A decision with implications for the Mashpee Wampanoag Tribe’s sovereignty over reservation lands is pending after federal Judge Paul L. Friedman from the Washington, DC, District Court heard arguments in the tribe’s case on Wednesday, May 20, over teleconference.
The tribe sued the federal government over a 2018 decision by the Trump Administration’s Interior Department that the tribe could not be considered “under federal jurisdiction” for purposes of the Indian Reorganization Act of 1934, the law that establishes Indian reservations.
In oral arguments, the tribe’s attorney, Tami Lyn Azorsky, argued that the Interior Department had ignored clear evidence of the federal government’s jurisdiction over the tribe and said the 2018 decision is “arbitrary, capricious and contrary to law” and should be vacated.
An attorney for the government defendants, Sara E. Costello, argued that the Interior Department had acted in line with the Administrative Procedure Act, the law the tribe accuses the department of having violated, when rendering the 2018 decision.
Judge Friedman suggested that a decision from the court could be rendered before June 5, the last day of an agreed-on 45-day halt to a March order by the Interior Department to disestablish the tribe’s reservation land.
The Interior Department under the Obama Administration established a 321-acre reservation for the Mashpee Wampanoag Tribe in 2015 with a record of decision that found that the tribe qualified for reservation land under the second definition of “Indian” in the Indian Reorganization Act.
The tribe planned to build affordable housing units on the reservation land in Mashpee and to construct a $1 billion casino on reservation land in Taunton after coming to a deal with the city government.
In 2016, a group of Taunton residents sued the tribe in federal court in Boston, arguing that the tribe did not meet the second definition of “Indian” under the Indian Reorganization Act.
A district court judge ruled in favor of the residents and found that the Obama Administration had lacked the authority to place the lands into trust and establish a reservation for the tribe under the second definition.
The district court decision, which has since been upheld by a First Circuit Court of Appeals, remanded the question of whether the tribe fits the first definition of “Indian” under the act, leading to the 2018 decision against the tribe at question in the current litigation.
Since a 2009 Supreme Court decision, know as the Carcieri decision, found that the word “now” in the first definition of “Indian” in the Indian Reorganization Act means “in 1934,” tribes have been required to prove that they were “under federal jurisdiction” in 1934 to qualify for reservation land.
A legal opinion, known as the M-Opinion, was the departmental guidance for interpreting the phrase “under federal jurisdiction” when the Interior Department determined in 2018 that the tribe did not meet the Indian Reorganization Act’s first definition of “Indian.”
The M-Opinion holds that to be considered “under federal jurisdiction” it must be demonstrated that the federal government exercised authority over the tribe.
“Some federal actions may in and of themselves demonstrate that a tribe was, at some identifiable point or period in its history, under federal jurisdiction,” the M-Opinion states. “In other cases, a variety of actions when viewed in concert may demonstrate that a tribe was under federal jurisdiction.”
Before the Interior Department’s 2018 decision, the tribe submitted hundreds of pages of documents including census rolls from 1880, 1890, 1900, 1910, 1920 and 1930, various federal reports with references to the tribe, and evidence of tribal members attending a Bureau of Indian Affairs school.
The attorney for the tribe, Ms. Azorsky, argued that the Interior Department failed to view the pieces of evidence in concert, as required by the M-Opinion, and instead “dismissed each of them individually.”
“Although the tribe says that the Interior dismissed this evidence, the 2018 decision shows that this is not the case,” said Ms. Costello, the attorney for the Interior Department. “Interior thoroughly considered each piece of evidence, discussed it and explained its conclusion, and in doing so the agency did everything it was required to.”
Judge Friedman asked both the tribe and the Interior Department attorneys a similar question about a federal report written in 1822 known as the Morse Report. The Mashpee tribe appears in the report, which was used as guidance by Congress to determine whether or not to remove tribes from their lands. In the case of the Mashpee, Congress did not act to remove the tribe based on the report.
“If somebody considers two alternatives to do nothing or to do something, isn’t the decision to do nothing also an action?” Judge Friedman asked the attorney for the tribe before later putting an almost identical question to the attorney for the Interior Department.
Ms. Costello replied, “Your honor, that is not what the agency concluded.”
“We dispute that the report actually showed that Congress took an active step not to do anything,” Ms. Costello said. “No affirmed declination.”
Questions from Judge Friedman also brought new light to the fact that Mashpee could lose the land in Taunton should the order to disestablish the reservation move ahead.
“If the government is not prevented from taking land out of trust, in other words, if they can go ahead and do it and I rule for them…what happens to the Mashpee tribe and what happens to the land in Mashpee and what happens to the land in Taunton?” Judge Friedman asked Ms. Azorsky.
The tribe’s attorney replied that one problem is that there is no procedure in place for removing the land from trust.
“Genting [Malaysia], which helped finance some of Mashpee’s activities, has a mortgage on that land,” Ms. Azorsky said in reference to the land in Taunton. “If it is returned to deed they can execute on, foreclose on the land.”
Judge Friedman also asked which legal opinion the Interior Department would use if he found in favor of the tribe and vacated the 2018 decision against the tribe. The Interior Department replaced the M-Opinion with new guidance in March.
Ms. Costello replied, “It is Interior’s view that if the matter is remanded this is a pending application, and so the new guidance would apply to pending applications.”
“If I remand it to Interior you want to apply a new guidance to them, which makes it harder for them to succeed?” Judge Friedman said. “You’re going to have a tough time with this judge if that’s what they do.”
Noting typos in the document, the judge criticized the March opinion that replaced the M-Opinion as “one of the worst written documents I’ve read from any government agency.”
“I don’t know how anyone could take that guidance because it’s incomprehensible and so convoluted that it couldn’t guide any lawyer in the field,” he said. “I’m not saying I’m going to remand because I don’t know; you have a strong argument that I shouldn’t under the arbitrary and capricious standard, but if I did, and you apply the 2020 guidance, you’re basically telling them they’ve won a Pyrrhic victory.”
Ms. Costello said that the Interior Department will comply with “whichever test the court ordered.”
Technical difficulties with the public teleconference line disconnected the public’s access to the rebuttals from the Interior Department and the Taunton residents who sued the tribe in 2016. The arguments concluded before the line was fixed.
After the arguments, David Weeden, a member of the Mashpee Wampanoag Tribal Council and a Mashpee selectman, said, “I stand firm that we’re on the right side of the fence on this.”
Of the M-Opinion, Mr. Weeden said, “Our history supports and justifies meeting those requirements.”
He noted the almost 30-year process that led to the tribe becoming formally recognized in 2007 by the federal government as having maintained social and political relations since the time of first contact with colonists in the 1600s.
“We wouldn’t be going through this if we had a fair federal recognition process,” Mr. Weeden said. “They’re not taking into consideration that the tribe should have been under federal jurisdiction and the burden of proof being on us is wrong.”