Miscarriage Of Justice

THE RECENT DECISION to dismiss the Wamponoag Indians' land suit is as logically faulty and politically self-serving as the conduct of the Mashpee trial itself. Judge Walter J. Skinner's decision accepts the jury ruling, handed down in January, that the Indians of Mashpee were not a tribe on certain key legal dates, but did constitute a tribe on other important dates.

As many observers of the trial have pointed out, the jury decision and the judge's subsequent upholding of that decision in effect admits the existence of a tribe when no political and legal consequences would ensue. The decision expresses a calculated caution. The judge notes that because of the "severe consequences" of declaring the Indians a tribe--returning the land to the Indians--he believes he had to establish a rigorous definition of tribal status. But he also states in the decision that the Indians may still be considered a tribe "for other purposes, such as Federal aid programs."

The decision reflects culturally biased attitudes as well as political self-interest. The judge, as well as the lawyers representing the town of Mashpee, define a tribe in terms of a Western conception of government, ignoring the more informal governmental institutions the Indians accept as valid. The decision notes that because the state of Massachusetts switched the Indians' status from that of special Indian district to a town 100 years ago, the Indians ceased to be a tribe. The Indians, however, have long considered themselves a tribe regardless of any state declaration.

Thus the course of the Mashpee trial and the tone of the judge's decision are equally disappointing to those who believe Eastern Indians' rights have long been neglected. The judge and the jury throughout the trial acted from practical political considerations and from implicit assumptions of cultural superiority. The Indians say they will appeal, and we must still hope they can receive more equitable justice in another trial.