Tribe argues land case in U.S. District Court
By Jessica Hill
Posted May20, 2020
A U.S. District judge said Wednesday he could rule in a week to 10 days on the Mashpee Wampanoag Tribe’s latest attempt to salvage a $1 billion casino deal with the city of Taunton.
Judge Paul Friedman heard the Mashpee Wampanoag Tribe v. Zinke case via teleconference, in which the plaintiff and defendant gave arguments centering on whether the tribe’s land should be removed from trust status, based on whether the tribe was under federal jurisdiction prior to the establishment of the Indian Reorganization Act of 1934.
The tribe, the Department of the Interior and the Littlefields, along with other Taunton neighbors, have been the key players in this yearslong battle over whether the government had the authority to take the land into trust in the first place.
The plaintiff argued that Interior Secretary David Bernhardt’s order in March to remove the tribe’s land from trust was arbitrary and capricious because he had rejected evidence that other tribes have used to obtain trust land in the past. The defense said the Interior Department’s 2018 decision was thoroughly evaluated and consistent with prior decisions.
The tribe had plans to build a $1 billion casino in Taunton that would bring economic aid to the tribe and the city of Taunton through an intergovernmental agreement. Neighbors of the proposed casino were opposed, however, and filed a lawsuit, arguing that the Interior Department had no authority to take the tribe’s land into trust.
In 2015, the Interior Department took 321 acres in Mashpee and Taunton into trust for the tribe, but under a new administration reversed itself in 2018. The tribe had appealed a district court judge’s ruling in favor of the reversal and lost, and in a separate action it challenged the Interior Department’s reversal.
In late March, the Interior Department informed the tribe it would remove its land from trust status. The tribe asked for the federal court to issue an emergency order that would postpone Bernhardt’s decision. The tribe and the Department of the Interior agreed to a 45-day pause period.
Wednesday’s hearing could determine the future of the tribe’s lands as well as its financial future. Depending on what the judge decides, the Interior Department might have to take a second look at the tribe’s qualification for land-in-trust status. A ruling in favor of the defendant might mean the tribe would lose some of its land or the tax relief that comes with it.
The plaintiff argued that several pieces of evidence show the tribe was clearly under federal authority before 1934, while the defense argued that those pieces of evidence are not explicit or show only state jurisdiction.
The tribe’s lawyer, Tami Lyn Azorsky of Dentons LLP, offered examples such as old census reports to show the tribe was under federal jurisdiction. One element of her argument concerned a federal school in Pennsylvania attended by children of the Mashpee Wampanoag Tribe.
From 1879 to 1918, the United States Carlisle Indian Industrial School operated a boarding school that hosted Native American children from around the country, with the goal of assimilating Native Americans into mainstream American culture.
Azorsky said the school took responsibility for every asset of the children’s lives, including medical decisions, without parents’ consent. Because the school was run by the federal government, and members of the Mashpee Wampanoag Tribe attended, this demonstrates the exercise of federal authority, Azorsky argued.
The defendant argued that this evidence was not affirmative of federal jurisdiction. It showed, at most, that the tribe was “under Congress’s linear authority” and was not sufficient, said Sara Costello, federal attorney for the defense.
Azorsky also brought up reports in which the federal government considered taking an action regarding the Mashpee Wampanoag Tribe and then ultimately decided against it. Because no action was taken, the Interior Department dismissed those reports as evidence.
Azorsky emphasized that action does not determine jurisdiction. She said acknowledgment of responsibility is the standard.
“Isn’t a decision not to do something just as much an action as a decision to do something?” Judge Friedman asked the defense.
“The decision to do nothing does not show that the tribe is under federal jurisdiction,” Costello said.
The plaintiff argued the Bernhardt’s order to remove the tribe’s land from trust was arbitrary and capricious because he had rejected evidence that other tribes have used to obtain trust land in the past. The defense said the Interior Department’s 2018 decision was thoroughly evaluated and consistent with prior decisions.
“The Interior Department thoroughly discussed each piece of evidence and thoroughly explained why it chose to do what it did,” Costello said. “The Interior applied the correct standard for determining the federal jurisdiction, set forth in the M-Opinion.”
The “M-Opinion” is a legal opinion the Department of the Interior had been using to determine whether a tribe was under federal jurisdiction at the time of the Indian Reorganization Act. In March, Deputy Solicitor for Indian Affairs Daniel H. Jorjani withdrew the opinion, concluding in a March 5 document that the interpretation of the first definition of “Indian” 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.”
Jorjani had issued another memorandum that provided a four-step procedure for determining tribal eligibility that would be “more consistent with how Congress and the Department would have understood them” in 1934.
Judge Friedman criticized that change, calling the March 5 document a “joke” and “incomprehensible.”
If the current matter is remanded, Costello said, the tribe’s case will be a pending application, and so the new guidance would apply, Costello said.
“Basically you’re saying, ‘Heads I win, tails you lose,’” Friedman said. “If I remanded to Interior, you want to apply a new guidance to them which makes it harder for them to succeed.”
The new guidelines would not make it harder for the tribe to succeed in keeping its land in trust, Costello argued.
Costello emphasized that if the tribe’s land is taken out of trust, it will still have access to different funding because of its status as a federally recognized tribe. It is still entitled to COVID-19 aid under the CARES Act, as well as other funds regarding social services and transportation.
“That’s not dependent on having land under trust,” Costello said.
If Friedman he were to rule in favor of the Department of the Interior, and the tribe’s land were taken out of trust, the land would return to the previous deed holder, Azorsky said.
The Taunton land would be lost because of the mortgages, she said, and because the tribe has an intergovernmental agreement with the city of Taunton, the city also would be hurt.
“Interior is the federal trustee for the tribe, and Interior has an obligation to protect the tribe,” Azorsky said. “It doesn’t make sense that there is a rush to take this land out of trust. There still has to be an orderly process, and the tribe’s federal trustee rushing to judgment to disestablish this reservation when no procedure has been figured out yet, it doesn’t make sense.”
While the teleconference dropped for listeners near the end of the plaintiff’s rebuttal, the public was able to listen in for most of the hearing.
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