The ‘Carcieri’ Effect and the Misperceptions it has Caused

As Chairman of the Mashpee Wampanoag Tribe, I am charged with assisting my people to recover from nearly four centuries of colonization and neglect. The Wampanoag Nation entered into a treaty with the colonists in 1621. The Mashpee people held their lands through 17th century deeds witnessed by John Alden, with terms that protected the homeland for our people until the Commonwealth of Massachusetts destroyed the reservation by allotting individual parcels that were soon taxed or sold out of tribal hands. Some years later, Massachusetts Senator Dawes took that allotment policy national through the Dawes Act, known as the General Allotment Act, designed to break up tribal communities and culture by eliminating tribal land bases. The policy was effective: we have lost much of our home, and are struggling to preserve our culture and community. But we are still here.

After waiting more than thirty years for the Interior Department to process our petition for federal acknowledgment, the Mashpee Wampanoag are desperately lacking in government services. The Tribe is still underfunded compared to other tribes, and struggles to provide assistance for significant health, housing and educational needs. Our minimal fee land holdings are threatened with local taxation. And we must confront the controversy and impediments posed by the Supreme Court’s decision in Carcieri v. Salazar. Federal policy and an express federal statute—the Indian Reorganization Amendments of 1994—prohibit unequal treatment of Indian tribes and yet the Carcieri ruling does just that.

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 nineteenth century. Those who exaggerate the holding of the case argue that the Interior Department may not acquire trust land on behalf of tribes “not recognized” in 1934. The Court did not so hold, but referred rather to whether a tribe was “under federal jurisdiction” as of that time. But the Court didn’t define the meaning of “under federal jurisdiction,” opening up extensive controversy 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.

The Mashpee Wampanoag Tribe is confident that the Secretary of the Interior has authority to take land in trust for our Tribe, but the confusion introduces substantial additional costs and delays. Not only will we have to face direct challenges to our Initial Reservation, but we will also have to deal with the consequences of litigation arising in other areas of the United States. Recent cases, still working through the courts, now expand the damage, exposing all tribal trust land to challenge—by a broader range of enemies. It is clear that these legal challenges will cost tribes greatly, in both time and money, even when the cases are devoid of merit.

The Carcieri effect is casting large shadows over tribal sovereignty now and into the future. It is being used as a weapon for a much broader attack on tribal sovereignty, either to change applicable law, or to delay its rightful implementation. So long as the purpose and effect of the Indian Reorganization Act remain clouded, all of Indian country faces expanding and unforeseen impediments to future well-being.

The Mashpee Wampanoag Tribe has been here since long before 1934. Despite centuries of protecting our homeland from encroachment, we were devastated by the first impact of forced allotment. In 1934, Congress recognized that allotment was a failed policy, unfairly destructive of tribal communities. We suffered that harm before 1934 and continue to suffer from it today. We ought to benefit from the actions and the assistance that Congress promised in 1934. We urge this Congress to take action to finish the job it started in 1934, and provide meaningful relief to Mashpee and to all other Indian tribes as we have all been harmed in the past by the destructive federal policies and Congressional enactments that the IRA sought to remedy. In so doing, we urge Congress to take action to prevent an isolated but powerful decision of the Supreme Court from becoming the pivot that begins the new erosion of Tribal sovereignty and the government-to-government relationship with the United States.

Cedric Cromwell is the Chairman of the Mashpee Wampanoag Tribe. Elected in February of 2009, Chairman Cromwell has worked with Indian Country to promote equal treatment and respect of all sovereign Indian Nations. The Mashpee Wampanoag Tribe has inhabited present-day Massachusetts and Rhode Island for 12,000 years.

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The 'Carcieri' Effect and the Misperceptions it has Caused

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