On March 27, the Bureau of Indian Affairs (BIA) informed the Mashpee Wampanoag Tribe that it was disestablishing the Tribe’s reservation. The BIA, which falls under the Department of the Interior, assists tribes with natural resources and land use for trust land under the IRA, among other things. The disestablishment removed the tribe’s land from federal trust. As a result, the tribe lost its special status whereby the federal government had title to land for the benefit of a tribe, including resources and land use decision making. The BIA decision came despite a court order, and while litigation to uphold the Tribe’s status under the Indian Reorganization Act (IRA) is ongoing. We take a closer look at Native American natural resources and land use law and the BIA decision below.
A Short History of the Relevant Laws
It is important to understand that U.S. policy has gone back and forth on whether to allow Native American reservations and to federally recognize Native American nations/tribes. The following laws demonstrate the changing policy:
- Indian Appropriations Act: a series of laws related to creation of a reservation system and forced relocation beginning in the 1850s. It further reinforced previous government actions to move all Native Americans west of the Mississippi River, made Native Americans wards of the federal government, and removed federal recognition of tribes, including for treaty purposes.
- Dawes Act of 1887: among other things, attempted to assimilate Native Americans into “mainstream” American culture by ending tribal control of reservations. It also divided the reservation system tribal lands into parcels for individuals, and destroyed traditional communal ways of life by encouraging U.S. citizenship and subsistence farming.
- IRA, 1934: restored tribal recognition and tribal control of land, restored natural resources rights, and allowed the federal government to acquire land and restore it to tribal trust status.
Legal Precedent Related to the IRA
A key to understanding the Native American legal situation is that the taking of land and placing it into trust has been the most controversial aspect of the IRA. Its constitutionality was challenged by several states, until R.I. appealed to the Supreme Court in Carcieri v. Salazar. R.I. claimed that the BIA did not have the authority to take land into trust for the Narragansett Indian Tribe because the tribe was not “now under Federal jurisdiction” in 1934 and thus could not fit the IRA’s definition of “Indian.” The U.S. Supreme Court agreed, holding that a tribe must have been federally recognized at the time the IRA was enacted.
Arguments in the concurring and dissenting opinions were that “federal jurisdiction” and “federal recognition” were not entirely synonymous, and that “now” equates to “at the time the land was turned over to the BIA.” In 2019, the House of Representatives passed a bill in response to the result of Carcieri v. Salazar. However, that bill was introduced in the Senate but has not seen action since being referred to the Committee on Indian Affairs. Despite the federal policy oscillations shown by the laws above, the U.S. Supreme Court holding requires federal recognition in 1934, unless Congress acts to clarify the law.
The Mashpee Wampanoag Tribe BIA Decision
Now, the BIA cites to the precedent set by Carcieri v. Salazar to make its decision. The resources and land use issues are potentially enormous for the Mashpee Wampanoag Tribe. Trust land is exempt from many state laws and taxes and allows the tribe in question to make its own natural resources and land use decisions. These decisions include development and natural resource extraction. Without the ability to make these decisions, the tribes are not fully in control of the land. As a result, tribes’ sovereignty and their relationships with the federal government vis-à-vis trust land are affected.