Mashpee Tribe v. Town of Mashpee

• Decision Date: 24 March 1978
• Docket Number: Civ. A. No. 76-3190-S.
• Parties: MASHPEE TRIBE, Plaintiff, v. TOWN OF MASHPEE et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

447 F. Supp. 940

MASHPEE TRIBE, Plaintiff, v. TOWN OF MASHPEE et al., Defendants.

Civ. A. No. 76-3190-S.

United States District Court, D. Massachusetts.

March 24, 1978.

COPYRIGHT MATERIAL OMITTED

Native American Rights Fund, Barry A. Margolin, Moshe Genauer, Boston, Mass., Thomas N. Tureen, Dennis M. Montgomery, Calais, Maine, Lawrence D. Shubow, Ann Gilmore, Shubow, Stahlin & Bergstresser, Boston, Mass., for plaintiff.

Allan Van Gestel, James J. Dillon, Goodwin, Procter & Hoar, James D. St. Clair, Stephen H. Oleskey, William F. Lee, Hale & Dorr, Andrew J. McElaney, Jr., Asst. Atty. Gen., Commonwealth of Massachusetts, Boston, Mass., Selma R. Rollins, Rollins, Rollins & Fox, Brookline, Mass., Morris Kirsner, Edwin J. Carr, May, Bilodeau, Dondis & Landergan, Thomas Otis, Boston, Mass., Thomas B. Shea, Gargiulo & Holian, Cambridge, Mass., for defendants.

MEMORANDUM AND ORDER FOR JUDGMENT

SKINNER, District Judge.

This action was brought by the Mashpee Tribe of Indians to recover possession of tribal lands allegedly alienated from the tribe in violation of the Indian Nonintercourse Act (25 U.S.C. § 177). The defendants' answer put in issue whether the plaintiff group was in fact an Indian tribe for purposes of the Act at the time suit was brought and at other times deemed by the parties to be critical. The threshold issue of tribal existence was severed for separate trial by order of the court.

After forty days of trial, the issue of tribal existence was submitted to the jury in the form of special interrogatories. The issue of tribal title was reserved as a matter of law for the court to resolve after receiving the jury's answers. The dates chosen in the special interrogatories were those deemed significant by the parties with respect to their several legal theories. I am of the opinion that several of these dates are not significant, as shall hereinafter appear, but they were included to preserve the widest possible scope of review of the legal issues. The interrogatories and 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?

No

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

Yes

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?

Yes

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?

No

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

No

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?

No

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?

No

The case is now before me on the defendants' motion for judgment of dismissal on the merits based on the jury's answer. Plaintiff has filed an opposition thereto claiming that the jury's answers are fatally inconsistent and on their face violate the court's instructions. It appeared at argument that the plaintiff's preferred remedy is a new trial, and that indeed appears to be the only alternative to the entry of judgment for the defendants. All parties agree that the plaintiff must establish its status as an Indian tribe as of the date that the action was commenced in order to maintain this action in the form elected by the plaintiff.

I. HISTORICAL BACKGROUND

The basic history of Mashpee is not disputed, and a review thereof is necessary to the resolution of the pending motions. For simplicity's sake, I shall refer to the people claiming to be a tribe and their Indian ancestors as Indians¹ and everybody else as non-Indians, except where it is necessary to differentiate non-Indians of African and European ancestry who will be referred to respectively as blacks and whites. References to statutes and deeds in the following exposition include my legal interpretation and construction, to which the parties do not in every case agree.

In 1665, Richard Bourne, a Christian missionary to the Indians, desired to gather a community of Christian Indians in the area surrounding the Indian village of Mashpee and comprising the present Town of Mashpee and parts of present Sandwich and Falmouth. Accordingly, a deed was executed from two Indian leaders named Weepquish and Tookenchosen to five other named persons for the benefit of the "South Sea Indians." The status of the grantors and their capacity to grant title is unknown. One of the expert witnesses gave an opinion that the grantees were a group of village headmen who constituted the ruling council of a tribe known as the Cotichesetts, inhabiting the area of Mashpee and eastward to present Hyannis. The area granted contained a group of small villages of ten or twenty families, the remnants of a once numerous and thriving agricultural community largely wiped out in 1617 by an unidentified epidemic.

In 1666, Quichatisset, the Sachem of Manomet, relinquished his authority over the area and its inhabitants by a deed to substantially the same grantees. There is no evidence as to the form of governance of the area or its inhabitants from this period until 1723.

In 1685, apparently at the instance of Shearjashub Bourne, the son of Richard, the General Court of the Plymouth Colony granted the area to the South Sea Indians and their children, subject to a restraint on alienation, namely, that no land should be sold to an Englishman without the consent of all the Indians and the permission of the General Court.² It is on this grant that the plaintiff must base its claim of title. Johnson v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681 (1823). In 1692, the Plymouth Colony was merged with the Province of Massachusetts Bay, and the powers of its General Court were preempted by the General Court at Boston.

By 1723, Mashpee had been organized as a proprietary. As a result of the 1685 deed, Mashpee differed from other proprietaries in an essential respect. Mashpee was designed to be a permanent Indian plantation, in which the land was to be held in common, entailed, and with a restraint on alienation into the indefinite future. Other proprietaries were designed for founding and developing new communities. They were self-liquidating; the common land of the proprietary was sold off to settlers who organized towns.

In 1746, the General Court appointed guardians to control the finances of the plantation.

These guardians apparently used their position to exploit their wards, and the efforts of the Indians to obtain redress through the General Court were unavailing. By a remarkable feat of daring and resolve, one of the Indians (a Mohegan Indian from Connecticut, who had settled in Mashpee) carried a petition to the King of England. As a result, in 1763, the Mashpee Proprietors were given a large measure of self-government, including the right to appoint constables to protect their woodlots from depredation by neighboring non-Indian settlers.

During the Revolutionary War, the Indian men of Mashpee fought against the British, and a very large number of them were killed. After the war, there were said to be 70 widows in Mashpee out of a population of a few hundred. As one might suppose, this situation encouraged a considerable influx of unattached non-Indian males, mostly black, but including four escaped Hessians and a Portuguese sailor.

This influx apparently had a disintegrating effect, as a result of which the General Court reimposed guardians, whose approval was required for all significant actions.

By 1833, as under the previous guardians, the Indians felt that the guardians were not protecting them, but exploiting them. The precipitating issue was the cutting of wood from Indian land by outsiders. There was some violence. The Indians hired a lawyer and filed a petition with the General Court for relief from the guardianship. At the same time, the Indians rejected the ministry of the Reverend Phineas Fish, who had been sent down from Harvard to carry on "the blessed work of converting the poor Indian," and established their own Baptist Church under an Indian preacher, "Blind Joe" Amos.

In response to this well organized effort, the General Court created the District of Mashpee in 1834. Under the district organization, Mashpee (or "Marshpee") was governed substantially in the manner of a Massachusetts town, with the exception that certain transactions affecting the common lands and the treasury were subject to the approval of a Commissioner appointed by the Governor. The Commissioner also served as Treasurer. By successive legislation, the Commissioner's power was reduced to that ordinarily exercised by a Town Treasurer and eventually the office was filled by election of the proprietors of the district.

The 1834 Act also confirmed the allotment of land to those proprietors who had occupied and improved it, and required the Commissioner to keep a record of the allotments, as well as a list of proprietors. All of the land in the district, whether held in common or in severalty, was exempt from execution, and the proprietors were exempt from state and county taxes.

From 1834 onward, records of the district show that the proprietors voted various ordinances, including regulation of herring fishing. There are no existing records showing such...