By Jessica Hill / email@example.comPosted May 5, 2020 at 6:11 PMUpdated at 6:15 AM
Hearing on Mashpee reservation land postponed for further review.
WASHINGTON — The federal judge set to hear the Mashpee Wampanoag Tribe’s land-in-trust case says he was “shocked” to learn the Interior Department had recently withdrawn a legal opinion that laid out the procedure for determining whether a tribe was under federal jurisdiction.
The department ordered March 27 that the tribe’s land be removed from trust status and its reservation be disestablished. A hearing had been scheduled for Thursday on the tribe’s motion for a preliminary injunction, along with motions from both parties for summary judgment.
After discovering that a key piece to the department’s argument had been withdrawn, the judge ordered supplemental briefs be filed, and the hearing was moved to May 20.
Judge Paul Friedman of the U.S. District Court for the District of Columbia wrote Friday that the court was just made aware that a department solicitor withdrew a legal opinion, known as “M-Opinion,” that had laid out a two-part procedure for determining whether a tribe was under federal jurisdiction at the time of the Indian Reorganization Act of 1934.
“The government is asking the Court to defer to its application of a test that the agency itself has now deemed is contrary to law,” Friedman wrote. “The Court frankly is shocked that the government did not bring this change to the Court’s attention and discuss its relevance, or lack thereof, to the pending motions for summary judgment and preliminary injunction.”
Deputy Solicitor for Indian Affairs Daniel H. Jorjani withdrew the M-Opinion on March 9. He issued a memorandum the next day that provided a four-step procedure for determining tribal eligibility that would be “more consistent with how Congress and the Department would have understood them” in 1934.
Those steps include looking at post-1934 legislation that makes the Indian Reorganization Act applicable and at what “under federal jurisdiction” means using treaties, voting and constitutions as well as the 1934 Indian Population Report.
Another step looks at the definition of “recognized,” including questions on whether the federal government had a relationship with a tribe before 1934, such as through Indian agents on a reservation or through the establishment of schools or service institutions on behalf of the tribe. The final step investigates the cumulative weight of an applicant’s evidence, according to the memorandum.
Less than two weeks after Jorjani withdrew the M-Opinion, the department’s Bureau of Indian Affairs announced it was removing the Mashpee tribe’s land from trust status and would disestablish its reservation.
“There was no mention of the fact that the agency had just withdrawn its M-Opinion in which the agency had relied in its 2018 Record of Decision — the subject of this current litigation,” Friedman wrote.
The Interior Department has taken 321 acres in Mashpee and Taunton into trust for the tribe in 2015 but under a new administration reversed itself in 2018.
“The Court was left to discover this change on its own less than one week before oral argument on the very question of whether the agency’s application of the M-Opinion was arbitrary, capricious, an abuse of discretion, or contrary to law,” the judge wrote.
In addition to failing to bring the withdrawal of the opinion to the court’s attention, the defendants did not inform the tribe, which might not have known about the change, Friedman said.
In a separate pending action, the tribe sued the Interior Department after a federal court concluded that the tribe was not under federal jurisdiction at the time of the passage of the Indian Reorganization Act, disqualifying it for land-in-trust status.
Those definitions of “federally recognized” and “Indian” and “under federal jurisdiction” have played an important role in the land case.
Friedman had requested that both parties file supplemental briefings by Monday that addressed this change.
Tribal attorney Tami Lyn Azorsky wrote that the tribe believes the repudiation of the M-Opinion is an important ground for denying the federal defendants and intervenors’ motions.
“The relevance of the Department’s about-face is that the results-oriented, arbitrary and capricious repudiation of the M Opinion by this Secretary is part and parcel of the Secretary’s unlawful treatment of the Tribe’s fee-to-trust application,” Azorsky wrote.
Azorsky wrote that the withdrawal of the legal opinion was not in accordance with the law, but it was not the basis for the Interior Department’s decision that is subject of the tribe’s appeal.
The memorandum also states that eligibility determinations made before the M-Opinion “remain in effect and need not be revisited,” Azorsky wrote. “Therefore the government should not seek to apply the new memoranda on these motions or on remand if the tribe is successful.”
Defense attorneys David Tennant and Andrew Kim wrote that both parties were aware of the withdrawal of the M-Opinion, as multiple Native American news sites reported it, and that the change would have little effect.
If the Mashpee Wampanoag Tribe thought the revision would improve its chances of success, it would have said so, defense attorneys argued.
The withdrawal of the M-Opinion did not change what it means to be “under federal jurisdiction” in any way that would benefit the tribe, the defense attorneys argued, as the change reinforced the limiting language of the phrase “now under federal jurisdiction.”
Defendants argued that the tribe was always recognized by the state but never by the federal government in or before 1934. The existence of a federal treaty, congressional appropriations for the tribe and the enrollment of the tribe in the Office of Indian Affairs are indications of federal jurisdiction.
“But to the extent that Interior’s reinterpretation has changed, it is now harder for the Tribe to establish eligibility for land in trust,” Tennant and Kim wrote. “The Mashpee (tribe) clearly failed under the M-Opinion and would fail for the very same reasons under the newly issued guidance.”
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