Littlefield v. Mashpee Wampanoag Indian Tribe

• Decision Date: 27 February 2020
• Docket Number: No. 16-2484,16-2484
• Citation: Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30 (1st Cir. 2020)
• Parties: David LITTLEFIELD ; Michelle Littlefield; Tracy Acord; Deborah Canary; Francis Canary, Jr.; Veronica Casey; Patricia Colbert; Vivian Courcy; Will Courcy; Donna Defaria; Antonio Defaria; Kim Dorsey; Kelly Dorsey ; Francis Lagace; Jill Lagace; David Lewry; Kathleen Lewry; Michelle Lewry; Richard Lewry; Robert Lincoln; Christina McMahon; Carol Murphy; Dorothy Peirce; David Purdy; Louise Silvia, Plaintiffs, Appellees, v. MASHPEE WAMPANOAG INDIAN TRIBE, Defendant, Appellant, Bureau of Indian Affairs, U.S. Department of the Interior; Ryan Zinke, in his official capacity as Secretary, U.S. Department of the Interior; Lawrence Roberts, Acting Assistant Secretary, Indian Affairs, U.S. Department of the Interior; U.S. Department of the Interior; United States of America, Defendants.
• Court: U.S. Court of Appeals — First Circuit

951 F.3d 30

David LITTLEFIELD ; Michelle Littlefield; Tracy Acord; Deborah Canary; Francis Canary, Jr.; Veronica Casey; Patricia Colbert; Vivian Courcy; Will Courcy; Donna Defaria; Antonio Defaria; Kim Dorsey; Kelly Dorsey ; Francis Lagace; Jill Lagace; David Lewry; Kathleen Lewry; Michelle Lewry; Richard Lewry; Robert Lincoln; Christina McMahon; Carol Murphy; Dorothy Peirce; David Purdy; Louise Silvia, Plaintiffs, Appellees,

v.MASHPEE WAMPANOAG INDIAN TRIBE, Defendant, Appellant,Bureau of Indian Affairs, U.S. Department of the Interior; Ryan Zinke, in his official capacity as Secretary, U.S. Department of the Interior; Lawrence Roberts, Acting Assistant Secretary, Indian Affairs, U.S. Department of the Interior; U.S. Department of the Interior; United States of America, Defendants.

No. 16-2484

United States Court of Appeals, First Circuit.

February 27, 2020

Benjamin J. Wish, with whom Howard M. Cooper, Max D. Stern, and Todd & Weld, LLP, Boston, MA, were on brief, for appellant.

David H. Tennant, with whom Law Office of David Tennant PLLC, David J. Apfel, Roberto M. Braceras, Boston, MA, Andrew Kim, and Goodwin Procter LLP were on brief, for appellees.

Before Lynch, Circuit Judge, Souter,^* Associate Justice, and Lipez, Circuit Judge.

LYNCH, Circuit Judge.

In 2015, the Department of the Interior's Bureau of Indian Affairs ("BIA") approved the taking of two areas of land into trust for the Mashpee Wampanoag Indian Tribe ("the Tribe"). The Tribe planned to use land taken into trust in Mashpee, Massachusetts, largely for housing, while it planned to use land in Taunton, Massachusetts, for economic activities, primarily a gaming casino and resort, to produce needed income for the Tribe. The BIA's approval construed section 19 of the Indian Reorganization Act of 1934 ("IRA"), 25 U.S.C. § 5129,¹ to permit it to accept lands for the Tribe. Opposed local residents filed a federal suit challenging the BIA's decision. The district court found, on its own reading of the statute, that the BIA was wrong that it had authority to take land into trust for the Tribe, and it remanded the matter to the BIA. The court's order is the subject of this appeal.

Only a few facts need be recited,² and the procedural history of the litigation can be recounted briefly. After first rejecting appellees' contention that we lack jurisdiction to hear this appeal, we then move directly to the issue of statutory interpretation of 25 U.S.C. § 5129, a pure issue of law. We hold that the plain meaning of the IRA's text precludes the BIA's interpretation of that section, and so we affirm.

I.

The IRA authorizes the Secretary of the Interior "to acquire land and hold it in trust ‘for the purpose of providing land for Indians.’ " Carcieri v. Salazar, 555 U.S. 379, 381–82, 129 S.Ct. 1058, 172 L.Ed.2d 791, (2009) (quoting 25 U.S.C. § 5108 ). The IRA further defines "Indian" as follows:

The term "Indian" as used in this Act shall include [1] all persons of Indian descent 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 (numbers in brackets added). The Secretary may take land into trust only for persons and tribes that meet one of these definitions of Indian.

The facts underlying this matter are not disputed. The Tribe received federal recognition in 2007. See 72 Fed. Reg. 8007 (Feb. 22, 2007). Shortly thereafter, also in 2007, the Tribe submitted a "fee-to-trust" application requesting that the Department of the Interior acquire land in trust as the Tribe's reservation. The Tribe's application, as last amended in November 2012, requested that the Department accept about 170 acres in Mashpee, Massachusetts, and about 151 acres in Taunton, Massachusetts. The Mashpee land was already owned by the Tribe and in tribal use. The Tribe planned to acquire the Taunton land, which was "developed as a commercial/industrial park," to build and run "an approximately 400,000 sq. ft. gaming-resort complex, water park, and 3 hotels."

On September 18, 2015, the BIA issued a written decision that granted the Tribe's fee-to-trust application. On November 10, 2015, the Department took the lands into trust and, shortly thereafter, proclaimed the land to be the Tribe's reservation. See 81 Fed. Reg. 948 (Jan. 8, 2016).

On February 4, 2016, the plaintiffs filed suit to challenge the BIA's decision taking the land into trust. On July 7, 2016, the parties cross-moved for summary judgment on the plaintiffs' first cause of action. Plaintiffs requested that, if the district court found that the BIA exceeded its statutory authority, it also issue a "final, appealable order" so that the judgment would be "immediately appealable." The defendants did not oppose this argument.

On July 28, 2016, the district court found that the BIA had exceeded its authority, entered summary judgment for the plaintiffs under Fed. R. Civ. P. 54(b), and ordered the matter remanded to the agency. On October 12, 2016, the court issued an order clarifying "that it ruled that in order to qualify as eligible beneficiaries under the second definition of ‘Indian’ set forth in the [IRA], the [Tribe was] required to have been ‘under federal jurisdiction’ in 1934." The court explained that "[h]aving remanded this matter to the Secretary, it is no violation of the Court's order should the agency wish to analyze the [Tribe's] eligibility under the first definition of ‘Indian.’ "

On December 8, 2016, the Tribe brought this appeal. The government also appealed, but on April 27, 2017, it moved to dismiss voluntarily its appeal. The government's motion did not offer a reason for the decision to dismiss its appeal.

On September 7, 2018, the BIA issued a new decision that addressed whether the Tribe could qualify under the first definition. It concluded that the Tribe was not under federal jurisdiction in 1934 and could not qualify under the first definition. The BIA also specifically stated that its "analysis and decision on remand is strictly limited to the question of the Tribe's jurisdictional status in 1934, and does not otherwise revisit or alter the remainder of the Department's analysis of the second definition of ‘Indian’ in the 2015 [decision]."

On September 27, 2018, the Tribe sued the Secretary of the Interior ("the Secretary") in the U.S. District Court for the District of Columbia to challenge the BIA's second decision concluding that the Tribe did not meet the first definition of "Indian" under the IRA. See Complaint, Mashpee Wampanoag Tribe v. Zinke, No. 1:18-cv-02242 (D.D.C. Sept. 27, 2018). The Tribe's complaint alleges that the Secretary's application of the first definition was arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act, 5 U.S.C. § 706. Id. at 18. Appellees here moved to intervene in that case without opposition, and, as of October 29, 2019, cross-motions for summary judgment were fully briefed. Nothing in the Tribe's complaint in the D.C. case or the summary judgment briefing implicates the BIA's interpretation of the second definition of Indian, at issue here.

II.

Having won in the trial court, appellees try to prevent appellate review by arguing we lack jurisdiction to hear this appeal. They give two reasons. First, they contend that Interior's actions after the district court's judgment have mooted this case. Second, they argue that the district court's judgment became unreviewable on appeal after the government dropped its appeal. We address these issues in turn.

With respect to mootness, appellees contend that Interior "abandon[ed] ... its earlier decision" when it issued the 2018 decision. Not so. The 2018 decision, which addressed only whether the Tribe qualified under the first definition of Indian, specified that it did not "revisit or alter" the earlier 2015 decision's conclusion as to the second definition. The cases appellees advance in support of their argument are inapposite. They all involve agency actions that specifically rescinded and superseded a prior action. See, e.g., Akiachak Native Cmty. v. U.S. Dep't of Interior, 827 F.3d 100, 113 (D.C. Cir. 2016) ("[O]nce the Department of Interior rescinded the Alaska exception, this case became moot."). In this case, the agency specifically left its prior decision in place.³ The case is not moot.

Appellees also urge that we lack appellate jurisdiction to decide this case. They argue that, in general, orders remanding an issue to an agency are not immediately appealable except by the agency. As a result, they reason, the government's decision to dismiss its appeal stripped this court of jurisdiction over this appeal. The Tribe replies that this rule is not an absolute rule and, on the facts of this case, permits its appeal.

This court has jurisdiction over "final decisions of the district courts of the United States." 28 U.S.C. § 1291. The final decision rule "precludes ‘piecemeal, prejudgment appeals’ that would ‘undermin[e] efficient judicial administration and encroac[h] upon the prerogatives of district court judges.’ " Ritzen Grp., Inc. v. Jackson Masonry, LLC, ––– U.S. ––––, 140 S.Ct. 582, ––––, 205 L.Ed.2d 419, 2020 WL 201023, at *2 (2020) (alterations in original) (quoting Bullard v. Blue Hills Bank, 575 U.S. 496, 501, 135 S.Ct. 1686, 191 L.Ed.2d 621 (2015) ). To effectuate that purpose, "the requirement of finality is to be given a ‘practical rather than a technical construction.’ " Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) ).

The cases appellees cite for the principle that only the government may appeal a remand order, again, are inapposite, and do not mean that the government's...