After Appeals Court Defeat, Mr. Bingham Says Mashpee Land Suit Is Over

By: Brian Kehrl
Published: 08/06/10

The dismissal of a lawsuit filed by two members of the Mashpee Wampanoag Tribe seeking to reclaim and be paid for thousands of acres of land in town has been upheld by a federal Court of Appeals panel in Boston.

In a 14-page opinion released last Friday, Chief Judge Sandra L. Lynch wrote that the case pressed by the two tribe members failed to demonstrate that they suffered a “personal injury” from the incorporation of the Town of Mashpee, after which the state sold land that had previously been deeded to ancestors of the tribe.

“The district court correctly held that plaintiffs lack standing because they failed to show a personal injury. Plaintiffs must show they had an individual interest in the property rights granted in the 17th century deeds in order to show they were personally injured by the later state actions affecting those property rights. Plaintiffs can do so only if the deeds conveyed to plaintiffs’ individual ancestors discrete property interests that passed through successive generations,” according to the opinion.

The decision is likely the end of a long legal battle that stretches back to 2007 and the immediate aftermath of the tribe’s federal recognition, Steven P. Bingham, who brought the case with his mother, Amelia G. Bingham, said this week.

“There is no sense in going forward if they are saying we can’t represent ourselves as individuals,” Mr. Bingham said, in reference to indications in the opinion that the case suffered because it was brought by individual tribe members, as opposed to the tribal council.

“We could appeal it further, but I am not throwing good money after bad,” Mr. Bingham said, adding that he has been paying the legal fees for the litigation out of his own pocket.

The case, initially filed against the state and the town but later limited to only the state, is something of an extension of the case the Binghams filed with a small group of other tribe members against the Mashpee Wampanoag Tribal Council in 2007. Then, the reformist tribe members claimed that the tribe’s leaders were misappropriating money from casino investors, who they claimed had gained undue influence over the tribe’s business.

The Binghams pushed the tribe and the tribal council to consider pursuing a land suit.

But, in an effort to facilitate its reservation application and pursuit of a casino, the tribal council later signed an agreement with the town stating that the tribe’s government would not sue to reclaim public land in Mashpee.

The Binghams first threatened and, in 2008, followed through on statements that they would file a land suit as individual tribe members.

Ms. Bingham, who could not be reached for comment this week, was involved in the tribal council during the initial Mashpee land suits in the late 1970s.

The New Case

The Binghams’ case, however, took a markedly different approach than the earlier land suits. While the old cases alleged violation of the 1790 federal Non-Intercourse Act, which required states to obtain Congressional approval to take Indian land, the Binghams claimed their personal property rights had been violated.

“Plaintiffs do not claim that the Commonwealth or Town directly seized lands from their tribal ancestors. Rather, plaintiffs argue that two Massachusetts statutes enacted in 1869 and 1870 deprived them of their right to hold in perpetuity all of the land currently comprising the Town of Mashpee by removing restraints on alienation and, later, by facilitating the sale of certain lands,” according to the appeal court’s recent decision.

The appeals court found that the Binghams did not demonstrate that they hold inheritable property interests in the land.

“Plaintiffs have also failed to allege that any such interests were affected as a result of the 1869 and 1870 acts in ways that resulted in the transfer or loss of ownership of those lands. Nor have they pled any facts showing that the loss of any ‘right’ to hold the lands in perpetuity has caused them any injury,” according to the decision.

“Plaintiffs say that ‘through’ the 1870 act, between 1870 and the present, many of the subject lands were ultimately conveyed to non-Indians, but a vague allegation of harms occurring over an undefined, 140-year period is not the kind of concrete, particularized injury required to show standing,” the decision states.

In addition to the personal property rights claims, the Binghams also made a more general case that they and other Wampanoags suffered an injustice in losing land that was deeded to their ancestors in perpetuity. “The Binghams and the other descendants of the American Indians who were party to the mid-seventeenth century deeds are overdue their day in court,” according to a brief filed by the Binghams’ attorney in the appeals process.

The narrow decision offered no opinions on the state’s claim that the 11th Amendment of the US Constitution prevents the state from being sued on the matter in federal courts or on the state’s claims that the statute of limitations for the personal injury claim had expired.

The decision—by a three-judge panel that included former justice David H. Souter, who recently retired from the US Supreme Court—also specifically states that it does not consider what effect the tribe’s federal recognition in 2007 has on the earlier land suits.

A Different Conclusion

While Mr. Bingham took the opinion to mean that individual tribe members cannot sue to reclaim land, his attorney in the case, Robert L. Bowens read it differently.

“The decision does not foreclose the possibility of other descendants or grantees to the deed to come forward with claims that they could position in ways to respond to the shortcomings that the chief judge identified,” Mr. Bowens said in an interview this week.

“The judge indicated that she did not see that there was enough of a connection between the actions by the commonwealth in 1869 and 1870 and the property rights of my clients to allow the claim to go forward,” Mr. Bowens said.

“That doesn’t mean that it could not be shown. It just means that she did not think it was shown.”

“That doesn’t impact at all the ability of other descendants to come forward. They can come forward tomorrow. They can come forward in a year,” he said.

He pointed to a section of the opinion, coming after a discussion on whether the deed was to the tribe as a whole or individual members, stating that the judges did not need to decide which was the case, because the Binghams “lack standing under either interpretation.”

The case was presented as a class action suit, claiming to represent all the descendants of the “South Sea Indians,” a general term used by the British colonists to refer to the Native Americans along the south shore of Cape Cod.

But no other tribe members formally signed onto the suit.

Mr. Bowens, however, noted that there has been some support from tribe members. “The Binghams have a petition that was very recently signed by 38 descendants of the original grantees of the deeds, through which those descendants express their support for the Binghams’ position in this case and their intention to either join the Binghams as plaintiffs in the case now before this Court or ‘to join in the filing of a new law suit in federal court to vindicate (their) American Constitutional rights to compensation from the Commonwealth of Massachusetts for the taking of (their) rights to land in Mashpee,’ ” according to a brief filed by the Binghams in the appeals process.

Opposed By The Tribal Council

The appeals court decision, however, did note the tribal council’s opposition to the case.

“Plaintiffs cannot assert the rights of the tribe, as an entity, simply by styling their claim as a class action on behalf of all tribal descendants,” according to the opinion. “Indeed, the tribe and its authorized representatives have repeatedly and strenuously disavowed the plaintiffs’ suit. In April 2008, the tribe entered into an agreement with the Town in which it received certain lands in exchange for waiving all claims to property located within the Town. On November 5, 2008, the tribe further distanced itself from the plaintiffs’ suit, formally resolving at a tribal council meeting that ‘the Tribal Council condemns the land claim brought by Steven Bingham and Amelia Bingham.’ ”

Kathryn R.L. Rand, co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota, said suits brought by tribal governments tend to be stronger than those brought by individuals.

“Legally it is possible that there is another individual that could bring this claim. Practically, that is going to be very difficult,” she said.

Ms. Rand said she is not aware of another suit in which individual tribe members filed a claim like the Binghams.

Matthew L.M. Fletcher, director of the Michigan State University Indigenous Law Center, said only tribes, not individual members, are granted the legal benefits of treaties.

“I think here, similarly, the agreement between the South Sea Indians and the Commonwealth is a kind of treaty. There were many such agreements between colonies and tribes, and many were called treaties, though not all. Some of them are still viable, though barely. As such, the agreement/treaty is between the tribe known then as the South Sea Indians and now as the Mashpee Tribe, and not the individuals. So it is reasonable, using this principle about who owns the treaty right, that the individual Indians would not have standing,” Mr. Fletcher wrote in an e-mail to the Enterprise. “Since the court did not directly address the merits of the claim, it remains (in theory) a viable claim, and the First Circuit’s decision doesn’t affect a tribal claim directly.”

Beyond the possibility of future land claims by individual members, Mr. Bowens said the decision should have no bearing on the rights of the tribe itself. He said since the tribal council has backed out of its intergovernmental agreement with Middleborough, there is reason to believe the tribe could do the same with its deal with Mashpee.

Tribal council Chairman Cedric Cromwell did not return a message requesting comment on the court decision.

Mr. Bowens said he met with representatives of and attorneys for the tribal council last spring, as the appeal was being prepared, to discuss the case, but he declined to provide further detail on the outcome of the discussions.

The tribe’s agreement with the town covers town- and privately owned land, but not property held by the state.

Mr. Bingham said he spoke on several occasions with tribal council leaders, and they initially seemed interested in hearing more about the case. But they eventually stopped returning calls and cut off contact.

Mr. Bingham said, “They never even researched it, they never asked the question, and the reason why is because we had these investors telling us that the casino would come and we shouldn’t go for the land.”

Mr. Bingham argued that the investors, now as in 2006 and 2007, were more interested in using the tribe to get gambling approved in Massachusetts than in helping the tribe.

“The only thing I hope for now is the tribe hears about this and says, ‘Yeah, we can go forward with this as a tribe.’ But they are still not going to do it. But you know when they are finally going to do it? When they don’t get a casino. When they finally realize that they aren’t getting that casino,” Mr. Bingham said.

In an interview with the Enterprise last July, tribal council Vice Chairman Aaron Tobey said, “But this is what it comes down to: we are looking to build relationships and work with both the state and the town...I don’t think it is in the best interests of the tribe to get involved.”

“We are not going to join them in their case,” he said.