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Legal argument, 1977


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Mashpee Indians Sue for Recognition
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On This Day... 1978, a trial began on Cape Cod to determine whether the Mashpee Indians met the legal definition of a tribe. If they did, they could sue for the return of land granted to them in 1685. With huge amounts of undeveloped land at stake, Mashpee's non-Indian residents hired lawyers. The defense argued that the Mashpee Wampanoag had intermarried with so many different groups over the years that they were no longer genetically the same people as the original Mashpee. The lawyers also claimed that the Mashpee had not maintained their traditions. After a 40-day trial, the judge declared that the Mashpee Wampanoag did not meet the legal definition of a tribe and therefore had no standing to sue. The case was dismissed.

When the Pilgrims landed in Plymouth in 1620 and then spread out over Cape Cod, the native people they encountered were Mashpee Wampanoag. Over the next 250 years, the Indian population of Massachusetts declined, but in 1860, almost all of the 500 people living in the town of Mashpee were still members of the tribe.

A century later the development of second homes and retirement communities had caused a population boom in Mashpee; of the town's 12,000 residents in 1970, only 800 identified themselves as Indians. With the change in the character of the town, the Mashpee lost control of local government. Many of the open spaces where they had hunted or fished were turned into subdivisions. Run-off from the development of houses and malls forced the closing of their traditional shell fishing grounds. And the Mashpee felt insult was being added to injury when newcomers with different aesthetic values pressed for changes in the appearance of their homes and communal buildings.

After years of growing tension and unsuccessful efforts at arbitration, in 1977 the Mashpee took legal action. They filed suit in federal court claiming that their land had been taken from them illegally. They demanded the return of all undeveloped land in the town.

The reaction from the non-native townspeople was swift and dramatic. The suit put at risk all non-Indian residents' title to their property. The local papers were filled with protests against the Indians' action. Some native people were fired from jobs with the town; others were defeated in local elections. Groups formed to fight the claim.

The Indians' claim was based on the long and complicated history of the Mashpee people. Although native people had lived in Mashpee for many generations, smallpox spread by European fishermen and traders nearly wiped out the population in the early 1600s. Members of other Wampanoag tribes eventually moved to Mashpee and intermarried with the local Indians. Like other New England Indians, the Mashpee Wampanoag also intermarried with African Americans.

From the earliest days of English settlement, the tribe was under pressure to assimilate. Missionaries converted many of them to Christianity. As Christians they were urged to give up Indian ways for European ones, and most did. Throughout the 1700s and 1800s, the Mashpee Wampanoag struggled to balance assimilation and resistance to white culture. Two things did not change, however: the Indians considered that the whole community owned the land, which was available for all members of the tribe to use, and they continued to govern themselves.

For 200 years, the Commonwealth continued to recognize the Mashpees' ownership of their Cape Cod lands. The approval of both the state and the Indian governments were required before natives could sell land to non-natives.Then, in 1870, the state took what would turn out to be a momentous step. The Massachusetts legislature voted to incorporate Mashpee as a town and divide the land into individual parcels. The Indians' common land was sold. The state paid the tribe $12,000 in compensation, but the loss was immeasurable: the Mashpee Wampanoag lost control of their ancestral lands.

For the next 90 years, the native people managed to continue their communal way of life. There was little pressure for development, so Indians were free to hunt and fish and use the natural resources on undeveloped land much as they always had. In the early 1900s many Mashpee even returned to practicing traditional native ways. It was only in the 1960s that the Mashpee realized the threat posed by increasing residential development.

In their 1977 suit, the Mashpee showed that both colonial and federal laws had prohibited the sale of tribal lands without the approval of the tribe. Since the tribe had not given its approval, the Mashpee argued that the land had been taken illegally and must be returned. The judge ruled that before the Mashpee could pursue their land claim they must first prove that they met the legal definition of a tribe, and had done so continuously from the early 1600s to the present day.

The Mashpee had to overcome the other side's claim that they had intermarried with the members of other tribes and with non-Indians to such an extent that they were no longer genetically related to the "original" Mashpee. The town's lawyers also argued that the Mashpee Wampanoag had abandoned their native language, customs, and government. For weeks experts offered conflicting testimony on what it meant to be a tribe.

The Mashpee lost the case but did not abandon the effort to reclaim their land. In 1990 they petitioned the U.S. government for recognition as a tribe. On March 31, 2006, after a 31-year struggle, the 1,468-member tribe finally won preliminary recognition. The Globe reported that the announcement "was greeted with tears, howls of jubilation, and the beating of drums by tribal members. 'We've been waiting so long,'" one 89-year-old Wampanoag sobbed.


The Mashpee Indians: Tribe on Trial, by Jack Campisi (Syracuse University Press, 1991).

The Wampanoags of Mashpee: An Indian Perspective on American History, by Russell Peters (Nimrod Press, 1987).

Cape Cod Times, June 2002.

Boston Globe, April 1, 2006 and February 16, 2007.

Discuss This Moment on Our Message Board
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Topic Originator Views Replies Most Recent Post
Wampanoags doedoe 1465 0 10/17/2012 08:26
by doedoe
Another good source on this C Stanton 2553 1 04/24/2011 22:31
by Anonymous
Mashpee case Wesley Ward 2538 1 04/24/2011 22:31
by Anonymous
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