Wampanoag Flag

The Mashpee Wampanoag tribal flag

A federal judge ruled in favor of the Mashpee Wampanoag Tribe on June 5 in litigation brought against the Trump Administration’s Department of the Interior in 2018.

The ruling from the Washington, DC, district court found that the department’s 2018 decision that the tribe did not qualify as “under federal jurisdiction” in 1934 for purposes of the Indian Reorganization Act was “arbitrary, capricious, an abuse of discretion and contrary to law.”

The judge, Paul L. Friedman, ordered that the department maintain the reservation status of the tribe’s 321 acres of land until the department issues a new decision on remand over whether the tribe qualified as “under federal jurisdiction” in 1934.

A March order by the Interior Department to disestablish the tribe’s reservation land in Mashpee and Taunton had been held up by the Washington, DC, litigation. Judge Friedman’s decision came on the last day of an agreed-upon 45-day halt to the order.

“Today, the DC District Court righted what would have been a terrible and historic injustice by finding that the Department of the Interior broke the law in attempting to take our land out of trust,” said Cedric Cromwell, chairman of the Mashpee Wampanoag Tribal Council.

“While we are pleased with the court’s findings, our work is not done,” the chairman’s statement said. “We will continue to work with the Department of the Interior—and fight them if necessary—to ensure our land remains in trust.”

The Indian Reorganization Act of 1934 lays out the rules for establishing reservation land.

A 2009 Supreme Court decision, known as the Carcieri decision, found that the word “now” in the act’s first definition of “Indian” meant “in 1934.” Therefore, to qualify for reservation lands, tribes must be considered “under federal jurisdiction” in 1934.

The 2018 decision that the tribe did not qualify as “under federal jurisdiction” in 1934 applied a two-part test known as the M-Opinion used to interpret the phrase “under federal jurisdiction.”

Judge Friedman said in his opinion and order that the Secretary of the Interior in the 2018 decision “did not evaluate the evidence in accordance with the directives of the M-Opinion.”

Before the 2018 decision, the tribe filed hundreds of pages of evidence to support that they had been “under federal jurisdiction” in 1934.

The M-Opinion states that “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,” while “in other cases, a variety of actions when viewed in concert may demonstrate that a tribe was under federal jurisdiction.”

“The Secretary misapplied the M-Opinion by evaluating each piece of evidence in isolation,” Judge Friedman said.

The evidence includes federal census rolls from 1880, 1890, 1900, 1910, 1920 and 1930 that list tribal members as Indians, various federal reports and evidence that the tribal members attended the federally run Carlisle Indian School.

“The conclusions about each piece of evidence evaluated in the 2018 [decision] show that the Secretary evaluated each piece of evidence in isolation,” Judge Friedman said.

The 2018 decision dismissed a federal report known as the Morse Report as insufficient “without more,” discounted the evidence of Mashpee students at the Carlisle School as not sufficient “in isolation” and discounted the census roll evidence as being inconclusive “in and of itself.”

The judge further said that the Interior Department mischaracterized the Morse Report, a report from the 1820s that recommended the Mashpee Wampanoag Tribe not be removed from their lands and sent westward.

“The Court finds the Secretary’s description of the Morse Report as merely being a passive ‘compilation of general information about tribes’ is a mischaracterization that minimized the record evidence without adequate explanation,” Judge Friedman said.

“The Morse Report includes recommendations that the Mashpee Tribe not be removed from their land and sent west,” the judge said. “The making of a recommendation is, in and of itself, an action.”

Judge Friedman ordered that when the Interior Department reviews the tribe’s qualifications as “under federal jurisdiction” in 1934 on remand that the department must view the evidence “in concert.”

Though the Interior Department in March replaced the M-Opinion with new guidance for interpreting the phrase “under federal jurisdiction,” the remand decision must remain based on the M-Opinion, the judge said.

The Interior Department stated in briefs and in oral arguments before the court that the new guidance streamlined the M-Opinion but did not change the analysis for interpreting “under federal jurisdiction.”

“The court disagrees that the newly issued guidance does not change the ‘under federal jurisdiction’ analysis,” Judge Friedman said. “The new test does not allow some types of evidence that the 2014 test permitted.”

The tribe argued in briefs that 2018 decision that the tribe was not “under federal jurisdiction” in 1934 implicitly applied the new analysis rather than the M-Opinion.

“The similarities between the secretary’s reasons for discounting the Mashpee Tribe’s evidence and the new 2020 standards are stark,” Judge Friedman said. “The court does not need to opine as to whether the secretary was actually applying this new 2020 guidance, however.”

“The Tribe has yet to receive an appropriate determination under the two-part test that the department said it was applying,” Judge Friedman said. “The court hereby directs the department to apply the two-part test in [the M-Opinion]—correctly this time—on remand.”

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