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Mashpee Wampanoag Tribe v. Zinke

United States District Court, District of Columbia

June 21, 2019

RYAN ZINKE, in his official capacity as Secretary of the Interior, et al., Defendants.



         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 ...

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