The Great Gadfly

Judge in Mashpee Land Case Admits Making Mistakes

Land claim could be far from a dead issue

By Peter Kenney

It should all have been settled in 1790, the year when President George Washington signed into law the Trade and Non-Intercourse Act. That is the federal law that requires congressional approval for any sale or transfer of Indian lands. By 1976, sales of Indian land in the town of Mashpee and surrounding towns as well as the taking of Indian lands for various public purposes had left the Mashpee Wampanoag tribe without the very thing that is most visible in the identity of a tribe -- land.

The legal equivalent of civil war

So, in 1976 a group of Mashpee Wampanoags brought a suit in U.S. District Court in Boston to recover thousands of acres of land they claimed were unlawfully taken from them by various means. What followed was the legal equivalent of civil war. Three men trained at Harvard Law School were the combatants: Judge Walter J. Skinner; Atty. James St. Clair (of Nixon/Watergate fame) representing the town of Mashpee; and Atty. Lawrence Shubow representing the tribe until he recused himself to accept a nomination to the Massachusetts District Court.

"YOU KNOW, I MADE A LOT OF MISTAKES IN THAT MASHPEE CASE."
Walter J. Skinner, Judge.Both Skinner and St. Clair have since died. Shubow is retired, living in Mashpee and not well enough to be interviewed further on this matter. However, he and I did speak by telephone last October and what he had to say is certain to cause someone some difficulty. I still have the notes of our conversation. If what Shubow said is true, the original Mashpee Land Claim suit could be far from a dead issue. When I asked him to repeat what he had told me he did so without hesitation.

Skinner’s skillful manipulation

Skinner skillfully manipulated the trial by setting six benchmarks in history and telling the jury that in order for them to ratify the tribe's land claims they must find that the Mashpee Wampanoags had existed as a tribe at all six of those dates. According to the jury, the tribe failed on at least two of those dates. After losing the original suit the Wampanoags appealed and lost again. A final appeal to the United States Supreme Court ended moot when the court declined even to hear the case.

There are three problems with all this:

1.    Shubow told me: "I ran into Skinner downtown at lunch one day while the appeal was underway. We talked about some old cases and he said to me, 'You know, I made a lot of mistakes in that Mashpee case.'"

2.    According to federal law, it is not necessary for a recognized tribe to bring a land claim action. That right applies also to "descendants" of Indian tribe members. This may well be one of Skinner's admitted mistakes.

3.    Shubow also told me: "After the trial Skinner said that the tribe would not be prevented from bringing the case again if the federal government ever recognized them."

It has always struck me as odd that, on the one hand, the Town of Mashpee says the land claims case is settled but, on the other, wants a firm agreement by the Wampanoag tribe not to pursue any new land claims. A tribe whose people were once able to roam freely throughout their ancestral lands now have legal claim to only fifty or so acres and even have to pay to bury their tribal dead in the tribe's ancient cemetery -- now owned by the town. Add to this Shubow's statements about Skinner's mistakes and the judge's opinion that federal recognition would allow the tribe to sue again and suddenly Mashpee's nervousness becomes comprehensible.

Think about it: "YOU KNOW, I MADE A LOT OF MISTAKES IN THAT MASHPEE CASE."
Walter J. Skinner, Judge.