Native Americans and indigenous rights supporters will be watching Wednesday, as a federal judge is expected to hear arguments in the case over the Mashpee Wampanoag Tribe’s reservation lands.
The Department of the Interior surprised the tribe when it announced in March it was taking more than 300 acres of land in Mashpee and Taunton out of trust. The Department also withdrew an argument that made the case in favor of keeping the lands protected.
These moves are the latest in years of legal battles over whether the government had the authority to take the land into trust in the first place.
WCAI's Kathryn Eident asked David Silverman, a professor of Native American and Colonial American History at George Washington University, what he thinks of the latest turn of events, and what it means for Native Americans across the country.
Silverman I think this is a travesty of justice. I thought we had gotten to the point at which the federal government was moving forward with the principle that its relations with native tribes should take place on a government-to-government basis.
The argument that the federal government is making is that the provision that allows the federal government to recognize tribes, and take their lands into trust, requires native people to have been recognized by the federal government in the 1930s. And that is a very novel interpretation of the law. It hasn't been operative for decades. I'm not a lawyer; I'm not a legal scholar. But on the face of it, this ruling seems ridiculous to me. I have a feeling that it won't outlive this Administration, but we shall see.
Eident Is this a political move by the Trump Administration? Originally, when the tribe's land in trust was challenged in court by some Taunton residents, the Obama administration decided to hold that land and wait to let the case move through the system. But now, the Department of the Interior, as we know, is taking that land out of trust.
Silverman Let's make an important distinction here between the opposition of the people of Taunton to the taking of land and trust, and the Trump Administration's decision. I don't agree with the opposition of the people of Taunton, but I understand not wanting a casino in one's backyard.
The question as to why the Trump Administration decided to take up this case at this particular moment is quite another matter. And, you know, I think the pattern is perfectly clear by this point in this administration's history that President Trump has personal vendettas or favors that he's trying to pursue for his friends, that drive policy making.
We know that back in the 1990s, Donald Trump was deeply put off by the competition that he was facing from Indian-run casinos in the Northeast. From his perspective, he always thinks he's being treated unfairly. He believed that fake Indians were getting rights they didn't deserve, in order to undercut his business.
Okay, now we move forward to this moment in time. Trump has members of his inner circle and investors in his previous presidential campaign who are in the casino business, whose finances are threatened to be undercut by any casino that the Mashpees are going to run. What's more, Trump has a particular venom for Elizabeth Warren and the Commonwealth of Massachusetts more generally, and Warren has championed the Mashpees' cause. So, any action against Mashpee doubles as an attack on Warren.
Eident What's at stake for the tribe?
Silverman It's more than a casino, though, the casino certainly is a major issue. And Mashpee has ranked among the very poorest communities in Massachusetts ever since the Commonwealth resolved their reservation in the 19th century. Never mind other economic hits that the tribe has taken over centuries as a result of discrimination. And so, from a certain perspective, the casino is just a small measure of compensation for all that they've lost over the centuries.
But, there's a great deal more at risk if the land is taken out of trust. It means programs in the areas of cultural revitalization like the Wampanoag language immersion school will be at risk. It means that all kinds of entrepreneurial and public health programs will be put at risk. And not the least of all, you know, without stable land base, the people, even if they want to stick together, necessarily get scattered to the four winds in search of stable homes. And so, there's a lot at stake here.
Eident Will it set a precedent if the court rules against the tribe and the lands are not protected?
Silverman No question about it. This could create a cascading effect that would threaten the sovereignty and the land and integrity of native communities across the country.
Let's be perfectly clear here. The Administration's ruling on the Mashpee case is not isolated. It's part-and-parcel of a general trend of the federal government under the Trump Administration, trying to roll back Indian rights on every front.
Eident You said this decision may not last past this Administration. Are you saying if the White House had a Democrat inside, the tribe might have a chance at preserving, or reestablishing even, its reservation?
Silverman It's more than just having a Democratic president. It means having a Democratic Senate. That House of Representatives passed a measure to remedy this injustice by overwhelming numbers. But shortly after that, President Trump sent out a tweet expressing his displeasure. And so, you know, Senator McConnell shut down any possibility of the Senate holding a vote. As long as Trump is president and McConnell is running the Senate, I don't see any progress. If there's turnover in those offices in November, I don't think it will take long before the Democratically controlled government would address this.
Eident And so, is getting a bill passed in Congress their last hope?
Silverman I'm reluctant to say that any measure is the last one. The Mashpees have been declared dead as a people several times, and somehow they've persisted. So I'm reluctant to ever count them out. But in the short term, things are not looking good.
Eident That's David Silverman, history professor at George Washington University and the author of This Land Is Their Land: The Wampanoag Indians, Plymouth Colony and the Troubled History of Thanksgiving. If you'd like to learn more about Silverman's book, check out his interview on The Point.