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

• Docket Number: 23-1197
• Decision Date: 31 October 2023
• Citation: Littlefield v. U.S. Dep't of Interior, 85 F.4th 635 (1st Cir. 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; David Purdy, Plaintiffs, Appellants, v. U.S. DEPARTMENT OF THE INTERIOR; Debra Haaland, in her official capacity as Secretary of the Interior; Bureau of Indian Affairs; Bryan Newland, in his official capacity as Assistant Secretary for Indian Affairs; Mashpee Wampanoag Indian Tribe, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

85 F.4th 635

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; David Purdy, Plaintiffs, Appellants, v. U.S. DEPARTMENT OF THE INTERIOR; Debra Haaland, in her official capacity as Secretary of the Interior; Bureau of Indian Affairs; Bryan Newland, in his official capacity as Assistant Secretary for Indian Affairs; Mashpee Wampanoag Indian Tribe, Defendants, Appellees.

No. 23-1197

United States Court of Appeals, First Circuit

October 31, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Angel Kelley, U.S. District Judge]

David H. Tennant, with whom Kathy L. Eldredge, Law Office of David Tennant PLLC, David J. Apfel, and Goodwin Procter LLP were on brief, for appellants.

Christopher Anderson, Attorney, Department of Justice, Environment and Natural Resources Division, with whom Todd Kim, Assistant Attorney General, and Mary Gabrielle Sprague, Attorney, were on brief, for federal appellees.

Tami Lyn Azorsky, with whom V. Heather Sibbison, Suzanne R. Schaeffer, Samuel F. Daughety, Catelin Aiwohi, and Dentons US LLP were on brief, for appellee Mashpee Wampanoag Indian Tribe.

Before Montecalvo, Lynch, and Rikelman, Circuit Judges.

LYNCH, Circuit Judge.

Appellants David and Michelle Littlefield and twenty-two others assert the district court erred in rejecting their challenge to a decision by the Department of the Interior's Bureau of Indian Affairs ("BIA"), made in 2015 and reaffirmed in 2021, to take two parcels of land in Massachusetts into trust for the Mashpee Wampanoag Indian Tribe ("the Tribe"). The Secretary of the Interior has the power to take land into trust pursuant to the Indian Reorganization Act ("IRA") "for the purpose of providing land for Indians." 25 U.S.C. § 5108. Appellants have abandoned any Chevron challenge to the Secretary's legal interpretation of section 19 of that statute, 25 U.S.C. § 5129, defining the term "Indians." Accordingly, we determine only whether the BIA's application of its legal interpretation to the facts was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). We uphold the BIA's determination and affirm on somewhat different reasoning than the district court.

I.

A. Prior relevant legal proceedings

The Secretary of the Interior may, under the IRA, "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, then codified at 25 U.S.C. § 465). Section 19 of the statute defines the term "Indian" as:

[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).

In Carcieri, the Supreme Court, interpreting the word "now" in the first definitional phrase in this section, held that it "unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934." Carcieri, 555 U.S. at 395, 129 S.Ct. 1058. As such, the Secretary must first have determined, before acquiring land for a tribe pursuant to the first definition of "Indian," that the tribe was under federal jurisdiction in 1934. Id. The Carcieri decision did not address the meaning of the phrase "under Federal jurisdiction."

In Littlefield v. Mashpee Wampanoag Indian Tribe, a decision of this Court concerning the Mashpee Tribe, we held that the clause "under Federal jurisdiction" contained in the first definition of "Indian" also applies to the second definition. 951 F.3d 30, 40-41 (1st Cir. 2020). The term "such members" in that definition refers to the entire antecedent clause "members of any recognized Indian tribe now under Federal jurisdiction." See id.

In 2014, the Solicitor of the Department of the Interior issued a legal interpretation of the phrase "under Federal jurisdiction" in a memorandum ("the M-Opinion").¹ U.S. Dep't of Interior, M-37029, The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (Mar. 12, 2014). The M-Opinion also addressed whether a tribe must have been "recognized" as of 1934. M-Opinion at 23-24; see 25 U.S.C. § 5129 (defining as "Indian," among others, "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction" (emphasis added)). The M-Opinion, agreeing with Justice Breyer's concurrence in Carcieri, found that "the IRA does not require that the agency determine whether a tribe was a 'recognized Indian tribe' in 1934; a tribe need only be 'recognized' at the time the statute is applied." M-Opinion at 25.

The D.C. Circuit and the Ninth Circuit have upheld against Chevron challenges the M-Opinion's interpretation of the phrase "under Federal jurisdiction," as well as its conclusion that recognition need only be shown as of the time that the Secretary invokes the statute. Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 830 F.3d 552, 561, 564-65 (D.C. Cir. 2016); County of Amador v. U.S. Dep't of the Interior, 872 F.3d 1012, 1024, 1027 (9th Cir. 2017).

B. Prior relevant determinations

In 2007, the BIA granted formal recognition to the Tribe.² Final Determination for Federal Acknowledgment of the Mashpee Wampanoag Indian Tribal Council Inc. of Massachusetts, 72 Fed. Reg. 8007-01 (Feb. 22, 2007). Shortly after the recognition decision, the Tribe requested that Interior take into trust for its use two parcels of land in Massachusetts, one in Mashpee and the other in Taunton.

In 2015, Interior issued a Record of Decision ("2015 ROD") approving the Tribe's request. The BIA found that the Tribe was eligible to have land taken into trust because it qualified under the second definition of "Indian" in the IRA. See 25 U.S.C. § 5129 ("The term 'Indian' as used in this Act shall include . . . [2] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation. . . ."). The agency did not consider whether the Tribe met the requirement of being "under Federal jurisdiction" in 1934.

In February 2016, a group of Taunton residents (the appellants in this case plus another individual), who opposed the Tribe's plan to develop the land commercially, filed suit against Interior in the U.S. District Court for the District of Massachusetts, challenging the 2015 ROD. Littlefield v. U.S. Dep't of Interior, 199 F. Supp. 3d 391, 393 (D. Mass. 2016), aff'd sub nom. Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30 (1st Cir. 2020). The district court agreed with the plaintiffs that the second definition of "Indian" in the IRA unambiguously incorporates the "now under Federal jurisdiction" requirement from the first definition. Littlefield, 951 F.3d at 34. Because BIA had found the Tribe to be eligible under the second definition without considering whether it was under federal jurisdiction in 1934, the court vacated the agency's decision. Id. In a subsequent order, the court clarified that Interior was permitted to consider, on remand, whether the Tribe met the "now under Federal jurisdiction" requirement. Id. In February 2020, this Court affirmed the district court's ruling. Id. at 41.

Meanwhile, in 2018, Interior issued a new Record of Decision ("2018 ROD") finding that the Tribe was not "under Federal jurisdiction" in 1934, and so did not qualify to have lands taken into trust. Id. at 34. The Tribe then sued Interior in the U.S. District Court for the District of Columbia ("D.D.C."), arguing that the agency had misapplied the standards in the M-Opinion. Mashpee Wampanoag Tribe v. Bernhardt, 466 F. Supp. 3d 199, 217 (D.D.C. 2020). The court agreed. Id. at 217-18. In a decision issued in June 2020, it found that the "Secretary [had] misapplied the M-Opinion by evaluating each piece of evidence in isolation," id., whereas the M-Opinion had stated that "a variety of actions when viewed in concert may demonstrate that a tribe was under federal jurisdiction," id. (quoting M-Opinion at 19). The court also found that the Secretary's treatment of several pieces of evidence was inconsistent with the M-Opinion's standards, e.g., id. at 220, and with the agency's treatment of similar types of evidence in prior decisions, and that the agency had not offered a reasoned explanation for those inconsistencies, e.g., id. at 227. As such, the court vacated the 2018 ROD and remanded to Interior "for a thorough reconsideration and re-evaluation of the evidence... consistent with this Opinion, the 2014 M-Opinion, ... and the Department's prior decisions."³ Id. at 236.

Interior revisited the issue in response to the vacate and remand order and, in 2021, issued a new Record of Decision. Bureau of Indian Affairs, Mashpee Wampanoag Tribe, Trust Acquisition Decision Letter (Dec. 22, 2021) [hereinafter "2021 ROD"]. The agency reevaluated the evidence in light of the M-Opinion's standards and the D.D.C.'s instructions on remand, concluding that the Tribe met the "under Federal jurisdiction" requirement. 2021 ROD at 25. Interior also found that the Tribe could conduct gaming activities on the land taken into trust because the land qualified as the Tribe's "initial reservation" under the Indian Gaming Regulatory Act ("IGRA"). 25 U.S.C. § 2719(b)(1)(B)(ii); 2021 ROD at 31-54.

C. Procedural history of the...