About Nonintercourse

When Wampanoag Chief Massasoit celebrated Thanksgiving in 1621 as a guest of the Plymouth Colony pilgrims, his tribe occupied an area that ran from Cape Cod north almost to Boston. Within 50 years, land-greedy colonists had forced the Indians into a corner of their territory, some 20,000 acres in an area known as Mashpee on the southwestern shore of Cape Cod. After another two centuries, the state of Massachusetts decided to turn the reservation into a township, and the Indians naively sold off their land, bit by bit. Today 500 Wampanoag are still living in Mashpee (total pop. 2,500), but new housing developments now surround the salt marshes and ponds that the Indians once raked for scallops and quahogs. Mashpee's expensive ocean-front property is dotted with signs that shout PRIVATE, KEEP OUT! Standing on a windswept bluff above a beach road blockaded by boulders, Russell Peters, 47, president of the Mashpee Wampanoag tribal council, bitterly told TIME's David Wood: "I haven't set foot on this beach for 40 years. We will get this beach back."

That beach and then some. Provided, that is, that a young lawyer named Thomas Tureen can convince the courts to accept his theory about the Nonintercourse Act of 1790. This much amended act states that "any title to Indian land obtained without federal approval is null and void." Tureen's theory is that this act invalidates many subsequent land sales throughout New England. In Mashpee, specifically, a class-action filed in August demands the return of virtually the entire town to the Wampanoag. The suit, however, would allow householders to stay as long as they paid "fair rental value," which could amount to more than $2 million annually. Though the suit could drag on for years, the town was stunned to learn in September that the leading Boston bond counsel, Ropes & Gray, refused to okay a $4 million bond issue for a new school. Its reason: since Indian lands cannot be taxed, a Wampanoag legal victory could wipe out the tax base for paying off the bonds. Word spread quickly to local banks, which began shutting off mortgage loans. Says Mashpee Selectman George Benway: "Ninetynine percent of all real estate transactions have stopped. Building funds have dried up. The whole town has stopped."

Governor Michael Dukakis has already signed legislation to rescue Mashpee for the time being by guaranteeing the town's credit, but the Wampanoag case is only the latest battle in a new Indian uprising against the white man--fought this time in the courts. It started in Maine, where Attorney Tureen, now 32, arrived from St. Louis with an interest in Indian legal problems. In 1971, with Tureen's help, the Penobscot and Passamaquoddy tribes set out to sue the state, claiming title to 12.5 million acres--two-thirds of Maine. The estimated value of the property, which the Indians had handed over to the state in a series of ancient agreements: $25 billion. Last December a federal appeals judge ordered the reluctant Justice Department to take on their case, and he recently reminded the department to start action by Nov. 15. The state attorney general's office insists that the Indians's claim is "without merit," but the litigation has already weakened state and local bonds. Says State Treasurer Rodney Scribner: "We've been scampering around and plugging the leaks like the proverbial little Dutch boy." Adds Millinocket Town Manager Michael La Chance, who saw two of his town's $500,000 borrowings collapse: "We're hoping someone will inject a note of common sense. Until that happens, it's an economic disaster."

Indian Offensive. Aroused by the possibilities of victory, other tribes are besieging Tureen with their demands. His eight pending suits now include the Oneida claim to 300,000 acres in New York State, the Narraganset claim to 3,200 acres in Rhode Island and the Western Pequot claim to 800 acres in Connecticut. Says Tureen, who lives in a farmhouse outside Calais, Me., but flies about new England in his own Cessna: "It's their land. Legally it's theirs, and they can have it back."

That prospect has some real estate developers in a rage, particularly in Mashpee, where the Indian offensive has hit closest to home. Others, however, have adopted a more philosophical attitude. "If the suit is successful, it is not going to make such a major difference," says local Attorney Richard Cohen. "The title of the town will change hands, and the homeowners will end up paying the same kind of 'rent' that they pay now under the name of taxes. What we'll end up with is a pretty prosaic town, run by Indians."

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