Decision in Historic Land Case Pending After Judge Hears Arguments
Taking up whether the Trump administration can revoke reservation status for the Mashpee Wampanoag Tribe that welcomed the pilgrims in 1620, a federal judge lashed out Wednesday, May 21 over what he said was the most poorly written government document he had ever read.
The legal battle stems from claims by the Mashpee Wampanoag that the Department of the Interior overlooked key evidence when it ordered the tribe’s 321 acres be taken out of trust, an action that could mean the loss of land and associated tax benefits.
The tribe struck a deal with the city of Taunton to build a $1 billion casino, only to face a lawsuit from nearby residents who opposed the plan.
U.S. District Judge Paul Friedman said the Interior Department memo released March 5 that reversed the government’s acquisition of land in trust for certain tribes was one of the worst written documents he has read, with grammar and spelling errors throughout.
“And you can tell your client that. It’s a joke,” Friedman told the government after it refused during the teleconference hearing to commit to reconsider the tribe’s status retroactively under recently rescinded guidance.
“I don’t know how anyone could take that as guidance because it’s incomprehensible and so convoluted that it couldn’t guide any lawyer in the field. And it took three lawyers from Interior to write that — thing,” Friedman added, referring to the new agency guidance that will decide the fate of the Mashpee Wampanoag if the judge rules in the tribe’s favor and remands the case.
The government denies wrongdoing, arguing the Mashpee Wampanoag failed to meet the new Trump administration standard for tribes to hold land in trust by demonstrating they were under federal jurisdiction in 1934 when Congress passed the Indian Reorganization Act.
The Interior Department in 2018 rolled back an Obama-era policy that sought to loosely interpret the Supreme Court ruling in Carcieri v. Salazar, after the past administration found the phrase “under federal jurisdiction” to be ambiguous and interpreted it to mean any actions sufficient to establish the government was generally acting with authority over a tribe, regardless of whether it was granted official status in 1934.
In March, the tribe was given notice by the Interior Department that its land would be removed from trust status.
The Mashpee Wampanoag only received federal recognition as a tribe in 2007, but Tami Lyn Azorsky argued Wednesday for the tribe that there is sufficient implicit evidence that it had operated under the status long before.
The attorney, of Dentons LLP, said the Interior Department has an obligation to protect the Mashpee Wampanoag.
“This rush to take the land out of trust when there isn’t even a procedure to do so…it doesn’t make sense.” Azorsky said. The attorney explained that the agency has no regulations to fall back on to carry out the controversial plan.
Filed in 2018, the case argued Wednesday originally challenged the government finding the Mashpee Wampanoag did not meet the Obama-era standard to be a federally recognized tribe.
But the tribe looked to the court in March to block the Interior Department from revoking reservation status, after it issued the new agency guidance that it claims did not trigger the decision. The government agreed to a preliminary injunction.
Drawing on reports that harkened back centuries, Azorsky argued that the United States has long wielded authority over the tribe that shared in the first Thanksgiving with settlers on land that would later become Massachusetts.
The tribe is concerned about who will oversee health and human services for its members if it loses the right to self-govern, the attorney explained. Among those concerns are teacher qualifications for the language immersion school on the reservation and zoning restrictions for tribe member housing.
“How that will happen and how that deed could be returned to the Mashpee is a complete unknown for us right now,” Azorsky said.
The action by the Interior Department is rare. Only once since the government ended protected trust status of all Indian-owned lands in 1953 has the agency reversed reservation status.
The judge pressed both parties on a key question: “What happens to a tribe that has a reservation or has a physical or geographical presence that is not in trust or no longer in trust?”
Justice Department attorney Sara Costello said she could assure the tribe that they would still be entitled to numerous government funded services as a federally recognized tribe.
“They are still entitled to the Covid aid under the CARES Act,” Costello said. “They are still entitled to financial assistance and social service programs because that’s not dependent on having land in trust status.”
But the government argued that Judge Friedman held no jurisdiction in the matter and must defer to the Interior Department.
Costello argued that the tribe has failed to demonstrate that it was federally recognized in 1934 in order to continue to hold the land in trust, saying there was “practically no evidence of any direct dealings between the tribe and the federal government.”
But the U.S. government as far back as 1822 has wielded authority over the tribe, commissioning Jedidiah Morse to visit and inspect tribes “to acquire a more accurate knowledge of their actual conditions and to devise the most suitable plan for their civilization and happiness,” Azorsky argued, quoting a government document.
“The report discusses Mashpee,” she said, noting the findings eventually landed on President James Monroe’s desk. “It discusses forming plans and developing measures to preserve the remaining Indians from extinction and recommends that the government keep Mashpee on its existing land rather than move it west.”
The Interior Department asserts that it looked thoroughly at the Morse Report and other evidence submitted by the tribe and found “there was no significant contact.”
Judge Friedman, appearing to find the report credible, questioned the government determination.
“Isn’t a decision not to do something just as much of an action to do something?” the judge asked, alluding to the determination centuries prior to not relocate the Mashpee. But Costello said that was not the position of the Interior Department.
The government did concede that one argument raised by the tribe was plainly relevant: Mashpee Wampanoag students attending Bureau of Indian Affairs schools. But then-Secretary of the Interior Department Ryan Zinke concluded in 2018 that the evidence was not sufficient to keep the land in trust.
Judge Friedman pushed back on that decision Wednesday, saying the agency guidance at the time held that exercising authority over individual Indians can serve as evidence of jurisdiction over the full tribe.
“The key for Interior is that it says ‘may’ be evidence,” Costello said. “It doesn’t mandate any further conclusion and they took a thorough look at this and concluded it was not enough.”
But Azorsky said when students attended Bureau of Indian Affairs schools, the staff controlled everything from medical care to sending money home to parents on the reservation. The tribe cites the federally-operated Carlisle Indian School attended by Mashpee students from 1905 and 1918 as evidence of their federally recognized status prior to 1934.
“When the Mashpee students were in those schools, their every aspect of life was controlled by the BIA superintendent who ran that school,” she said, adding: “And that is assertion of authority.”
Further rejecting the government’s claim that census records documenting the Cape Cod-based tribe in 1910 and 1911 at most “showed an awareness of the tribe,” Azorsky said the government is currently relying on more recent census data to distribute emergency relief funds to tribes hard hit by Covid-19.
“So the fact that it would be rejected under federal jurisdiction when the federal government is actively relying on it for the distribution of money to tribes is pretty astounding,” she added.
The Wampanoag Tribe chairman, Cedric Cromwell, in a sworn statement to the court said that when the Interior Department called to say the U.S. government would be taking the reservation land out of trust “not today,” “but soon,” an agency official promised to hold off until after any legal action the tribe took was fully adjudicated.
Costello said that commitment related to a separate case, recently decided by the First Circuit Court of Appeals when it struck down approval for the tribe to build the $1 billion casino because it was not federally recognized under the standard set by Carcieri v. Salazar.
Granted approval during the Obama administration, the project faced opposition from Trump allies who sought to build a casino in Rhode Island. The plaintiffs in the First Circuit battle acted as intervenors in the case before Judge Friedman on Wednesday.
Friedman asked the government attorney if the agency had submitted a declaration under oath with that claim. “No your honor,” Costello said, to which the judge tersely replied: “Okay. They have.”
Despite Friedman making no effort to hide his frustrations — warning the government that “you’re gonna have a tough time with this judge” if it retroactively applies the guidance issued in March to the Mashpee on remand — the ultimate fate of the tribe remains unclear.
Dialing it back, the judge said he was not suggesting he would rule in the tribe’s favor and order a remand, telling the government it had a strong argument.
“But if I did and you applied the 2020 guidance, you’re basically telling them they’ve won a Pyrrhic victory,” Freidman said.
The hearing held by teleconference under Covid-19 guidelines ended abruptly during rebuttal arguments due to technical difficulties. The judge did not issue an order scheduling a future hearing to continue arguments on the case, or indicating when he plans to rule on the consolidated motion for a preliminary injunction and summary judgment.
