STAFF WRITER

(Published in Cape Cod Times: July 28, 2003, page 1)

MASHPEE - The line between fact and fiction can sometimes be a thin one, challenging even the most accomplished novelist to hold the two in proper balance.

"Blood of the Tribe" is published by Martin & Lawrence Press of Groton. The price is $24.95

In his soon-to-be-released novel, "Blood of the Tribe," Westford author David Brody attempts to walk the line between factual past and fictional future, hoping readers will not only be entertained but might also start thinking about the deeper reality of federally recognized tribes and what it might mean if the Mashpee Wampanoag are successful in their pursuit of federal recognition.

Brody's book is based on his research into the Mashpee tribe's 1976 lawsuit against the town, in which tribal attorneys sought to reclaim Mashpee for the descendants of Cape Cod's indigenous people.

The suit ultimately failed. But in the 10 years it took for the case to wind its way to the U.S. Supreme Court, property titles in Mashpee were clouded and development came to a virtual standstill.

The suit drove a deep wedge between townspeople, torn between conflicting loyalties.

On one side were proud tribe members fighting to keep their traditional culture alive, which they saw as increasingly threatened by expanding development and skyrocketing land costs.

On the other side, were nontribal property owners hoping to hold on to their piece of the American dream in Mashpee.

It is that emotionally and politically charged history that serves as a catalyst for Brody's 384-page legal thriller.

And though it is a work of fiction, the book paints a future scenario that makes the bitter land dispute of the 1970s look like a squabble over small change compared with what could be at stake. Brody's forecast echoes the concerns raised by town officials who are trying to figure out what the ramifications will be for the town should the Mashpee Wampanoag be granted federal recognition by the Bureau of Indian Affairs.

"In my book, the tribe refiles the suit, claiming title to all the land in Mashpee, both public and private. And they do that because it's the only way to get the title insurance companies and the state and federal government to come to the settlement table with their checkbooks," he said in a phone interview last week.

"The tribe publicly states they have no intention of evicting people from their homes, but in order to file the suit they have to claim all the land in town. They can eventually settle for less but they have to make the claim for everything to begin with," Brody said.

Worthy credentials

A real estate historian and attorney who has practiced real estate law in New England since 1987, Brody insists his fictional scenario is not just a product of an imagination run amok.

"It is my legal opinion that the tribe is not barred from re-asserting its land claim. In fact, the tribe is likely to do so in the near future. When it does so, title to over $2 billion of prime Cape Cod real estate will be up for grabs," he said in a legal analysis included with press materials.

That assertion, he said, is based on a legal analysis that begins with the observation that the real-life land suit case was decided against the tribe on a legal technicality. Because the tribe was not officially recognized by the U.S. government, a U.S. District Court judge dismissed the case on the grounds that such land claims could only be made by a federally recognized plaintiff. The land claims were therefore ruled invalid.

But, Brody argues, now that the tribe is on the verge of being granted federal recognition, those land claims can be pursued in court for a second time.

"On the issue of federal recognition, the tribe has a strong claim. In fact, subsequent court decisions have openly questioned the decision in the 1970s case. The Bush administration has generally been opposed to recognizing tribes, but most observers agree that the Mashpee claim is a strong one," he said.

1790 act violated

"On the actual merits of the land claim case, the tribe's legal argument is a strong one," he said, rehashing the tribe's legal argument that when the town was incorporated in 1870 it violated a 1790 federal law.

Transforming Mashpee from an Indian district into a town allowed Indian-owned reservation land to be sold by individual tribe members. But the 1790 Non-Intercourse Act stipulated that Indian-occupied land could not be sold or transferred to non-Indians without the consent of Congress.

If the tribe should revive its land claims, the repercussions could be a legal nightmare for property owners in town, Brody said, adding that he advises his clients not to buy land in Mashpee.

"Not because I think they'll lose it, but because I think there will be a nightmarish land dispute," he said.

"With over $2 billion worth of real estate in the town of Mashpee, including such high-end developments as New Seabury and Willowbend, if anything the stakes are even higher today than they were in the 1970s," Brody said.

Not all share assessment

Jack McElhinney, former vice president of development for Willowbend who now works as a consultant for the golf resort community, doesn't share Brody's dark assessment.

"There is certainly no level of concern around here that the tribe will pursue land claims against Willowbend," he said.

"The big issue during the land suit was that you couldn't get title insurance to protect you against adverse land claims. But that's no longer true. Everything is insured here," McElhinney said.

Reflecting on his many dealings with tribal leaders over the past few years as Willowbend has expanded, McElhinney said: "We have a very good relationship with the tribe and consider them to be neighbors within this community."

Tribe spokesman Scott Ferson went a little further in responding to Brody's work.

After reviewing Brody's legal analysis included in the media kit, Ferson said the book "will be well placed in the fiction section."

Ferson said he finds Brody's analysis to be "distressingly inflammatory" and is something that "will cause homeowners undue anxiety."

"The tribe has been clear that it doesn't intend to make any claims against homeowners," he said.

Brody said he is not accusing the tribe of being deceptive, only that he doesn't see how the title insurance companies - "the ones who would ultimately have to write the big checks" - can be brought to the settlement table without the threat of a lawsuit.

And he is quick to add that, in his book, tribe members are the heroes.