The Great Gadfly

Mashpee: On the Edge of the Abyss

The continuing drama of sovereignty and land claims
Mashpee-Wampanoag land-claim issue is far from settled

By Peter Kenney

Last fall, the Town of Mashpee was unable to present to its special town meeting a completed agreement between the town and the Mashpee Wampanoag tribe.

This agreement, if ratified by town meeting, would have clarified and resolved the various issues confronting the two players in the continuing drama of Indian sovereignty and Wampanoag land claims. Many people in Mashpee, some of them in town hall, still worry that the tribe might attempt to claim land in town.

Agreement hopes dashed by Marshall imbroglio
At the time, the failure to present an agreement to town meeting was generally thought to be caused by the storm of publicity surrounding Mashpee Wampanoag Tribal Council Chairman Glenn Marshall. He was forced out of office when news broke on CapeCodToday.com that he had lied about his military record and had been convicted of rape twenty years earlier. News of an ongoing federal investigation into Marshall and his handling of tribal affairs did not help things to go smoothly; nor did the man who automatically succeeded Marshall as chairman of the Tribal Council, Shawn Hendricks, a shellfisherman and landscaper. His obvious lack of polish can only be a detriment to the tribe as it strives to make progress using its newly won federal recognition as a tool to acquire grants and other assistance for the tribe.

Hendricks was Glenn Marshall's chosen right-hand man. Burly, with tattooed arms and a scowl on his face when he sees adversaries, he is well known for making single-finger gestures at people who oppose him as drives through town in his shiny, black luxury SUV. While it is true that, under Marshall, the tribe had made the final successful push for recognition, it may also be true that Marshall accomplished the grant of recognition by making a deal with the devil -- outside "investors" who poured as much as $15 million into the effort in return for concessions contained in a contract tribe members have never been allowed to see.

Bureau of Indian Affairs refused the application by eleven tribes to place land in trust. Federal trust in jeopardy
Now, with federal recognition in hand, the tribe, using investors' money, has purchased over five hundred acres of land in Middleboro with the intention of placing it in federal trust and building a lavish gambling complex there. However, in January of this year the U.S. Department of Interior, through the Bureau of Indian Affairs (BIA), refused application by eleven tribes to place land in trust. This has brought to a halt casino plans in New York state, Wisconsin, and virtually every region of the country. In Wisconsin, Sol Kirzner and Len Wolman -- principal backers of the Wampanoag effort -- backed the application submitted by the Stockbridge band. Unless they are allowed to place their land into federal trust, the Wampanoags will not be able to reap any of the rewards associated with Indian gambling.

The Town of Mashpee has added a new element of drama to the proceedings. The town, faced with a deadline for making comments to the BIA favoring or opposing the Wampanoag petition, has retained a powerful Washington, D. C., law firm and, through that firm, has sent a twenty-eight page letter of opposition, dated January 25 of this year. While the town claims its objection is to the possibility of gambling operations by the tribe in Mashpee and to the possibility of further Wampanoag land claims in town, the opposition it has stated also includes the Middleboro property because it is a statement of opposition to the tribe's entire application. The Wampanoags included in their land trust petition the fifty-nine acres already owned in Mashpee and used as the site for the tribal council headquarters, the annual powwow and other tribal functions. Mashpee's opposition could have far-reaching effects on the tribe's plans for gambling as well as on its existing presence in town.

Federal recognition of an Indian tribe as a sovereign entity is supposed to be unconditional. It appears that the town of Mashpee wants to impose conditions on what is, otherwise, an inviolate grant of independence and freedom.

Mashpee officials continue to demand that the tribe agree never to pursue land claims.Thanks to the Commonwealth
For all their statements that the age-old issue of Wampanoag land claims are long settled, Mashpee officials continue to demand that the tribe agree, in a binding way, never to pursue any further land claims against public or private property. More than a few within the tribe find this insulting and arrogant and point out that a 1790 federal law should have prevented the wholesale co-opting of Indian lands by non-Indian citizens and the town itself.

The reason is that the Commonwealth of Massachusetts itself acted unlawfully in 1870 by permitting the incorporation of the Town of Mashpee, forever destroying aboriginal title to and use of the area's lands and coastal waters. Virtually every map of the Cape Cod region prior to 1870 identified what is now the Town of Mashpee as Indian Territory, unincorporated and not subject to any non-Indian governance. At the time of the 1870 incorporation, furious political maneuvering deleted from the new Town of Mashpee certain areas of East Falmouth and Sandwich whose residents apparently did not want to be part of what, essentially, became an Indian town. For example, the "Mashpee District" originally extended to the Mashpee side of the Childs River.
Chief Lopes has reiterated the tribe's lack of desire to threaten private property.
A good-neighbor guarantee
During the famous Mashpee Land Claims suit filed in 1976, the presiding federal judge, Walter J. Skinner, allowed an amendment to the suit that stated clearly that the Wampanoags would not target any private property for reclamation. Chief Vernon “Silent Drum” Lopes has reiterated the tribe's lack of desire to threaten private property. He has said that the tribe wants to be good neighbors with all. Yet the town still demands a guarantee that the Wampanoag, on whose land the town has grown and prospered while the indigenous people have been made trespassers in their own forests and coastal waters, will not seek to claim even small amounts of vacant public land for their own uses.

One of Judge Skinner's rulings during the original trial stands in stark opposition to federal law.Land-claim issue is far from settled
It is clear to even a casual observer that the Mashpee Land Claims issue is far from settled. Many Wampanoags and others note that one of Judge Skinner's rulings during the original trial stands in stark opposition to federal law: Skinner declared that the Mashpee Land Claim suit was to be considered an action by a group claiming to be the Mashpee Wampanoag tribe. However, Wampanoag land claims appear within the context of established and settled federal law to apply to "descendants" of the aboriginal people of the area -- to individuals who can demonstrate their ancestry as being of the Mashpee Wampanoags. In theory this means that any one Wampanoag descendant can file a land claim action.

Events in Mashpee tell us that such openness may be a long way off.Opening up a bizarre and secretive process
How then can the Town of Mashpee hope to negotiate any satisfactory agreement with the Mashpee Wampanoag Tribal Council? It would appear that the only way to achieve such an agreement would be for the Tribal Council to open its bizarre and secretive process to the entire tribe so, that by a democratic vote on the issue, the actual Wampanoag Indians, one and all and individually, can make their will known.

Recent events in Mashpee tell us that such openness may be a long way off. We can certainly see that open government is not something Shawn Hendricks or his masters -- Ferson, McDermott, Kirzner and Wolman -- want. Instead of shunning tribe members who demand access to the records of their own affairs and instead of allowing outsiders to run their tribe's future, perhaps the Mashpee Wampanoag should fire the outsiders who have corrupted their culture and sold their future, elect a Tribal Council that responds to members and hire some real fire eaters -- lawyers of the type who can gain for the tribe and all Wampanoag descendants what is rightfully theirs. Let the Kirzners and Wolmans of the world then deal with a strong, healthy, self-determined tribe for the billions they so obviously crave.