Wampanoags try new tack in long-standing Massachusetts land dispute

Legal war cries once again are reverberating through the small Massachusetts community of Mashpee.

After an unsuccessful 1976 attempt to wrest control of several thousand acres , the Wampanoag Indians - greeters of the original Pilgrims - are now trying to stop further development of the contested land.

This time around, the Indians may have to prove their legal identity as well.

Unlike tribes west of the Mississippi, many Eastern Indian tribes never negotiated treaties with the federal government. Land was often eaten away by private purchase or by state incorporation of Indian land into state or town property.

This can complicate the claims because Indian rights are often pitted against those of the community.

In this case, Wampanoag claims are opposed bythe town's non-Indian population. Mostly newcomers of the last two decades, the group nevertheless outnumbers the Wampanoags 3 to 1 and has petitioned for dismissal of the suit.

In 1976, the Wampanoags filed their first suit, claiming they had been illegally incorporated into a town by Massachusetts in 1867. At that time, the land and assets belonging to the tribe passed to town and individual ownership. ''People formerly known as Indians were stripped of their status and made citizens,'' says the general counsel for the Wampanoags, Robert C. Hahn. And this status-change allowed them to sell land.

The Indians argued that the Massachusetts action was illegal because of a 1790 act of Congress. In that act, states were barred from making treaties with Indian nations or purchasing Indian land without federal government permission.

The tribe lost the case, not on its merits, but because the court ruled that the Wampanoags did not constitute a tribe when the 1790 act was passed or when their suit was brought in 1976.

The decision - affirming the Mashpee landowners' contention that the Wampanoags, through intermarriage, had become a mixed race and were not entitled to distinction as a tribe - seemed to dash the tribe's hopes for reclaiming ownership of town land.

The Wampanoags remain bitter over this decision, partly because it was made by a jury. ''None of these legal issues are for a jury,'' Mr. Hahn says. He contends the question should have been decided by a judge.

But the tribe has filed suit again, hoping to make clear that there is no legal evidence that the Wampanoags were ever officially terminated as a tribe - either by the state before the 1790 act or afterwards by the federal government.

This time, instead of relying solely on the 1790 legislation as do most of the Eastern Indian land claims, the Wampanoags are basing their arguments on the US Constitution - in particular the commerce and treaty clauses. They argue that when the states ratified the Constitution they gave up their sovereignty over Indian lands and also lost their power to make treaties. ''We believe that ours is an innovative approach,'' Hahn says.

Brought in concert with Wampanoag claims in six other towns in the Cape Cod and Martha's Vineyard area, the new suit involves a total land area of 24,000 acres, worth about $1 billion. US Secretary of Interior James G. Watt, the Commonwealth of Massachusetts, and the town of Mashpee are among the defendants.

''The basic thing is who controls the land,'' says John Peters, commissioner of Indian affairs for Massachusetts and a Wampanoag tribe member. ''We're not going to knock buildings down'' to get non-Indians off the land, but the tribe does seek to determine how the land will be used in the future.

Complicating the current situation is a bill, introduced in the US House in February as a result of the recent storm of Indian land claims. The bill would not restore land claimed by Indians, but only reimburse the tribes for its value.

Attorney Hahn says the proposed legislation is unconstitutional, because ''everyone has a right to go to court'' to protect property interests. Similar legislation brought before Congress has been defeated in the past, he adds.

Although this bill was filed specifically in relation to cases pending in New York, South Carolina, and Connecticut, Mashpee selectmen have asked three Massachusetts legislators, Rep. Gerry E. Studds (D), Sen. Edward M. Kennedy (D), and Sen. Paul E. Tsongas (D), to support the legislation and include the Bay State with the other states.