Old Indian Meeting House

The Old Indian Meeting House on reservation land in the Town of Mashpee.

On the eve of scheduled oral arguments, 25 members of Congress filed an amici curiae, or friends of the court, in support of the Mashpee Wampanoag Tribe in federal civil litigation between the tribe and the Trump Administration’s Department of the Interior.

An amici curiae brief brings to the attention of the court relevant matter not already brought to its attention by the parties involved in litigation.

“The Executive Branch is unlawfully attempting to remove Plaintiff’s land from trust,” the counsel for the 23 members of the US House of Representatives and two US Senators said in an “amici curiae memorandum” on Tuesday, May 19.

Congress “has a right and a duty to weigh in on the issues presently before the Court and to urge the Court to consider the Secretary’s egregious attempts to legislate in Congress’ stead,” the brief filed in the Washington, DC, District Court said.

Massachusetts senators Elizabeth Warren and Edward J. Markey and representatives from 11 states said in the brief written by their legal counsel, Keith M. Harper, “Congress has not delegated to the Secretary the authority to take tribal land out of trust status.”

The filing, which has yet to be accepted or rejected by Judge Paul L. Friedman, argues a constitutional basis for Congress’s—and not the executive branch’s—“plenary and exclusive authority” over Indian affairs.

A March order by the Trump administration’s Interior Department to disestablish the tribe’s 321 acres of reservation land in Mashpee and Taunton has been delayed temporarily pending a decision in the Washington, DC, case.

The brief by members of Congress argues that by ordering that the land be taken out of federal trust and the reservation be disestablished, the Interior Department “is brazenly invading the province of Congress and acting unlawfully.”

“The Indian Reorganization Act delegates power to the Secretary to take land into trust, but nowhere does the Act so much as hint that the Secretary is empowered to remove land from trust status or vacate a determination to treat such lands as reservation land,” the brief says.

The brief also argues that the Interior Department “disregarded clear evidence” when the department in 2018 determined that the Mashpee Wampanoag Tribe did not qualify as “under federal jurisdiction” in 1934 for purposes of the Indian Reorganization Act.

The tribe brought the Washington, DC, lawsuit against the Interior Department, arguing that the 2018 determination that the tribe did not meet the first definition of “Indian” in the act is “arbitrary, capricious, and contrary to law.”

A 2009 Supreme Court decision known as the Carcieri Decision interpreted the word “now” in the definition of “Indian” to mean “in 1934,” the year the Indian Reorganization Act was passed. To meet the definition of “Indian,” tribes must prove that they could be considered “under federal jurisdiction” in 1934.

The guiding legal opinion for interpreting the phrase “under federal jurisdiction” had been the M-Opinion at the time when the Interior Department issued its 2018 decision that the tribe did not qualify as “under federal jurisdiction.”

The department replaced the M-Opinion with a new legal opinion in March without notifying the court but has since argued that the M-Opinion remains the proper legal test for the purposes of the tribe’s lawsuit.

“The record here contains hundreds of pages of evidence, ranging from federal reports to [Bureau of Indian Affairs] school enrollment data, demonstrating that Congress clearly exercised its plenary power and, thus, exercised jurisdiction over the Tribe in 1934 and the preceding years,” the members of Congress said in the brief.

The brief cites the 1822 Morse Report, a report the Department of War commissioned at the request of Congress, which included the Mashpee Wampanoag Tribe on a table of tribes labeled as “within the jurisdiction of the United States.”

The report assessed the conditions of tribes as a “precursor for their possible forced removal,” the brief notes. The Morse Report did not recommend removal of the Mashpee Wampanoag Tribe, but “the Report demonstrates that Congress recognized it had the authority to remove the Tribe,” the brief said.

The brief notes another report, the 1935 Tantaquidgeon Report, as “occurring nearly contemporaneously with the passage of the [Indian Reorganization Act.]” The Congressionally funded report prepared by a Bureau of Indian Affairs researcher included an overview of the tribe and described the tribe as having a reservation, the brief by the members of Congress said.

The brief also cites census roles as evidence that the tribe had been under federal jurisdiction in 1934 and education of Mashpee Wampanoag Tribe students at the Bureau of Indian Affairs’s Carlisle Indian School between 1905 and 1918.

“Time and time again, the [Interior Department] Secretary has ignored Congress’ clear recognition that the Tribe was under federal jurisdiction,” the brief by the members of Congress said. “The Secretary’s actions overstepped his authority and are contrary to basic tenants of Federal Indian law providing for Congress’ plenary and exclusive authority over tribal affairs.”

Massachusetts members of the US House who submitted the brief include William Keating, Joseph Kennedy III, Lori Trahan, Rashida Tlaib, Ayanna Pressley, Stephen F. Lynch and Katherine M. Clark.

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