation. A group of East Taunton residents were having none of that, and sued the Interior Department, which manages Indian affairs, arguing that the administration had exceeded its legal authority.
A federal judge, William Young, sided with the neighbors, writing, “with respect, this is not a close call.” Young sent the case back to the Interior Department to figure out the next steps. The case’s status is in limbo now, but the department may well comply with the judge’s order by removing the land from trust. Without the reservation, the Mashpee Wampanoag community would revert back to 2015: They’d still have legal possession of their property in the two towns, but they wouldn’t have the rights that come with a reservation, including tribal casino rights.
In an ideal world, Congress would fix the land-in-trust process for all tribes. But with no movement on comprehensive legislation, and the possibility that the Interior Department could take the land out of trust soon, members of the Massachusetts congressional delegation have offered a more narrowly tailored bill that would apply only to the Mashpee Wampanoag.
That legislation would, in effect, enshrine the Obama administration’s contested 2015 decision into federal law, making an end run around the litigation that so far has gone against the tribe. It’s an ad hoc fix, one that could be viewed as violating the separation of powers by short-circuiting an ongoing judicial case, and should be seen only as a last-ditch solution.
The proposed Taunton casino, of course, looms over the whole controversy. It’s why the tribe bought land in Taunton, and it’s why residents and commercial rivals fought so hard against it.
The casino complicates the picture — and if the tribe loses the reservation status for its land and Congress fails to act, that picture is about to get even more complicated. Such developments would force the gaming commission to make tough calls about the future of casino gambling in the southeastern part of the state.
But with or without a casino, there’s also a matter of basic fairness at stake: One way or another, Congress should ensure that the Mashpee Wampanoag can have a reservation in the Commonwealth that they’ve always called home.
Boston Globe Editorial