plan·ta·tion: noun: a usually large group of plants and especially trees under cultivation; a settlement in a new country or region (Plymouth Plantation)
res·er·va·tion: noun: something reserved: as (a): a tract of land set aside (as for use by American Indians).
So Cedric Cromwell has been making some interesting statements regarding his “proof” that the tribe was under federal jurisdiction in 1934. So far, he had done a fantastic job at showing that the federal government was aware of this tribe’s existence and has used this to say that because of this knowledge, the tribe was under the jurisdiction of the federal government. Huh…well, the question is not whether or not the Mashpee Wampanoag tribe existed, or if the federal government knew about them….it is whether the tribe was under federal jurisdiction…ie….under the care of the federal government. The question is were they recognized as their own sovereign government by the United States Federal Government and therefore creating Government assumed obligations to this tribe through treaty. Well the Mashpee Wampanoag Tribe, or more specifically Cedric Cromwell has been working very hard at trying to prove just that…the tribe claims, as a matter of law, that the tribe was under federal jurisdiction in 1934.
One claim we have heard over and over is that
the tribe had functional treaty relations with Great Britain, which reserved
specified tribal rights that the federal government automatically assumed after
ceding with the British Crown. They also claim the tribe has continuously
exercised aboriginal fishing rights because of this treaty and it is this aboriginal
property right that puts them under federal jurisdiction. Of course they are completely ignoring the
fact that aboriginal rights were maintained for the tribe through the State of
Massachusetts long before the formation of the federal government. They have other claims as well which I will
write about on another day – for now, let’s start at the beginning and see if
we can get to the heart of the matter.
Treaties….let us talk about treaties
and the federal removal policy – a policy the tribe claims they were a part of
which puts them under federal jurisdiction.
According to the tribe, even though they didn’t actually have a treaty
with King George, they did have “treaty relations” which reserved specified tribal
rights and the United States succeeded to Great Britain’s obligations, placing
the Tribe under federal jurisdiction as a matter of law.
Bottom line is, if you want to know the truth regarding the Indian Removal Act of 1830, then all one needs to do is go read the Congressional Testimony surrounding it…quite an interesting read – the discussion surrounds the creation and subsequent issues of the Cherokee reservation created through a Treaty with the United States in parts of Georgia and North Carolina and…wait for it….treaties with Great Britain! In a discussion about the Cherokees, they had this to say…
…it would be added, that, at a very early period, the Cherokees formed a treaty with Great Britain, by which they gave up their independence and put themselves under the protection His Britannic Majesty….that this conquest conferred upon the respective states, within whose limits they were, all the rights, and gave them all the powers which the crown had, prior to the revolution. That this right still continued in the States, and never was yielded to the United States.
It needs to be understood that when Congress was discussing relocating Indian tribes under the Indian Removal Act, they were mainly discussing those Indian Tribes that maintained their identity through self governance, who had a treaty with the federal government and whose land was inside the borders of the original 13 colonies….the Union States. The problem the Mashpee Wampanoag has with their King George “treaty relations” argument is the fact that in the signing of the Treaty of Paris in 1783, the treaty that ended the revolutionary war, said treaty extinguished any “treaty relations” with the British Crown. The first article clearly stated the following:
Acknowledging the United State to be a free, sovereign and independent nation, and that the British Crown and all heirs and successors relinquish claims to the Government, property, and territorial rights of the same, and every part thereof;
You see, during the revolutionary war the colonies realized that they need some form of centralized government so the Articles of Confederation were written and adopted by the Second Continental Congress on November 15, 1777 and was used as the de facto system of government until full ratification on March 1, 1781. Its greatest achievements were holding the Union together during the American Revolution.
The next thing that needs to be understood,
and what Congress took into consideration during discussions of Indian Removal from
the independent States to federal territory west of the Mississippi, was the
fact that the Articles of Confederation gave very limited power to the newly formed
central government and that those powers were held through ratification of the United
States Constitution in 1788. However, Article
Nine of the Articles of Confederation gave the newly formed federal government
the power to enter into treaties with Indian tribes…which some tribes did –
just not the Mashpee Wampanoag Tribe.
Every thing which relates to those Indian Tribes or nations, with
which we have political relations, created or regulated by treaties, is
becoming every year, more and more interesting; especially those relating to
such as reside within any of the States of the Union, or of the territories
belonging to it….with this nation, the United States have formed a number of
treaties, commencing as early as the year of 1785, and ending the year of
1819. At the formation of the first, the
Indians occupied portions of territory within the chartered limits of the
States of North Carolina, South Carolina and Georgia…latterly, Georgia, in the
exercise she supposes, of her sovereign power, has extended her laws over the
whole of the State, and subjected the Indians to her jurisdiction. Meantime, the Cherokees have formed a civil government
of their own, entirely independent of any State, claiming to have right to do
so in virtue of their original title to the lands on which they reside, and
relying, likewise, upon the guarantee of their country, in several of their
treaties formed with the United States.
It was
these treaties with the so named “five civilized tribes” who had formed some sort of government independent of State government that led to the problems
of these tribes not wanting to be subject to state law, that they wished to
remain independent sovereigns and maintain their own form of government….that and
the State of Georgia claimed that that the treaty with the Cherokees was in
violation of its sovereignty under the Constitution and the federal government
had no power to take the land and give it to the Cherokees without the States
consent. Therefore, the federal
government made the case to relocate treaty Indians residing in the original 13
colonies west of the Mississippi, where it did have the power to give land to
these tribes and oversee their affairs since they could not exercise their
power over a Union State.
To this application the President has replied, that he has no power
to check the operation of the laws of those States, within their respective
limits; that the Constitution of the United States forbids the formation of any
new State within the limits of an old one,
without its consent; therefore, the Cherokees cannot be recognized as a
separate State, within those limits where they now reside; and that, if they chose
to remain there, they shall be protected in doing so, but that they must submit
to the laws of the respective States, at the same time they are protected by
them, and earnestly recommends to them to consent to exchange the country where
they now reside, for one West of the Mississippi, owned by the United States,
and not yet included within the bounds of any State or Territory, where they
can be again united and where the United States can, and will, make them
forever secure from any interruption from the whites, or from any other nation
or people whatever. It was also for this reason that the non-intercourse act does not apply to Tribes in the original thirteen colonies…
….she (the State) may further insist, that the second article of the Constitution, which gives the President, with the advice and consent of two-thirds of the Senate, power to make treaties, has no application to Indians within the chartered limits of any of the States; nor the eighth section of the first article, which gives Congress power to regulate commerce with the Indian Tribes. That if Indians can be treated with, it must be those only who reside out of the limits of the States, and those with whom commerce may be regulated, must be similarly situated; otherwise, that part of the second section of the first article, which forbids the enumeration of Indians residing within the States…
They go on to discuss how the States are guaranteed
a “republican form of government” and the Federal Government shall protect each
of them against invasion, and, on application of the Legislature or of the
Executive against domestic violence, and
that this would not be attainable unless the majority of the citizens are
permitted to prescribe rules to which all
must conform. The question was asked
how could the United States guarantee against domestic violence if they permit
a portion of the population within her
limits to establish a Government, contrary to her will, with authority to
prescribe rules inconsistent with those prescribed by herself….that is a damned
good question….one that maybe Massachusetts State Governor Deval Patrick would
like to answer for us considering, according to the latest and greatest
State/Tribal Compact, which has not been approved by anyone…anywhere, as to why
he is voluntarily handing over land all over Southeast Massachusetts to a
dysfunctional tribe who somehow gained Federal Recognition in 2007 so they can “self-govern”
at the expense of the surrounding communities. AND HE DOESN’T
HAVE TO….but he is....HUGS!!
Rights to hunt, fish, and gather have been held by the Wampanoag Native American Indian people of this area from time immemorial, and remain an important aspect of Wampanoag life, providing food, service to the community, and an ingredient of cultural identity. These rights have been acknowledged in law since before the founding of the United States, recognized in treaties, statutes, and judicial decisions of the Commonwealth of Massachusetts. Appellants Michael Maxim and David Greene, Wampanoag persons, were exercising these rights at the time of their citation by officials of the Town of Bourne for violating a "recreational shellfishing" regulation. [pages 7-9]
So yeah....there was no treaty formed between the Mashpee Wampanoag tribe and the federal government because they had inserted themselves in to the local government of Mashpee, and hence, there was never a reservation in Mashpee – sure, there was a plantation, created by the State honoring said “treaty relations” for aboriginal fishing rights through the authority of King George…but that is where it ends.
Look, I am not denying that the federal government didn’t know the Mashpee Wampanoag Tribe existed…but to go from point A: the tribe claiming existence for 12,000 years aaaaallllll the way to point J: jurisdiction - is really, really reaching here. There is no doubt that the federal government knew the tribe existed…the federal government went out of its way to understand Indian Tribes and their relations with the Union States in which they resided… and there is no doubt as to the federal government’s view of their “responsibilities” to the tribes in the original thirteen colonies, as it was clearly stated in the 1899 letter from the Commissioner of Indian Affairs regarding Federal Jurisdiction:
Their political condition is, therefore, radically different from that of what might be termed “plains” Indians, that large body of person in the western section of the county who became subjects or wards of the government with the accession of territory ceded by France in 1803;…All of these “plains” Indians have been at some time or other, in some manner or other, the subject of legislation by the Congress of the United States, and to that extent recognized by the Government…
So this bizarre, King George treaty
relationship argument morphing into Federal jurisdiction is really nothing but the
desperate attempt of this Tribal Government…no…of Cedric Cromwell…to create a fictitious relationship between the
federal government and the Tribe specifically to take land in trust in both
Mashpee and Middleboro Fall
River Taunton for gaming under IGRA.
Now you know why.
The most effective way to destroy people is to deny and obliterate their own understanding of their history - George Orwell
3 comments:
That was a very compelling read CC. Well done.
It is complicated, Mark...I tried to summarize it best I could into something understandable. It is important to understand that when the Articles of Confederation were adopted, the newly formed federal government formed treaties with tribes who were self governing and wanted to maintain self identity through self government...that was not the case for the Mashpee Tribe. They chose to adopt and participate in the local form of government...they were not forced - I have been to the MA archives and have read all documentation regarding land sales, petitions and everything available for ALL the tribes in Massachusetts. Were there disputes? Yes...and they were heard by the STATE legislature...reading all the correspondence was very compelling, and eye opening. Anyway, there is more to this story regarding federal jurisdiction...more to come regarding this in the next few weeks.
Another educational moment brought to you by Carver Chick.
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