The Mashpee Nine and the Fight Over Cape Cod Land

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On the moonless night of July 29, 1976, a group of young Mashpee Wampanoag men sat around a campfire, talking quietly. Some lay sleeping in their tents. Suddenly, 30 police in riot gear emerged from the darkness with dogs on leashes. By the time it all ended 10 months later in a Barnstable courthouse, the young men had a following and a name: The Mashpee Nine.

They’d been camping, with a permit, at Twelve Acres in the middle of a replica of a 17^th-century Indian village. The day before, the Mashpee Wampanoag had held a feast and celebration there, one of many outdoor parties that summer, America’s Bicentennial. Police had responded to noise complaints, a fight at Twelve Acres and a near-riot nearby in Falmouth. A kid had thrown a rock through a Mashpee Police car.

But the young men on Twelve Acres that night said they had finished drumming and singing the old songs when the police and the dogs rounded them up and took them to jail.

The district attorney charged them with “excessive noisemaking.” Their real crime, though, was asserting their cultural heritage and their claim to thousands of acres of Mashpee land. The trial of the nine young men was a flashpoint in the centuries-old dispute over who owned the woods, the pine barrens, the rivers and ponds and seashore of Mashpee, Mass.

The Mashpee Nine

The young men drumming that night had a new interest in reinvigorating their traditions. Someone had called to complain about the noise. Earl “Chiefy” Mills said a nightclub across the way was louder.

The police arrested Billy Pocknett first. He’d been sitting by the campfire, talking, when he saw lights through the trees and heard dogs. He thought his friends had gone coon hunting. Police emerged from all angles, threw him to the ground and cuffed him. He asked what he’d done. “Disturbing the peace,” the police officer said. Then he whacked Billy on the shoulder with his nightstick and told him to shut up.

Brad Lopes was walking home on the path from Twelve Acres. Suddenly a police officer – someone he’d gone to school with — appeared in front of him and arrested him.

Police found Chiefy Mills asleep in his tent. They kicked him, pulled him out of his sleeping bag and cuffed him. One said, “We’re getting even for Custer,” Mills said. They arrested Martin “Bruzzy” Hendricks sitting in his car with his girlfriend.

Police handcuffed those who didn’t scatter and then trashed the reconstructed village. They overturned tables, took down tents and dumped food on the ground.

A patrol van arrived and the police shoved the young men into it. Victor Almeida, the last arrested, couldn’t fit into the crowded vehicle and his legs hung out the back. Someone slammed the door on his leg — twice. Then the door opened a sliver, a hand appeared and sprayed the van full of mace.

Twelve Acres

A grant from the U.S. Office of Economic Opportunity’s Community Service Agency had funded the reconstructed village at Twelve Acres. Intended as a living history museum, it included a long house, a wetu, a lean-to, fire pits, drying racks, a wolf trap and a garden to grow the Three Sisters. Another grant funded a camp for children at the site.

While building the village, members of the tribe put up tents and got permission from the town for some of the workers on the site to camp overnight.

The morning after the raid on the Mashpee Nine, the two camp directors for Twelve Acres came to see what had happened. Shocked at the destruction, they took Polaroids of the scene. They gave some to the police but secretly kept others.  They wouldn’t surface until the trial.

Idyllic Indigenous Paradise

Growing animosity toward the Mashpee probably fueled the raid on the nine young men. The town had undergone cataclysmic change during their short lifetimes, and it started to tear itself apart.

When they came into the world in the mid-1950s, Mashpee was a clannish village of several hundred Wampanoag people.  The town comprised 24 square miles of mostly raw land covered with scrub pine, cedar and oak. Ponds and estuaries fed into Poppanesset Bay, Waquoit Bay and the Nantucket Sound. For hunters and fishermen, it was paradise.

Mashpee’s legendary trout streams had attracted sportsmen from away since Daniel Webster showed up with his fishing tackle. President Grover Cleveland and his friend, the actor Joseph Jefferson, used to come to fish and visit the Hotel Attaquin. The hotel, built in 1840, had two bars, one for natives, one for non-natives. Over the years the two would begin to mingle after they’d consumed enough bottles of Pickwick Ale and shots of Four Roses. The hotel held clambakes in back, and people from all over the Cape drove the dirt road to it.

The Hotel Attaquin burned down in 1955, the year some of the Mashpee Nine were born. As children they picnicked on the beach, swam naked in the Sound, bought penny candy at Ockry’s Trading Post. Their parents played bid whist at the American Legion Hall or drank longnecks to the sound of rock bands at Mother’s Lounge. Paula Peters, a Wampanoag journalist, described life in Mashpee as “comfortable obscurity.”

According to Peters, most people didn’t go to work during deer season in December or when trout season opened in the spring. Mashpee, she wrote, was “an idyllic indigenous paradise.”

Then it suddenly mutated into a seaside suburb of Boston.

The Mashpee Nine Grow Up. So Does Mashpee

In 1964, when the Mashpee Nine were still in grade school, the first white man won election as selectman. By 1968, the Mashpee Wampanoag lost their majority on the select board they had always controlled.

Meanwhile, builders and investors lusted after the vast tracts of land that had nothing on them but scrub pine and blueberry bushes.

In 1950, census takers counted 438 people living in Mashpee. By 1965, that number grew to 665. In 1975, the year before the police raid on Twelve Acres, the population reached 2,500. Mashpee, in fact, grew faster than any other town in Massachusetts.

In 1960, two brothers decided to develop 2,000 acres of Mashpee land they’d inherited from their father, a Rhode Island financier named Malcolm Chace. They called it New Seabury, and started building it out as a seaside resort for rich retirees. New Seabury put up chain-link fences and “No Trespassing” signs along the ancient pathways, wrote Peters. The Mashpee who tried to go fishing or dig shellfish found their access blocked.

But that was just the latest. Over the years, sophisticated and unscrupulous land developers had eaten away Mashpee’s original 18,000 acres. Poverty took away some of it, too. Mashpee people sold their property, especially during the Great Depression, to pay back taxes.

The story of how Mashpee became Mashpee – and how the Mashpee Nine landed in jail one summer night – begins thousands of years ago.

Early History

For centuries the Wampanoag, known as people of the first light, had lived in the region from Bristol, R.I., to the South Shore of Boston. They numbered in the tens of thousands. Then the Europeans came and brought disease that killed as many as two-thirds of them.

Congregationalist ministers converted the Mashpee to Christianity. In 1660, the General Court designated the tribal village a Praying Indian town, one of 19 in Plymouth Colony. The Mashpee governed themselves under Plymouth’s rules for Praying Indian towns.

In 1665, Richard Bourne, a white preacher from Sandwich, helped the Mashpee get a deed for 18,000 acres, about 28 square miles. Under the deed, the Wampanoag owned the land. The deed also specified they held the land in common and couldn’t sell it to others.

Ten years later King Philip’s War broke out and the Mashpee survived by remaining neutral. They built a meeting house for worship after the war. Then in 1746, Massachusetts absorbed Plymouth Colony and assigned overseers to “protect” the Mashpee tribe’s interest. The overseers instead let white people exploit the Mashpee. They leased their lands, sold their timber and hired out their children into virtual slavery.

During the American Revolution, 26 Mashpee Indians enlisted in the Continental Army. One survived. For their sacrifice, the Mashpee got a small reward: the federal Nonintercourse Act of 1790. It would come to life in a twentieth century courtroom.

Fatherly Care

The federal Nonintercourse Act banned the sale of Indian lands unless Congress approved the deal. President George Washington explained to the Seneca people it showed “the fatherly care the United States intends to take of the Indians.”

The law would be honored in the breach more than in the observance.

For decades, Mashpee remained an unorganized backwater of the thinly populated Cape. The peninsula had divided into 14 incorporated towns and Mashpee. But then in 1834, the Massachusetts Legislature turned it into an Indian district. In 1842 the commonwealth parceled out the common land to individual Mashpee, but under the law they still couldn’t sell to outsiders.

The big legal change happened in 1870. That year, the Legislature incorporated the town amidst a great deal of controversy and no explicit support from the Mashpee people.

First Land Boom

Incorporating Mashpee as a town meant individuals could sell their property to outsiders. Mashpee Town Planner Thomas Fudala in the late 20^th century described what happened next. “Thousands of acres, including more of the town’s valuable cranberry lands and much prime oceanfront property, were sold to whites within 10 years,” he wrote. “The next land boom was on.”

Rich people like Abbott Lawrence Lowell and John W. Farley bought huge tracts of land, and some built summer cottages along the shore. But even though ownership of the land changed, its use didn’t change much. That’s because Mashpee got left out of the development of Cape Cod. No rail line went to the town. And without a deep-water port, there wasn’t much commercial interest in exploiting Mashpee’s natural resources. Mashpee wasn’t exactly a reservation, but it was kind of a refuge.

World War II

Then Hitler invaded Europe. The U.S. military suddenly realized it would have to house and train millions of service men and women on American soil. One of the first military bases, Camp Edwards (now Joint Base Cape Cod), went up near Mashpee. In 125 days, the Army built a city for 36,000 people, nearly doubling Cape Cod’s population.

Southern soldiers made trouble for black servicemen, so the Army persuaded Mashpee to build a USO for black servicemen in town. The building later served as Town Hall and police station.

The black soldiers felt welcome in Mashpee, and some came back after the war. They married the locals and had families.

It was a familiar story. After the American Revolution, veteran Hessian soldiers had settled in Mashpee, married and had children.

The Mashpee, in fact, had for centuries intermarried — with Cape Verdean sailors, English settlers and former African slaves.

Reclaiming Tradition

By the 20^th century, many Mashpee had no interest in the old ways. People stopped making baskets, dancing the Four Winds or drumming. But a few persisted. In 1950, Earl “Flying Eagle” Mills, Sr., was named tribal chief. He turned the annual Mashpee homecoming into a cultural powwow.  His son and namesake was one of the Mashpee Nine.

The tribe’s unofficial historian, Mabel Avant, born in 1915, tried to interest the Mashpee in restoring the old Indian meeting house. She got them to hold pow-wows and clambakes as fundraisers for the building their ancestors had constructed in 1684.

But by the time the Mashpee had fully restored the meeting house in 1967, they had lost political control of the town they viewed as theirs. A new spirit of resistance was rising, fueled by the Indian civil rights movement. In 1968, Native American men founded the American Indian Movement (AIM) in Minnesota. Two years later on Thanksgiving Day, AIM members climbed aboard a replica of the Mayflower in Plymouth and threw a dummy Pilgrim overboard.

The Mashpee Nine Go To Court

The Mayflower protest made news, but the Mashpee were quietly planning a far more profound challenge to the status quo.

In 1974, the Mashpee incorporated as the Mashpee Wampanoag Indian Tribal Council. A year later a court ruled the 1790 Nonintercourse Act applied to all Indian tribes, even those not federally recognized.

In the spring of 1976, a lawyer told them they had a case to reclaim 16,000 acres under the old law.

And so in the year of the America’s Bicentennial, the Mashpee tribal council prepared a lawsuit against a hundred large landowners, the New Seabury Corporation and the Town of Mashpee. They sought to claim 11,000 acres of land sold in violation of the 1790 law. In order to win their suit, they had to prove they were a tribe — and had been all along.

The Trial of the Mashpee Nine

The trial was set for December 1976. One of the defendants, Earl “Chiefy” Mills, Jr., was attending UMass-Amherst that fall. He happened to meet an activist lawyer, Lew Gurwitz, during an AIM event at Smith College.

Gurwitz specialized in defending indigenous people and agreed to take the case for room, board and gas.

The young men considered pleading guilty, but Gurwitz persuaded them not to. He taught them how to dress and act in court. He took depositions that uncovered discrepancies in the police officers’ stories.

The trial started on Dec. 27, 1976. Gurwitz made a motion to have the Mashpee Nine swear to tell the truth on a traditional medicine pipe instead of a Bible. Judge Dennis Collari granted the motion — a good sign.

On the second day of the trial, charges against brothers Martin and Myron Hendricks were dropped. Gurwitz demonstrated the prosecutor had no evidence that they’d even been at the scene of a disturbance.

Witnesses testified they hadn’t heard any noise that night. Police testimony revealed more inconsistencies. When Gurwitz asked for the photos of the damaged Indian village, the police claimed they’d lost them. Gurwitz then produced the secret, second set of Polaroids.

Mashpee Nine Not Guilty

The trial went on for five months. In closing arguments, Gurwitz argued the Wampanoag drumming was a sacred tradition, that the young men had done nothing wrong.

The prosecutor said they’d stayed past midnight to raise hell and breached the neighborhood peace.

The judge’s decision came right away. “Not guilty,” he said, banging his gavel. Chiefy Mills’ mother, Shirley, remembered Collari saying,“None of you should have been brought in here in the first place,” according to Peters.

Land Claim

One month after the arrest of the Mashpee Nine, the tribal council filed a claim for some 11,000 acres of land.

The case dragged on through 1978 and then went to an all-white jury. The jury had to decide whether the Mashpee were a tribe. The Mashpee had to prove, among other things, that they had maintained political authority as an autonomous body throughout history. They also had to prove they identified as “aboriginal” or “Indian.”

In the end, the jury came up with a confusing ruling. Jurors said the Mashpee WERE a tribe from 1834 to 1842. But they WEREN’T a tribe in 1790, 1869, 1870 or 1976. The judge dismissed the case, calling the Mashpee an ethnic group like any other. The tribe fought the case all the way to the U.S. Supreme Court. After six years, the Mashpee lost that battle.

Not until 2007 did the Department of the Interior designate the Mashpee Wampanoag a tribe.

Another Building Boom

During the years of the trial over the Mashpee land claim, the town issued few or no building permits. People couldn’t get construction loans or mortgages; it got hard to sell a house in Mashpee. Building construction stopped.

When the land claim  lawsuit finally ended, the town started issuing building permits at a fevered clip —  600 a year.

Mashpee boomed again. By 1980, it had 3,700 year-round residents. In 1990, it had 7,884. Developers turned a shopping center, fairgrounds and a supermarket into Mashpee Commons, a world-class retail destination.

The town grew 113 percent in that decade, a time when the average population growth in the commonwealth was five percent.

Refuge

By the mid-1990s, Mashpee’s summer population had grown to 27,000. Neighboring Falmouth grew as well. Resident grew alarmed at the potential ecological damage of so much growth.

Some land had been protected from development – 130 acres of Abbott Lawrence Lowell’s property, three miles of frontage along the Mashpee River once owned by John W. Farley. Waquoit Bay got protected as the Waquoit Bay National Estuarine Research Reserve.

It wasn’t enough. A spirit of cooperation developed over the need to conserve open space.

And so in 1995, an act of Congress set aside 5,871 acres of woodlands, pine barrens, swamp, marshes, rivers and bogs as a wildlife refuge – the Mashpee National Wildlife Refuge.  The responsibility for managing the refuge falls to nine organizations — the towns of Falmouth and Mashpee, the Commonwealth of Massachusetts, the U.S. Fish and Wildlife Service and the Mashpee Wampanoag Tribe.

Mashpee Nine, 2017

Paula Peters tracked down the nine young men years later, and in 2017 she published what she found in Mashpee Nine: A Story of Cultural Justice.

Billy Pocknett in 2017 worked as facilities director for the Mashpee Wampanoag Tribal Government Center.

Brad Lopes lived in Mashpee and worked in health care.

Martin “Bruzzy” Hendricks retired from Mashpee Department of Public Works. His brother lived in Falmouth with wife and is a building and grounds maintenance worker for the tribe.

Sonny Joseph died at 52.

Victor Almeida retired and lived in Hyannis.

Chiefy Mills worked for the U.S. postal service.

Lincoln Hendricks moved to Bellingham, wash.

Kevin Hicks worked  as a buildings and maintenance worker for the tribe.

Images: Mashpee Avant House By Thomas Kelly – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=35372706. Mashpee National Wildlife Refuge: By Tom Eagle – http://www.fws.gov/northeast/mashpee/images/random/4.jpg, Public Domain, https://commons.wikimedia.org/w/index.php?curid=17414715 Mashpee Commons By John Phelan – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=23285327. Wampanoag educator By Swampyank at en.wikipedia, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=18002766. Monomoscoy Island By John Phelan – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=22882521. Barnstable County Court By Kenneth C. Zirkel – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=38286345.

With thanks to Restitution The Land Claims of the Mashpee, Passamaquoddy, and Penobscot Indians of New England by Paul Brodeur.

This story was updated in 2023.