Bingham v. Commonwealth Of Mass., 09-2049.

• Decision Date: 30 July 2010
• Docket Number: No. 09-2049.,09-2049.
• Citation: 616 F.3d 1
• Parties: Amelia Peters BINGHAM, et al., Plaintiffs, Appellants, v. Commonwealth of MASSACHUSETTS, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

616 F.3d 1

Amelia Peters BINGHAM, et al., Plaintiffs, Appellants,

v.Commonwealth of MASSACHUSETTS, Defendant, Appellee.

No. 09-2049.

United States Court of Appeals,First Circuit.

Heard May 5, 2010.

Decided July 30, 2010.

Robert L. Bowens with whom Bowens Law Office was on brief for appellants.

John Michael Donnelly, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief for appellee.

Before LYNCH, Chief Judge, SOUTER, Associate Justice, ^* and SELYA, Circuit Judge.

LYNCH, Chief Judge.

In 2008, plaintiffs Amelia Peters Bingham and her son, Steven, brought a Takings Clause claim against the Commonwealth of Massachusetts and the Town of Mashpee, seeking just compensation and the return of some of the lands in Massachusetts they say were granted in perpetuity to their ancestors, the South Sea Indians, in deeds from 1665 and 1667.

Plaintiffs styled this claim as a class action on behalf of themselves and all similarly situated descendants of the South Sea Indians, now known as the Mashpee Wampanoag. The Mashpee Wampanoag have been a federally recognized tribe since 2007. 72 Fed.Reg. 8007-01 (Feb. 22, 2007). Plaintiffs do not claim that the Commonwealth or Town directly seized lands from their tribal ancestors. Rather, plaintiffs argue that two Massachusetts statutes enacted in 1869 and 1870 deprived them of their right to hold in perpetuity all of the land currently comprising the Town of Mashpee by removing restraints on alienation and, later, by facilitating the sale of certain lands.

The district court held that the plaintiffs lacked standing and dismissed their claims against the Commonwealth and Town, Bingham v. Massachusetts ( Bingham I ), No. 08-11770, 2009 WL 1259963, at *1-2 (D.Mass. May 6, 2009), and affirmed that dismissal on plaintiffs' motion for reconsideration, Bingham v. Massachusetts ( Bingham II ), No. 08-11770, 2009 WL 1886128, at *2 (D.Mass. July 2, 2009). Plaintiffs appeal only the dismissal of their claims against the Commonwealth. The Commonwealth asserts that the Eleventh Amendment bars this suit from being brought against it in federal court and that plaintiffs, in any event, lack standing.

We affirm and hold that there is no jurisdiction to hear this case, because even when viewing all factual allegations in plaintiffs' favor, plaintiffs cannot show they have suffered a personal injury as a result of the challenged state actions. We do not reach the Eleventh Amendment issues, nor do we reach any statute-of-limitations issues.

I.

We accept as true the following allegations of fact, as stated in plaintiffs' complaint and in supporting documentation, and construe them in the light most favorable to plaintiffs. See Sanchez v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir.2009); Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33-34 (1st Cir.2001).

Deeds in 1665 and 1667 granted the subject land-substantial portions of the land that currently comprise the Town of Mashpee-to “the South Sea Indians: and their[ ] Children for ever: and not to be sold or given away from them by any one: without all their[ ] Consents there unto.” In 1685, the General Court of Plymouth Colony “confirme[d] said land to the said Indians, to be perpetually to them & their children, as that no part of them shall be granted to or purchased by any English [non-tribal member] whatsoe[v]er ... without the consent of all the said Indians.” See Mashpee Tribe v. Town of Mashpee ( Mashpee I ), 447 F.Supp. 940, 944 & n. 2 (D.Mass.1978), aff'd sub nom. Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir.1979) (interpreting the word “English” in the 1685 grant to include any non-Indians). ¹

Plaintiffs' complaint alleges that these deeds conveyed individual, inheritable rights in the subject lands to the grantees and that these interests passed to plaintiffs as the direct lineal descendants of the South Sea Indians. ² In support of this contention, plaintiffs listed their predecessors going back five generations. The complaint did not specify birth or death dates, details about residency, or their predecessors' relationship to the South Sea Indians. It explained that “[a]s a general rule,” records prior to the nineteenth century “were not maintained for Indians.”

Between 1685 and 1834, Plymouth Colony, and later the Commonwealth, continually recognized the restraints on alienation contained in the original deeds as the subject land evolved from an Indian plantation to the “Mashpee Propriety.” In 1834, parts of the subject land became the “District of Mashpee,” but the restraints on alienation in the original deeds endured.

In 1842, the Massachusetts General Court passed a law providing that much of the lands in the district would now be held in severalty by proprietors, who included Indians who had occupied and improved the land. ³ See Mashpee I, 447 F.Supp. at 945 (describing proprietors). Proprietors were allotted acreage from the common lands, in addition to any lands they already held in severalty, so that each proprietor held at least sixty acres. Id. The remainder of the subject land-some three thousand acres-was still held in common by the selectmen of the district, who were all Indians. Id. at 945-46. The 1842 law again confirmed the restraints on alienation from the seventeenth-century deeds. Id. at 945.

In 1869, however, the Massachusetts General Court enacted a statute providing, in relevant part, that

[a]ll lands heretofore known as Indian lands, and rightfully held by any Indian in severalty, and all such lands which have been or may be set off to any Indian, shall be and become the property of such person and his heirs in fee simple ... and all Indians shall hereafter have the same rights as other citizens to take, hold, convey and transmit real estate.

1869 Mass. Acts ch. 463, § 2. ⁴ The law removed restraints on the alienation of the subject land, and plaintiffs allege this was over the objections of a majority of South Sea Indian descendants who attended a hearing on the legislation. ⁵

A year later, in 1870, the Massachusetts General Court passed a law creating and incorporating the Town of Mashpee. The law provided that “[a]ll common lands ... held by the district of Marshpee, are hereby transferred to the town of Mashpee, and shall be owned and enjoyed as like property and rights of other towns are owned and enjoyed.” 1870 Mass. Acts ch. 293, § 1. Another provision of the 1870 law stated that upon application of the Town's selectmen, a superior court justice could, after notice to all interested parties and a hearing, determine that “it is for the interest of said parties that any or all of the common lands of said town, or of the people heretofore known as the Marshpee tribe of Indians, be divided.” Id. § 6. The justice could then appoint three “discreet, disinterested persons [as] commissioners to make partition of the same.” Id.

The gravamen of plaintiffs' complaint is that the 1869 and 1870 statutes “took ownership interests in the subject land that belonged to the plaintiffs without paying just compensation,” ⁶ in violation of the Takings Clause. They allege that the removal of restraints on the alienation of Indian lands in the 1869 act deprived plaintiffs of their “perpetual interest in ... ownership.” “[T]hrough” the 1870 act creating the Town, the Commonwealth also “transferred the common land of substantial portions of the subject land” to the Town, which sold “[a]pproximately three thousand acres of the subject land” at an unspecified later date. “Between 1870 and the present date,” plaintiffs conclude, most of the subject land promised to the tribe in perpetuity has been conveyed to non tribal members without the consent of all tribal descendants.

Plaintiffs seek the return of “every portion of the subject land which is claimed, held, occupied, and/or used” by defendants, “with the exception of any substantial building structures and any other structures of improvements that serve a critical role in state or town operations.” They also seek fees for the use of land so held or used and just compensation “for the ownership interests in the subject land that were taken from the plaintiffs in 186[9] and 1870.” They do not seek the return of land held by private parties.

On May 6, 2009, after a hearing on the Commonwealth and Town's separate motions to dismiss, the district court granted the motions and dismissed plaintiffs' complaint for lack of jurisdiction. See Bingham I, 2009 WL 1259963, at *1-2. It held that plaintiffs lacked standing to sue irrespective of whether the deeds conveyed lands to the South Sea Indians as a tribe or to individual members. Id. at *1. Plaintiffs did not represent the tribe and thus could not sue on the tribe's behalf. Id. at *1-2. Even if the deed conveyed rights to individual tribal members, plaintiffs failed to identify individual ancestors who had actually inherited property under the deeds or to otherwise trace their interest through successive generations. Id. at *1.

On July 2, 2009, the district court denied plaintiffs' motion for reconsideration. See Bingham II, 2009 WL 1886128, at *2.

II.

We review the district court's dismissal for lack of standing de novo. Though we construe the facts and draw reasonable inferences in plaintiffs' favor, plaintiffs bear the burden of “clearly alleging definite facts to demonstrate that jurisdiction is proper.” Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 25 (1st Cir.2007).

To establish standing under Article III of the U.S. Constitution, plaintiffs “must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 598, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)) (internal quotation marks omitted).

The district court correctly held...