MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
The
Mashpee Wampanoag Tribe asked the United States Secretary of
the Interior to acquire approximately 151 acres of land in
Taunton, Massachusetts, in trust on its behalf for purposes
of establishing a Class III gaming facility, as well as
another 170 acres in the Town of Mashpee, where the Tribe has
been based since the early 1600s. A positive response in 2015
from the Assistant Secretary of the Interior for Indian
Affairs prompted an immediate lawsuit by individual residents
of Taunton (collectively, the Littlefield
plaintiffs, who are Defendant-Intervenors in the present
lawsuit). See Littlefield, v. Dep't of Interior,
199 F.Supp.3d 391 (D. Mass. 2016).[1]
The
parties dispute whether this Court should transfer this case
to the Hon. William D. Young of the District of
Massachusetts, who presided over Littlefield and who
indicated, but then qualified, his agreement with the
statutory interpretation argued by the Littlefield
plaintiffs and later adopted by former Secretary of the
Interior Ryan Zinke.[2] While recognizing that venue is proper in
the District of Columbia, the Littlefield
Intervenors urge the Court to exercise its discretion under
28 U.S.C. § 1404(a) and transfer the case because the
Mashpee are in Massachusetts, Judge Young has “already
waded significantly into the specific legal issue, ”
and the impact of any decision on the status of the lands,
currently held in trust by the United States, will be felt in
Massachusetts.[3] Intervenors' Mot. at 4.
The
Mashpee insist that this case presents a different question
than Littlefield because it involves a 2018 decision
by former Secretary Zinke, to wit: Did the Secretary act
arbitrarily, capriciously, or not in accordance with law when
he determined that the Mashpee were not “under federal
jurisdiction” in 1934 for purposes of the Indian
Reorganization Act?[4]
The
Court will exercise its discretion and deny the motion to
transfer.
I.
FACTS
A.
The Indian Reorganization Act (IRA)
The
Indian Reorganization Act (IRA), 25 U.S.C. §§ 5101
et seq., was adopted in 1934 to change “a
century of oppression and paternalism” in the
relationship of the United States and its native Indian
tribes. See H.R. Rep. No. 73-1804, at 6 (1934). Its
purpose was to create the mechanisms whereby tribal
governments could be reorganized and tribal corporate
structures could be developed, see 25 U.S.C.
§§ 5123 and 5124, as well as to make the
acquisition of lands easier, to be held in trust by the
United States to enlarge or create new Indian reservations.
See 25 U.S.C. §§ 5108 and 5110; see
also Cohen's Handbook of Federal Indian Law §
1.05 (Nell Jessup Newton ed., 2017). The United States
Secretary of the Interior is delegated the authority to
acquire land in trust for Indian tribes. 25 U.S.C. §
5108.[5],
[6] The
Secretary's authority under the IRA is cabined by whether
a tribe meets the statute's definition of “Indian,
” found in Section 19 of the statute and codified at 25
U.S.C. § 5129:
The term “Indian” as used in this Act shall
include all persons of Indian descent [1] who are members of
any recognized Indian tribe now under Federal jurisdiction
and [2] all persons who are descendants of such members who
were, on June 1, 1934, residing within the present boundaries
of any Indian reservation, and shall further include [3] all
other persons of one-half or more Indian blood.
25 U.S.C. § 5129.
B.
Carcieri v. Salazar and DOI Interpretation
The
Supreme Court had occasion to interpret the definition of
“Indian” in 2009 when the State of Rhode Island
challenged DOI's plan to accept land in trust for use by
the Narragansett Indian Tribe, which occupied much of
present-day Rhode Island in colonial times. Carcieri v.
Salazar, 555 U.S. 379, 381-82 (2009). Analyzing the
first of the three definitions of “Indian”
(included as [1] in Section I.A above), the Supreme Court
held that the word “now” in the phrase “now
under federal jurisdiction” referred to 1934 when the
IRA was passed. Id. at 382-83. The Court determined
that the Secretary had no authority to acquire land in trust
for the Narragansett Tribe because that Tribe was not under
Federal jurisdiction in 1934. Id.
Five
years after Carcieri, the Solicitor of the Interior
Department issued formal legal guidance to the Secretary,
addressing the interpretation of the IRA phrase “under
federal jurisdiction.” DOI, M-37029, Memorandum on the
Meaning of “Under Federal Jurisdiction” for
Purposes of the Indian Reorganization Act (2014) (M Opinion).
The M Opinion states that the Carcieri majority did
“not address the meaning of the phrase ‘under
federal jurisdiction, '” as “the parties [in
Carcieri] had not disputed that the Narragansett
Tribe was not under federal jurisdiction in 1934” and
the BIA had not adopted a definition. M Opinion at 3 (citing
Carcieri, 555 U.S. at 382, 392). The M Opinion also
noted that the IRA itself contains no definition for the
term. Id. at 17. Therefore, the M Opinion concluded,
there was no clear and unambiguous meaning to the term
“under federal jurisdiction” as used in the IRA,
and Congress left an interpretative gap for the DOI to fill.
Id. (citing Chevron v. Natural Res. Def.
Council, 467 U.S. 837, 840-43 (1984)).
The
interpretation of “under federal jurisdiction”
suggested by the Solicitor's M Opinion was directly
influenced by Justice Breyer's concurring opinion in
Carcieri. See M Opinion at 23-25. Justice
Breyer had observed that “an interpretation that reads
‘now' as meaning ‘in 1934' may prove
somewhat less restrictive than it at first appears, ”
since “a tribe may have been ‘under Federal
jurisdiction' in 1934 even though the Federal Government
did not believe so at the time.” Carcieri, 555
U.S. at 397. Based on its reading of Justice Breyer's
concurrence and the specific examples cited by the Justice,
the DOI Solicitor advised the Secretary that “the word
‘now' modifies ‘under federal
jurisdiction,' but does not modify
‘recognized.'” M Opinion at 24. Thus,
“regardless of whether a tribe was formally recognized
in 1934, a tribe could have been ‘under federal
jurisdiction' in 1934 as a result of, for example, a
treaty with the United States that was in effect in 1934, a
pre-1934 congressional appropriation, or enrollment as of
1934 with the Indian Office.” Id. at 4 (citing
Carcieri, 555 U.S. at 399).
The M
Opinion established a two-part test for determining whether a
tribe was “under federal jurisdiction” in 1934.
The first part looks for evidence that the United States
acted in a manner that sufficiently shows or generally
reflects “federal obligations, duties, responsibility
for or authority over the tribe by the Federal
government” in or before 1934. Id. at 19. In
this regard, the Opinion stated that various types of
evidence may be considered, including but not limited to
“the negotiation of and/or entering into treaties; the
approval of contracts between a tribe and non-Indians;
enforcement of the Trade and Intercourse Acts (Indian trader,
liquor laws, and land transactions); the education of Indian
students at BIA schools; and the provision of health or
social services to a tribe.” Id. Accordingly,
when there is evidence that a tribe was under Federal
jurisdiction in or before 1934, BIA then addresses the second
part of the test, which is to “ascertain whether the
tribe's jurisdictional status remained intact in
1934.” Id.
C.
The 2015 Record of Decision
In
2007, the Mashpee Tribe submitted an application to have DOI
take land into trust on its behalf after BIA formally
acknowledged the Tribe pursuant to the administrative
procedures set forth in 25 C.F.R. § 83. DOI, Record of
Decision, Trust Acquisition and Reservation Proclamation for
151 Acres in the City of Taunton, Massachusetts, and 170
Acres in the Town of Mashpee, Massachusetts, for the Mashpee
Wampanoag Tribe, at 4 (2015) (2015 ROD). The 2015 ROD was
issued on September 18, 2015 by the Assistant Secretary for
Indian Affairs. It granted the Tribe's fee-to-trust
application and announced that DOI would acquire both
requested parcels of land in Mashpee and Taunton. DOI also
announced that both sites would be eligible for gaming under
the “initial reservation exception” of the Indian
Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721. 2015
ROD at 5. The 2015 ROD explained that DOI's authority to
acquire land in trust for the Mashpee Tribe was based on the
second definition of “Indian” in the IRA (noted
as [2] in Section I.A above), that is, descendants of a tribe
recognized in 1934. Id. at 79. The 2015 ROD
specifically stated that it did not address “whether
the Mashpee could also qualify under the first definition of
‘Indian,' as qualified by the Supreme Court's
decision in Carcieri v. Salazar.” Id.
at 79-80.
D.
Littlefield v. Dep't of Interior
Shortly after issuing the 2015 ROD, DOI took the two parcels
of land into trust for the Mashpee. The Littlefield
plaintiffs sued to challenge the 2015 ROD in the District of
Massachusetts. Complaint at 1-2, Littlefield, No.
16-cv-10184 (D. Mass. Feb. 4, 2016) [Dkt 1]. Among their
claims, the Littlefield plaintiffs challenged
DOI's interpretation of the IRA's second definition
of “Indian.” Littlefield, 199 F.Supp.3d
at 393-94.
The
Hon. William D. Young presided over the litigation. Judge
Young determined that resolving the dispute required defining
the term “such members” in the second definition
of “Indian.” Id. at 396. The
Littlefield plaintiffs argued that “such
members” “plainly refers to the entire preceding
clause”-that is, descendants of “all persons of
Indian descent who are members of any recognized Indian tribe
now under Federal jurisdiction” in 1934. The government
interpreted “such members” “to refer only
to the first several words of the preceding clause in the
first definition of ‘Indian'”-“all
persons of Indian descent who are members of any recognized
Indian tribe.” Id.
In a
memorandum opinion and order published July 28, 2016 (July
2016 Order), [7] Judge Young determined that “[i]n
the wake of Carcieri, the Plaintiffs'
interpretation is the one compelled by the plain text of the
[IRA].” Id. at 397. Judge Young found that
descendants of a recognized Indian tribe could only qualify
under the second definition if their tribal ancestors were
under federal jurisdiction in 1934. Judge Young concluded:
This means that, despite their subsequent acknowledgment by
the federal government, for purposes of Sections 465 and 479
of the IRA the Mashpees are not considered
“Indians” because they were not under federal
jurisdiction in June 1934. Thus, the Secretary lacked the
authority to acquire land in trust for them, at ...