Oral arguments in the Mashpee Wampanoag Tribe’s litigation against the US Department of the Interior scheduled to take place this week have been postponed until Wednesday, May 20, after the judge on the case said on Friday, May 1, that he was “shocked” to discover an undisclosed change to a legal opinion by the department.

The department replaced the M-Opinion, an Obama-era memo outlining the department’s interpretation of the phrase “under federal jurisdiction” for purposes of the Indian Reorganization Act of 1934, with new guidance for interpreting the phrase in early March.

The Interior Department failed to disclose the change to the Washington, DC, District Court even though the M-Opinion is at the heart of the litigation that was originally scheduled to be heard on Thursday, May 7.

“The Court frankly is shocked that the government did not bring this change to the Court’s attention and discuss its relevance, or lack thereof, to the pending motions for summary judgment and preliminary injunction,” Judge Paul L. Friedman wrote in an order and opinion released on Friday, May 1.

The court discovered the change on its own less than one week before oral arguments in the case. The tribe argues in the litigation that the Interior Department’s application of the M-Opinion in 2018 to find that the tribe was not “under federal jurisdiction” in 1934 for purposes of the IRA was “arbitrary, capricious, and contrary to law.”

“Not only did the government fail to bring the withdrawal of the M-Opinion to the Court’s attention when it should have—almost two months ago when the Solicitor deemed it contrary to law—but astonishingly, the flurry of activity that has developed in this case over the past month also did not prompt the government to act,” Judge Friedman said.

In a brief filed on Monday, May 4, the tribe requested more time to address questions posed by the withdrawal of the M-Opinion. The judge reset the schedule for briefings and oral arguments the next day.

“The Mashpee Wampanoag Tribe thinks that the Department of Interior’s Actions in vacating its own M Opinion without consultation with any tribes, speaks for itself,” Tribal Council Chairman Cedric Cromwell said in a statement released after the postponement. “We are keeping our faith in the Federal Court that we will see justice.”

In a March 9 memo issued by the Interior Department about the withdrawal of the M-Opinion, the department wrote that the M-Opinion “is not consistent with the ordinary meaning, statutory context, legislative history, or contemporary administrative understanding of the phrase ‘recognized Indian tribe now under federal jurisdiction.’”

In a brief, lawyers for the tribe said, “The M-Opinion was withdrawn in March—just two weeks before the Department’s Friday-afternoon ambush announcement that it planned to take the Mashpee Wampanoag Tribe’s land out of trust and disestablish its reservation despite this pending action.”

The brief by the tribe cites 10 instances in which federal courts have upheld the M-Opinion’s interpretation of the phrase “under federal jurisdiction” for purposes of the IRA.

“The Tribe believes the repudiation of the M-Opinion is an additional and important ground for denying the Federal Defendants and Intervenors’ motions for summary judgment,” said the brief filed by the tribe’s lawyers. “This repudiation calls into question the agency’s contorted application of the M-Opinion in this case.”

In a brief filed by the Interior Department defendants, lawyers for the federal government said, “Interior’s withdrawal of the M-Opinion has no legal consequence with respect to the issues pending before the Court.”

“The M-Opinion remains operative for decisions which relied upon it and, in addition, the Solicitor’s Guidance replacing the M-Opinion does not apply retroactively,” lawyers for the Interior Department said. “The Federal Defendants regret any concerns this has caused the Court.”

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