Legal Sidebari
Mashpee Wampanoag v. Bernhardt: A Tale of
Two Definitions of “Indian”
August 17, 2020
On June 6, 2020, in Mashpee Wampanoag v. Bernhardt (Mashpee), the U.S. District Court for the District
of Columbia (D.C. District Court) gave the Mashpee Wampanoag Tribe (Tribe or Mashpee Tribe) another
opportunity to retain reservation status for land in Taunton and Mashpee, Massachusetts, that the
Department of the Interior (DOI) had taken into trust and declared eligible for gaming as an “initial
reservation” in 2015. The agency’s Record of Decision to take the land into trust (2015 ROD) relied on
DOI’s interpretation that the Mashpee Tribe met the second of alternative definitions of “Indian” in the
Indian Reorganization Act (IRA), the principal statute providing DOI authority to take land into trust “for
Indians.” In 2016, the U.S. District Court for Massachusetts (Massachuset s District Court) disagreed with
DOI, holding that the Tribe did not satisfy that definition.
DOI then reviewed the land-into-trust application under the other IRA definition of “Indian,” and in 2018
released a decision (2018 ROD) determining that the Tribe did not satisfy that definition either.
Consequently, DOI rejected the Tribe’s application. The Tribe chal enged the 2018 ROD in the D.C.
District Court. In the meantime, the Mashpee Tribe appealed the Massachusetts District Court decision,
and the U.S. Court of Appeals for the First Circuit (First Circuit) affirmed that decision in February 2020.
DOI then began revoking trust and reservation status of the land. The Tribe added a motion to enjoin DOI
from taking the land out of trust to its chal enge to the 2018 ROD in the D.C. District Court. In the June 6,
2020 decision, the D.C. District Court held that the 2018 ROD was “arbitrary and capricious” under the
Administrative Procedure Act (APA), remanded the decision to DOI for reconsideration, and temporarily
enjoined DOI from taking the land out of trust. This Sidebar examines the two cases involving the Tribe’s
trust acquisition application and their possible implications for Congress. It begins with an overview of
the statutory process by which DOI may take land into trust, the Supreme Court’s interpretation of the
IRA in Carcieri v. Salazar, and DOI’s post-Carcieri guidance, which underpinned the Mashpee litigation.
The IRA, Carcieri, and DOI’s Post-Carcieri Guidance
The IRA authorizes DOI to take land into trust “for Indians.” The statute provides two alternative
definitions of the term “Indian” at issue in this case:
[1] all persons of Indian descent who are members of any recognized Indian tribe now under Federal
jurisdiction, and
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[2] all persons who are descendants of such members who were, on June 1, 1934, residing within
the present boundaries of any Indian reservation.
DOI acknowledged the Mashpee Tribe as an Indian tribe in accordance with the agency’s administrative
process and added it to DOI's list of federal y recognized tribes in 2007. However, in 2009, the Supreme
Court, in Carcieri v. Salazar, held that, for DOI to take land into trust under the IRA, the tribe must have
been “under Federal jurisdiction” in 1934. The Carcieri decision thus cast doubt on DOI’s authority to
take land into trust for the Mashpee and other recently recognized tribes.
In 2014, DOI established post-Carcieri standards for determining whether a tribe was “under Federal
jurisdiction” in 1934 through Solicitor’s Opinion M-37029, The Meaning of “Under Federal
Jurisdiction” for Purposes of the Indian Reorganization Act.” M-37029’s two-part test required “a
showing . . . that the United States has exercised its jurisdiction at some point prior to 1934 and that this
jurisdictional status remained intact in 1934.” Subsequently, federal courts, including the D.C. Circuit and
the Ninth Circuit, upheld M-37029’s process for evaluating whether a tribe was “under Federal
jurisdiction” in 1934 and thus eligible to have land taken into trust. However, while the D.C. District
Court was considering the Mashpee Tribe’s appeal of DOI’s 2018 ROD, the agency, on March 9, 2020,
withdrew M-37029 through the issuance of Solicitor’s Opinion M-37055 based on the determination that
M-37029 was “not consistent with the ordinary meaning, statutory context, legislative history, or
contemporary administrative understanding” of the statutory text. The day after issuing the new
Solicitor’s Opinion, DOI issued guidance establishing a more stringent test for determining whether a
tribe is eligible to have land taken into trust that requires, among other things, a tribe to have been both
“under Federal jurisdiction” and “recognized” in 1934.
First Circuit: Tribe Fails IRA’s Second Definition of “Indian”
In the 2015 ROD, DOI determined that the Mashpee Tribe met the IRA’s second definition of “Indian”
meaning that it was comprised of “descendants of such members who were, on June 1, 1934, residing
within the present boundaries of any Indian reservation.” The ROD determined that the Tribe “resid[ed]
within the boundaries of any Indian reservation” based on state and federal references to the Tribe’s 1934
land as “a protected Indian settlement.” However the litigation focused on the ROD’s interpretation of the
rest of the definition. The ROD noted that the phrase “such members” in the second definition
incorporates at least part of the statute’s first definition—“al persons of Indian descent who are members
of any recognized Indian tribe now under Federal jurisdiction.” However, the ROD found the statute
ambiguous regarding which parts of the first definition “such members” incorporates. Based on a review
of the legislative and implementation history and upon applying canons of statutory interpretation, the
ROD concluded that “‘such members’ . . . was intended to incorporate only the phrase ‘members of any
recognized Indian tribe’ and not the phrase ‘under federal jurisdiction’ in 1934.” Based on this
interpretation, the ROD concluded that the Tribe met this part of the second definition because it only
needed to be a “recognized Indian tribe” at the time of the trust acquisition, rather than in 1934.
In 2016, the Massachusetts District Court, in a decision that the First Circuit upheld, declared that DOI
had exceeded its statutory authority when it took land into trust through the 2015 ROD because the Tribe
did not meet the second definition of “Indian.” Both the district court and the First Circuit interpreted
“such members” in the IRA’s second definition of “Indian” as unambiguously referring to “the entire
antecedent phrase,”—meaning that only members of “any recognized Indian tribe . . . under Federal
jurisdiction” in 1934 could qualify to have land taken into trust.

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D.C. District Court: DOI Must Reconsider Tribe’s Eligibility Under the IRA’s First
Definition of “Indian”
The 2018 ROD stems from remand proceedings following the 2016 Massachusetts District Court
decision. In the 2018 ROD, DOI considered and rejected the Tribe’s evidence that it qualified for trust
acquisition under the IRA’s first definition of “Indian”—“al persons of Indian descent who are members
of any recognized Indian tribe now under Federal jurisdiction.” The 2018 ROD considered: “specific
Federal activities, including considering the Tribe for removal in the 1820s; Federal policy
recommendations concerning Massachusetts tribes in the 1850s; mention of the Tribe on Federal censuses
between 1850 and 1910; and the enrollment of Tribal students at the Carlisle Indian School in the early
1900s. . . . [; and] references to the Tribe and its history in federal reports or studies prepared [in] 1888,
1890 and 1935.”
However, the D.C. District Court determined that the 2018 ROD misapplied M-37029’s two-part test
because it disregarded the opinion’s instructions that “a variety of actions when viewed in concert may
demonstrate that a tribe was under federal jurisdiction.” Instead, the court viewed the 2018 ROD as
“evaluating each piece of evidence in isolation.” The court also agreed with the Tribe “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 [the M-37055 Solicitor’s Opinion],” rather than the
applicable M-37029. Specifical y, the court noted that M-37029 required treating evidence that tribal
members attended BIA schools as “strong probative evidence that the Mashpee Tribe was under federal
jurisdiction.” According to the court, the 2018 ROD appeared to weigh this evidence less heavily, more
in-line with new guidance’s “stricter test,” which no longer treats tribal school attendance as presumptive
evidence of federal recognition. The D.C. District Court, therefore, declared the 2018 ROD “arbitrary,
capricious, and an abuse of discretion.” The DOI argued that the new guidance should govern the remand.
Yet, the D.C. District Court reasoned that “the Tribe has yet to receive an appropriate determination under
the two-part test that the Department said it was applying.” It, therefore, ordered DOI to issue a decision
that conforms with the M-37029 “standard and the evidence permitted therein—and the Department’s
prior decisions applying the M-Opinion’s two-part test.”
Considerations for Congress
While DOI decides how to respond to the D.C. District Court decision—either by appealing it or by
reconsidering on remand the validity of the Tribe’s trust and reservation status, Congress may wish to
examine DOI’s authority under the IRA, such as specifying a process of reversing trust status, amending
the act’s definition of “Indian,” or addressing the Mashpee Tribe’s land-into-trust application directly.
DOI’s announcement of plans (since enjoined) to revoke trust status for the Mashpee Tribe’s land
pursuant to the First Circuit’s order provoked at least one Native American organization to cal on
Congress to act. Currently there are several bil s addressing various aspects of this issue. Under a 2012
Supreme Court ruling, a federal court may order DOI to strip trust status from tribal land subsequently
determined to have been taken into trust unlawfully. However, as a group of Members of Congress argued
in an amicus brief they filed in Mashpee, no statute currently delegates general authority to DOI to take
land out of trust. A bil introduced in the 116th Congress, H.R.7173, would enact a general temporary
prohibition on any authority DOI may have to revoke trust or reservation status. Two bil s (discussed in
an earlier Sidebar), H.R. 375, which passed the House on May 16, 2019, and S. 2808, would enact what is
commonly cal ed a “Carcieri fix," and open up the IRA land-into-trust process to al federal y recognized
tribes, regardless of when that recognition occurred.
Two measures that would specifical y address the Mashpee situation passed the House in the 116th
Congress. One, H. Amdt. 855 to H.R. 7608, would deny DOI funding to revoke trust status, reservation
status, or gaming eligibility for the Mashpee Tribe’s land, and the other, H.R. 312, would ratify the

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Mashpee Tribe’s trust land and reservation status, dismiss the court cases, and declare the IRA applicable
to the Tribe. House Natural Resources Committee Members filed dissenting views on H.R. 312, voicing
concern about an “off-reservation gaming complex” planned for the Taunton portion of the trust
acquisition. Another bil introduced this Congress, S. 2628, would reaffirm the trust and reservation status
of the Tribe’s land.

Author Information

M. Maureen Murphy

Legislative Attorney




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