Department of Justice and Mashpee Tribe File Notice of Appeal as Tribe Pursues Revised Record of Decision

Today the U.S. Department of Justice and the Mashpee Wampanoag Tribe filed a notice to appeal a federal district court ruling that challenged the federal government’s authority to designate tribal land in Mashpee and Taunton as a reservation.

The notices to appeal were filed with the First Circuit Court of Appeals in Boston, which will trigger the case to now be moved to the higher court.

On July 28, 2016, a federal district court judge ruled that the U.S. Department of Interior did not have the authority to take land into trust on behalf of the historic tribe on the basis of what is known as “category 2” under the Indian Reorganization Act. That decision is the subject of the appeal.

“This is a continuation of our fight to remain on the land our ancestors have lived on for thousands of years,” Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell said.

The initial ROD issued in September 2015 re-established reservation land for the Mashpee tribe. The ROD was based on what is known as “category 2” – living continuously on an existing reservation – under the IRA. While a federal judge ruled that the Interior Department did not have the authority to hold land in trust on behalf of the tribe under category 2, it could consider revising the ROD and basing it on category 1.

As the appeal moves forward, federal officials will also now consider whether the tribe is eligible to have its land held in trust under category 1, which would establish that the Tribe was “under federal jurisdiction” at the time of the 1934 law.

Meanwhile, on a parallel track, the Bureau of Indian Affairs — which is a division of the Interior Department — sent a letter to Mashpee tribal leaders this week saying it was prepared to consider a revision of the its initial Record-Of-Decision (ROD) based on the fact that the tribe was “under federal jurisdiction” in 1934 when the IRA became law. The Interior Department’s authority to take land into trust on behalf of federally recognized tribes can only be done under one of three categories written into the IRA.

The BIA letter to the tribe lays out the timeline on how the agency will proceed with possibly revising its initial ROD so the Mashpee tribe can maintain its reservation land made up of approximately 170 acres of land in Mashpee and 151 acres of land in Taunton.

The letter sent to tribal leaders outlined the administrative process for considering a revision of the initial ROD, setting a Jan. 7, 2017 deadline for the submission of any additional evidence from the Tribe that shows the Mashpee tribe qualifies as being “under federal jurisdiction” as defined by the 1934 law.

The plaintiffs will have 30 days after Jan. 7 to respond and the Tribe will have another 15 days to respond to any challenges the plaintiffs may submit. By the end of February, “once the department has received all of the submissions, it will review the materials, as well as any additional materials it determines necessary for its analysis, and will prepare a decision on whether the Tribe was under federal jurisdiction in 1934, and thus eligible to have land taken into trust for it,” the Interior Department letter states.

Mashpee Wampanoag Tribal Council Chairman Cedric Cromwell said he was confident the Tribe’s homeland will be preserved by the federal government.

“The evidence that our Tribe was under federal jurisdiction in 1934 is compelling. I have no doubt that once all the evidence is reviewed, the Interior Department will issue a revised Record-Of-Decision,” Chairman Cromwell said. “Our land supports our culture, our government, indeed, our very lives. We will push hard on both the appeal and further consideration by the Department of Interior. We intend to succeed at both.”

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