Mashpee Wampanoag Tribe v. Zinke

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MASHPEE WAMPANOAG TRIBE, )
)
Plaintiff, )
)
v. ) Civil Action No. 18-2242 (PLF)
)
DAVID BERNHARDT, in his official )
capacity as Secretary of the Interior, et al., )
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Defendants, )
)
and )
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DAVID LITTLEFIELD, et al., )
)
Defendant-Intervenors. )
____________________________________)
OPINION
This case involves a challenge to a decision of the Secretary of the Interior
determining that the Mashpee Wampanoag Tribe (the “Tribe” or “Mashpee”) did not meet either
the first or second definition of “Indian” in the Indian Reorganization Act (“IRA”) because the
Tribe was not “under federal jurisdiction” as of 1934. The Secretary had reached the opposite
conclusion in 2015, but that decision was challenged and a federal district court in Massachusetts
ultimately remanded for the Secretary to reassess the Tribe’s application under the court’s
reading of the statute. Littlefield v. U.S. Dep’t of Interior, 199 F. Supp. 3d 391 (D. Mass.
2016), aff’d sub nom. Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30 (1st Cir.
2020). On remand, the Secretary issued the decision that the Mashpee Tribe challenges here.
This matter is now before the Court on cross-motions for summary judgment filed
by the Tribe, by the federal defendants, and by defendant-intervenors – the plaintiffs in the
Littlefield litigation. Also pending before the Court is the Tribe’s emergency motion for a
temporary restraining order and motion for a preliminary injunction, which it filed shortly after
the Secretary directed the Bureau of Indian Affairs (the “BIA”) to take the land out of trust. The
parties have agreed that the Court should consolidate its consideration of the motion for a
preliminary injunction and the cross-motions for summary judgment. The Court heard oral
argument by videoconference on these motions on May 20, 2020. Upon careful consideration of
the parties’ filings, the relevant legal authorities, the arguments of counsel at the May 20, 2020
hearing, and the entire record in this case, the Court will grant the plaintiff’s motion for summary
judgment, deny the defendants’ and defendant-intervenors’ motions for summary judgment, and
remand to the agency for further proceedings. The Court will deny as moot the plaintiff’s
emergency motion for a temporary restraining order and motion for a preliminary injunction,
now that the Court is issuing this opinion on the merits, granting summary judgment for the
plaintiff. 1
1
The Court has reviewed the following documents and accompanying exhibits in
connection with the pending motion: Complaint (“Compl.”) [Dkt. No. 1]; Plaintiff’s Motion for
Summary Judgment (“Mashpee MSJ”) [Dkt. No. 29]; Federal Defendants’ Cross-Motion for
Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment (“Federal
Defendants Cross-MSJ & Opp.”) [Dkt. No. 32]; Defendant-Intervenors’ Cross-Motion for
Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment (“Defendant-
Intervenors Cross-MSJ & Opp.”) [Dkt. No. 33]; Plaintiff’s Reply in Support of its Motion for
Summary Judgment and Opposition to the Federal Defendants and Defendant-Intervenors’
Motions for Summary Judgments and Opposition (“Mashpee Reply & Opp.”) [Dkt. No. 35];
Federal Defendants’ Reply in Support of their Cross-Motion for Summary Judgment (“Federal
Defendants Reply”) [Dkt. No. 37]; Defendant Intervenors’ Reply in Support of their Cross-
Motion for Summary Judgment (“Defendant-Intervenors Reply”) [Dkt. No. 38]; Plaintiff’s
Emergency Motion for Temporary Restraining Order and Motion for a Preliminary Injunction
(“Mashpee PI”) [Dkt. No. 42]; Mashpee April 10, 2020 Status Report [Dkt. No. 48]; Federal
Defendants’ April 10, 2020 Status Report [Dkt. No. 47]; Defendant-Intervenors’ April 10, 2020
2
I. BACKGROUND AND PROCEDURAL HISTORY
A. The Indian Reorganization Act
The Indian Reorganization Act (the “IRA”), 25 U.S.C. §§ 5101 et seq., was
adopted in 1934 to change “a century of oppression and paternalism” in the relationship between
the United States and its native Indian tribes. See H.R. Rep. No. 73-1804, at 6 (1934), AR
at 8513. Its purpose was to create the mechanisms whereby tribal governments could be
reorganized and tribal corporate structures could be developed, see 25 U.S.C. §§ 5123 and 5124,
as well as to make the acquisition of lands easier, to be held in trust by the United States to
enlarge or create new Indian reservations. See 25 U.S.C. §§ 5108 and 5110; see also Cohen’s
Handbook of Federal Indian Law § 1.05 (Nell Jessup Newton ed., 2017). The United States
Secretary of the Interior (the “Secretary”) is delegated the authority to acquire land in trust for
Indian tribes. 25 U.S.C. § 5108. 2
Status Report [Dkt. No. 46]; Federal Defendants’ Memorandum in Opposition to Plaintiff’s
Emergency Motion for Temporary Restraining Order and Motion for a Preliminary Injunction
(“Federal Defendants PI Opp.”) [Dkt. No. 50]; Defendant-Intervenors’ Opposition to Plaintiff’s
Emergency Motion for Temporary Restraining Order and Motion for a Preliminary Injunction
(“Defendant-Intervenors PI Opp.”) [Dkt. No. 51]; Plaintiff’s Reply in Support of its Emergency
Motion for Temporary Restraining Order and Motion for a Preliminary Injunction (“Mashpee PI
Reply”) [Dkt. No. 57]; Plaintiff’s Response to the Court’s May 1, 2020 Order (“Mashpee
Response to Order”) [Dkt. No. 54]; Federal Defendants’ Response to the Court’s May 1, 2020
Order (“Federal Defendants Response to Order”) [Dkt. No. 56]; Defendant-Intervenors’
Response to the Court’s May 1, 2020 Order (“Defendant-Intervenors Response to Order”) [Dkt.
No. 55]; Plaintiff’s Supplemental Brief to the Court’s May 1, 2020 Order (“Mashpee Supp. Br.”)
[Dkt. No. 60]; Federal Defendants’ Response to Plaintiff’s Supplemental Brief (“Federal
Defendants Supp. Br.”) [Dkt. No. 62]; Defendant’ Intervenors’ Response to Plaintiff’s
Supplemental Brief (“Defendant Intervenors Supp. Br.”) [Dkt. No. 61]; Amicus Brief by United
States and Eastern Tribes Sovereignty Protection Fund [Dkt. No. 68]; Amicus Brief by Members
of Congress [Dkt. No. 70]; Transcript of May 20, 2020 Motions Hearing (“May 20, 2020 Tr.”)
[Dkt. No. 71]; and Federal Defendants’ Response to Amicus Brief by United States and Eastern
Tribes Sovereignty Protection Fund [Dkt. No. 74].
2
Congress authorized the Department of the Interior (“DOI”) and its Bureau of
Indian Affairs (“BIA”) to manage all matters relating to Indian affairs under the direction of the
President. See 25 U.S.C. §§ 2, 9. Pursuant to this delegation of authority to the DOI, BIA has
3
The Secretary’s authority under the IRA is cabined by whether a tribe meets the
statute’s definition of “Indian,” which is found in Section 19 of the statute and codified at 25
U.S.C. § 5129:
The term “Indian” as used in this Act shall include all persons of
Indian descent [1] who are members of any recognized Indian tribe
now under Federal jurisdiction and [2] all persons who are
descendants of such members who were, on June 1, 1934, residing
within the present boundaries of any Indian reservation, and shall
further include [3] all other persons of one-half or more Indian
blood.
25 U.S.C. § 5129.
B. Carcieri v. Salazar
In 2009, the United States Supreme Court interpreted the IRA’s definition of
“Indian” when the State of Rhode Island challenged the Secretary’s plan to accept land in trust
for use by the Narragansett Indian Tribe, which occupied much of present-day Rhode Island in
colonial times. Carcieri v. Salazar, 555 U.S. 379, 381-82 (2009). The Court analyzed only the
first of the three definitions of “Indian” in Section 19 of the IRA and held that the word “now” in
the phrase “now under federal jurisdiction” did not refer to the time of the statute’s application,
but rather referred to 1934, the year in which the IRA was enacted. Id. at 395.
The meaning of the phrase “under federal jurisdiction” was not a question before
the Court in Carcieri v. Salazar, so the majority did not elaborate on the meaning of that phrase.
In a concurring opinion, however, Justice Breyer expressed some views on this matter. He noted
that the Court’s interpretation of “now” as meaning “in 1934” was “less restrictive than it first
appears” because “a tribe may have been ‘under federal jurisdiction’ in 1934 even though the
promulgated regulations establishing procedures for placing property in trust status. See 25
C.F.R. § 151. The Secretary accepts legal title to the land in the name of the United States. 25
U.S.C. § 5108.
4
federal government did not believe so at the time.” Carcieri v. Salazar, 555 U.S. at 397 (Breyer,
J., concurring). Justice Breyer cited to specific tribes that were erroneously treated as not under
federal jurisdiction by federal officials at the time the IRA was enacted, but whose status was
later recognized by the federal government. See id. at 398-99. His concurrence suggests that
these later-recognized tribes could have been “under federal jurisdiction” in 1934
notwithstanding earlier actions or statements by federal officials to the contrary. Id. at 399.
Importantly, Justice Breyer also outlined certain types of evidence that “implied a 1934
relationship between the Tribe and Federal Government” – a treaty with the United States in
effect in 1934, a congressional appropriation before 1934, or enrollment with the Indian Office
as of 1934. Id.
Justices Souter and Ginsburg would have remanded the case to allow the
Department of the Interior (the “Department” or “DOI”) the opportunity to show that the
Narragansett Tribe was under federal jurisdiction in 1934. Carcieri v. Salazar, 555 U.S. at
400-01 (Souter, J., dissenting in part). But the majority disagreed and found that the
Narragansett Tribe was not under federal jurisdiction in 1934 because none of the parties,
including the Narragansett Tribe, had argued that the Tribe was under federal jurisdiction in
1934. Rather, the assertion in the petition for writ of certiorari that the Narragansett Tribe was
“neither federally recognized nor under the jurisdiction of the federal government” was not
contested, which meant that the Court could accept it as fact. Id. at 395-96.
C. The M-Opinion
Five years after Carcieri v. Salazar was decided, the Solicitor of the Department
of the Interior issued formal legal guidance to the Secretary for how to interpret the phrase
“under federal jurisdiction” in the IRA’s first definition of “Indian.” DOI, M-37029,
5
Memorandum on The Meaning of “Under Federal Jurisdiction” for Purposes of the Indian
Reorganization Act (March 12, 2014) (“M-Opinion”). This signed M-Opinion binds the
Department and its officials. See 2018 ROD at 11, AR at 5098; see also M-Opinion at 17, 26.
Applying Chevron, the Solicitor first concluded that the phrase “under federal jurisdiction” was
ambiguous, and that Congress therefore “left a gap for the agency to fill.” M-Opinion at 17
(citing Chevron v. Natural Res. Def. Council, 467 U.S. 837, 840-43 (1984)). In order to fill the
gap, the Solicitor examined the text of the IRA, its remedial purposes, its legislative history, and
the DOI’s early practices. Id. at 8-20. He also considered the Indian canon of construction. Id.
at 5, 19. The Solicitor’s interpretation of “under federal jurisdiction” was informed by Justice
Breyer’s concurring opinion in Carcieri. Id. at 23-25. The M-Opinion also specified that
Congress’s constitutional plenary authority over Indian tribes is insufficient to show that a tribe
was “under federal jurisdiction” in 1934. Id. at 17-18. 3
In the M-Opinion, the Solicitor announced a two-part test for determining whether
a tribe was under federal jurisdiction. M-Opinion at 19-20. First, the Secretary must determine
whether there is a “sufficient showing in the tribe’s history, at or before 1934, that it was under
federal jurisdiction.” Id. at 19. Second, the Secretary must determine “whether the tribe’s
jurisdictional status remained intact in 1934.” Id.
In order to answer the first part of the test, the Solicitor said that the Secretary
should look to whether
the United States had, in 1934 or at some point in the tribe’s history
prior to 1934, taken an action or series of actions – through a course
of dealings or other relevant acts for or on behalf of the tribe or in
some instance tribal members – that are sufficient to establish, or
3
“The Constitution grants Congress broad general powers to legislate in respect to
Indian tribes, powers that [have been] consistently described as ‘plenary and exclusive.’” United
States v. Lara, 541 U.S. 193, 200 (2004) (internal citations omitted).
6
that generally reflect federal obligations, duties, responsibility for or
authority over the tribe by the Federal Government.
M-Opinion at 19. The M-Opinion noted that “[s]ome federal actions may in and of themselves
demonstrate that a tribe was, at some identifiable point or period in its history, under federal
jurisdiction,” whereas “[i]n other cases, a variety of actions when viewed in concert may
demonstrate that a tribe was under federal jurisdiction.” Id.
The Solicitor added that evaluating the first part of the test is a “fact and tribe-
specific inquiry” and offered examples of various types of evidence that may be considered:
“the negotiation of and/or entering into treaties,” the “approval of contracts between a tribe and
non-Indians,” the “enforcement of the Trade and Intercourse Acts (Indian trader, liquor laws, and
land transactions),” the “education of Indian students at BIA schools,” the “provision of health or
social services to a tribe,” and “actions by the Office of Indian Affairs,” the office responsible for
the administration of the Indian reservations and implementing legislation.
M-Opinion at 19. 4 The Solicitor noted that “[t]here may, of course be other types of actions not
referenced” that could serve as evidence that a tribe met the first part of the inquiry. Id.
In this tribe- and fact-specific inquiry, different types of evidence carry different
weight. Some evidence “unambiguously and conclusively establishes that the United States
understood that a particular tribe was under federal jurisdiction in 1934.” M-Opinion at 20. For
instance, a tribe that voted on whether to opt out of the IRA in the years following its enactment,
regardless of which way it voted, is “unambiguous” evidence that the tribe was under federal
jurisdiction in 1934, thus “obviating the need to examine the tribe’s history prior to 1934,” and
eliminating the need to proceed to the second step of the two-part inquiry. Id. at 19-20. For
4
The BIA was originally named the Office of Indian Affairs, which was located
within the Department of War. Cobell v. Babbitt, 91 F. Supp. 2d 1, 7 n.2 (D.D.C. 1999). The
BIA was transferred to the newly created Department of the Interior in 1849.
7
other tribes the Secretary may point to “a variety of actions when viewed in concert” that
demonstrate that a tribe was under federal jurisdiction prior to 1934 (to satisfy part one) and
determine from “the universe of actions or evidence” that a tribe’s jurisdictional status remained
intact in 1934 (to satisfy part two). Id. at 19.
When there is evidence that a tribe was under federal jurisdiction before 1934, the
Secretary proceeds to the second part of the test, which is to “ascertain whether the tribe’s
jurisdictional status remained intact in 1934.” M-Opinion at 19. The Solicitor noted, however,
that “the Federal Government’s failure to take any actions towards, or on behalf of a tribe during
a particular time period does not necessarily reflect a termination or loss of the tribe’s
jurisdictional status,” as “there may be periods where federal jurisdiction exists but is dormant.”
Id. at 20. Rather, once the first part of the inquiry is satisfied – that at some point prior to 1934 a
tribe was under federal jurisdiction – “the absence of any probative evidence that a tribe’s
jurisdictional status was terminated or lost prior to 1934 would strongly suggest that such status
was retained in 1934.” Id.
The D.C. Circuit has reviewed and upheld the two-part test set forth in the M-
Opinion. See Confederated Tribes of Grand Ronde Cmty. v. Jewell (“Grand Ronde v. Jewell”),
830 F.3d 552, 564-65 (D.C. Cir. 2016) (finding the phrase “under Federal jurisdiction” in the
IRA to be ambiguous and sanctioning DOI’s two-part test outlined in the M-Opinion). 5
The M-Opinion was issued in 2014, but the Department first announced this two-
part framework for interpreting “now under federal jurisdiction” in a December 2010 record of
decision to acquire land in trust for the Cowlitz Indian Tribe. 2018 ROD at 11, AR at 5098
5
In Grand Ronde v. Jewell, the Circuit analyzed a record of decision from 2013
that predated the M-Opinion but that applied the same test later codified in the M-Opinion.
8
(citing the Cowlitz ROD, AR at 5610-5727). The Department’s decisions applying this two-part
framework from the Cowlitz ROD onward are therefore precedential for the purposes of the
Department’s application of the two-part test formally announced in the M-Opinion. See May
20, 2020 Tr. at 40:05-11.
D. The 2015 Record of Decision
In 2007, after the BIA formally acknowledged the Mashpee Tribe pursuant to the
administrative procedures set forth in 25 C.F.R. § 83, the Tribe applied to have the Secretary take
land into trust on its behalf. DOI, Record of Decision, Trust Acquisition and Reservation
Proclamation for 151 Acres in the City of Taunton, Massachusetts, and 170 Acres in the Town of
Mashpee, Massachusetts, for the Mashpee Wampanoag Tribe (Sept. 18, 2015) (“2015 ROD”),
AR at 5223-357. 6 The 2015 ROD granted the Tribe’s fee-to-trust application and announced
that the Secretary would acquire both requested parcels of land; one in Mashpee and the other in
Taunton. DOI also announced that both sites would be eligible for gaming under the “initial
reservation exception” of the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721. 2015
ROD, AR at 5230. The 2015 ROD explained that the Secretary’s authority to acquire land in
trust for the Mashpee Tribe was based on the second definition of “Indian” in the IRA. Id.
at 5304. The 2015 ROD specifically stated that it did not address “whether the Mashpee could
6
The Tribe sought the trust land to support the needs of its members and provide
land for self-determination and self-governance, housing, education and cultural preservation.
The Mashpee land, which includes culturally significant and historic sites in the heart of the
Tribe’s historic territory (including a Mashpee burial ground used by the Tribe for centuries), is
for use for tribal administrative and cultural purposes, and tribal housing. The Taunton land is
for use for economic development in the form of an Indian gaming facility, with revenues
intended to support the Mashpee tribal government and meet the needs of Tribal members, many
of whom suffer from unemployment or incomes below poverty level. See Compl. ¶ 23.
9
also qualify under the first definition of ‘Indian,’” and therefore did not analyze whether the tribe
was under federal jurisdiction in 1934. Id. at 5304-05.
E. Littlefield v. U.S. Dep’t of Interior and Remand Proceedings
Shortly after issuing the 2015 ROD, the Secretary took the two parcels of land
into trust for the Mashpee Tribe, and development of the Taunton site began. See Littlefield v.
U.S. Dep’t of Interior, 199 F. Supp. 3d 391, 393 (D. Mass 2016). The Littlefield plaintiffs –
residents of Taunton who claimed they were injured by the acquisition and planned development
of the land at issue – sued to challenge the 2015 ROD in the United States District Court for the
District of Massachusetts. Id. at 392, 394. The Littlefield plaintiffs challenged the Secretary’s
interpretation of the IRA’s second definition of “Indian,” arguing that the Mashpee Tribe did not
qualify under a proper reading of the IRA’s second definition, and therefore the Secretary lacked
authority to acquire the land in trust. Id. at 394.
The district court agreed. It interpreted the IRA’s second definition of “Indian” as
“us[ing] the word ‘such’ to indicate that the ‘members’ to which it refers are those described in
the first definition.” Littlefield v. U.S. Dep’t of Interior, 199 F. Supp. 3d at 397. The phrase
“under federal jurisdiction” in the IRA’s first definition of “Indian” therefore also qualifies the
IRA’s second definition of “Indian.” The court stated that “the Mashpees are not considered
‘Indians’” under the IRA’s second definition “because they were not under federal jurisdiction in
June 1934,” and the Secretary therefore “lacked the authority to acquire land in trust for them, at
least under the rationale . . . offered in the Record of Decision.” Id. The court remanded the
matter to DOI for further proceedings. Id. at 400.
The Department of the Interior subsequently sought reconsideration of the court’s
factual finding that the Mashpee Tribe was not under federal jurisdiction in June 1934 since the
10
Department had not briefed the issue, and it had not been addressed in the 2015 ROD. The court
thereafter clarified that its finding that the Mashpee Tribe weas not under federal jurisdiction in
1934 would not be binding on DOI on remand. See Order on Motion for Reconsideration,
Littlefield v. U.S. Dep’t of Interior, Civil Action No. 16-10184 (D. Mass. Oct. 12, 2016) [Dkt
121]. The court explained that on remand DOI could either consider the Mashpee Tribe’s
eligibility under the first definition of “Indian” or reassess its eligibility under the second
definition consistent with the court’s interpretation. Id.
DOI notified the Tribe and the Littlefield plaintiffs in late 2016 that it would
reconsider the Tribe’s eligibility under the first definition of “Indian.” Compl. ¶ 28;
Answer ¶ 28. DOI invited the parties “to submit any evidence or argument that the Tribe was
under federal jurisdiction in 1934.” Id. The Tribe submitted evidence and arguments in two
parts: first on December 21, 2016, and again on January 5, 2017. See Mashpee First
Submission, AR at 5196-5220; Mashpee Second Submission, AR at 5740-5785. The Littlefield
plaintiffs submitted their own brief, to which the Tribe replied.
Briefing initially concluded in February 2017. Four months later, DOI issued a
draft decision finding that the Tribe was not “under federal jurisdiction” in 1934. DOI then
requested supplemental briefing regarding the effect of Massachusetts’ exercise of authority over
the Tribe and whether Massachusetts could be considered a federal surrogate for purposes of the
“under federal jurisdiction” inquiry. Compl. ¶ 30. DOI considered supplemental evidence
provided by the Tribe, the Littlefield plaintiffs, and several third parties. 7 Supplemental briefing
concluded in November 2017.
7
The third parties included a neighboring Indian tribe and several towns in
Connecticut.
11
F. The 2018 Record of Decision
On September 7, 2018, the Secretary of the Department of the Interior (the
“Secretary”) through his designee, the Assistant Secretary for Indian Affairs, issued a Record of
Decision in which she concluded that the Tribe was not “under federal jurisdiction” as of 1934
and so did not meet either the first or second definition of “Indian” in the IRA. DOI, Letter from
Tara Sweeney, Assistant Secretary for Indian Affairs, to The Honorable Cedric Cromwell,
Chairman, Mashpee Wampanoag Tribe (“2018 ROD”), AR at 5088-115. Expressly relying on
the M-Opinion of March 12, 2014, Assistant Secretary Sweeney concluded:
Applying [the 2014 M-Opinion’s] framework to my review of the
parties’ remand and supplemental submissions, I conclude that the
evidence does not show that the Tribe was under Federal jurisdiction
in 1934 within the meaning of the IRA’s first definition of “Indian.”
The record before me contains little indicia of Federal jurisdiction
beyond the general principle of plenary authority, and little if any
evidence demonstrating that the United States took any actions
establishing or reflecting Federal obligations, duties, responsibilities
for or authority over the Tribe in or before 1934. Because the Tribe
was not “under federal jurisdiction” in 1934, the Tribe does not
qualify under the IRA’s first definition of “Indian.” Nor does it
qualify under the second definition, as that definition has been
interpreted by the United States District Court for the District of
Massachusetts.
2018 ROD at 28, AR at 5115. In relying on the M-Opinion, the Assistant Secretary
acknowledged that the M-Opinion was binding on her determination. 2018 ROD at 11, AR
at 5098 (“Because a signed M-Opinion binds the Department and its officials until modified by
the Solicitor, Deputy Secretary, or Secretary or otherwise overruled by the courts, [the M-
Opinion] guides this analysis.”); see also M-Opinion at 17, 26 .
The Mashpee Tribe filed suit in this Court on September 27, 2018, challenging
the 2018 ROD. The Tribe asks the Court to vacate the 2018 ROD as arbitrary, capricious, an
abuse of discretion and contrary to law; declare that the evidence submitted to DOI by the Tribe
12
is sufficient to support a finding that the Mashpee Tribe was “under federal jurisdiction” in 1934
within the meaning of the IRA; and instruct the Secretary to confirm the trust status of the land
that makes up the Tribe’s reservation. See Mashpee MSJ at 2.
G. Littlefield v. Mashpee and Mashpee’s Motion for Preliminary Injunction
As it challenged the 2018 ROD before this Court, the Mashpee Tribe was
simultaneously appealing the Littlefield decision regarding the 2015 ROD to the First Circuit.
On February 20, 2020, the First Circuit affirmed the Massachusetts district court’s decision,
holding that “the IRA unambiguously forecloses the BIA’s interpretation” of the second
definition of “Indian” in the 2015 ROD, and therefore “the Secretary lacked authority to take
land into trust for the benefit of the Tribe.” Littlefield v. Mashpee Wampanoag Indian Tribe
(“Littlefield v. Mashpee”), 951 F.3d 30, 41 (1st Cir. 2020). 8
On March 27, 2020 the Secretary wrote a letter to the Director and the Eastern
Regional Director of the BIA noting that the mandate and final judgment had issued from the
First Circuit on March 19, 2020, which meant that the Littlefield decision was final. See March
27, 2020 Secretary of the Interior letter [Dkt. No. 42-4]. The letter directed the BIA to “rescind”
the 2015 Decision “whereby the BIA accepted land into trust on behalf of the Tribe,” and to
“revoke the reservation proclamation.” Id. Upon being advised of the Secretary’s letter, the
Mashpee Tribe filed an emergency motion for a temporary restraining order and a preliminary
injunction in this Court on March 30, 2020, seeking to preserve the “status quo” during the
8
Before it reached a decision on the merits, the First Circuit had ordered the parties
to brief (1) whether the appeal was moot given DOI’s decision on remand (the 2018 ROD) and
the litigation pending in this Court, and (2) whether the certification of the appeal was proper in
light of the fact that the Massachusetts district court remanded the matter to DOI. See Littlefield
v. Mashpee, Order, Court of Appeals No. 16-2484 (Aug. 20, 2019). Ultimately, the First Circuit
held that it had jurisdiction over the appeal. Littlefield v. Mashpee, 951 F.3d at 34-36.
13
pendency of this action. See Mashpee PI. The parties thereafter agreed with the Court’s
suggestion that it consolidate the hearing on the motion for a preliminary injunction with a
hearing on the cross-motions for summary judgment. See April 10, 2020 Order [Dkt. No. 49]
at 1. The Federal Defendants have agreed to maintain the status quo through June 5, 2020.
II. LEGAL STANDARDS
A. Summary Judgment
“In APA cases such as this one, involving cross-motions for summary judgment,
‘the district judge sits as an appellate tribunal. The entire case on review is a question of law.’”
Stand Up for California! v. Dep’t of the Interior, 204 F. Supp. 3d 212, 244 (D.D.C. 2016)
(quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal
citations omitted)); see also Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226
(D.C. Cir. 1993) (“[W]hen an agency action is challenged[, t]he entire case on review is a
question of law, and only a question of law.”). The standard for granting summary judgment set
forth in Rule 56 of the Federal Rules of Civil Procedure – whether there are genuine issues of
material fact that preclude judgment for one side or the other – therefore does not apply to a
review of agency action. Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006).
Summary judgment nonetheless “serves as the mechanism for deciding, as a matter of law,
whether the agency action is supported by the administrative record and otherwise consistent
with the APA standard of review.” Id. at 90 (citing Richards v. INS, 554 F.2d 1173, 1177
& n. 28 (D.C. Cir. 1977)); accord UPMC Braddock v. Harris, 934 F. Supp. 2d 238, 245 (D.D.C.
2013); Cottage Health Sys. v. Sebelius, 631 F. Supp. 2d 80, 89-90 (D.D.C. 2009). “Judicial
review is limited to the administrative record, since ‘[i]t is black-letter administrative law that in
an [Administrative Procedure Act] case, a reviewing court should have before it neither more nor
14
less information than did the agency when it made its decision.’” Cigar Ass’n of Am. v. U.S.
Food & Drug Admin., Civil Action No. 16-01460, 2020 WL 532392, at *7 (D.D.C. Feb. 3, 2020)
(citing CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (internal quotations and citations
omitted; alteration in original)).
B. Review under the Administrative Procedure Act
Under the APA, a reviewing court shall “hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “This is a ‘deferential standard’
that ‘presume[s] the validity of agency action.’” WorldCom, Inc. v. FCC, 238 F.3d 449, 457
(D.C. Cir. 2001) (alteration in original) (quoting Sw. Bell Tel. Co. v. FCC, 168 F.3d 1344, 1352
(D.C. Cir. 1999)). This standard “obligates the agency to examine all relevant factors and record
evidence, and to articulate a reasoned explanation for its decision.” Am. Wild Horse Pres.
Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017) (citing Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983)).
An agency decision is arbitrary and capricious if it either (1) “relied on factors
which Congress has not intended it to consider,” (2) “entirely failed to consider an important
aspect of the problem,” (3) “offered an explanation for its decision that runs counter to the
evidence before the agency,” or (4) “is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.” Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 714
(D.C. Cir. 2011) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. at 43); accord Agape Church, Inc. v. FCC, 738 F.3d 397, 410 (D.C. Cir. 2013). Just as the
Court may not “substitute [its] judgment for that of the agency” to set aside an agency action,
Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1105 (D.C.Cir.2009), it also may not “affirm an
15
agency decision on a ground other than that relied upon by the agency.” Manin v. Nat’l Transp.
Safety Bd., 627 F.3d 1239, 1243 (D.C. Cir. 2011).
If an agency “chang[es] its course” from its own precedent it must “acknowledge”
that change and “provide an adequate explanation for its departure from established precedent[; ]
an agency that neglects to do so acts arbitrarily and capriciously.” Jicarilla Apache Nation v.
U.S. Dep’t of Interior, 613 F.3d 1112, 1119 (D.C. Cir. 2010) (citing Dillmon v. NTSB, 588 F.3d
1085, 1089-90 (D.C. Cir. 2009). But while an agency cannot “completely ignore relevant
precedent” such as when “analogous cases have been decided differently,” an agency is “not
require[d] to grapple with every last one of its precedents, no matter how distinguishable.” Id.
at 1120.
The requirement that an agency adequately explain its result “is not particularly
demanding” and “nothing more than a ‘brief statement’ is necessary.” Muwekma Ohlone Tribe
v. Salazar, 813 F. Supp. 2d 170, 190 (D.D.C. 2011) (citing Pub. Citizen, Inc. v. FAA, 988 F.2d
186, 197 (D.C. Cir. 1993); Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001)).
Courts will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned.’” Catawba Cty., N.C. v. E.P.A., 571 F.3d 20, 50 (D.C. Cir. 2009) (quoting Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
III. ANALYSIS
The Tribe argues that the Secretary violated the APA when he issued the 2018
ROD, maintaining that he “ignored various facts and treated others in ways that deviated from
both prior agency decisions and relevant case law, and on the whole failed to provide reasonable
explanations for the way he treated evidence.” Mashpee MSJ at 20. The Tribe further argues
that the Secretary employed a “cramped reading of the IRA’s ‘under federal jurisdiction’
16
requirement” that failed to consider the evidence of federal jurisdiction put forth by the Mashpee
as a whole. Id. at 40. In addition, the Tribe asserts that the Secretary ignored the remedial
purposes of the IRA, his trust responsibility to the Tribe, and the Indian canon of construction.
Id. at 40, 42-45.
Upon learning on its own without any notice from the parties that the Secretary
had recently withdrawn the M-Opinion during the pendency of this case, the Court asked for
supplemental briefing on whether the Secretary’s withdrawal of the M-Opinion and the reasons
provided for its withdrawal meant that the deferential standard to the Secretary’s application of
the M-Opinion in the 2018 ROD was altered. See May 1, 2020 Mem. Op. and Order [Dkt. No.
53]. In response to the Court’s Order, the Tribe argues that the new guidance issued on March
10, 2020 demonstrates that the Secretary in the 2018 ROD was implicitly applying a much
stricter test than the one articulated in the 2014 M-Opinion. Mashpee Supp. Br. at 8-14.
The federal defendants and defendant-intervenors defend the 2018 ROD as
entirely consistent with the IRA, the M-Opinion as written, DOI precedent, and the APA. 9 The
Court will address each of these arguments in turn.
9
The defendant-intervenors also argue that the Supreme Court’s decision in
Carcieri v. Salazar, which said that the Narragansett Tribe was not under federal jurisdiction in
1934 means that this Court must also find that the Mashpee Tribe was not under federal
jurisdiction in 1934. Defendant-Intervenors Cross-MSJ & Opp. at 17; Defendant-Intervenors
Reply at 5-7. But the Supreme Court’s decision does not mandate such an outcome. The
Supreme Court accepted as fact that the Narragansett Tribe was not under federal jurisdiction
because the parties did not contest this point. Carcieri v. Salazar, 555 U.S. at 395-96. Indeed,
Justices Souter and Ginsburg would have remanded to the DOI to allow an opportunity for the
Narragansett Tribe to show that it was under federal jurisdiction in 1934. Id. at 400-01. But the
majority chose to accept the parties’ factual concession. Id. at 395-96.
17
A. Jurisdiction by Operation of Law and Massachusetts’ Exercise of Authority
After the district court in Massachusetts remanded the 2015 decision to the
Department, the Tribe asserted in its briefing before the DOI that it came under federal
jurisdiction by operation of law in the early constitutional period. The Tribe supported this claim
by arguing that (1) “[t]he United States assumed Britain’s treaty-like obligations to the Tribe
when the United States succeeded to Britain’s sovereignty”; (2) Congress assumed an obligation
to protect tribal lands under federal common law and the Indian Nonintercourse Act, 25 U.S.C.
§ 177; and (3) the Tribe’s occupation of a reservation in 1934 meant that the Tribe was under
federal jurisdiction at that time. Mashpee Second Submission, AR at 5752-60; see also Mashpee
Reply to Defendant-Intervenors’ Submission, AR at 7077-80. The Secretary considered each of
these arguments in the 2018 ROD and concluded that the Tribe did not come under federal
jurisdiction by operation of law. 2018 ROD at 13-15, AR at 5100-02. The Tribe does not
challenge this conclusion here. Mashpee Reply at 14 n.17.
During the briefing on remand, the Tribe also submitted evidence, at DOI’s
request, that addressed the effect of Massachusetts’ exercise of authority over the Tribe and the
question of whether Massachusetts could be considered a federal surrogate for purposes of the
“under federal jurisdiction” inquiry. Mashpee Suppl. Submission, AR at 8349-8419. The 2018
ROD noted that the Mashpee and the Commonwealth of Massachusetts “had significant
relations . . . as a colony and a state for nearly two centuries”; that the Commonwealth exercised
authority over the Tribe; and that Massachusetts enacted laws for the benefit of the Tribe.
2018 ROD at 18, AR at 5105. The Secretary concluded, however, that “the record contains
practically no evidence of any dealings with the Federal Government in that period, which [the
M-Opinion] requires, and exercises of Commonwealth authority, without more, cannot in itself
18
reflect federal obligations, duties, responsibilities for, or authority over the Tribe.” Id. (emphasis
in original).
The Tribe does not challenge these findings in the 2018 ROD as arbitrary,
capricious, an abuse of discretion, or not in accordance with law. See 5 U.S.C. § 706(2)(A). The
Tribe explains that it did not raise the issue of whether Massachusetts functioned as a federal
surrogate but only briefed the matter at DOI’s request. Mashpee Reply & Opp. at 14 n. 17.
Nevertheless, the Tribe contends that “[Massachusetts’] actions toward the Tribe supplemented
the federal government’s assertion of jurisdiction and should be considered as part of the federal
course of dealings demonstrating that Mashpee was under federal jurisdiction in 1934.”
Mashpee Reply at 14 n.17 (citing Mashpee Suppl. Submission, AR at 8363-68). The Court
agrees and will consider the evidence the Tribe cites to the extent that it overlaps with or
provides support for evidence that the Tribe asserts demonstrates explicit acts of federal
authority over the Tribe. See Mashpee MSJ at 15-19.
B. Chevron Deference, the Indian Canon of Construction, and Subsequent
Withdrawal of the M-Opinion
The Mashpee Tribe has not challenged DOI’s reliance on the M-Opinion’s two-
part test for determining whether a tribe was “under federal jurisdiction” under the IRA, only the
manner in which DOI applied the M-Opinion’s two-part test. The Tribe asks the Court to review
the 2018 ROD to see whether its application of the IRA is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law under the APA. In their cross-motions for
summary judgment, the federal defendants and defendant-intervenors defend the Secretary’s use
of the M-Opinion in the 2018 ROD as entitled to Chevron deference. See Federal Defendants
Cross-MSJ & Opp. at 11; Defendant-Intervenors’ Cross-MSJ & Opp. at 18.
19
The D.C. Circuit has reviewed and upheld the test set forth in the M-Opinion. See
Grand Ronde v. Jewell, 830 F.3d at 564-65 (finding the phrase “under Federal jurisdiction” in
the IRA to be ambiguous and sanctioning DOI’s two-part test outlined in the M-Opinion). In
doing so, the D.C. Circuit applied both Chevron and the Indian canon of construction,
recognizing that “statutes are to be construed liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit.” Grande Ronde v. Jewell, 830 F.3d at 558 (quoting
California Valley Miwok Tribe v. United States, 515 F.3d 1262, 1266 n.7 (D.C. Cir. 2008)).
Similarly, the M-Opinion applied both the Indian canon of construction and a Chevron analysis
when implementing the two-part test as official agency guidance. M-Opinion at 4-5, 16-20.
The Mashpee Tribe invokes the Indian canon of construction in order to suggest
that the Secretary’s application of the M-Opinion’s two-part test should be favorable to the
Tribe. Mashpee MSJ at 42-45; Mashpee Reply & Opp. at 6-8. This argument misunderstands
the canon. The Indian canon of construction says that ambiguous statutes should be construed
liberally in favor of Indians. See, e.g., Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766
(1985) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit.”); Grande Ronde v. Jewell, 830 F.3d at 558 (same).
“When presented with an ambiguous statute” an analysis that “ordinarily would shift to Chevron
step two” instead applies the Indian canon. Koi Nation of N. California v. U.S. Dep’t of Interior,
361 F. Supp. 3d 14, 48 (D.D.C. 2019). “Chevron deference ‘does not disappear’” but instead
“‘applies with muted effect,’ and ‘the Indians’ benefit remains paramount.’” Id. (quoting Cobell
v. Salazar, 573 F.3d 808, 812 (D.C. Cir. 2009)). The Indian canon of construction therefore is
applied to questions of statutory interpretation.
20
There is no question that the M-Opinion applied the Indian canon to the IRA’s
ambiguous phrase “under federal jurisdiction,” which resulted in the M-Opinion’s two-part
analysis. M-Opinion at 5, 19; see also Grand Ronde v. Jewell, 830 F.3d at 565. With the
statutory interpretation resolved, however, the canon’s role is complete. After a statute has been
interpreted, “agency action is always subject to arbitrary and capricious review under the APA.”
Grande Ronde v. Jewell, 830 F.3d at 559. This is the question before the Court: whether the
Secretary’s application of its interpretation of the IRA – the M-Opinion – was arbitrary and
capricious.
On March 9, 2020, the Solicitor of the Department of the Interior withdrew the
2014 M-Opinion on which the 2018 ROD is based. See Sol. Op. M-37055, “Withdrawal of M-
37209, The Meaning of ‘Under Federal Jurisdiction’ for Purposes of the Indian Reorganization
Act” (Mar. 9, 2020) (“March 9, 2020 Memorandum”). The next day, the Solicitor issued a
second memorandum that outlined a new, four-step procedure for how the Department will
determine eligibility under the first definition of “Indian” in Section 19 of the IRA. See
“Procedure for Determining Eligibility for Land-into-Trust under the First Definition of ‘Indian’
in Section 19 of the Indian Reorganization Act,” Memorandum from the Solicitor to Regional
Solicitors, Field Solicitors, and SOL-Division of Indian Affairs (Mar. 10, 2020) (“March 10,
2020 Memorandum”). To further assist the Solicitor’s Office attorneys in implementing the
four-step procedure, the March 10, 2020 Memorandum references a March 5, 2020
memorandum from the Deputy Solicitor for Indian Affairs detailing the Department’s
interpretation of the phrase “recognized Indian tribe now under federal jurisdiction.” See
Determining Eligibility under the First Definition of “Indian” in Section 19 of the Indian
Reorganization Act of 1934, Memorandum from the Deputy Solicitor for Indian Affairs to the
21
Solicitor (Mar. 5, 2020) (“March 5, 2020 Memorandum”). The parties agree that the withdrawal
of the M-Opinion and issuance of new guidance does not affect the Court’s analysis whether the
Secretary properly applied the M-Opinion in the 2018 ROD. See Mashpee Response to Order
at 3; Federal Response to Order at 6; Defendant-Intervenors Response to Order at 2-3.
C. The Secretary’s Application of the M-Opinion’s Test
The Mashpee argue that the Secretary applied a “cramped reading” of the analysis
the M-Opinion directs the Secretary to make by failing to view the probative evidence in the
record “in concert” with other probative evidence in the record. Mashpee MSJ at 40-42;
Mashpee Reply at 4. The federal defendants and defendant-intervenors respond by saying that
the Tribe is really challenging the weight afforded to each type of evidence, and that the
Secretary properly applied the M-Opinion’s test in the 2018 ROD. Federal Defendants Cross-
MSJ & Opp. at 33; Federal Defendants Reply at 5-6; Defendant-Intervenors Cross-MSJ at 14-15.
The Court finds that the Secretary in the 2018 ROD did not evaluate the evidence
in accordance with the directives of the M-Opinion. The Secretary misapplied the M-Opinion by
evaluating each piece of evidence in isolation. This is not the correct application of the
M-Opinion. The M-Opinion holds that “[s]ome federal actions may in and of themselves
demonstrate that a tribe was, at some identifiable point or period in its history, under federal
jurisdiction,” but it goes on to say that “[i]n other cases, a variety of actions when viewed in
concert may demonstrate that a tribe was under federal jurisdiction.” M-Opinion at 19. In other
words, some actions may be unambiguous evidence that a tribe was under federal jurisdiction at
a certain point in time, while other actions must be viewed in concert with other probative
evidence. The Secretary could find that a tribe was under federal jurisdiction before 1934 after
viewing all the probative evidence “in concert,” without the tribe having any unambiguous
22
evidence. It is clear from the 2018 ROD that the Secretary only evaluated each piece of evidence
in isolation to see whether it was unambiguous – whether the evidence “in and of itself”
demonstrated that the Tribe was under federal jurisdiction.
As articulated by the Secretary, the conclusions about each piece of evidence
evaluated in the 2018 ROD show that the Secretary evaluated each piece of evidence in isolation.
See, e.g., 2018 ROD at 21, AR at 5108 (discounting the Morse Report as being insufficient
“without more”); id. at 22, AR at 5109 (discounting the various uses of the Morse Report as not
satisfying the first step of the M-Opinion analysis “in and of themselves”); id. at 23, AR at 5110
(discounting the recommendations in the Schoolcraft Report “in and of themselves”); id. at 26-
27, AR at 5113-14 (discounting the reservation under state law of usufructuary rights for tribal
members “standing alone”); id. at 27, AR at 5114 (discounting the education of Mashpee
students at a BIA school as not sufficient “in isolation”); id. at 28, AR at 5115 (discounting
census evidence probative of federal jurisdiction over the Tribe as being inconclusive “in and of
itself”).
The federal defendants argue that “the Tribe cannot show that the totality of its
evidence is greater than the sum of its parts.” Federal Defendants Reply at 5. This point falls
flat, however, because the 2018 ROD did find some of the evidence to be probative of the Tribe
being under federal jurisdiction. See 2018 ROD at 28, AR at 5115 (“As with . . . the [f]ederal
reports referencing the Tribe and its lands, the listing of Tribal members on a Federal census,
though it may be probative of Federal jurisdiction over the Tribe, in and of itself is
inconclusive[.]”). But the Secretary rejected this evidence because he said the evidence was
insufficient, alone, to prove that the Tribe was under federal jurisdiction. Id. That is not a
23
correct application of the M-Opinion, which directs the Secretary to view the probative evidence
“in concert.”
The Secretary’s incorrect application of the M-Opinion – evaluating the evidence
in isolation and failing to view the probative evidence “in concert” – taints every category of
evidence that the Secretary discussed in the 2018 ROD. On remand, the Secretary must follow
the directive of the M-Opinion and consider the probative evidence “in concert” with each piece
of other probative evidence to determine whether the probative evidence together shows that the
Tribe was under federal jurisdiction before 1934 under the first step of the M-Opinion’s two-part
test.
D. The Secretary’s Application of the M-Opinion to the Evidence
The Tribe challenges the 2018 ROD as arbitrary, capricious, an abuse of
discretion and contrary to the law. It maintains that the Secretary “ignored various facts and
treated others in ways that deviated from both prior agency decisions and relevant case law, and
on the whole failed to provide reasonable explanations for the way he treated evidence.”
Mashpee MSJ at 20. The federal defendants and defendant-intervenors defend the 2018 ROD as
entirely consistent with the IRA, the agency’s guidance and precedent, and the APA.
In its supplemental brief, the Mashpee Tribe argues that with the benefit of the
new 2020 guidance that has replaced the 2014 M-Opinion for future cases, the Tribe can discern
that the Secretary was implicitly applying this new, stricter test when evaluating the Mashpee’s
evidence in 2018. Mashpee Supp. Br. at 8-14. In support of this argument, the Mashpee
highlight various types of evidence that the Secretary accepted as probative evidence in other
earlier Department decisions applying the M-Opinion that the Secretary discounted in the 2018
ROD with respect to the Mashpee Tribe. Id. at 10-14.
24
The Court agrees that some of the reasons that the Secretary provides in the 2018
ROD as to why the Mashpee’s evidence is insufficient reflects some of the new standards
recently issued in 2020. For instance, while the 2014 M-Opinion allows for the education of
individual Indian students at BIA schools to be evidence that supports a finding that a tribe was
under federal jurisdiction – thereby permitting evidence about individual tribal members to
support a finding about the tribe as a whole – the new 2020 guidance only permits evidence
about the “establishment of schools and other service institutions for the benefit of a tribe.”
March 10, 2020 Memorandum at 7 (emphasis added). The new 2020 guidance also accepts only
census evidence that was prepared by the Office of Indian Affairs pursuant to the 1884 Act. Id.
at 4. As discussed, infra section III(D)(3)(c), the 2014 M-Opinion accepted broader census
evidence than what the new 2020 Guidance permits: the Department’s prior decisions applying
the M-Opinion accepted evidence from the Census Bureau and BIA census evidence that was not
pursuant to the 1884 Act. These two differences – that the census evidence was prepared by the
Census Bureau, not the Office of Indian Affairs, and that the census evidence was not prepared
under the 1884 Act – are what led the Secretary to dismiss the 1910 Indian Population Schedule
in the 2018 ROD. See 2018 ROD at 28, AR at 5115. While such evidence may not be
permissible under the new 2020 guidance, it was probative evidence under the 2014 M-Opinion.
See infra section III(D)(3)(c).
The similarities between the Secretary’s reasons for discounting the Mashpee
Tribe’s evidence and the new 2020 standards are stark. The Court does not need to opine as to
whether the Secretary was actually applying this new 2020 guidance, however. The Tribe’s
arguments, at the very least, show that the Secretary improperly treated the Mashpee’s evidence
under the 2014 M-Opinion. The Court now discusses the ways in which the Secretary
25
misapplied the M-Opinion as to each category of evidence that the Tribe maintains the Secretary
improperly dismissed.
1. The Education of Mashpee students at a BIA school
The Mashpee Tribe has provided evidence that individual Mashpee children were
educated at a BIA school. Mashpee children attended the federally-operated Carlisle Indian
School (the “Carlisle School”), a non-reservation school located in Carlisle, Pennsylvania
between 1905 and 1918, the year the school was closed. Mashpee MSJ at 17. Attendance
records from the General Accounting Office confirm that Mashpee students attended the Carlisle
School in numbers ranging from one to seventeen students in any given year over the course of
the thirteen years that Mashpee children were in attendance. AR at 9291-9321 (“GAO Report”).
The M-Opinion expressly enumerates “the education of Indian students at BIA
schools” as one example of evidence that demonstrates that the federal government “undertook
guardian-like action on behalf of the tribe.” M-Opinion at 19. Under the M-Opinion, this
evidence therefore is strong probative evidence that the Mashpee Tribe was under federal
jurisdiction. The M-Opinion was binding on the Secretary when he issued the 2018 ROD. 2018
ROD at 11, AR at 5098 (“Because a signed M-Opinion binds the Department and its officials
until modified by the Solicitor, Deputy Secretary, or Secretary or otherwise overruled by the
courts, [the M-Opinion] guides this analysis.”).
But that is not how the Secretary treated this evidence. The Secretary rejected the
Mashpee’s evidence that the federal government educated Mashpee children at a BIA school as
not supporting a finding that the Tribe was under federal jurisdiction. 2018 ROD at 27, AR at
5114. The 2018 ROD provides a number of reasons as to why the Mashpee’s evidence that some
of its children were educated at a BIA school for thirteen years was ultimately not considered
26
probative evidence that the Tribe was under federal jurisdiction. Id. The Court holds that each
reason provided in the 2018 ROD is inconsistent with the M-Opinion and is a misapplication of
the M-Opinion’s guidance on which the Department purports to rely. Nor do the attempts by the
federal defendants to defend the Secretary’s misguided conclusion fare any better. The Court
will address these various arguments in turn.
a. The Secretary’s Treatment of the Evidence that Mashpee Students Were Educated at a BIA
School Cannot Stand
First, the Secretary rejected the Mashpee BIA school evidence because it was not
evidence of federal action towards the Mashpee Tribe itself – just towards a handful of Mashpee
students. 2018 ROD at 27, AR at 5114 (“While such evidence clearly demonstrate exercises of
Federal authority over Indians generally and individual Indians specifically, none suffice . . . to
show an exercise of federal authority over the Mashpee Tribe as distinct from some of its
members.”); id. (“The evidence of Mashpee student enrollment at Carlisle . . . does not
unambiguously demonstrate that such enrollment was predicated on a jurisdictional relationship
with the Tribe as such.”); id. (“[T]he Mashpee student records fall short of demonstrating that
[the] Tribe itself came under federal jurisdiction.”).
This reason provided by the Secretary is inconsistent with the express language in
the M-Opinion. The M-Opinion lists “the education of Indian students at BIA schools” as an
example of evidence that supports a finding that a tribe was under federal jurisdiction.
M-Opinion at 19 (emphasis added). The M-Opinion thus expressly allows for a federal action
towards some tribal members – here students – to serve as evidence that supports a finding that a
tribe as a whole was under federal jurisdiction. This reading of acceptable evidence under the
M-Opinion is underscored by its discussion of what evidence the Department can review more
generally. The M-Opinion notes that “an action” by the federal government “for or on behalf of
27
[a] tribe or in some instance[s] tribal members” can be evidence that supports a finding that a
tribe was under federal jurisdiction. Id. at 19 (emphasis added). The Secretary’s dismissal of the
Mashpee’s evidence that its students were educated at the Carlisle School because the federal
action was not action taken towards the Tribe as a whole is inconsistent with the M-Opinion.
See also Grand Ronde v. Jewell, 75 F. Supp. 3d at 402-03 (finding it “perfectly reasonable” for
the Secretary to consider the federal government’s relationship with the individual tribe members
when determining whether the tribe as a whole was “under federal jurisdiction”).
Second, the Secretary acknowledged that the education of students at BIA schools
has been used to demonstrate federal jurisdiction over other tribes like the Cowlitz Tribe. 2018
ROD at 27, AR at 5114. The Secretary went on to say, however, that “the Cowlitz determination
also relied on a wide range of other evidence covering an extended period of time,” and that
because the Mashpee Tribe had not shown similar “other evidence,” the Mashpee Tribe’s
evidence about its students being educated at a BIA school was insufficient. Id. (emphasis
added). The Secretary’s purported distinction is a non sequitur. The Secretary was comparing
the totality of the Cowlitz Tribe’s evidence with the totality of the Mashpee Tribe’s evidence.
This comparison does nothing to explain why the Secretary treated the Cowlitz Tribe’s evidence
that some of its students were educated at a BIA school as probative of the Cowlitz Tribe being
under federal jurisdiction but reached the opposite conclusion for the Mashpee Tribe. This
analysis is inconsistent with the M-Opinion, the Department’s prior decisions that apply the M-
Opinion, and judicial precedent. See AR 5709 (the Cowlitz ROD treating “attendance by
Cowlitz children at BIA operated schools” as evidence that supported a finding that the tribe was
under federal jurisdiction); Grand Ronde v. Jewell, 75 F. Supp. 3d at 402 (upholding the
Secretary’s treatment of evidence that individual Cowlitz Indian children attending BIA operated
28
schools as supporting the Secretary’s determination that the tribe was “under federal
jurisdiction”).
b. The Federal Defendants and Defendant-Intervenors’ Arguments About the Education of
Mashpee Students at a BIA School
The attempts by the federal defendants and the defendant-intervenors to defend
the Secretary’s discussion of the BIA school evidence fare no better. The federal defendants
point to evidence – not in the administrative record – to argue that because there were some BIA-
run schools that accepted students who were not members of a “recognized tribe,” the Mashpee
Tribe needed to provide evidence that tribal membership was a requirement for the Mashpee
students’ attendance at the Carlisle School in order for that evidence to have any weight. Federal
Defendants’ Cross-MSJ & Opp. at 25; Federal Defendants’ Reply at at 13 (“[N]othing in the
record shows that the Office of Indian Affairs accepted these students as Mashpee tribal
members, as opposed to persons of Indian descent eligible for Federal services.”); id. at 20. The
defendant-intervenors similarly argue that the Carlisle School was different from other BIA
schools and that applicants were evaluated based on a “qualifying blood quantum
level . . . without regard to the applicant’s tribal status or affiliation,” thereby failing to serve as
evidence of a federal action toward the Tribe. Defendant-Intervenors’ Reply at 7; see also AR
6887-92 (Citizens Group Submission on Remand to the Department of the Interior describing the
Carlisle School evidence); May 20, 2020 Tr. at 55:21-57:50.
The first problem with these arguments is that they are not based on anything
expressed in the 2018 ROD, which contains no discussion of them whatsoever. In evaluating
whether an agency’s action, findings, and conclusions were “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” under the APA, 5 U.S.C. § 706(2)(a), courts
must evaluate the agency’s contemporaneous explanation of its decision and cannot accept “post
29
hoc” rationalizations for agency action that the agency did not, itself, give. Jicarilla v. DOI, 613
F.3d at 1120; see also Maryland v. EPA, No. 18-1285, 2020 WL 2529520, at *18 (D.C. Cir. May
19, 2020) (“[W]e must review an agency’s action on the basis of reasons it actually gave, not
ones it hypothetically could.”) (citing SEC v. Chenery Corp., 318 U.S. 80, 63 (1943); Manin v.
Nat’l Transp. Safety Bd., 627 F.3d at 1243 (a court may not “affirm an agency decision on a
ground other than that relied upon by the agency”); Accrediting Council for Indep. Colleges &
Sch. v. DeVos, 303 F. Supp. 3d 77, 105-06 (D.D.C. 2018) (citing Camp v. Pitts, 411 U.S. 138,
143 (1973)).
The second problem with these arguments is that they are undermined by the
M-Opinion itself and are not supported by the administrative record. The M-Opinion expressly
lists the education of individual Indian students at BIA schools as evidence that supports a tribe
being under federal jurisdiction. Regardless of the application process used by the Carlisle
School, the Mashpee students at Carlisle were educated by the federal government. The
administrative record further shows that the distinctions the federal defendants and defendant-
intervenors raise are meritless. The attendance records list the students by Tribe, AR at 9291-
9321, and the Carlisle School application asks the student to include their tribal affiliation when
applying to the Carlisle School. See AR at 8807, 8836, 8877, 8916, 8937, 8968, 8987, 9015
(application form leaving blanks for the applicant to identify with which tribe the applicant’s
parents are affiliated, each with “Mashpee” or “South Sea” Tribe written in). 10 The Carlisle
School records further show that the students’ tribal affiliation was often denoted on various
types of school records. AR at 8804-9030.
10
The Mashpee Wampanoag Tribe was also called the South Sea Tribe. See AR
at 5338.
30
The federal defendants’ other attempt to rescue the Secretary’s treatment of the
BIA school evidence cannot stand. The federal defendants argue that the M-Opinion does not
require the Department to treat evidence of individual students attending BIA schools as
probative evidence. Federal Defendants’ Reply at 13; May 20, 2020 Tr. at 38:11-39:03. This
argument relies on a misplaced emphasis on the word “may” in the M-Opinion. The M-Opinion
says that “[e]vidence of such acts” – acts by the federal government that would serve as
probative evidence that a tribe was under federal jurisdiction – “may include, but is certainly not
limited to . . . the education of Indian students at BIA schools.” M-Opinion at 19. This sentence
serves to illustrate the type of evidence the Department may consider. The word “may” only
indicates that these forms of evidence are not required in all cases: probative evidence “may
include, but is certainly not limited to” that list. Id. The enumerated evidence is not necessarily
dispositive and does not necessarily “mandate” an ultimate “conclusion” by the Secretary as to
whether a tribe was under federal jurisdiction in 1934. See May 20, 2020 Tr. at 37:01-02. But
the M-Opinion does enumerate a non-exhaustive list of different types of evidence that have
probative value, that the Secretary therefore must treat as probative in his analysis.
The Secretary’s rejection of the evidence that individual Mashpee students were
educated at a BIA school directly contradicted the M-Opinion, administrative precedent, and
judicial precedent. On remand, the Secretary must accept this evidence as probative evidence
and view it “in concert” with the other probative evidence to determine whether the Tribe was
under federal jurisdiction before 1934.
2. Additional Carlisle School Evidence
In addition to the evidence that Mashpee students attended the Carlisle School for
thirteen years, the Mashpee Tribe argues that the Secretary should have treated the federal
31
government’s actions towards those students while they attended the Carlisle School as
additional probative evidence, distinct from the students’ attendance. Mashpee MSJ at 35-37.
The Tribe points to evidence that federal officials provided health care to the Mashpee students
when they attended the Carlisle school, provided job training and placement services, and ran an
“outing” program for the students where they were assigned to employers for vocational training.
Mashpee MSJ at 18, 36 (citing AR at 8411-14; 8823; 8803-9030). Federal government officials
also managed the Carlisle students’ personal funds. Mashpee MSJ at 35 (citing AR at 8810,
8815, 8900, 8950, 8974, 8816); Mashpee Reply at 29. The Tribe argues that the federal
government’s provision of “health care, vocational training and other social services to the
Mashpee Indians” should have been treated as further probative evidence that the Tribe was
under federal jurisdiction. Mashpee MSJ at 35-36. The Tribe maintains that the Secretary
improperly discounted this evidence and even failed to mention some of it at all. Id. at 35-36.
The federal defendants have two responses to this argument. They first make the
same misguided criticism of this evidence as they made with respect to the BIA school
enrollment evidence – that it is not evidence of federal action toward the tribe as a whole and
therefore cannot be probative of whether the Tribe was under federal jurisdiction. Federal
Defendants Cross-MSJ & Opp. at 26; Federal Defendants Reply at 20. As discussed, supra in
section III(D)(1), however, the M-Opinion specifically says that federal actions towards
individual tribe members can serve as probative evidence that the tribe itself was under federal
jurisdiction. M-Opinion at 19 (directing the Department to look at whether the United States had
“taken an action . . . for or on behalf of the tribe or in some instance[s] tribal members”)
(emphasis added). This argument by the federal defendants is thus inapposite given that the
M-Opinion allows for this type of evidence to be considered.
32
Second, the federal defendants argue that these federal actions towards the
Mashpee students at the Carlisle school is not additional evidence, but instead is merely “a
consequence of attending Carlisle.” Federal Defendants Cross-MSJ & Opp. at 26. In other
words, they say, when the Secretary addressed the Mashpee students’ enrollment at the Carlisle
School in the 2018 ROD, he was implicitly addressing all this other evidence as well. Id.
The text of the 2018 ROD belies this assertion. In the 2018 ROD, the Secretary
cites to specific sections of the Tribe’s submissions to the agency on remand in its discussion of
the Carlisle School evidence. 2018 ROD at 27 n. 221-224, AR at 5114 (citing AR at 5774-78,
AR at 7120). The cited sections discuss only the students’ enrollment at the Carlisle School.
See AR at 5774-78, AR at 7120. The Mashpee Tribe’s submissions discuss these other federal
actions towards the Mashpee students at the Carlisle school elsewhere in their briefs before the
agency on remand, AR 5779, 8390-93, but the Secretary never mentions them or cites to them in
his discussion. When the Secretary addressed the Carlisle School evidence, as the 2018 ROD
makes clear, he was only addressing the evidence of the Mashpee students’ attendance; he was
not implicitly addressing this other evidence. If he had been, he would have cited to those pages
of the Mashpee Tribe’s briefs that were in the record before him. This additional evidence about
the federal government’s actions towards the Mashpee students while at the Carlisle School
therefore was not addressed by the Secretary at all in the 2018 ROD.
The Secretary’s failure to specifically address the federal management of student
funds, the vocational training, and the health-care services provided to the Mashpee students at
the Carlisle School in the 2018 ROD therefore was arbitrary and violated the APA. See Butte
Cty. v. Hogan, 613 F.3d 190, 194 (D.C. Cir. 2010) (“[A]n agency’s refusal to consider evidence
bearing on the issue before it constitutes arbitrary agency action within the meaning of [the
33
APA].”). On remand, the Secretary must give a reasoned analysis as to whether this evidence is
probative of the Tribe being under federal jurisdiction and, if so, consider it “in concert” with the
other probative evidence.
3. Census Evidence
The Tribe presented three types of census evidence to DOI in support of its claim
that the Tribe was under federal jurisdiction in 1934: (1) 1911 and 1912 census rolls prepared by
the BIA that listed Mashpee students attending the Carlisle School; 11 (2) a 1910 “Indian
Population Schedule” prepared by the U.S. Census Office that lists Mashpee tribal members; 12
and (3) the fact that Mashpee tribal members were enumerated on the general federal census
from 1850 through 1930. Mashpee MSJ at 15.
The Secretary rejected each of these three types of census evidence as not the kind
of evidence that would support a tribe’s claim that it was under federal jurisdiction in 1934. See
2018 ROD at 27-28, AR 5114-15. First, the Secretary noted that listing Mashpee students on the
1911 “Census of Pupils Enrolled at Carlisle Indian School” did not show that the Tribe itself
came under federal jurisdiction. 2018 ROD at 27 n. 226, AR at 5114. Second, the Secretary
noted that the 1910 Indian Population Schedule was prepared by the Director of the Census, not
the Office of Indian Affairs. 2018 ROD at 28, AR at 5115. The Secretary also discounted the
1910 Indian Population Schedule because it was not prepared under the authority of the 1884
11
In an 1884 appropriations act, Congress directed that “each Indian agent be
required, in his annual report, to submit a census of the Indians at his agency or upon the
reservation under his charge,” including the number of school children. 1884 Appropriations
Act, 23 Stat. 76 (July 4, 1884), AR at 8671.
12
The Tribe explains that the 1910 Indian Population Schedule was a federal Indian
census that was published that year in addition to the general federal census. Mashpee Second
Submission, AR at 5773.
34
Act, which “directed Indian agents to submit an annual census of the Indians at the agency or on
the reservation under their charge.” Id. Third, the Secretary noted that listing Tribal members
on a federal census was “inconclusive” evidence as to whether the federal government was
exercising jurisdiction over the Tribe. Id.
The Mashpee Tribe says that the Secretary was wrong on every point, maintaining
that “inclusion on census rolls is ‘unambiguous evidence’ of jurisdiction,’” citing this court’s
decision in Grand Ronde and arguing that the Secretary “could have relied on this evidence alone
to find that the Tribe was under federal jurisdiction in 1934.” Mashpee MSJ at 25 (citing Grand
Ronde v. Jewell, 75 F. Supp. 3d at 404). This may be an overstatement. The “unambiguous
evidence” in Grand Ronde was that the local Office of Indian Affairs Superintendent had
enumerated the members of the Cowlitz Tribe in that year’s statistical tabulation. Grand Ronde
v. Jewell, 75 F. Supp. 3d at 404. The Cowlitz evidence is similar to the type of evidence Justice
Breyer referenced in his Carcieri concurrence, noting that “enrollment . . . with the Indian
Office” would support a finding that a tribe was under federal jurisdiction. Carcieri v. Salazar,
555 U.S. at 399 (Breyer, J., concurring). Just because the census evidence in the Cowlitz Tribe
ROD was unambiguous evidence of the Cowlitz being under federal jurisdiction, however, does
not mean that all census evidence is unambiguous.
But even though Mashpee’s census evidence may not necessarily be
“unambiguous” evidence of the Tribe being under federal jurisdiction, the Secretary still did not
sufficiently address the census evidence in the record in the 2018 ROD. The reasons given for
discounting the census evidence discussed in the 2018 ROD are insufficient; and the Secretary
failed to discuss some of the relevant census evidence at all.
35
a. 1911 BIA School Census
The Tribe presented evidence that the 1911 census prepared by the BIA
Superintendent of the Carlisle School included Mashpee students. AR 8629-34. The parties do
not dispute that this census roll was compiled in response to the 1884 Appropriations Act for the
Indian Department, which directed each BIA agent to “submit a census of . . . the number of
schools in operation and the attendance at each” as part of the agent’s annual report. AR 8671.
The Secretary discounted this evidence because “enrollment at the [Carlisle School] was not
necessarily predicated on a jurisdictional relationship with the Tribe.” Federal Defendants
Cross-MSJ & Opp. at 20 (citing the 2018 ROD at 27 n. 226, AR at 5114). The Secretary’s
reason for dismissing this 1911 BIA school census suffers from the same problem as his reason
for dismissing the evidence that Mashpee students attended a BIA school. See supra section
III(D)(1). The M-Opinion allows for evidence about tribal members to support a finding that a
tribe, itself, was under federal jurisdiction. M-Opinion at 19. The Secretary’s stated reason for
discounting the 1911 BIA school census therefore is inconsistent with the M-Opinion. On
remand, the Secretary must give a reasoned analysis as to whether the 1911 BIA school census is
probative evidence and, if so, must view it “in concert” with the rest of the probative evidence in
the record and consistent with this Opinion.
b. 1912 BIA School Census
The Tribe also presented evidence that the 1912 census prepared by the BIA
Superintendent of the Carlisle School included Mashpee students. AR 8635-36. This evidence
is the same as the 1911 BIA school census, but for the following year. The 2018 ROD makes no
reference to the 1912 BIA school census. The Secretary’s failure to address the 1912 BIA school
census in the 2018 ROD therefore was arbitrary and violated the APA. See Butte Cty. v. Hogan,
36
613 F.3d at 194 (“[A]n agency’s refusal to consider evidence bearing on the issue before it
constitutes arbitrary agency action within the meaning of [the APA].”). On remand, the
Secretary must address the 1912 BIA school census, give a reasoned analysis as to whether it is
probative evidence and, if so, view it “in concert” with the rest of the probative evidence in the
record and consistent with this Opinion.
c. Federal Census Evidence: 1910 Indian Population Schedule
The Tribe explained in its filing with the Department that in some census years,
the federal census was split between two schedules: one that counted the general population and
one that counted the Indian population. AR at 5773. In 1910, there was a separate Indian
Population Schedule as part of the federal census, and it listed the Mashpee Tribe. AR at 8627.
The Secretary discounts this evidence in the 2018 ROD for two reasons, neither of which is
sufficient to explain the Secretary’s treatment of the evidence.
First, the Secretary noted that the 1910 Indian Population Schedule was prepared
by the Director of the Census, not the Office of Indian Affairs. 2018 ROD at 28, AR at 5115.
But the Secretary does not go on to connect the dots and explain why this distinction matters,
rendering his explanation arbitrary and capricious. See, e.g., Physicians for Soc. Responsibility
v. Wheeler, 956 F.3d 634, 644 (D.C. Cir. 2020) (“It is axiomatic that the APA requires an agency
to explain its basis for a decision.”) (citing Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. at 43). Further, the Department’s precedent also indicates that this
distinction shouldn’t matter. An agency “must at least acknowledge its seemingly inconsistent
precedents and either offer a reason to distinguish them or explain its apparent rejection of their
approach.” Southwest Airlines Co. v. Fed. Energy Regulatory Comm’n, 926 F.3d 851, 856
(D.C. Cir. 2019) (internal citations omitted); see also Jicarilla v. DOI, 613 F.3d at 1119-20
37
(“Reasoned decision making . . . necessarily requires the agency to acknowledge and provide an
adequate explanation for its departure from established precedent and an agency that neglects to
do so acts arbitrarily and capriciously.”). The Tunica Biloxi ROD listed “inclusion in federal
census counts” as evidence of an act that may demonstrate that a tribe was under federal
jurisdiction. See AR at 5527-28. Not only must the Secretary explain why it matters that the
1910 Indian Population Schedule was prepared by the Director of the Census, he must also
explain why inclusion in federal census counts was treated as probative evidence that a tribe was
under federal jurisdiction in the Tunica Biloxi ROD but not for the Mashpee Tribe. The 2018
ROD has neither explanation, and thus the Secretary’s treatment of the 1910 Indian Population
Schedule evidence is arbitrary and capricious.
Second, the Secretary noted that the 1910 Indian Population Schedule was not
prepared under the authority of the 1884 Act that directed agents to submit an annual census of
the Indians at the agency or on the reservation under their charge. 2018 ROD at 28, AR at 5115.
Again, the Secretary fails to explain why this distinction matters. The Administrative Procedure
Act “mandates that [federal agencies] give a reasoned explanation for the actions that they []
take.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d at 920 (citing Motor Vehicle Mfrs.
Assn. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43); see also Public Citizen,
Inc. v. FAA, 988 F.2d at 197 (“The requirement that agency action not be arbitrary or capricious
includes a requirement that the agency adequately explain its result[.]”). The failure to provide a
reasoned explanation for why it matters that the 1910 Indian Population Schedule was not
prepared under the 1884 Act renders the explanation arbitrary and capricious.
Further, the Department’s precedent indicates this distinction shouldn’t matter.
An agency “must at least acknowledge its seemingly inconsistent precedents and either offer a
38
reason to distinguish them or explain its apparent rejection of their approach.” Southwest
Airlines Co. v. Fed. Energy Regulatory Comm’n, 926 F.3d at 856 (internal citations omitted);
see also Jicarilla v. DOI, 613 F.3d at 1119-20. In previous decisions, the Department has relied
on census evidence that was not prepared under the authority of the 1884 Act, even treating that
evidence as unambiguous evidence. See AR at 5708-10 (the Cowlitz Tribe ROD treating the
listing of “members” of the Cowlitz Tribe in the local BIA Superintendent’s statistical tabulation
as an action that “constitutes further unambiguous federal jurisdiction over the [tribe]” even
though “they were not enumerated in the annual censuses required by the Appropriations Act of
July 4, 1884”). The Secretary must explain why census evidence that was not prepared pursuant
to the 1884 Act was treated as probative evidence in the Cowlitz ROD but not for the Mashpee
Tribe. Without such an explanation, the Secretary’s discussion of the 1910 Indian Population
Schedule is not the reasoned decision-making that the APA requires.
The Secretary’s discussion of the 1910 Indian Population Schedule also fails to
explain whether the two conclusory distinctions in the 2018 ROD – that it was prepared by the
Director of the Census and was not prepared under the 1884 Act – render the 1910 Indian
Population Schedule as having no weight in the consideration of whether the Mashpee Tribe was
under federal jurisdiction. The 1910 Indian Population Schedule should only be given no weight
if a federal census enumerating a tribe on its Indian population schedule is not probative
evidence that could – in concert with other evidence – show that a tribe was under federal
jurisdiction. Even the Secretary does not seem to think this is the case, acknowledging that “the
listing of Tribal members on a Federal census . . . may be probative of Federal jurisdiction over
the Tribe.” 2018 ROD at 28, AR at 5115. On remand, the Secretary must provide a reasoned
analysis as to whether the 1910 Indian Population Schedule is evidence that is probative of the
39
Tribe being under federal jurisdiction and, if so, consider it “in concert” with the rest of the
probative evidence in the record.
d. Federal Census Evidence
In other census years, the Indian population was not separated out from the
general population. The Mashpee presented evidence of federal census rolls that enumerate
Mashpee tribal members in the Town of Mashpee from 1850 and 1930. AR at 8625; 8616-23.
The Secretary has indicated that “the listing of Tribal members on a Federal census . . . may be
probative evidence of Federal jurisdiction over the Tribe.” 2018 ROD at 28, AR at 5115. And
the Tunica Biloxi ROD listed “inclusion in federal census counts” as evidence of an act that may
demonstrate that a tribe was under federal jurisdiction. See AR at 5527-28. But there is no
citation to or mention of the Mashpee Tribe’s federal census evidence in the 2018 ROD. “[A]n
agency’s refusal to consider evidence bearing on the issue before it constitutes arbitrary agency
action within the meaning of [the APA].” Butte Cty. v. Hogan, 613 F.3d at 194. The Secretary’s
failure to address Mashpee’s evidence that its members were listed on federal censuses in the
2018 ROD therefore was arbitrary in violation of the APA. On remand, the Secretary must
address the federal census evidence, give a reasoned analysis as to whether it is probative
evidence and, if so, view “in concert” with the rest of the probative evidence in the record.
4. Federal Reports and Surveys
The Mashpee Tribe relies on several federal reports to support its claim that the
Tribe was under federal jurisdiction in 1934. The Secretary dismissed all of this evidence as
failing to constitute an action by the federal government that might be evidence of a tribe being
under federal jurisdiction. 2018 ROD at 20-26, AR at 5107-5113.
40
As a threshold matter, the Mashpee argues that the M-Opinion does not require
evidence that the federal government took an “action” towards a tribe, and thus the Secretary
incorrectly applied the M-Opinion to all the reports and surveys in evidence. Mashpee Reply &
Opp. at 21. But the Tribe’s argument is not supported by the text of the M-Opinion. The M-
Opinion specifies that in order to determine whether there is a “sufficient showing” that a tribe
was under federal jurisdiction, the Secretary should look to whether the United States had “taken
an action or series of actions . . . that are sufficient to establish, or that generally reflect federal
obligations, duties, responsibility for or authority over the tribe by the Federal Government.”
M-Opinion at 19. Contrary to the Mashpee Tribe’s characterization, the M-Opinion instructs the
Secretary to determine, in relevant part, whether a “series of actions . . . generally reflect
federal . . . authority over the tribe by the Federal Government.” Id. Even when acknowledging
that the enumerated types of evidence are non-exhaustive the M-Opinion says that “other types
of actions not referenced herein” may be considered. Id. (emphasis added). The M-Opinion
therefore does not require the Secretary to consider evidence other than a federal action or series
of actions that might show federal authority over the tribe. Contra Mashpee Reply & Opp. at 21-
22 (arguing that the M-Opinion allows the Secretary to consider not only federal actions, but
other “information” that “shows the Federal Government’s obligations, duties to, acknowledged
responsibility for, or power or authority over” a tribe).
The Court nevertheless concludes that the Secretary failed to treat the reports and
surveys in the record consistently with the M-Opinion and the Department’s precedent. As
discussed below, the reasons given by the Secretary for discounting various reports and surveys
in the record are insufficient and conflict with the way in which the Department has treated
similar evidence in the past.
41
a. The Morse Report
In the early 1820s, the Secretary of War commissioned Reverend Jedidiah D.
Morse to visit various Indian tribes “in order to acquire a more accurate knowledge of their
actual condition, and to devise the most suitable plan to advance their civilization and
happiness.” AR at 8521. The Morse Report contains descriptions of Indian tribes as well as
statistical tables “embracing the names and numbers of all the tribes within the jurisdiction of the
United States.” AR at 8524. 13 The Mashpee are described in the Morse report, AR at 8525-27,
and included in the statistical table, AR at 8531.
The Secretary dismissed the Morse Report in the 2018 ROD as failing to
constitute a federal “action.” 2018 ROD at 21, AR at 5108. In reaching this conclusion, the
Secretary characterized the Morse Report as evidence that the federal government merely
“consider[ed] the Tribe” as “potentially subject to the exercise of the federal Indian authority, in
this case for the purpose of removal and resettlement” and that the Morse Report only provides
evidence of Congress’s “awareness” of its plenary authority over the tribes included in the
report. Id. (emphasis in original).
Courts “adopt the agency’s factual findings as conclusive if supported by
substantial evidence,” and the agency’s factual findings “may be supported by substantial
evidence even though a plausible alternative interpretation of the evidence would support a
contrary view.” Dillmon v. Nat’l Transp. Safety Bd., 588 F.3d 1085, 1089 (D.C. Cir. 2009)
(citing Chritton v. Nat’l Transp. Safety Bd., 888 F.2d 854, 856 (D.C. Cir. 1989)). But, “an
agency cannot ignore evidence that undercuts its judgment; and it may not minimize such
13
Reverend Morse described the statistical tables as including tribes “within the
jurisdiction of the United States,” AR at 8524; however, the statistical tables themselves state
that they include all tribes “within the limits of the United States.” AR at 8531.
42
evidence without adequate explanation.” Genuine Parts Company v. Environmental Protection
Agency, 890 F.3d 304, 313 (D.C. Cir. 2018).
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. First, the Morse Report includes
recommendations that the Mashpee Tribe not be removed from their land and sent West. AR at
8527. The report notes that the members of the Tribe would not be in favor of removal, that
some of their occupations such as whaling are tied to their location by a coast, and that their local
attachments are strong. Id. The report notes that “the scheme [of removal] would not take with
them.” Id. 14 The Morse Report was more than a mere “compilation” of evidence; Reverend
Morse made specific recommendations in his report about how the federal government should
treat the various tribes, including the Mashpee Tribe. The Secretary’s characterization of the
Morse Report incorrectly deemphasizes these recommendations about the Mashpee Tribe’s
receptiveness to a removal scheme as a passive “compilation” of evidence about the Tribe. The
making of a recommendation is, in and of itself, an action. Here, the report prepared at the
direction of the Secretary of War – a federal executive official – included recommendations.
Characterizing the Morse Report as being merely a passive awareness of Congress’s plenary
authority ignores the fact that other actors in the federal government besides Congress can take
action towards a tribe that may serve as evidence. The Morse Report made recommendations as
to how various tribes – including the Mashpee – should be treated by the federal government.
Beyond a passive “compilation” or “awareness” of Congress’s plenary authority to pass
14
The fact that Reverend Morse relied on agents to help him compile the
information about the tribes across the country does not matter. He adopted those agents’
recommendations and included them in his report.
43
legislation affecting Indian tribes, this report includes a representative of the Secretary of War –
a federal Executive Branch official – making a recommendation about the Mashpee Tribe.
Second, the Morse Report was strikingly similar to a report considered in a prior
decision by the Department in which DOI treated the report as probative evidence that the tribe
was under federal jurisdiction. In the Ione Band ROD, the Secretary treated the BIA’s “efforts to
document members of the Band” as evidence that supported the Secretary’s ultimate conclusion
that the Ione Band was under federal jurisdiction in 1934 or before. Cty. of Amador v. U.S.
Dep’t of Interior, 136 F. Supp. 3d 1193, 1208 (E.D. Cal. 2015). The BIA had appointed a special
agent, Kelsey, to investigate the conditions of dispossessed California tribal members, and in
doing so Kelsey took a census of the people. Id. at 1200. Just like Kelsey, Reverend Morse was
appointed as a special agent by the BIA to investigate the conditions of tribes within the United
States, and in doing so, Reverend Morse compiled a census or statistical table of the tribes,
including the Mashpee Tribe. The Secretary’s dismissal of the Morse Report in the 2018 ROD,
therefore, is in conflict with its prior treatment of very similar evidence in the Ione Band ROD.
An agency “must at least acknowledge its seemingly inconsistent precedents and either offer a
reason to distinguish them or explain its apparent rejection of their approach.” Southwest
Airlines Co. v. Fed. Energy Regulatory Comm’n, 926 F.3d at 856 (internal citations omitted);
see also Jicarilla v. DOI, 613 F.3d at 1119-20 (“Reasoned decision making . . . necessarily
requires the agency to acknowledge and provide an adequate explanation for its departure from
established precedent and an agency that neglects to do so acts arbitrarily and capriciously.”).
The Secretary’s failure to address its inconsistent precedent makes the 2018 ROD’s treatment of
the Morse Report arbitrary and capricious.
44
The federal defendants’ response to the Ione Band ROD evidence is unpersuasive.
They argue that the Mashpee Tribe “ignores the fact that the United States made repeated
attempts to acquire land on the Ione Band’s behalf for approximately 20 years leading up to
1934.” Federal Defendants Cross-MSJ & Opp. at 30-31. This response is beside the point. It
says nothing about the fact that the Secretary treated evidence that the BIA had commissioned a
report to investigate the conditions of tribes as evidence that supported a finding that the Ione
Band was under federal jurisdiction. By contrast, in the 2018 ROD, the Secretary characterized
that same type of evidence very differently and dismissed it as entirely unhelpful for the
Mashpee Tribe. On remand, the Secretary must analyze the Morse Report evidence in
accordance with the M-Opinion – “in concert” with other probative evidence – and consistently
with the way its prior determinations treated similar evidence.
b. Use of the Morse Report
Beyond the Morse Report itself, the Mashpee Tribe presents evidence of the
manner in which the federal government subsequently used the Morse Report. The Morse
Report was given to the House Committee on Indian Affairs so its members could be educated
about the Indian tribes’ situation and their numbers when considering proposed amendments to
the Trade and Intercourse Act. AR at 6093 (Congressman Metcalfe addressed the House, saying
“that we may know something of the situation of those people, and of their numbers; that we
may be well informed of the nature and condition of the materials upon which we are about to
operate, I will take the liberty of adverting to extracts from the report of Dr. Morse, which was
referred to the committee for that purpose.”). The Secretary of War, John Calhoun, also
presented statistical information to President Monroe based in part on the Morse Report. AR at
8533-39. When discussing plans to remove tribes west, Secretary Calhoun noted that any
45
“arrangement for [] removal . . . is not intended to comprehend the small remnants of certain
tribes in Maine, Massachusetts, Connecticut, Rhode Island, Virginia, and South Carolina.” AR
at 8534. President Monroe then acted on Secretary Calhoun’s recommendation when he
transmitted to Congress his own recommendation that Indian tribes be removed from the lands
they occupied. AR at 8534.
In addressing these uses of the Morse Report, the Secretary concluded that they
do not “in and of themselves” satisfy the first step of the M-Opinion’s two-part test. 2018 ROD
at 22, AR at 5109. This conclusion is not sufficient under the M-Opinion. Just because the
evidence cannot alone show that the Mashpee Tribe was under federal jurisdiction, the Secretary
must consider whether it is probative evidence that – in concert with other evidence – would
support a finding that the Tribe was under federal jurisdiction. The Secretary failed to do this.
On remand, the Secretary must evaluate the House debate, the Secretary of War’s
recommendation to the President, and the President’s transmittal to Congress under a proper
application of the M-Opinion: first determining whether this evidence is probative of the tribe
being under federal jurisdiction, and if so, considering it “in concert” with the other probative
evidence.
c. McKenney Letters
In 1825 and 1828, Thomas McKenney, the Director of the Office of Indian
Affairs, sent letters to the Secretary of War that relied on the statistical tables from the Morse
Report. See McKenney Letters, AR at 8676-81, 8683-86. The federal defendants argue that
“Interior thoroughly analyzed the reports provided by the Tribe and reasonably concluded that
they did not provide evidence of the requisite exercise of Federal jurisdiction.” Federal
Defendants Cross-MSJ & Opp. at 24.
46
Upon review of the 2018 ROD, this Court cannot agree. Far from a thorough
analysis of the McKenney letters, the Secretary mentioned the letters in passing, then reached a
conclusion without any analysis. The Secretary first references the McKenney letter when
discussing the Secretary of War’s transmittal to the President. He notes as an aside that the
Secretary of War included “statistical information compiled by Colonel Thomas McKenney.”
2018 ROD at 22, AR at 5109. The next reference to the McKenney letters is the Secretary’s
conclusion that the “use of the information compiled by . . . Colonel McKenney do[es] not, in
and of [itself], satisfy the first step of the [M-Opinion’s] analysis. Id. The only other reference
to the McKenney letters is in a footnote saying that “McKenney provided copies of the table in
response to requests by Congress, the Executive, and private scholars.” Id. at 22, n. 182, AR
at 5019.
The APA obligates the Secretary to provide “reasoned explanations.” See Am.
Wild Horse Pres. Campaign v. Perdue, 873 F.3d at 920. The Secretary’s cursory reference to the
McKenney letters and the subsequent use of the statistical information within them does not meet
this standard. On remand, the Secretary must give a reasoned analysis as to whether this
evidence is probative of the Tribe being under federal jurisdiction and, if so, consider it “in
concert” with the other probative evidence.
d. The Schoolcraft Report
In 1851, Henry Schoolcraft, a United States Indian Agent, published a six-volume
report compiling historical and statistical information of Indian tribes in the United States. AR
at 8497-99. The report was prepared using funds appropriated by Congress for that purpose.
2018 ROD at 23, AR at 5110. A statistical table from the Schoolcraft Report mentions the
Mashpee. AR at 8499. The 2018 ROD recognizes that the Schoolcraft Report “describes a
47
proposed plan of improvement for the Massachusetts Indians generally.” 2018 ROD at 23, AR
at 5110. But the 2018 ROD goes on to note that “[a] closer examination reveals that Schoolcraft
was merely reporting recommendations contained in an 1849 report of state commissioners to
the Massachusetts legislature on the condition of Indians in the state,” noting that the state
commissioners’ recommendations therefore “suggest that Massachusetts considered the Tribe
and its lands within the State’s authority,” not within the authority of the federal government. Id.
Like both the Morse Report and the Kelsey Report in the Ione Band ROD, the
Schoolcraft Report was prepared by or at the request of a United States Indian Agent. Funds
were appropriated by Congress for the purpose of preparing it. In the Ione Band ROD, “efforts
to document” the tribe’s members and listing them on the census included in the report was
determined to be probative evidence that the Ione Band was under federal jurisdiction. Cty. of
Amador v. U.S. Dep’t of Interior, 136 F. Supp. 3d at 1200, 1208. An agency “must at least
acknowledge its seemingly inconsistent precedents and either offer a reason to distinguish them
or explain its apparent rejection of their approach.” Southwest Airlines Co. v. Fed. Energy
Regulatory Comm’n, 926 F.3d at856 (internal citations omitted); see also Jicarilla v. DOI, 613
F.3d at 1119-20. The Secretary’s failure to address its inconsistent precedent makes the 2018
ROD’s treatment of the Schoolcraft Report arbitrary and capricious. On remand, the Secretary
must consider whether the Schoolcraft Report was similarly probative evidence in accordance
with the M-Opinion – and if so, then “in concert” with other probative evidence.
e. Tantaquidgeon Report
In 1934, the BIA retained Gladys Tantaquidgeon to conduct a comprehensive
survey of the New England tribes. 2015 ROD at 109, AR at 5334; see AR at 8721-85. The
Tantaquidgeon Report, which was produced in 1935, “provid[ed] a detailed narrative of the
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Mashpee Tribe’s history, language, government, social regulations, economic life, [and]
education.” 2015 ROD at 109 n. 342, AR at 5334; see also 2018 ROD at 24, AR at 5111.
Gladys Tantaquidgeon visited the Mashpee Tribe in the summer of 1934 to discern the
Mashpee’s educational needs. AR at 8788. Her report was subsequently used by federal
officials to secure federal funding to build a new school for Mashpee children. AR 8787-97. 15
The Secretary dismisses this report as failing to show any “formal action” by a
federal official “determining any rights of the Tribe.” 2018 ROD at 25, AR at 5112. But the
M-Opinion does not require evidence that a federal official expressly determined any rights of a
tribe for the evidence to be probative of a tribe being under federal jurisdiction. Nowhere in the
M-Opinion’s acceptance of “actions by the Office of Indian Affairs” as probative evidence of a
tribe being under federal jurisdiction does it require that these actions include an express
determination of a tribe’s rights. M-Opinion at 19. Underscoring the point that the evidentiary
standard is not that high is the fact that the M-Opinion allows for “other types of actions not
referenced herein that evidence the Federal Government’s . . . acknowledged responsibility for” a
tribe. Id. In discounting the Tantaquidgeon Report for failing to reflect a determination of the
Mashpee Tribe’s rights, the Secretary says nothing about whether this report may be probative
evidence under the M-Opinion.
15
The Tribe also argues that the Secretary ignored efforts led by the Office of Indian
Affairs’ Director of Education to fund a new school for the Mashpee children in the 1930s.
Mashpee MSJ at 34-35. It is true that the Secretary does not mention these efforts in the 2018
ROD. But the administrative record indicates that the Director of Education did not begin his
efforts to fund the school until after the IRA was enacted in June of 1934. AR at 8787-8797,
8801-02. See also Federal Defendants Cross-MSJ & Opp. at 26 n.9. It therefore was not a
violation of the APA for the Secretary not to address this evidence in the 2018 ROD.
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Indeed, the Secretary’s conclusion about the Tantaquidgeon Report acknowledges
that it may have some probative value. 2018 ROD at 25, AR 5112 (“[T]he Tantaquidgeon report
. . . provides little if any demonstration of the exercise of Federal jurisdictional authority over the
Tribe.”). Under the M-Opinion’s standard, the Secretary’s conclusion that the report has “little if
any” probative value cannot stand. It was the Secretary’s obligation to first determine whether
this report in fact provided some evidence that the Tribe was under federal jurisdiction – even if
it was “little” evidence – and if so, to then consider it “in concert” with the rest of the probative
evidence: this is what the Secretary must do on remand.
f. 1890 Annual Report of the Commissioner of Indian Affairs
The Mashpee were included in the Commissioner of Indian Affairs’ annual report
in 1890. AR at 8707-19. The report notes that the Mashpee “occupy a tract of land in
Barnstable County, Mass., [and] have a board of overseers appointed by the State . . . who
govern all their internal affairs and hold their lands in trust.” Id. at 8716. The 2018 ROD rejects
this report as not providing evidence of any federal responsibility for the Tribe. 2018 ROD
at 25, AR at 5112.
Prior Department decisions have treated the inclusion of a tribe in the
Commissioner’s annual report as evidence that supported a finding that the tribe was under
federal jurisdiction. Village of Hobart v. Acting Midwest Reg’l Dir., 57 IBIA 4, 20, 24-25 (May
9, 2013). Once again, the attempt by the federal defendants to explain why the Department’s
decision about the Oneida Tribe is different from the Mashpee Tribe makes an irrelevant point.
While it is true that the Oneida Tribe held a Section 18 election, and the Mashpee Tribe didn’t,
see Federal Defendants’ Cross-MSJ & Opp. at 31, this fact has no bearing on the Department’s
decision to treat evidence that the Oneida Tribe was listed in the Commissioner’s annual report
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as further evidence supporting the conclusion that the Oneida Tribe was under federal
jurisdiction.
In order for the Secretary to conclude that the references to the Mashpee in an
annual report by the Commissioner of Indian Affairs is not probative of the Tribe being under
federal jurisdiction, it must explain why this evidence is different, if at all, from prior decisions
by the Department that treated similar evidence as probative of a tribe being under federal
jurisdiction. See, e.g., Jicarilla v. DOI, 613 F.3d at 1119-20 (“Reasoned decision making . . .
necessarily requires the agency to acknowledge and provide an adequate explanation for its
departure from established precedent and an agency that neglects to do so acts arbitrarily and
capriciously.”). On remand, the Secretary must analyze this evidence consistently with prior
Department decisions, adequately explaining any departure. If probative, the Secretary then
must analyze the 1890 Annual Report evidence “in concert” with the rest of the probative
evidence in the record.
g. The Fletcher Report
In 1885, the United States Senate passed a resolution that directed the Secretary of
the Interior “to furnish to the Senate the information in possession of the Commissioner of
Education, showing the progress of the Indian education and civilization.” AR at 5771-72; AR
8696. The Commissioner of Education retained an individual named Alice C. Fletcher to
prepare the report. The Fletcher Report includes an historical summary of Massachusetts tribes,
including the Mashpee. AR at 8696-705.
The Mashpee argue that the inclusion of the Mashpee Tribe in the report
constitutes an action. Mashpee MSJ at 30. But the 2018 ROD concludes that accounting for the
Tribe’s history and describing state legislation that affects the Mashpee “offers no evidence . . .
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beyond the general principle of plenary authority.” 2018 ROD at 24, AR at 5111 (emphasis
added). This is one of the few pieces of evidence in the 2018 ROD for which the Secretary
reached a firm conclusion based on the record and explained his reasons why it had no probative
value. The Court finds that the Secretary did an adequate job in addressing this report.
5. Mashpee Indian Land and Resources
The Mashpee point to other evidence that they assert demonstrates federal actions
to protect Mashpee lands and natural resources. First, the Tribe contends that in 1798, John
Davis, then serving as the United States Attorney for the District of Massachusetts, brought a
state ejectment action on behalf of the Tribe. Mashpee MSJ at 19. Second, the Tribe cites to a
federal title report prepared by the Department of the Navy, arguing that it serves as evidence
that the federal government acknowledged the Mashpee Tribe’s fishing and gathering rights on
others’ land, or the Tribe’s “usufructuary rights.” Id. (citing AR at 6631-32). Third, the Tribe
reiterates the point that the Morse Report includes a recommendation that the Mashpee Tribe not
be removed west. Id. The 2018 ROD considered each of these matters and determined that none
served as evidence of federal acknowledgment or protection of the Mashpee Tribe’s lands and
natural resources. 2018 ROD at 19, 26-27, AR at 5106, 5113-14.
The Secretary rejected the Tribe’s argument that because John Davis was the
Tribe’s attorney in an ejectment action brought on behalf of the Tribe this was evidence of
federal coordination with state officials to exercise trust responsibilities. 2018 ROD at 19, AR
at 5106. The Secretary noted that the “record instead demonstrates that Davis received
compensation for his Services from the Commonwealth” and the Tribe “fail[ed] to show that
Davis acted on behalf of the United States in Proprietors of Marshpee v. Crocker,” the ejectment
action. Id. The record supports these conclusions. The record describes the Proprietors of
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Marshpee v. Crocker case, saying that Overseers – non-Indians who shared responsibility for
protecting the Tribe’s lands – “employed . . . John Davis, as counsel, to vacate the deed and the
act of the General Court” and that Davis “brought an action of ejectment . . . in the name of the
Proprietors of Marshpee” (the Mashpee Tribe). AR at 8435. Rather than acting in his official
capacity as the United States Attorney, Mr. Davis was employed and compensated by the
Overseers to bring the case in his private capacity. AR at 9466. This conclusion is further
supported by the administrative record, which describes how U.S. Attorneys at the time would
simultaneously maintain private practices. AR at 9410-13. The 2018 ROD’s conclusion that the
state ejectment action was not evidence of federal coordination or involvement is consistent with
the administrative record.
The 2018 ROD also evaluated the title report for condemnation proceedings
brought by the Department of the Navy and determined it did not provide evidence of any federal
action. 2018 ROD at 26, AR at 5113; AR at 6629-6734. The 2018 ROD acknowledged that this
report may be evidence of action by the State of Massachusetts, but not by the federal
government. 2018 ROD at 26, AR at 5113. The title report indicated that some of the lots were
subject to the reserved right of the Proprietors of Mashpee to cross over the lots for the purpose
of gathering seaweed and salt hay. AR at 6631-32. These deeds were prepared pursuant to
“laws enacted by the State of Massachusetts for the purpose of allotting the Tribe’s lands.” 2018
ROD at 26, AR at 5113. The Court finds that the 2018 ROD’s conclusion that there was an
“absence of any Federal actions with respect to the Mashpee’s usufructuary rights” is consistent
with the administrative record. See id.
To further illustrate that the Mashpee Tribe’s evidence did not serve as evidence
that the federal government had acted to protect the Mashpee Tribe’s land and resources, the
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2018 ROD contrasted the Mashpee administrative record with that in the case of the
Stillaguamish Tribe, which did offer evidence that the federal government had protected its
usufructuary rights. 2018 ROD at 26, AR at 5113. There, the United States acknowledged and
protected the Stillaguamish Tribe’s fishing rights in a treaty to which the Stillaguamish Tribe
was a signatory. Id. Here, there is no similar evidence in the Mashpee administrative record.
The Secretary also rejected the Mashpee Tribe’s argument that the Morse Report
served as evidence that the federal government acted to protect the Mashpee lands. 2018 ROD at
22, AR at 5109, contra Mashpee MSJ at 39. As already discussed, supra section III(D)(4)(a)-(c),
the Secretary’s evaluation of the Morse Report and the instances where it was relied upon by
Congress and the Executive Branch was insufficient and must be re-evaluated on remand. The
Secretary’s improper treatment of the Morse Report taints his conclusions about whether the
recommendations in the report constituted federal action to protect the Mashpee lands. On
remand, the Secretary must re-evaluate whether its new consideration of the Morse Report means
that this evidence shows that the federal government took an action to protect the Mashpee lands.
IV. REMAND
The parties disagree as to which agency guidance should apply on remand. As
discussed supra in section III(B), the 2014 M-Opinion’s two-part test which the Secretary
applied – incorrectly – in the 2018 ROD has since been withdrawn. The Tribe argues that the
2014 M-Opinion should still guide the Secretary’s analysis in the event of a remand. Mashpee
Response to Order at 3. The federal defendants announced for the first time at oral argument that
the Department planned to apply the new March 2020 guidance if the matter was to be
remanded. May 20, 2020 Tr. at 50:09-18. This was particularly surprising because the federal
defendants had repeatedly declared that the change in guidance had “no bearing” on this
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litigation. Federal Defendants Response to Order at 2; see also id. at 1, 5, 9-10; Defendant-
Intervenors Response to Order at 3. The federal defendants represented, however, that if the
Court directed them to apply the 2014 M-Opinion on remand, they would comply. May 20,
2020 Tr. at 52:12-14 (counsel stating that the Department will “comply with whatever test the
Court orders them to do”).
The Court disagrees that the newly issued guidance does not change the “under
federal jurisdiction” analysis, as the federal defendants and defendant-intervenors represent. The
new test does not allow some types of evidence that the 2014 test permitted. See supra section
III(D) (describing the types of evidence that the 2014 M-Opinion permitted, but the new
guidance does not for the “under federal jurisdiction” analysis). The federal defendants also
have pre-determined that the Mashpee Tribe would lose under the newly issued guidance.
Federal Defendants Response to Order at 10 n. 4 (finding that the Tribe would lose on all four
parts of the new test).
Because this Court concludes that the Secretary misapplied the M-Opinion in
issuing the 2018 ROD, the Tribe has yet to receive an appropriate determination under the
two-part test that the Department said it was applying. The Court hereby directs the Department
to apply the two-part test in M-37209 – correctly this time – on remand.
V. CONCLUSION
For the foregoing reasons, the Court will grant the Mashpee Tribe’s motion for
summary judgment and deny the federal defendants’ and defendant-intervenors’ motions for
summary judgment. Furthermore, because the Secretary of the Interior’s September 7, 2018
Record of Decision is arbitrary, capricious, an abuse of discretion, and contrary to law, the Court
remands the matter to the Secretary of the Interior for a thorough reconsideration and re-
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evaluation of the evidence before him consistent with this Opinion, the 2014 M-Opinion,
M-37209 – its standard and the evidence permitted therein – and the Department’s prior
decisions applying the M-Opinion’s two-part test. Because the Court has decided this case on
the merits, it will deny the Mashpee Tribe’s emergency motion for a temporary restraining order
and motion for a preliminary injunction as moot. An Order consistent with this Opinion will
issue this same day.
SO ORDERED.
/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: June 5, 2020
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