[co-author: Katharine Greer1]
On February 10, 2023, the Honorable Judge Angel Kelley of the U.S. District Court of Massachusetts ruled that the U.S. Department of the Interior acted legally when it took into trust 321 acres of land (two noncontiguous parcels) in southeastern Massachusetts for the benefit of the Mashpee Wampanoag Tribe (“Mashpee Tribe”).2 The ruling will allow the Mashpee Tribe to move forward on plans to build a $1B Tribe-owned casino in the city of Taunton. Brian Weeden, Chairman of the Mashpee Tribe, shared the Tribe’s excitement over the decision and said the Tribe would continue to “build a tribal economy with sustainable jobs and prosperity” for its people and neighbors.3
In 1934, Congress adopted the Indian Reorganization Act (“IRA”)4 to allow the recognition of tribal governments and, by extension, tribal acquisition of reservation lands.5 The IRA authorizes the Secretary of the Interior to acquire land and hold it in trust for the benefit of persons or tribes that meet at least one of the IRA’s three definitions of “Indian”:
- The first definition includes “all persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction.”
- The second definition includes all descendants of members residing with the boundaries of an Indian reservation on June 1, 1934.
- The third definition includes all other persons who are one-half or more Indian blood.
The first definition – at issue in this case – was interpreted by the Supreme Court in Carcieri v. Salazar.6 It held that the Secretary must find that a tribe was under federal jurisdiction in 1934 before taking land into trust for the tribe’s benefit. However, the Supreme Court failed to define what “under federal jurisdiction” meant.
In 2014, the Solicitor of the Department of the Interior published a memorandum, the M-Opinion, that established a framework for interpreting whether a tribe was under federal jurisdiction.7 First, the Secretary must determine whether there was a “sufficient showing in the tribe’s history, at or before 1934, that it was under federal jurisdiction.” This involves a fact-specific inquiry into whether the United States had, in 1934 (or prior to 1934) taken action that reflects federal authority over the tribe. If the Secretary concludes jurisdiction existed prior to 1934, the second step is to determine “whether the tribe’s jurisdictional status remained intact in 1934.”
In 2007, the Mashpee Tribe requested that the Secretary of the Interior take into trust the lands at issue. At the time, the Tribe already owned the portion of the lands in Mashpee and wanted to acquire the portion in Taunton. The Secretary found the Tribe met the second definition of “Indian” under the IRA and granted its request for the land. Neighbors to the Taunton portion of land filed suit in the U.S. District Court for the District of Massachusetts, arguing that the Secretary’s decision exceeded statutory authority. The district court granted summary judgment for Plaintiffs, finding that the Secretary had improperly construed the second definition.8
In response, the Secretary then issued a second decision denying the Mashpee Tribe under the first definition. The Tribe sued in the U.S. District Court for the District of Columbia, arguing that the Secretary’s interpretation of the first definition was arbitrary, capricious, and contrary to law. The D.C. district court vacated the 2018 decision and remanded the action to the Secretary with instructions to correctly follow the two-part test from the M-Opinion.9 At the same time, the Tribe appealed the Littlefield I to the First Circuit, which affirmed the district court’s interpretation.10 On remand, the Secretary issued a third decision – at issue here – and concluded that the Tribe had been under federal jurisdiction in 1934 and qualified under the first definition. Plaintiffs sued again in the Massachusetts district court.
After a thorough review of the historical record, Judge Kelley held that the Secretary was not “arbitrary and capricious” in determining that the Mashpee Tribe was under federal jurisdiction in 1934, and therefore, qualified under the first definition of Indian under the IRA. Two key pieces of evidence supported this finding. First, Mashpee children attended the Carlisle Indian School. The main purpose of Indian Schools was to indoctrinate Native children and break up tribal communities. In recognizing Mashpee children as “sufficiently Indian” to attend the school, funding their education, making health care decisions for them, and controlling their cultural practices and beliefs, the government clearly took “guardian-like action” over the Tribe, meaning the Mashpee Tribe was under federal jurisdiction prior to 1934. Second, multiple reports and census records acknowledge the Mashpee Tribe was under federal jurisdiction in 1934.
Judge Kelley also found that the Secretary was not “arbitrary and capricious” in proclaiming noncontiguous parcels as the Mashpee Tribe’s initial reservation. Both parcels of land are in Massachusetts, where the Tribe is headquartered and where it has significant historical connections. Furthermore, the Tribe has maintained a “continuous presence” in and a “modern connection” to both areas with 40 percent of its members living in Mashpee and 60 percent living in Taunton.
While Plaintiffs can appeal, it’s uncertain whether they would be successful. Chairman Weeden seems to think they will fail and sees this decision as an opportunity for his tribe “to exercise sovereign right to self-governance, to preserve our language and culture, and to provide for our people.”11
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