The Mashpee Wampanoag Indian Tribal Council announced today that it is prepared to drop its suit against this Cape Cod town for virtually all its land in exchange for most of the undeveloped land, which amounts to about three-quarters of the town.
Should both sides agree to the proposal, it would then be presented to Congress by the Massachusetts congressional delegation for approval, according to Native American Rights Fund Attorney Margolin Barry.
The cost of the proposal, which would include the compensation of present owners of the undeveloped land, would run between $20 million and $25 million, according to Margolin.
Congress would also compensate the town for any reduction in its tax base as a result of the tax-exempt nature of the federally restricted tribal property. Margolin estimated the annual tax loss from the undeveloped land at about $200,00.
Margolin stressed that the proposal would have little bearing on a similar suit against the state of Maine for 12.5 million acres, or about two-thirds of that state. That land is largely private and is valued at about $25 billion.
Both suits seek the return of Indian ancestral lands that allegedly were taken from the Indians in violation of the Federal Non-Intercourse Act of 1790. That act mandated federal approval of any transfer of Indian land.
"I hope that Congress wouldn't set a precedent here that would bankrupt Maine," Margolin explained. "This can't be compared to the situation in Maine. There are 12 million acres at stake there. The scale is too large. What is realistic in Mashpee wouldn't be realistic in Maine."
"Try telling that to the Maine congressional delegation" snapped Mashpee selectman George Benway, when apprised of the proposal.
Last month, another Massachusetts town Gay Head, voluntarily returned 250 acres of commonly held town land to the Gay Head Wampanoags.
Attorney James St. Clair, who is defending the town in the suit, refused to comment on the proposal until he has reviewed it and consulted with his clients.
Benway, a realtor, declined to comment specifically, but said of the proposal: "This would create a nation within a town. Regular law wouldn't apply there. What about municipal services? Who provides them? This would be for over half of the town. The undeveloped areas are not contiguous, so it would be difficult to administer services."
Margolin said that about one-quarter of 146 principal Mashpee landowners specifically named in the suit have reacted favorably to the idea. Letters explaining the proposal will be mailed to all of the other landowners soon, he added.
The suit had brought Mashpee's real estate industry to a standstill. Becuase it has clouded title to all land in town, no banks have given mortgage money in Mashpee since the suit was filed in U.S. district court last August.
Margolin stressed that any settlement would have to be an act of Congress, in effect, meeting the mandate of the Non-Intercourse Act. Members of the Massachusetts congressional delegation already have balked at proposed indemnification packages guaranteeing town land valued at over $200 million and it was hoped that the $20 million to $25 million figure would be more acceptable.
Wampanoag leader Russell Peters said that his tribe intends to pursue farming and agriculture projects on the open land and in the rivers, ponds, and shore areas included with the undeveloped lands under the proposal. To prevent runaway development, the proposal stipulates that the land given the Indians could not be used for new houses, except for the homes of tribal members.