Percolating Consequences of Changes in Land-Trust Legislation to Tribes and the Wildlife We Conserve and Manage 

~ Chase Voirin


Through the tumultuous relationship between tribes and 

the government of these United States over the centuries,

there has been growing communication and collaboration

between tribal and federal governments to empower the

Indigenous population of this great nation.  Keeping in line

with previous agreements, the federal government holds tribal reservation lands in trust, while supporting tribal rights to govern those lands and the resources they hold.  In fact, tribes have gained more autonomy over the years on how they wish to govern their lands, including the wildlife that inhabit those ecosystems.  This has led to the formulation of many tribal fish and wildlife or natural resource agencies that continually strive to act as responsible stewards of wildlife habitat on tribal grounds, of which has been a compelling responsibility since our ancestors made those areas their home.  This is precisely the reason why a recent court ruling has many tribes nervous about losing that responsibility that is supported through the federal trust system. 

The Mashpee Wampanoag is a federally recognized tribe of approximately 3,000 members in Massachusetts whose ancestors were some of the first Indigenous American people to interact with the pilgrims that first arrived on the continent from Europe.  In 2015, after decades of litigation and pleading its case, the Mashpee were granted a little over 300 acres of federal trust land near Cape Cod, which was an area of their ancestral homeland.  Just recently (in 2018), the U.S. Department of the Interior decided to “reconsider” its decision on its trust designation amid challenges by local residents of the area1.  There could be several reasons why this has happened, not least of which could be pinned on the tribe’s pursuit to construct a casino on land the tribe would control north of the Cape Cod area1.  Nonetheless, on a broader spectrum, tribes are beginning to investigate the authority of their own federal trust statutes and designations. 

Tribes across the nation are beginning to wonder how this decision could percolate into sovereign rights to their ancestral lands.  From a natural resources standpoint, tribes generate many royalties from oil and gas development on tribal lands, especially among tribes in the west.  Tribes also maintain fishing rights on and off of tribal lands in the Pacific Northwest and Alaska.  And many tribes have taken measures to conserve and manage the wildlife that inhabit ecosystems on tribal lands, including federally threatened and endangered species, as well as species of cultural importance.  All of these tribal practices are empowered by federal land-trust designations that give tribes the right to manage these resources.  If those trust responsibilities were to dissipate, it would allow non-tribal parties to negatively influence and take those practices away, which is exactly what happened during the Termination Era of the 1940’s through 1960’s1.  Legislation during this time allowed tribes to privatize land parcels and sell them off at a profit, possibly in an effort to “civilize” the Indian.  However, what the federal government failed to communicate was that designating reservations as private land also made those owners liable to inordinate amounts of back taxes, essentially forcing tribal members to sell or be consumed by the consequences of insane debt.  This consequence, along with several other negative implications, took powers away from tribes to govern themselves.  Instead of creating a stronger, more confident Indigenous peoples, this Era set Native peoples back even more with even less faith in the federal government. 

The point to all of this is that tribes have already been empowering themselves AND assimilating into the greater U.S. system for decades, while also keeping their cultural identity intact.  This is proven through an increase in tribal government autonomy and collaboration with state and federal government agencies.  For example, from a wildlife perspective, many tribes have generated strategic plans to manage their fish and wildlife resources with aid from the U.S. Fish and Wildlife Service and Bureau of Indian Affairs, while also raising significant funding for those practices through the sale of hunting and fishing license.  These conservation and management plans often blend federal, state and tribal designations towards fish and wildlife, which help guide the management of those fish and wildlife species to the benefit of the species themselves and the tribal and non-tribal people who may have a stake in the conservation of those species.  Simply put, if this is indeed the land of opportunity, then give a tribe the opportunity. 

It is important to acknowledge that from a biologist perspective, the chances are slim that the 300 acres (of which is probably fairly developed by humans already) granted to the Mashpee will be of crucial habitat to a particularly rare fish or wildlife species.  And it’s easy for opponents to the land-trust designation to point to the efforts by the tribe to build a casino on some of their land as a “get-rich-quick scheme”.  But it’s also important to acknowledge that many tribes recognize that to have a voice in this country you need two things: votes and money.  So, when tribes don’t have the voting numbers or resources to generate revenue they may turn to casinos.  And it’s important to note that opponents to the Mashpee’s land-trust designation and casino are being financially backed by a non-tribal rival casino company (Chicago’s Rush Street Gaming), basically debunking any “moral high ground” opponents want to take in this case 1. 

This all comes back to the question of how safe are federal land-trust statues among other tribes?  Again, despite some of the negative aspects of tribal society that are often highlighted in stereotypes and reports (e.g., alcoholism, teen suicide rate, unemployment), tribal governments have made slow and steady progress towards empowering their people and systems, assimilating into the greater American society, and maintaining their cultural identity.  Even the Mashpee people have proven this through their four appointed tribal court judges, police force and housing development1.  In fact, state and federal officials have supported the land-trust designation of the Mashpee, and have even sponsored legislation in the House and Senate to finalize this designation and end any future challenges to this legislation2.  Taking away federal land-trust designations, especially after they have been granted, could leave tribes in a precarious position.  And the negative implications of this aspect could percolate into areas not yet thought of. 

References: 

1 Land-trust case raises red flags across Indian Country. By Philip Marcelo and Felicia Fonseca. AP News. Available at 
https://www.apnews.com/2c536a30f57e4c94ade2743b177132b8/Land-trust-case-raises-red-flags-across-Indian-Country%27 
Accessed on 16 September 2018


2 Support grows for legislation for Mashpee tribe. By Tanner Stening. Cape Cod Times. Available at 
http://www.capecodtimes.com/news/20180621/support-grows-for-legislation-for-mashpee-tribe 


Accessed on 16 September 2018