Mashpee Tribe v. New Seabury Corp.

Decision Date13 February 1979
Docket NumberNos. 78-1272,s. 78-1272
PartiesMASHPEE TRIBE, Plaintiff, Appellant, v. NEW SEABURY CORP. et al., Defendants, Appellees. MASHPEE TRIBE, Plaintiff, Appellee, v. NEW SEABURY CORP. et al., Defendants, Appellants. MASHPEE TRIBE, Plaintiff, Appellee, v. NEW SEABURY CORP. et al., Defendants, Appellees, Matthew B. Connolly, etc., Defendant, Appellant. to 78-1274.
CourtU.S. Court of Appeals — First Circuit

James D. St. Clair and Allan van Gestel, Boston, Mass., with whom Stephen H. Oleskey, William F. Lee, Hale & Dorr, James J. Dillon, Goodwin, Procter & Hoar, Morris Kirsner, Edwin J. Carr, May, Bilodeau, Dondis & Landergan, Thomas B. Shea, Andrew J. McElaney, Jr., Asst. Atty. Gen., Thomas Otis, Boston, Mass., Selma R. Rollins and Rollins, Rollins & Fox, Chestnut Hill, Mass., were on brief, for New Seabury Corp. et al.

Richard B. Collins, Window Rock, Ariz., with whom Thomas N. Tureen, Portland, Me., Moshe J. Genauer and Barry A. Margolin, Boston, Mass., were on brief, for Mashpee tribe.

Joseph E. Brennan, Atty. Gen., John M. R. Paterson, Deputy Atty. Gen., and David Roseman, Asst. Atty. Gen., Augusta, Me., on brief, for the State of Me., amicus curiae.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Plaintiff, denominating itself the Mashpee Tribe, claims to be a tribe of Indians that has lived in and around the town of Mashpee, Massachusetts, continuously since time immemorial. The suit is based on the Indian Nonintercourse Act which was first passed in 1790 and exists now as 25 U.S.C. § 177:

"No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. . . ."

Plaintiff claims that its tribal land was taken from it between 1834 and 1870 without the required federal consent. This suit, filed August 26, 1976, against a defendant class representing landowners in the town of Mashpee, seeks recovery of those lands.

Defendants answered the complaint, in part, by denying that plaintiff is or was a tribe. It is undisputed that if plaintiff was not a tribe in 1976 it lacked standing to bring this suit and that if not a tribe at the critical times in the nineteenth century it was not protected by the Act. The district court severed the issue of plaintiff's tribal status for a separate, preliminary trial. Before trial plaintiff moved for a continuance pending the Department of the Interior's determination whether or not to declare plaintiff a federally recognized tribe. The court denied the motion, and trial began October 17, 1977. The trial lasted 40 days and was submitted to the jury on special interrogatories January 4, 1978. The jury returned its verdict on January 6. The interrogatories, together with the jury's answers, were as follows:

"1. Did the proprietors of Mashpee, together with their spouses and children, constitute an Indian tribe on any of the following dates:

a. July 22, 1790: The date of the enactment of the first version of the federal Nonintercourse Act?


b. March 31, 1834: The date on which the District of Marshpee was established. (sic)


c. March 3, 1842: The date on which formal partition of land in the District of Marshpee among the proprietors of Marshpee and their children was authorized by act of the legislature of the Commonwealth of Massachusetts?


d. June 23, 1869: The date on which all restraints on alienation of land held individually by Indians and people of color known as Indians were removed by act of the legislature of the Commonwealth of Massachusetts?


e. May 28, 1870: The date on which the Town of Mashpee was incorporated by act of legislature of the Commonwealth of Massachusetts: (sic)


2. Did the plaintiff group, as identified by the plaintiff's witnesses, constitute an Indian tribe as of August 26, 1976: The date of the commencement of this law suit?


3. If you find that people living in Mashpee constituted an Indian tribe or nation on any of the dates prior to August 26, 1976 listed in Special Question No. 1, did they continuously exist as such a tribe or nation from such date or dates up to and including August 26, 1976?


Mashpee Tribe v. Town of Mashpee, 447 F.Supp. 940, 943 (D.Mass.1978).

After receiving these answers, but without discharging the jury, the court requested memoranda from the parties to show cause why an order of dismissal should not be entered on the basis of the jury's answers. Plaintiff argued that the special verdicts were inconsistent and ambiguous and moved that, therefore, a new trial should be ordered. The court denied the motion and dismissed the case. Plaintiff asserts in appeal No. 78-1272 as error the court's denial of the pre-trial motion for a continuance, certain aspects of the court's instruction on the definition of "tribe", the court's instructions concerning allocation of the burden of proof, the court's ruling that the special verdicts were not fatally inconsistent or ambiguous, and the court's handling of an ex parte communication with a juror. These issues will be taken up in turn, and we will present the necessary factual background as needed. A fuller discussion of the relevant history may be found in Mashpee Tribe, supra, 447 F.Supp. at 943-47. We will not attempt to duplicate the district court's effort.


Plaintiff argues that the district court erred by refusing to grant a continuance pending Department of the Interior action on Mashpee's application for federal recognition as a tribe. Plaintiff moved for a continuance upon learning that the Department, in a departure from previous policy, had issued proposed regulations for determining whether to recognize tribes and that, using these regulations, the Department would begin proceedings concerning the Mashpees. The court denied the motion but invited the Department to participate in the trial either as an intervenor or as an amicus curiae with permission to submit questions for the court to ask witnesses. The Department chose not to participate in either capacity in part because the Department had not yet taken "a definitive position on the regulations" and, thus, would "not be able to participate meaningfully in the trial of this case at this time."

We hold that the court acted correctly in denying the continuance. The cases cited by plaintiff demonstrate that this is not the kind of case in which the Supreme Court has required courts to defer to administrative process. The deference doctrine 1 primarily serves as a means of coordinating administrative and judicial machinery. Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 68, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970); United States v. Western Pacific R. R. Co., 352 U.S. 59, 62, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Far East Conference v. United States, 342 U.S. 570, 575, 72 S.Ct. 492, 96 L.Ed. 576 (1952); Locust Cartage Co., Inc. v. Transamerican Freight Lines, Inc., 430 F.2d 334, 339 (1st Cir. 1970). It is meant to promote uniformity and take advantage of agencies' special expertise. Western Pacific R. R. Co., supra,352 U.S. at 64, 77 S.Ct. 161; Far East Conference, supra, 342 U.S. at 574-75, 72 S.Ct. 492. In a recent pair of antitrust cases against a commodities exchange regulated by the Commodities Exchange Commission, the Court looked at three factors to determine whether a court should defer: (1) whether the agency determination lay at the heart of the task assigned the agency by Congress; (2) whether agency expertise was required to unravel intricate, technical facts; and (3) whether, though perhaps not determinative, the agency determination would materially aid the court. Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113, 114-15, 94 S.Ct. 466, 38 L.Ed.2d 344 (1973); Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973). Other cases have identified other reasons for deferring to administrative agencies. Deference can dam a potential flood of suits seeking de novo review of agency determinations. Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973) (fearing suits testing the status of each newly developed "me-too" drug). Deference can permit an agency to follow through and supervise earlier actions. Port of Boston, supra, 400 U.S. at 68, 91 S.Ct. 203 (agency had approved the agreement under dispute). The doctrine recognizes that some problems are better solved by the more flexible procedures possible before agencies not bound by Article III limitations. Id. And, finally, agencies often have prescribed procedures specially designed to resolve particular kinds of disputes. Best v. Humboldt Placer Mining Co., 371 U.S. 334, 339, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); Western Pacific R. R. Co., supra, 352 U.S. at 64, 77 S.Ct. 161. 2

The Department of the Interior has not historically spent much effort deciding whether particular groups of people are Indian tribes. By and large no one has disputed the tribal status of Indians with whom the Department has dealt. The Department has never formally passed on the tribal status of the Mashpees or, so far as the record shows, any other group whose status was disputed. Therefore, the Department does not yet have prescribed procedures and has not been called on to develop special expertise in distinguishing tribes from other groups of Indians. Moreover, the facts in this case, though developed and interpreted in part with the expert help of historians and anthropologists, are not so technical as to be beyond the understanding of judges or juries. As the court said in its charge, "We are dealing with the human condition here as well." Finally, ours is a straightforward Article III case. The resolution will not affect rights of others than the parties except...

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