Mashpee Wampanoag Tribe v. Bernhardt

• Decision Date: 05 June 2020
• Docket Number: Civil Action No. 18-2242 (PLF)
• Citation: 466 F.Supp.3d 199
• Parties: MASHPEE WAMPANOAG TRIBE, Plaintiff, v. David BERNHARDT, in his official capacity as Secretary of the Interior, et al., Defendants, and David Littlefield, et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

466 F.Supp.3d 199

MASHPEE WAMPANOAG TRIBE, Plaintiff,

v.David BERNHARDT, in his official capacity as Secretary of the Interior, et al., Defendants,andDavid Littlefield, et al., Defendant-Intervenors.

Civil Action No. 18-2242 (PLF)

United States District Court, District of Columbia.

Signed June 5, 2020

Kenneth John Pfaehler, Samuel F. Daughety, Suzanne R. Schaeffer, V. Heather Sibbison, Tami Lyn Azorsky, Dentons US LLP, Washington, DC, for Plaintiff.

Sara E. Costello, U.S. Department of Justice, Washington, DC, for Defendants.

Andrew Kim, Goodwin Procter LLP, Washington, DC, David H. Tennant, Law Office of David Tennant PLLC, Rochester, NY, for Defendant-Intervenors.

OPINION

PAUL L. FRIEDMAN, United States District Judge

This case involves a challenge to a decision of the Secretary of the Interior determining that the Mashpee Wampanoag Tribe (the "Tribe" or "Mashpee") did not meet either the first or second definition of "Indian" in the Indian Reorganization Act ("IRA") because the Tribe was not "under federal jurisdiction" as of 1934. The Secretary had reached the opposite conclusion in 2015, but that decision was challenged and a federal district court in Massachusetts ultimately remanded for the Secretary to reassess the Tribe's application under the court's reading of the statute. Littlefield v. U.S. Dep't of Interior, 199 F. Supp. 3d 391 (D. Mass. 2016), aff'd sub nom. Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30 (1st Cir. 2020). On remand, the Secretary issued the decision that the Mashpee Tribe challenges here.

This matter is now before the Court on cross-motions for summary judgment filed by the Tribe, by the federal defendants, and by defendant-intervenors – the plaintiffs in the Littlefield litigation. Also pending before the Court is the Tribe's emergency motion for a temporary restraining order and motion for a preliminary injunction, which it filed shortly after the Secretary directed the Bureau of Indian Affairs (the "BIA") to take the land out of trust. The parties have agreed that the Court should consolidate its consideration of the motion for a preliminary injunction and the cross-motions for summary judgment. The Court heard oral argument by videoconference on these motions on May 20, 2020. Upon careful consideration of the parties’ filings, the relevant legal authorities, the arguments of counsel at the May 20, 2020 hearing, and the entire record in this case, the Court will grant the plaintiff's motion for summary judgment, deny the defendants’ and defendant-intervenors’ motions for summary judgment, and remand to the agency for further proceedings. The Court will deny as moot the plaintiff's emergency motion for a temporary restraining order and motion for a preliminary injunction, now that the Court is issuing this opinion on the merits, granting summary judgment for the plaintiff.¹

I. BACKGROUND AND PROCEDURAL HISTORY

A. The Indian Reorganization Act

The Indian Reorganization Act (the "IRA"), 25 U.S.C. §§ 5101 et seq., was adopted in 1934 to change "a century of oppression and paternalism" in the relationship between the United States and its native Indian tribes. See H.R. Rep. No. 73-1804, at 6 (1934), AR at 8513. Its purpose was to create the mechanisms whereby tribal governments could be reorganized and tribal corporate structures could be developed, see 25 U.S.C. §§ 5123 and 5124, as well as to make the acquisition of lands easier, to be held in trust by the United States to enlarge or create new Indian reservations. See 25 U.S.C. §§ 5108 and 5110 ; see also Cohen's Handbook of Federal Indian Law § 1.05 (Nell Jessup Newton ed., 2017). The United States Secretary of the Interior (the "Secretary") is delegated the authority to acquire land in trust for Indian tribes. 25 U.S.C. § 5108.²

The Secretary's authority under the IRA is cabined by whether a tribe meets the statute's definition of "Indian," which is found in Section 19 of the statute and codified at 25 U.S.C. § 5129 :

The term "Indian" as used in this Act shall include all persons of Indian descent [1] 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.

B. Carcieri v. Salazar

In 2009, the United States Supreme Court interpreted the IRA's definition of "Indian" when the State of Rhode Island challenged the Secretary's plan to accept land in trust for use by the Narragansett Indian Tribe, which occupied much of present-day Rhode Island in colonial times. Carcieri v. Salazar, 555 U.S. 379, 381-82, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009). The Court analyzed only the first of the three definitions of "Indian" in Section 19 of the IRA and held that the word "now" in the phrase "now under federal jurisdiction" did not refer to the time of the statute's application, but rather referred to 1934, the year in which the IRA was enacted. Id. at 395, 129 S.Ct. 1058.

The meaning of the phrase "under federal jurisdiction" was not a question before the Court in Carcieri v. Salazar, so the majority did not elaborate on the meaning of that phrase. In a concurring opinion, however, Justice Breyer expressed some views on this matter. He noted that the Court's interpretation of "now" as meaning "in 1934" was "less restrictive than it first appears" because "a tribe may have been ‘under federal jurisdiction’ in 1934 even though the federal government did not believe so at the time." Carcieri v. Salazar, 555 U.S. at 397, 129 S.Ct. 1058 (Breyer, J., concurring). Justice Breyer cited to specific tribes that were erroneously treated as not under federal jurisdiction by federal officials at the time the IRA was enacted, but whose status was later recognized by the federal government. See id. at 398-99, 129 S.Ct. 1058. His concurrence suggests that these later-recognized tribes could have been "under federal jurisdiction" in 1934 notwithstanding earlier actions or statements by federal officials to the contrary. Id. at 399, 129 S.Ct. 1058. Importantly, Justice Breyer also outlined certain types of evidence that "implied a 1934 relationship between the Tribe and Federal Government" – a treaty with the United States in effect in 1934, a congressional appropriation before 1934, or enrollment with the Indian Office as of 1934. Id.

Justices Souter and Ginsburg would have remanded the case to allow the Department of the Interior (the "Department" or "DOI") the opportunity to show that the Narragansett Tribe was under federal jurisdiction in 1934. Carcieri v. Salazar, 555 U.S. at 400-01, 129 S.Ct. 1058 (Souter, J., dissenting in part). But the majority disagreed and found that the Narragansett Tribe was not under federal jurisdiction in 1934 because none of the parties, including the Narragansett Tribe, had argued that the Tribe was under federal jurisdiction in 1934. Rather, the assertion in the petition for writ of certiorari that the Narragansett Tribe was "neither federally recognized nor under the jurisdiction of the federal government" was not contested, which meant that the Court could accept it as fact. Id. at 395-96, 129 S.Ct. 1058.

C. The M-Opinion

Five years after Carcieri v. Salazar was decided, the Solicitor of the Department of the Interior issued formal legal guidance to the Secretary for how to interpret the phrase "under federal jurisdiction" in the IRA's first definition of "Indian." DOI, M-37029, Memorandum on The Meaning of "Under Federal Jurisdiction" for Purposes of the Indian Reorganization Act (March 12, 2014) ("M-Opinion"). This signed M-Opinion binds the Department and its officials. See 2018 ROD at 11, AR at 5098; see also M-Opinion at 17, 26. Applying Chevron, the Solicitor first concluded that the phrase "under federal jurisdiction" was ambiguous, and that Congress therefore "left a gap for the agency to fill." M-Opinion at 17 (citing Chevron v. Natural Res. Def. Council, 467 U.S. 837, 840-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). In order to fill the gap, the Solicitor examined the text of the IRA, its remedial purposes, its legislative history, and the DOI's early practices. Id. at 8-20. He also considered the Indian canon of construction. Id. at 5, 19. The Solicitor's interpretation of "under federal jurisdiction" was informed by Justice Breyer's concurring opinion in Carcieri. Id. at 23-25. The M-Opinion also specified that Congress's constitutional plenary authority over Indian tribes is insufficient to show that a tribe was "under federal jurisdiction" in 1934. Id. at 17-18.³

In the M-Opinion, the Solicitor announced a two-part test for determining whether a tribe was under federal jurisdiction. M-Opinion at 19-20. First, the Secretary must determine whether there is a "sufficient showing in the tribe's history, at or before 1934, that it was under federal jurisdiction." Id. at 19. Second, the Secretary must determine "whether the tribe's jurisdictional status remained intact in 1934." Id.

In order to answer the first part of the test, the Solicitor said that the Secretary should look to whether

the United States had, in 1934 or at some point in the tribe's history prior to 1934, taken an action or series of actions – through a course of dealings or other relevant acts for or on behalf of the tribe or in some instance tribal members – that are sufficient to establish, or that generally reflect federal obligations, duties, responsibility for or authority over the tribe by the Federal Government.

M-Opinion at 19. The M-Opinion noted that "[s]ome federal actions may in and of themselves demonstrate that a tribe was, at some identifiable point or period in its history, under federal jurisdiction," whereas "[i]n other cases, a variety of actions when viewed in concert may demonstrate that a tribe was under federal jurisdiction." Id.

The Solicitor...