Littlefield v. U.S. Dep't of Interior

• Docket Number: Case No. 22-CV-10273-AK
• Decision Date: 10 February 2023
• Citation: Littlefield v. U.S. Dep't of Interior, 656 F.Supp.3d 280 (D. Mass. 2023)
• 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, Michele Lewry, Richard Lewry, Robert Lincoln, Christina Almeida, Carol Murphy, Dorothy Peirce, and David Purdy, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR; Debra A. Haaland, in her official capacity as Secretary of the Interior; Bureau of Indian Affairs; and Bryan Newland, in his official capacity as Assistant Secretary of the Interior for Indian Affairs, Defendants, and Mashpee Wampanoag Tribe, Intervenor-Defendant.
• Court: U.S. District Court — District of Massachusetts

656 F.Supp.3d 280

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, Michele Lewry, Richard Lewry, Robert Lincoln, Christina Almeida,Carol Murphy, Dorothy Peirce, and David Purdy, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR; Debra A. Haaland,in her official capacity as Secretary of the Interior;Bureau of Indian Affairs; and Bryan Newland, in his official capacityas Assistant Secretary of the Interior for Indian Affairs, Defendants,andMashpee Wampanoag Tribe, Intervenor-Defendant.

Case No. 22-CV-10273-AK

United States District Court, D. Massachusetts

Signed February 10, 2023

David J. Apfel, Goodwin Procter, LLP, Boston, MA, David H. Tennant, Pro Hac Vice, Law Office of David Tennant PLLC, Rochester, NY, for Plaintiffs.

Rebecca M. Ross, United States Department of Justice, Washington, DC, Charmayne Staloff, Environment and Natural Resources Division, Washington, DC, Marisa Hazell, DOJ-Enrd, Denver, CO, for

Defendant United States Department of the Interior.

Rebecca M. Ross, United States Department of Justice, Washington, DC, Charmayne Staloff, Environment and Natural Resources Division, Washington, DC, for Defendants Debra A. Haaland, Bureau of Indian Affairs of the Department of the Interior of the United States of America, Bryan Newland.

Samuel Daughety, Pro Hac Vice, Tami Lyn Azorsky, V. Heather Sibbison, Pro Hac Vice, Dentons U.S. LLP, Washington, DC, Suzanne R. Schaeffer, Pro Hac Vice, Dentons U.S. L.L.P., Washington, DC, Philip A. O'Connell, Jr., Dentons U.S. LLP, Boston, MA, for Intervenor-Defendant.

MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

A. KELLEY, United States District Judge

This is a challenge to a decision of the United States Secretary of the Interior (the "Secretary")¹ brought under the Administrative Procedure Act. In December 2021, the Secretary issued a decision taking into trust, for the benefit of the Mashpee Wampanoag Tribe ("Mashpee" or "Tribe"),² 321 acres of land located in southeastern Massachusetts (the "Designated Lands"). Plaintiffs are 23 residents of Taunton, Massachusetts, who live in the vicinity of a portion of the Designated Lands. They allege that the Secretary's decision was arbitrary, capricious, and otherwise not in accordance with law. The Tribe has intervened as a defendant. On the parties' cross-motions for summary judgment, the Court finds that the Secretary's decision was not arbitrary and capricious, and will accordingly GRANT Defendants' motions [Dkts. 46, 48] and DENY Plaintiffs' motion [Dkt. 45].

I. BACKGROUND

A. The Mashpee and the Designated Lands

The Mashpee are Indigenous people of North America whose historic lands include southeastern Massachusetts and eastern Rhode Island. As the Tribe notes in its briefing on these motions, its "history, government, language and culture . . . predates the founding of the United States." [Dkt. 49 at 1]; see also Thanksgiving Day 2010, Proclamation No. 8606, 75 Fed. Reg. 74605 (Dec. 1, 2010) (recognizing that "the Wampanoag tribe . . . had been living and thriving around Plymouth, Massachusetts for thousands of years" prior to European settlement). Annually, millions of Americans celebrate the Tribe's impact on this country's history through the Thanksgiving holiday. See, e.g., Thanksgiving Day 2018, Proclamation No. 9827, 83 Fed. Reg. 61109 (Nov. 28, 2018) ("Members of the Wampanoag tribe—who had taught the Pilgrims how to farm in New England and helped them adjust and thrive in that new land—shared in the bounty and celebration"); Thanksgiving Day 2011, Proclamation No. 8755, 76 Fed. Reg. 72079 (Nov. 21, 2011) ("The feast honored the Wampanoag for generously extending their knowledge of local game and agriculture to the Pilgrims, and today we renew our gratitude to all American Indians and Alaska Natives."); Thanksgiving Day 1995, Proclamation No. 6849, 60 Fed. Reg. 57311 (Nov. 14, 1995) ("In 1621, Massachusetts Bay Governor William Bradford invited members of the neighboring Wampanoag tribe to join the Pilgrims as they celebrated their first harvest . . . More than 300 years later, the tradition inspired by that gathering continues on Thanksgiving Day across America—a holiday that unites citizens from every culture, race, and background.").

At the time of their first contact with Europeans in the 16th and 17th centuries, the Tribe's territory "comprised a group of allied villages in eastern Rhode Island and in southeastern Massachusetts." [Record of Decision, Dkt. 1-3 ("2021 ROD") at 40 (quoting Bert Salwen, Indians of S. N.E. and Long Isl.: Early Period in 15 HANDBOOK OF N. AM. INDIANS 160, 171 (1978))]. This land covered all of present-day Bristol County and Barnstable County, Massachusetts, including the towns of Taunton and Mashpee. [Id. at 41]. At that time, present-day Taunton was known as the village of Cohannet. [Id. at 41, 49]. The Mashpee were struck by an epidemic between 1617 and 1619 that resulted in extensive loss of life. [Id. at 41]. After the English ship Mayflower arrived in Plymouth, Massachusetts, in 1620, tribal leadership entered into a peace treaty with the Plymouth Colony, which was the first English political entity established in Massachusetts. [See id.]

Between 1621 and 1670, the Mashpee sold or gave large tracts of land to English settlers. [Id.] This included the sale of Cohannet, which the Plymouth Colony incorporated as the town of Taunton in 1639. [Id. at 49]. In 1675, disputes around land use and land ownership led to a war between the English settlers and New England tribes, including the Mashpee. [Id. at 42]. This conflict, now known as King Philip's War, resulted in large losses of life among the Mashpee. [Id.]

After the war, most of the Mashpee residing in mainland Massachusetts dispersed, with some sold into slavery. [Id.] Many of those who remained coalesced into settlements organized by the English, [id.], including the town of Mashpee, which was formed from land deeded by individual tribal leaders to the Tribe in 1665 and 1666, [id. at 9]. In 1685, the colonial court confirmed these deeds and guaranteed that the land belonged to "said Indians, to be perpetually to them and their children," with a restriction on transfer to non-Mashpee without the assent of the entire Tribe. [Id.] The lands were initially governed by a six-person council of Mashpee, but the General Court of Massachusetts diluted tribal control in 1746 by appointing three non-Mashpee overseers. [Id.] In 1763, the General Court converted the land into a self-governing "Indian district." [Id.] Massachusetts terminated Mashpee control over this district in 1788, but restored it in 1834. [Id.] In 1869, Massachusetts eliminated the restriction on transfer of the land to non-Mashpee, and in 1870, the state incorporated the town of Mashpee, coterminous with the borders of the prior Indian district. [Id. at 10].

The Tribe had 2,633 members in 2021. [Id. at 52]. Of these members, 65 percent lived in Massachusetts, 40 percent lived in the town of Mashpee (where the Tribe is headquartered), and over 60 percent lived within 50 miles of the land in Taunton that is the subject of this litigation. [Id. at 52].

B. Statutory and Interpretative History

Congress adopted the Indian Reorganization Act ("IRA") in 1934 "to change 'a century of oppression and paternalism' in the relationship between the United States and its native Indian tribes." Mashpee Wampanoag Tribe v. Bernhardt, 466 F. Supp. 3d 199, 207 (D.D.C. 2020) (quoting H.R. Rep. No. 73-1804, at 6 (1934)). The statute's purpose is "to create the mechanisms whereby tribal governments could be reorganized and tribal corporate structures could be developed" and to facilitate the acquisition of reservation lands. Id. (citations omitted).

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.SC. § 5108). The Secretary may only take land into trust for persons or tribes that meet at least one of the statute's definitions of "Indian." Littlefield v. Mashpee Wampanoag Tribe ("Littlefield II"), 951 F.3d 30, 34 (1st Cir. 2020). The IRA 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 (bracketed numbers added).

The Supreme Court partially interpreted the IRA's first definition of "Indian"—the definition at issue in this action—in Carcieri, a challenge to the Secretary's power to take lands into trust for the Narragansett Tribe, whose traditional lands neighbor the Mashpees'. The Supreme Court defined the term "now" in the phrase "now under Federal jurisdiction" as referring to the date of the IRA's enactment in 1934. Carcieri, 555 U.S. at 395, 129 S.Ct. 1058. In effect, Carcieri set 1934 as the reference date for all future litigation under the IRA's first definition of "Indian," requiring the Secretary to find that a tribe was "under Federal jurisdiction" in that year before exercising her authority under this provision to take land into trust. See id.

Left unanswered by the Carcieri majority was the proper construction of the term "under Federal jurisdiction." See Bernhardt, 466 F. Supp. 3d at 207. In a concurring opinion, Justice Breyer detailed examples of tribes whom the federal government had erroneously concluded were not under its jurisdiction in 1934, but whom the government later...