Petition — Town of Mashpee v. Mashpee Tribe

Supreme Court brief1979

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FILED

| JUL 18 1979

In the > SeCHAELRODAK, JR, CLERK

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Supreme Court of the United States.

OcrosBer TERM, 1979.

No. 79-6Glm

TOWN OF MASHPEE, Er At.,

PETITIONERS,

MASHPEE TRIBE,

RESPONDENT.

Conditional Cross-Petition for a Writ of Certiorari to the

. United States Court of Appeals for the First Circuit.

James D. Sr. Cvair, ALLAN VAN GESTEL,

STEPHEN H. OLESKEY, James J. DILLon,

WituuaM F. Les, Goopwin, Procter & Hoar,

HALE AND Dorn, . 28 State Street,

60 State Street, Boston, Massachusetts 02109.

Boston, Massachusetts 02109. (617) 523-5700

(617) 742-9100

Counsel for Petitioner

Counsel for Petitioners Mary Jane Shoop.

Town of Mashpee,

Maurice A. Cooper and

John D. Ferguson.

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Table of Contents.

Opinions below

Jurisdiction

Questions presented

Statutory provisions involved

Statement of the case

Reasons for granting the writ

I. The exception to the scope of federal regula-

tion of Indian tribes has never been addressed

squarely by this Court 7

II. The exception to the Trade and Intercourse

Acts and the policies underlying federal Indian

aI 7 OW WNW b&

regulation will be at issue in other cases 14

Conclusion 15

Appendix follows page 15

United States Code, Title 25 (1963), § 177 la

Act of 1802, ch. 13, 2 Stat. 139, §§ 12, 19 2a

Act of 1834, ch. 161, 4 Stat. 729, §§ 12, 19 3a

Opinion of United States Court of Appeals for the

First Circuit

Memorandum and order for judgment of United

States District Court for the District of Massa-

chusetts 42a

Erratum to memorandum and order for judgment

of United States District Court for the District

of Massachusetts 60a

Table of Authorities Cited.

CASEs.

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1(1831) 8, 11

Chitimacha Tribe v. Harry L. Laws Co., Civ. No. 77-

772-L (W.D. La.) 14n

Mashpee Tribe v. New Seabury Corp., 592 F. 2d 575

(1st Cir. 1979) 2,7

Mashpee Tribe v. Town of Mashpee, 447 F. Supp. 940

(D. Mass. 1978) 2,7

Narragansett Tribe of Indians v. Southern R.I. Land

Development Corp., 418 F. Supp. 798 (D. R.I.

1976) 12

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978) 9

Oneida Indian Nation v. County of Oneida, 70-CV-35

(N.D. N.Y.) 14n, 15n

Oneida Indian Nation v. New York State Thruway

Authority, 78-CV-104 (N.D. N.Y.) 15n

Schaghticoke Tribe of Indians v. Kent School Corp.,

423 F. Supp. 780 (D. Conn. 1976) 14

Seminole Tribe v. Florida, No. 78-6116-CIV (S.D.

Fla.) 15n

United States v. Maine, Civ. No. 1966-ND, 1969-ND

(D. Me.) 14n

United States v. Wheeler, 435 U.S. 313 (1978) 8

Wampanoag Tribe of Gay Head v. Town of Gay

Head, Civ. No. 74-5826-G (D. Mass.) 14

Western Pequot Tribe v. Holdridge Enterprises, Inc.,

Civ. No. H-76-193 (D. Conn.) 14

TABLE OF AUTHORITIES CITED. iii

Wilson v. Omaha Indian Tribe, S. Ct. Nos. 78-160, 78-

161, 47 U.S.L.W. 4758 (June 20, 1979) 13

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) 9, 10

STATUTES.

25 U.S.C. § 177 (1963) 3,5

28 U.S.C. (1966)

§ 1254(1) 2

§ 1331 5

§ 2415 15n

Act of March 30, 1802, ch. 13, 2 Stat. 139 et seq. 3

§ 12 4

§19 3, 4, 6, 8, 9, 11

Act of June 30, 1834, ch. 161, 4 Stat. 729 et seq. 3.30

§ 12 4

§ 29 3,4

MISCELLANEOUS.

Cohen, F., Federal Indian Law (3d Printing, Dobbs

Ferry, N.Y., Oceana Publications, 1972) 10

Department of the Interior News Release, July 1, 1977 = 15n

Message of President Jackson to the Senate, February

23, 1831, Senate Documents [65], vol. 2, 21st Cong.,

2d Sess. 9

S. Rep. No. 95-236, 95th Cong., Ist Sess. (1977) 15n

Washington Post, August 31, 1977, p. A6 15n

In the

Supreme Court of the United States.

Ocroser Term, 1979.

No.

TOWN OF MASHPEE, &Er At.,

PETITIONERS,

vo.

MASHPEE TRIBE,

RESPONDENT.

Conditional Cross-Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

The petitioners Town of Mashpee, Maurice A. Cooper,

John D. Ferguson, Mary Jane Shoop, Matthew B. Connolly,

Jr., New Bedford Gas & Edison Light Company, New Sea-

bury Corporation, New Seabury Conveyancing Corporation,

Fields Point Manufacturing Corporation, Greenwood Devel-

opment Corporation and Russell Makepeace, et al., General

Partners d/b/a Wiljoles Lands, a Massachusetts Limited Part-

nership, individually and as representatives of the class of de-

fendants certified below, respectfully pray that in the event

the Supreme Court of the United States issues a writ of cer-

tiorari upon a petition by the Mashpee Tribe to review the

judgment and opinion of the United States Court of Appeals

for the First Circuit entered on February 13, 1979, in Mashpee

Tribe v. New Seabury Corp., et al., a writ of certiorari also

issue to review that portion of the judgment and opinion

described herein.

Opinions Below.

The opinion of the United States Court of Appeals for the

First Circuit in Mashpee Tribe v. New Seabury Corp., et all., is

reported at 592 F. 2d 575 and the opinion of the United States

District Court for the District of Massachusetts in that case is

reported at 447 F. Supp. 940. The slip opinions from each

court are reproduced in the Appendix hereto.

Jurisdiction.

The judgment of the Court of Appeals for the First Circuit

was entered on February 13, 1979. An order extending time

to file petition for writ of certiorari until July 13, 1979, was

granted to petitioners on May 8, 1979. This Court’s jurisdic-

tion is invoked under 28 U.S.C. § 1254(1).

Questions Presented.

1. Whether the provisions of the several Trade and Inter-

course Acts passed between 1793 and 1834 regulating transac-

tions in Indian lands were limited in their application by con-

ee Se

temporaneously enacted provisions eschewing federal regula-

tion of any trade or intercourse with Indians living on lands

surrounded by settlements of the citizens of the United States,

and being within the ordinary jurisdiction of any of the indi-

vidual states.

2. Whether, in particular, § 19 of a statute entitled “An Act

to regulate trade and intercourse with the Indian tribes, and to

preserve peace on the frontiers,” Act of March 30, 1802,

ch. 13, 2 Stat. 139 et seq. (hereinafter the “ 1802 Trade and In-

tercourse Act”), exempted from federal regulation any trade

and intercourse, including the alienation of Indian tribal land,

with Indians living on lands surrounded by settlements of the

citizens of the United States, and being within the ordinary

jurisdiction of any of the individual states.

3. Whether the exception from federal regulation of any

trade or intercourse with certain Indians, as set forth in § 19 of

the 1802 Trade and Intercourse Act, continued in effect for In-

dian tribes living east of the Mississippi after the passage of the

Act of June 30, 1834, ch. 161, 4 Stat. 729 et seq. (hereinafter

the “1834 Trade and Intercourse Act”), by virtue of § 29 of

that Act.’

Statutory Provisions Involved.

Unrrep States Cope, TIt.e 25.

§ 177. No purchase, grant, lease, or other conveyance

of lands, or of any title or claim thereto, from any Indian

‘In 1875, Congress codified certain provisions of law deemed to be of per-

manent importance into the Revised Statutes. Certain provisions of the 1834

Trade and Intercourse Act were included in the Revised Statutes; § 29 of the

1834 Trade and Intercourse Act was not.

nation or tribe of Indians, shall be of any validity in law

or equity, unless the same be made by treaty or conven-

tion entered into pursuant to the Constitution. . . .

1802 TravEe AND INTERCOURSE ACT.

§ 12. And be it further enacted, That no purchase,

grant, lease, or other conveyance of lands, or of any title

or claim thereto, from any Indian, or nation, or tribe of

Indians, within the bounds of the United States, shall be

of any validity, in law or equity, unless the same be made

by treaty or convention, entered into pursuant to the con-

stitution: ...

§ 19. And be it further enacted, That nothing in this

act shall be construed to prevent any trade or intercourse

with Indians living on lands surrounded by settlements of

the citizens of the United States, and being within the or-

dinary jurisdiction of any of the individual states; . . .

1834 TRADE AND INTERCOURSE ACT.

§ 12. And be it further enacted, That no purchase,

grant, lease, or other conveyance of lands, or of any title

or claim thereto, from any Indian nation or tribe of In-

dians, shall be of any validity in law or equity, unless the

same be made by treaty or convention entered into pur-

suant to the constitution. . . .

§ 29. [After listing acts repealed by the 1834 Trade

and Intercourse Act, including the 1802 Trade and Inter-

course Act] .. . Provided, however, That such repeal

shall not effect [affect] any rights acquired, or punish-

ments, penalties, or forfeitures incurred, under either of

the acts or parts of acts, nor impair or affect the inter-

course act of eighteen hundred and two, so far as the

same relates to or concerns Indian tribes residing east of

the Mississippi: . . .

Complete texts of these statutory provisions are set forth in the

Appendix hereto.

Statement of the Case.

This case concerns the interpretation and application of por-

tions of several acts of Congress regulating trade and inter-

course with Indian tribes. The respondent, claiming to be the

Mashpee Tribe of Indians, filed an action in which it claimed

possession of essentially all of the land in the Town of Mash-

pee, Massachusetts, and additional lands in the adjoining town

of Sandwich (“the subject land”). The jurisdiction of the

United States District Court for the District of Massachusetts

was invoked under 28 U.S.C. § 1331 (1966). The Mashpee

Tribe claimed that it was once in possession of the subject land

but that the subject land was alienated away under several

statutes passed by the Commonwealth of Massachusetts, most

particularly acts passed between 1834 and 1870. The Mash-

pee Tribe alleged that the land transactions involved violated

the then applicable provisions of the several Trade and Inter-

course Acts denying validity to any conveyance of lands from

any Indian nation or tribe of Indians made other than by trea-

ty or convention. The version of that provision governing land

transactions is now codified at 25 U.S.C. § 177 (1963).

In answer to the complaint, petitioners put at issue the exist-

ence of the Mashpee Tribe at the time of the wrongs alleged

and at the time the suit was begun. That issue was severed for

a separate jury trial. At the close of the evidence presented by

the Mashpee Tribe, petitioners moved for a directed verdict on

several grounds, including the ground that sections of the

Trade and Intercourse Acts in effect at the time of the alleged

wrongs exempted from the ambit of federal regulation any

trade or intercourse with “Indians living on lands surrounded

by settlements of the citizens of the United States, and being

within the ordinary jurisdiction of any of the individual states

” 1802 Trade and Intercourse Act, § 19. Petitioners

maintained in that motion that the evidence presented by the

Mashpee Tribe proved the elements necessary for the applica-

tion of this exception to the general regulation of trade and in-

tercourse with Indian tribes. Petitioners raised the same issue

at the close of all of the evidence and again after the return of

the jury’s answers to special interrogatories. On March 24,

1978, the trial court issued a memorandum and orders on

various motions which, in relevant part, denied the motions

for directed verdict and for entry of judgment based upon the

exception, saying:

I am of the opinion that the so-called white settlement

exception does not apply to alienation of tribal land, for

the reason stated in Narrangansett Tribe of Indians v.

Southern Rhode Island Land Development Corp., 418 F.

Supp. 798, 808-809 (D.R.I. 1976), and also for the reason

that the underlying policies of the act insofar as it relates

to land, i.e., (1) to keep peace with the Indians, and (2)

to prevent the Indians from becoming homeless charges,

would apply with equal force to tribes surrounded by

white settlements as to any other tribes.

ne ne ne it it ea iki

It should be noted for purposes of this motion, that the

evidence is undisputed that by the early eighteenth cen-

tury the communities surrounding Mashpee had been

substantially settled by non-Indians and had been ircor-

porated as the towns of Falmouth, Sandwich and Barn-

stable.

In view of my reading of the statute, however, defend-

ants’ motion for a directed verdict is DENIED. Mashpee

Tribe v. Town of Mashpee, 447 F. Supp. 940, 950 (D.

Mass. 1978).

The principal holding by the District Court in Mashpee

Tribe v: Town of Mashpee, supra, was the dismissal of the

claims of the Mashpee Tribe based upon the jury findings that

the Mashpee Tribe did not exist at several critical dates rele-

vant to the claim. That judgment was appealed to the United

States Court of Appeals for the First Circuit, which affirmed

the judgment below. Petitioners brought a separate appeal

from the denial of their motions for directed verdict and for

entry of ju.gment based upon the exception cited above. The

First Circuit determined that the issue of the exception need

not be decided. Mashpee Tribe v. New Seabury Corp., 592

F. 2d 575, 594 (Ist Cir. 1979).

Reasons for Granting the Writ.

I. THe Excerrion TO THE SCOPE OF FEDERAL REGULATION

oF INDIAN TRIBES HAS NEVER BEEN ADDRESSED SQUARELY BY

THIs Court.

Until recently, Indian land claims under the Trade and In-

tercourse Acts east of the Mississippi had been exceedingly

rare. This case presented several issues of law that demanded

for their solution the resurrection of long dormant legislative

histories and policies. The definition of an “Indian tribe”

within the meaning of old federal legislation was one such

issue; a second and companion issue was the comprehension of

the intent of Congress in enacting stringent federal regulation

over trade with Indians. The exception to that stringent

federal regulation is a key to comprehending the true scope of

the regulation that Congress intended. In the event this Court

grants a writ of certiorari in this case to review the judgments

and opinions below on the nature of tribal existence under the

Trade and Intercourse Acts, this Court ought at the same time

to take up the issue of the policy and intent of those acts as em-

bodied in the exception and in the full context of the several

Trade and Intercourse Acts.

The relationship between the nature of tribal existence so as

to justify federal regulation and the exception urged by peti-

tioners below is close. The Trade and Intercourse Acts for-

bade transactions in land with Indian tribes absent a treaty or

convention. The specification of a treaty comports with the

recognition of the Indian tribes as distinct, separate political

entities with powers of self-government. E.g., Cherokee Na-

tion v. Georgia, 30 U.S. (5 Pet.) 1, 18-19 (1831). To this day,

Indian tribes retain their attributes of sovereignty over both

their members and their territory. United States v. Wheeler,

435 U.S. 313, 323 (1978). The demand that transactions in

the land of Indian tribes be by a treaty between that tribe and

the United States must, petitioners urge, be contrasted with

the express disinterest of the United States in any trade or in-

tercourse with Indians situated within the terms of the excep-

tion of § 19 of the 1802 Trade and Intercourse Act. Those In-

dians referenced in that statutory provision not only were sur-

rounded by settlements of the citizens of the United States, but

also were under the “ordinary jurisdiction” of the state within

whose boundaries they resided. This distinction between In-

dians regulated by the United States and Indians subject to the

regular laws of a state has a crucial bearing on the scope of

federal regulation and on the meaning of the “Indian tribes’

to which that regulation applied. The scope of federal regula-

tion embodied in the Trade and Intercourse Acts “cannot be

interpreted in isolation but must be read in light of the com-

mon notions of the day and the assumptions of those who

drafted them.” Oliphant v. Suquamish Indian Tribe, 435

U.S. 191, 206 (1978).

The meaning of the exception to the Trade and Intercourse

Acts has been treated only fleetingly by this Court. For exam-

ple, the phrase “ordinary jurisdiction” as used in the exception

was treated indirectly in Worcester v. Georgia, 31 U.S. (6

Pet.) 515 (1832). Between 1828 and 1831, the State of

Georgia passed a number of laws that, among other things,

made it unlawful for the Cherokee Nation to make laws,

operate courts or otherwise exercise a sovereignty independent

of the State of Georgia. Worcester v. Georgia, supra, at

521-526 (statement of facts). These acts of Georgia further

aimed to add the territory of the Cherokee Nation to several

counties of the State of Georgia, and to regulate the rights and

duties of members of the Cherokee Nation and other persons

within the Cherokee lands. The territory of the Cherokee Na-

tion was within the territorial limits of the State of Georgia.

31 U.S. (6 Pet.) at 583-584 (McLean, J., concurring). Georg-

ia, by passing the laws challenged in that case, sought to bring

the Cherokee Nation within the terms of the exception con-

tained in § 19 of the 1802 Trade and Intercourse Act. This

construction of the intent of the State of Georgia is confirmed

by the comments of President Jackson in his Message from the

President of the United States to the Senate, February 23,

1831, Senate Documents [65], vo!. 2, 21st Cong., 2d Sess. In

that Message, Jackson stated his view that the acts of Georgia

brought the Cherokee Nation squarely within the terms of the

exception, not only surrounded by settlements of citizens of the

United States but also within the ordinary jurisdiction of that

state. See also Cohen, F., Federal Indian Law (3d Printing,

Dobbs Ferry, N.Y., Oceana Publications, 1972), at pp. 181-

184.

Viewed in this context, the opinions in Worcester v.

Georgia, supra, may be read profitably as an extended essay

on “ordinary jurisdiction.” The Cherokee Nation was not

within the “ordinary jurisdiction” of Georgia precisely because

treaties between the United States and the Cherokees recog-

nized beyond equivocation the Cherokee right of self-govern-

ment, free from encumbrance by any state. 31 U.S. (6 Pet.)

at 551-556. The Trade and Intercourse Acts “manifest a firm

purpose to afford that protection which treaties stipulate.” 31

U.S. (6 Pet.) at 556-557. Even if no treaties ever existed, the

incidences of Cherokee self-government that the acts of

Georgia sought to restrain — legislation, the enforcement of

laws through courts and the other exercises of a sovereignty

distinct and opposed to the laws of Georgia — are testimony

that the Cherokees were not within the “common exercise of

the jurisdiction” of Georgia.

The terms of the exception to federal regulation under the

Trade and Intercourse Acts were also addressed in dicta by

Justice McLean in his concurrence in Worcester v. Georgia,

supra, at 580, 589. Justice McLean described the objects of

the exception as those Indians

[iJn some of the old states, Massachusetts, Connecticut,

Rhode Island, and others, . . . surrounded by white popu-

lation, and who, by their reduced numbers, had lost the

power of self-government, [where] the laws of the state

have been extended over them, for the protection of their

persons and properties.

To constitute an exception to the provisions of this act,

the Indian settlement, at the time of its passage, must

have been surrounded by settlements of the citizens of the

United States, and within the ordinary jurisdiction of a

state; not only within the limits of a state, but within the

common exercise of its jurisdiction.

The exception applied, exclusively, to those fragments

of tribes which are found in several of the states, and

which came literally within the description used. (Em-

phasis added.)

The distinction between those Indians subject to exclusive

federal regulation and those Indians exempted from such regu-

lation by terms of the exception was apparent also to Justice

Thompson, joined by Justice Story, in his dissenting opinion in

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 74 (1831). The

exception contained in § 19 of the 1802 Trade and Intercourse

Act was there described as follows:

But this section admits of a plain and obvious interpre-

tation, consistent with other parts of the act, and in har-

mony with these treaties [Treaties of 1791 and 1798 with

Cherokees]. The reference undoubtedly is to that class of

Indians which has already been referred to, consisting of

the mere remnants of tribes, which have become almost

extinct; and who have, in a great measure, lost their orig-

inal character, and abandoned their usages and customs,

and become subject to the laws of the state, although in

many parts of the country living to,: ther, and surrounded

by the whites. They cannot be said tu have any distinct

government of their own, and are within the ordinary

ee and government of the state where they are

ocated.

This contemporaneous perspective on the scope of federal

regulation has passed, it seems, from the immediate conscious-

ness of both bar and bench. Faced with the now novel pros-

pect that the seemingly unbridled reach of the Trade and

Intercourse Acts may, at times crucial to the claims at issue,

have been limited in scope, courts have resorted to strained ex-

egesis of statutory language as a substitute for analysis of the

policies embodied in federal Indian regulation. In Narragan-

sett Tribe of Indians v. Southern R.I. Land Development

Corp., 418 F. Supp. 798, 808-809 (D. R.I. 1976), the decision

relied upon by the trial court below, the Court rested its

analysis upon a supposed difference between Trade and Inter-

course Act provisions enacted in 1802 and 1834.2 This focus

*The complete text of the decision relating to the exception, absent foot-

notes, is as follows:

Finally, plaintiff seeks to strike the defenses which claim that plain-

tiff falls within an exception to coverage of the Nonintercourse Act.

This exception appeared as a proviso in early reenactments of the Act

between 1793 and 1802 and provided that:

“nothing in this act shall be construed to prevent any trade or inter-

course with Indians living on lands surrounded by settlements of the

citizens of the United States, and being within the ordinary jurisdic-

tion of any of the individual states.” Act of March 1, 1793, ch. 19,

§ 13, 1 Stat. 331; Act of May iS, 1796, ch. 30, § 19, 1 Stat. 474; Act

of March 30, 1802, ch. 13, § 19, 2 Stat. 145.

At the time that this proviso was a part of the Act, the terms of the Act

applied to land of “any Indian” as well as to that of any “nation or

tribe of Indians.” The proviso was repealed in 1834, Act of June 30,

1834, ch. 161, § 29, 4 Stat. 734, at the same time that transactions by

upon the supposed significance of the deletion of the phrase

“any Indian” from the Trade and Intercourse Act enacted in

1834 assumes that Congress intended previously to regulate by

treaty the land dealings of individual Indians. The incongruity

of this interpretation of the words “any Indian” was made

manifest by this Court’s recent opinion in Wilson v. Omaha

Indian Tribe, S. Ct. Nos. 78-160, 78-161, slip op. 9, 47

U.S.L.W. 4758, 4760 (June 20, 1979). Faced there with an-

other provision of the Trade and Intercourse Acts that refer-

enced only “an Indian,” the Court found that the statute was

passed primarily for the benefit of the Indian tribes. Indeed,

at the time the early Trade and Intercourse Acts were passed,

“virtually all Indian land was tribally held.” Id. at 4761. The

notion that, prior to 1834, an individual Indian living in

Boston could not sell his home without resort to a treaty be-

tween him and the United States is at least a novel gloss on the

treaty making power. Worse, it is symptomatic of the absence

of perspective wrought by the passage of years since authorita-

tive constructions of Indian statutes and their underlying

policies.

For all these reasons, the decisions below ought not to be re-

viewed by this Court without a full development of the rele-

vant statutes, legislative history and underlying policies of

federal Indian legislation. The Trade and Intercourse Act

provisions governing trv«sactions in Indian lands should not

be construed in isolation. Indeed, a full review of the law ap-

plicable to this claim ought to lead to reversal of the denial of

individual Indians were removed completely from the coverage of the

Act. See note 10, supra. Thus the most logical interpretation of the

proviso is the one which is also the most consistent with the rules of

construction governing statutes relating to Indians, see note 9, supra:

the proviso was addressed to transactions by individual Indians living

in “white” settlements and has no application to land to which a tribal

right of occupancy is claimed. (Emphasis in original.)

petitioners’ motions for directed verdict and entry of judgment

in this case.

II. THe EXxceprion TO THE TRADE AND INTERCOURSE ACTS AND

THE Pouicies UNDERLYING FEDERAL INDIAN REGULATION

WILL BE AT Issue IN OTHER CASES.

The arrival of Indian land claims in the eastern United

States is a matter of public record. Those Indian claims based

upon treaty provisions or on behalf of Indian tribes long

recognized by the federal government will rise or fall upon the

terms of treaties or upon bodies of law that are relatively well

developed. Claims by groups such as the Mashpee Tribe,

however, are a new and uncharted phenomenon. Several

cases in New England raise similar claims that may be guided

by an authoritative exposition of the true scope of federal In-

dian regulation. See, e.g., Wampanoag Tribe of Gay Head v.

Town of Gay Head, Civil Action No. 74-5826-G (D. Mass.,

filed December 26, 1974); Western Pequot Tribe v. Holdridge

Enterprises, Inc., Civil Action No. H-76-193 (D. Conn., filed

1976); Schaghticoke Tribe of Indians v. Kent School Corp.,

423 F. Supp. 780 (D. Conn. 1976) (opinion on preliminary

motions). Each of these controversies is brought by Indian

groups which may well be subject to the terms of the excep-

tion. Those cases, like this one, ought not be decided upon

principles of federal regulation of Indians applicable fully to

treaty or long recognized tribes but inapplicable to those In-

dians that Congress excepted from regulation. Other cases in

which the exception or related matters of statutory interpreta-

tion are at issue exist within still other jurisdictions.*

* A partial list of cases includes: United States v. Maine, Civ. No. 1966-ND,

1969-ND (D. Me.); Chitimacha Tribe v. Harry L. Laws Co., Civ. No.

77-772-L. (W.D. La.); Oneida Indian Nation v. County of Oneida,

Conclusion.

For all these reasons, petitioners pray that, in the event this

Court grants a writ of certiorari to review the decision below

upon the petition of the Mashpee Tribe, a writ of certiorari

also issue to review the denial of petitioner’s motions directed

to the exception set forth within the Trade and Intercourse

Acts.

Respectfully submitted,

JAMES D. ST. CLAIR, ALLAN van GESTEL,

STEPHEN H. OLESKEY, JAMES J. DILLON,

WILLIAM F. LEE, GOODWIN, PROCTER

HALE AND DORR, & HOAR,

60 State Street, 28 State Street,

Boston, Massachusetts 02109. Boston, Massachusetts 02109.

(617) 742-9100 (617) 523-5700

Counsel for Petitioners Town of Counsel for Petitioner Mary

Mashpee, Maurice A. Cooper Jane Shoop.

and John D. Ferguson.

70-CV-35 (N.D. N.Y.); Oneida Indian Nation v. New York State Thruway

Authority, 78-CV-104 (N.D. N.Y.); Seminole Tribe v. Florida, No.

78-6116-CIV (S.D. Fla.). In addition to these and numerous other pending

cases, the United States, through the Department of the Interior, has indi-

cated its intention to recommend the institution of a number of additional

actions on behalf of Indian tribes. For example, on July 1, 1977, the Depart-

ment announced its recommendation that the Justice Department on behalf

of St. Regis, Mohawk, Cayuga and Oneida Nation Tribes sue those persons

claiming an adverse interest in approximately 272,500 acres of land in upper

New York State. Department of Interior News Release dated July 1, 1977.

On August 30, 1977, the Department similarly recommended litigation on

behalf of the Catawba Indian Tribe for approximately 140,000 acres of land

in the Rock Hill, South Carolina, area. Washington Post, August 31, 1977,

at p. A6. In fact, in connection with legislation to extend the statute of limi-

tations provided in 28 U.S.C. § 2415 for commencing Indian claims for

monetary damages by the United States, as trustee, the Department indi-

cated that the number of potential claims under review “could amount to

well over 1,000.” S. Rep. No. 95-236, 95th Cong., Ist Sess. 2 (1977).

Appendix.

Unrrep States Cope, TITLE 25 (1963).

§ 177. Purchases or grants of lands from Indians.

No purchase, grant, lease, or other conveyance of lands, or

of any title or claim thereto, from any Indian nation or tribe of

Indians, shall be of any validity in law or equity, unless the

same be made by treaty or convention entered into pursuant to

the Constitution. Every person who, not being employed

under the authority of the United States, attempts to negotiate

such treaty or convention, directly or indirectly, or to treat

with any such nation or tribe of Indians for the title or pur-

chase of any lands by them held or claimed, is liable to a

penalty of $1,000. The agent of any State who may be present

at any treaty held with Indians under the authority of the

United States, in the presence and with the approbation of the

commissioner of the United States appointed to hold the same,

may, however, propose to, and adjust with, the Indians the

compensation to be made for their claim to lands within such

State, which shall be extinguished by treaty. [R.S. § 2116.]

Act of 1802, ch. 13, 2 Stat. 139.

Section 12. And be it further enacted, That no purchase,

grant, lease, or other conveyance of lands, or of any title or

claim thereto, from any Indian, or nation, or tribe of Indians,

within the bounds of the United States, shall be of any validi-

ty, in law or equity, unless the same be made by treaty or con-

vention, entered into pursuant to the constitution: and it shall

be a misdemeanor in any person, not employed under the au-

thority of the United States, to negotiate such treaty or con-

vention directly or indirectly, to treat with any such Indian

nation, or tribe of Indians, for the title or purchase of any

lands by them held or claimed, punishable by fine not exceed-

ing one thousand dollars, and imprisonment not exceeding

twelve months: Provided, nevertheless, that it shall be lawful

for the agent or agents of any state, who may be present at any

treaty held with Indians, under the authority of the United

States, in the presence, and with the approbation of the com-

missioner or commissioners of the United States, appointed to

hold the same, to propose to, and adjust with the Indians, the

compensation to be made, for their claims to lands within such

state, which shall be extinguished by the treaty.

Section 19. And be it further enacted, That nothing in this

act shall be construed to prevent any trade or intercourse with

Indians living on lands surrounded by settlements of the citi-

zens of the United States, and being within the ordinary juris-

diction of any of the individual states; or the unmolested use of

a road from Washington district to Mero district, or to prevent

the citizens of Tennessee from keeping in repair the said road,

under the direction or orders of the governor of said state, and

of the navigation of the Tennessee river, as reserved and se-

cured by treaty; nor shall this act be contrued to prevent any

person or persons travelling from Knoxville to Price’s settle-

ment, or to the settlement on Obed’s river (so called), provided

they shall travel in the trace or path which is usually travelled,

and provided the Indians make no objection; but if the Indians

object, the President of the United States is hereby authorized

to issue a proclamation, prohibiting all travelling on said

traces, or either of them, as the case may be, after which, the

penalties of this act shall be incurred by every person travelling

or being found on said traces, or either of them, to which the

prohibition may apply, within the Indian boundary, without

a passport.

Act of 1834, ch. 161, 4 Stat. 729.

Section 12. And be it further enacted, That no purchase,

grant, lease, or other conveyance of lands, or of anytitle or

claim thereto, from any Indian nation or tribe of Indians, shall

be of any validity in law or equity, unless the same be made by

treaty or convention entered into pursuant to the constitution.

And if any person, not employed under the authority of the

United States shall attempt to negotiate such treaty or conven-

tion, directly or indirectly, to treat with any such nation or

tribe of Indians, for the title or purchase of any lands by them

held or claimed, such person shall forfeit and pay one thousand

dollars: Provided, nevertheless, That it shall be lawful for the

agent or agents of any state who may be present at any treaty

held with Indians under the authority of the United States, in

the presence and with the approbation of the commissioner or

commissioners of the United States appointed to hold the

same, to propose to, and adjust with the Indians, the compen-

sation to be made for their claim to lands within such state,

which shall be extinguished by treaty.

Section 29. And be it further enacted, That the following

acts and parts of acts shall be, and the same are hereby re-

pealed, namely: An act to make provision relative to rations

for Indians, and to their visits to the seat of government, ap-

proved May thirteenth, eighteen hundred; an act to regulate

trade and intercourse with the Indian tribes, and to preserve

peace on the frontiers, approved March thirty, eighteen hun-

dred and two; an act supplementary to the act passed thirtieth

March, eighteen hundred and two, to regulate trade and inter-

course with the Indian tribes, and to preserve peace on the

frontiers, approved April twenty-nine, eighteen hundred and

sixteen; an act for the punishment of crimes and offences com-

mitted within the Indian boundaries, approved March three,

eighteen hundred and seventeen; the first and second sections

of the act directing the manner of appointing Indian agents,

and continuing the “Act establishing trading-houses with the

Indian tribes,” approved April sixteen, eighteen hundred and

eighteen; an act fixing the compensation of Indian agents and

factors, approved April twenty, eighteen hundred and eigh-

teen; an act supplementary to the act entitled “An act to pro-

vide for the prompt settlement of public accounts,” approved

February twenty-four, eighteen hundred and nineteen; the

eighth section of the act making appropriations to carry into

effect treaties concluded with several Indian tribes therein

mentioned, approved March three, eighteen hundred and

nineteen; the second section of the act to continue in force for

a further time the act entitled “An act for establishing trading-

houses with the Indian tribes, and for other purposes,” (a) ap-

proved March three, eighteen hundred and nineteen; an act to

amend an act entitled “An act to regulate trade and inter-

course with the Indian tribes, and to preserve peace on the

frontiers,” approved thirtieth of March, eighteen hundred and

two, approved May six, eighteen hundred and twenty-two; an

act providing for the appointment of an agent for the Osage

Indians west of the state of Missouri and territory of Arkansas,

and for other purposes, approved May eighteen, eighteen hun-

dred and twenty-four; the third, fourth, and fifth sections of

“An act to enable the President to hold treaties with certain In-

dian tribes, and for other purposes,” approved May twenty-

five, eighteen hundred and twenty-four; the second section of

the “Act to aid certain Indians of the Creek nation in their re-

moval to the west of the Mississippi,” approved May twenty,

eighteen hundred and twenty-six; and an act to authorize the

appointment of a subagent to the Winnebago Indians on Rock

river, approved February twenty-five, eighteen hundred and

thirty-one: Provided, however, That such repeal shall not ef-

fect [affect] any rights acquired, or punishments, penalties, or

forfeitures incurred, under either of the acts or parts of acts,

nor impair or affect the intercourse act of eighteen hundred

and two, so far as the same relates to or concerns Indian tribes

residing east of the Mississippi: And provided also, That such

repeal shall not be construed to revive any acts or parts of acts

repealed by either of the acts or sections herein described.

United States Court of Appeals

For the First Circuit

No. 78-1272.

MASHPEE TRIBE,

PLAINTIFF, APPELLANT.

NEW SEABURY CORP., ET AL..

DEFENDANTS, APPELLEES.

No. 78-1273.

MASITIPEE TRIBE,

PLAINTIFF, APPELLEF,

¥.

NEW SEABURY CORP., ET AI..,

DEFENDANTS, APPELLANTS.

No. 78-1274.

MASHPEE TRIBE,

PLAINTIFF, APPELLEF.

NEW SEABURY CORP., ET AL.,

DEFENDANTS, APPELLEES.

MATTHEW B. CONNOLLY, ETC.,

DEFENDANT, APPELLAXT.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[ Hox. Wauter Jay Sxrxxen. U.S. District Judge)

Before Corrix, Chief Judgc.

CampseL. and Bowses, Circuit Judges.

2 MASHPEE TRIBE t°. NEW SEABURY CORP.

James D. St. Clair and Allan van Gcstcl, with whom Stephen

H. Oleskey, William F. Lec. Hale and Dorr, James J. Dillon,

Goodwin, Procter d&: Hoar, Morris Kirsncr, Edwin J. Carr, May,

Bilodeau, Dondis d- Landcrgan, Thomas B. Shea, Andrew J.

McElancy, Assistant Attorney General, Thomas Otis, Selma R.

Rollins, and Rollins, Rollins d- Foz, were on brief. for New Seabury

Corp. et al.

Richard B. Collins, with whum Thomas N. Tureen, Moshe J.

Genauer, and Barry A. Margolin, were on brief, for Mashpee tribe.

Joseph E. Brennan, Attorney General, John M. R. Paierson,

Deputy Attorney General, and Darid Roscman, Assistant Attorney

General on brief for the State of Maine, amicus curiae.

February 13, 1979

Corry, Chief Judge. Plaintiff, denominating itself the

Mashpee Tribe, claims to be a tribe of Indians that has

lived in and around the town of Mashpee, Massachusetts,

continuously since time immemorial. The suit is based on

the Indian Nonintercourse Act which was first passed in

1790 and exists now as 25 U.S.C. § 177: .

‘‘No purchase, grant, lease, or other conveyance of

lands, or of any title or claim thereto, from any Indian

nation or tribe of Indians, shall be of any validity in

law or equity, unless the same be made by treaty or

convention entered into pursuant to the Constitution.

Plaintiff claims that its tribal land was taken from it

between 1834 and 1870 without the required federal consent.

This suit, filed August 26, 1976, against a defendant class

representing landowners in the town of Mashpee, seeks

recovery of those lands.

Defendants answered the complaint, in part, by denying

that plaintiff is or was a tribe. It is undisputed that if

plaintiff was not a tribe in 1976 it lacked standing to bring

this suit and that if not a tribe at the critical times in the

nineteenth century it was not protected by the Act. The dis-

trict court severed the issue of plaintiff’s tribal status for

a separate, preliminary trial. Before trial plaintiff moved

for a continuance pending the Department of the Interior’s

OPINION OF THE COURT. 3

determination whether or not to declare plaintiff a federally

recognized tribe. The court denied the motion, and trial

began October 17, 1977. The trial lasted 40 days and was

submitted to the jury on special interrogatories January 4,

1978. The jury returned its verdict on January 6. The

interrogatories, together with the jury’s answers, were as

follows:

‘*1, Did the proprietors of Mashpee, together with their

spouses and children, constitute an Indian tribe on

any of the following dates:

a. July 22,1790: The date of the enactment of

the first version of the federa] Nonintercourse

Act.

b. March 31, 1834: The date on which the

District of Marshpee was established. [sic]

Yes

ce. March 3, 1842: The date on which formal

partition of land in the District of Marshpee

among the proprietors of Marshpee and their

children was authorized by act of the legisla-

ture of the Commonwealth of Massachusetts?

Yes

d. June 23, 1869: The date on which all re-

straints on alienation of land held individually

by Indians and people of color known as In-

dians were removed by act of the legislature of

the Commonwealth of Massachusetts?

e. May 28,1870: The date on which the Town

of Mashpee was incorporated by act of legis-

lature of the Commonwealth of Massachusetts:

[sic]

2. Did the plaintiff group, as identified by the plain-

tiff’s witnesses, constitute an Indian tribe as of

4 MASHPEE TRIBE U. KEW SEABUBY CORP.

August 26, 1976: The date of the commencement

of this law suit?

3. If you find that people living in Mashpee consti-

tuted an Indian tribe or nation on any of the dates

prior to August 26, 1976 listed in Special Question

No. 1, did they continuously exist as such a tribe

or nation from such date or dates up to and in-

cluding August 26, 1976!

No”’

Mashpee Tribe v. Town of Mashpee, 447 F. Supp. 940,

943 (D. Mass. 1978).

After receiving these answers, but without discharging

the jury, the court requested memoranda from the parties

to show cause why an order of dismissal should not be

entered on the basis of the jury’s answers. Plaintiff argued

that the special verdicts were inconsistent and ambiguous

and moved that, therefore, a new trial should be ordered.

The court denied the motion and.dismissed the case. Plain-

tiff asserts in appeal No. 78-1272 as error the court’s denial

of the pre-trial motion for a continuance, certain aspects

of the court’s instruction on the definition of ‘‘tribe’’, the

court’s instructions concerning allocation of the burden of

proof, the court’s ruling that the special verdicts were not

fatally inconsistent or ambiguous, and the court’s handling

of an ex parte communication with a juror. These issues

will be taken up in turn, and we will present the necessary

factual background as needed. A fuller discussion of the

relevant history may be found in Mashpee Tribe, supra,

447 F. Supp. at 943-47. We will not attempt to duplicate

the district court’s effort.

Plaintiff argues that the district court erred by refusing

to grant a continuance pending Department of the Interior

action on Mashpee’s application for federal recognition as

10a

OPINIOX OF THE COURT. 5

a tribe. Plaintiff moved for a continuance upon learning

that the Department, in a departure from previous policy,

had issued proposed regulations for determining whether

to recognize tribes and that, using these regulations, the

Department would begin proceedings concerning the Mash-

pees. The court denied the motion but invited the Depart-

ment to participate in the trial either as an intervenor or

as an amicus curiae with permission to submit questions for

the court to ask witnesses. The Department chose not to

participate in either capacity in part because the Depart-

ment had not yet taken ‘‘a defintive position on the regu-

lations’’ and, thus, would ‘‘not be able to participate mean-

ingfully in the trial of this case at this time.’’

We hold that the court acted correctly in denying the

continuance. The cases cited by plaintiff demonstrate that

this is not the kind of case in which the Supreme Court

has required courts to defer to administrative process. The

deference doctrine’ primarily serves as a means of coordi-

nating administrative and judicial machinery. Port of Bos-

ton Marine Terminal Ass’n v. Rederiaktiebolaget Trans-

atlantic, 400 U.S. 62, 68 (1970); United States v. Western

Pacific R.R. Co., 352 U.S. 59, 62 (1956); Far East Confer-

ence v. United States, 342 U.S. 570, 575 (1952); Locust

Cartage Co., Inc. v. Transamerican Freight Lines, Inc.,

430 F.2d 334, 339 (1st Cir. 1970). It is meant to promote

uniformity and take advantage of agencies’ special ex-

pertise. Western Pacific R.R. Co., supra, 352 U.S. at 64;

Far East Conference, supra, 342 U.S. at 574-75. In a recent

pair of antitrust cases against a commodities exchanze

1 The doctrine has occasionally been referred to under the label

‘*primary jurisdiction’’, see, e.g., Port of Boston Marine Terminal

Ass’n v. Rederiakticbolagct Transatlantic, 400 U.S. 62, 68 (1970),

but the Court has not used the label in all its administrative defer-

ence cases. The problem, strictly speaking, is not one of jurisdic-

tion. Indeed it comes into play — when both the court and the

agency have jurisdiction over at least portions of the dispute.

Rather the problem is one of harmony, efficiency, and prudence.

lla

6 MASHPEE TRIBE 2". NEW SEARURY CORP.

regulated by the Commodities Exchange Commission, the

Court looked at three factors to determine whether a couri

should defer: (1) whether the agency determination lay at

the heart of the task assigned the agency by Congress:

(2) whether agency expertise was required to unravel intri-

cate, technical facts; and (3) whether, though perhaps not

determinative, the agency determination would materially

aid the court. Chicago Mercantile Exchange v. Deaktor.

414 U.S. 113, 114-15 (1973); Ricci v. Chicago Mercantile

Exchange, 409 U.S. 289 (1973). Other cases have identified

other reasons for deferring to administrative agencies.

Deference can dam a potential flood of suits seeking de novo

review of agency determinations. Weinberger v. Bente.

Pharmaceuticals, Inc., 412 U.S. 645, 653 (1973) (fearing

suits testing the status of each newly developed ‘‘me-too*'

drug). Deference can permit an agency to follow through

and supervise earlier actions. Port of Boston, supra, 400

U.S. at 68 (agency had approved the agreement under dis-

pute). The doctrine recognizes that some problems are

better solved by the more flexible procedures possible be.

fore agencies not bound by Article III limitations. /d.

And, finally, agencies often have prescribed procedures

specially designed to resolve particular kinds of disputes.

Best v. Humboldt Placer Mining Co., 371 U.S. 334, 339

(1963); Western Pacific R.R. Co., supra, 352 U.S. at 64.?

The Department of the Interior has not historically spent

much effort deciding whether particular groups of people

are Indian tribes. By and large no one has disputed the

tribal status of Indians with whom the Department has

= Though the Court has suggested that ‘‘[i]t is a doctrine allo-

cating the law-making power over certain aspects of commercial

relations’’, United States v. Western Pacific R.R. Co., 352 U.S.

59, 65 (1956), it has been applied somewhat more broadly. Se«

Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963) (manage-

— of — lands). Nor is a plaintiff barred from invoking the

octrine. Id.

12a

OPINION OF THE COURT. 7

dealt. The Department has never formally passed on the

tribal status of the Mashpees or, so far as the record shows,

any other group whose status was disputed. Therefore,

the Department does not yet have prescribed procedures

and has not been called on to devclop special expertise in

distinguishing tribes from other groups of Indians. More-

over, the facts in this case, though developed and inter-

preted in part with the expert help of historians and anthro-

pologists, are not so technical as to be beyond the under-

standing of judges or juries. As the court said in its

charge, ‘‘We are dealing with the human condition here

as well.’’ Finally, ours is a straightforward Article III

case. The resolution will not affect rights of others than

the parties except in the traditional legal effect that our

opinion will have as precedent. The facts on which the

dispute turns, though hard to come by, are adjudicative

facts. They are not in the nature of legislative policy

decisions. For all these reasons, we cannot be sure how

helpful the Department’s ultimate decision might be. We

can, however, be certain that the decision will not be avail-

able soon. The court was right to respect the ‘‘strong public

interest in the prompt resolution’’ of the case and not defer

to administrative action of uncertain aid and uncertain

speed. It follows from what we have said, of course, that

in another case, once the Department has finally approved

its regulations and developed special expertise through

applying them, we might arrive at a different answer.

II.

The next challetige is to the court’s instructions on the

definition of ‘‘tribe’’. Plaintiff must prove that it meets

the definition of ‘‘tribe of Indians’’ as that phrase is used

in the Nonintercourse Act both in order to establish any

Tight to recovery and to establish standing to bring this

suit. This issue is particularly difficult in this case becaus?

the Mashpees differ from most other groups who have

l3a

& MASHPEE TRIBE t'. NEW SEABURY CORP.

sought to assert rights as Indian tribes. The federal gov-

ernment has never officially recognized the Mashpees as a

tribe or actively supported or watched over them. More-

over, the Mashpees have a long history of intermarriage

with non-Indians and acceptance of non-Indian religion

and culture. These facts do not necessarily mean that the

Mashpees are not a tribe protected by federal law,’ but

they do make the issue of tribal existence a difficult factual

question for the jury.

Because most groups of Indians involved in litigation in

the federal courts have been federally recognized Indians

on western reservations, the courts have been able to accept

tribal status as a given on the basis of the doctrine

going back at least to The Kansas Indians, 72 U.S. (5 Wall.)

737, 756-57 (1867), that the courts will accord substantial

weight to federal recognition of a tribe. See, e.g., Joint

Tribal Council of the Passamaquoddy Tribe v. Morton, 528

F.2d 370, 377 (1st Cir. 1975). One consequence is that very

little case law has developed on the meaning of ‘‘tribe’’.

The court below, in its instructions to the jury, relied pri-

marily on Montoya v. United States, 180 U.S. 261, 266

(1901) :

‘‘By a ‘tribe’ we understand a body of Indians of the

same or similar race, united in a community under one

> As we said in Joint Tribal Council of the Passamaquoddy Tribc

v. Morton, 528 F.2d 370, 371 (1st Cir. 1975), ‘‘Congress is not

prevented from legislating as to tribes generally ; and this appears

to be what it has done in successive versions of the Nonintercourse

Act. There is nothing in the Act to suggest that ‘tribe’ is to be

read to exclude a bona fide tribe not otherwise federally recog-

nized.’’ On the other hand, though the scope of congressional

power to deal with the Indians is very broad, it is not unlimited.

Congress cannot dea] with Indians solely as a racia] group. United

States v. Antelope, 430 U.S. 641, 645 (1977). Nor can Congress

arbitrarily label a group of people a tribe. United States v.

Candelaria, 271 U.S. 432, 439 (1926) ; United States v. Sandoval,

231 U.S. 28, 46 (1913). A tribe must be something more than

4 private, voluntary organization. United States v. Mazurie, 419

U.S. 544, 557 (1975).

l4a

OPINIOX OF THE COURT. 9

leadership or government, and inhabiting a particular

though sometimes ill-defined territory .. .’’*

Neither party challenges this basic definition, but it is far

from satisfactory. Its four elements—(a) ‘‘same or similar

race’’; (b) ‘‘united in a community’’; (c) ‘‘under one lead-

ership or government’’; and (d) ‘‘inhabiting a particular

... territory’’—leave much to be explained. A few other

cases have described characteristics of tribes whose status

as such was in question. See United States v. Candelaria,

271 U.S. 432, 442-43 (1926); The Kansas Indians, 72 U.S.

(5 Wal.) 737, 756 (1867); United States v. Wright, 53 F.2d

301 (4th Cir. 1931). But these tribes bore little resemblance

to the Mashpees.

Starting with the Montoya definition, the district court

went on to explain each of its elements at some length.

Plaintiff asserts as error the court’s explanation of two of

the elements of the definition: (1) the requirement of a

‘‘leadership or government’’ and (2) the requirement that

the Indians be ‘‘united in a community”’.

Beginning with the requirement of leadership, we will

reprint the several pertinent sections of the charge rather

than attempt to summarize the court’s explanation.

‘*There has to be a leadership or government. . . . Obvi-

ously, this was a little enclave in one corner of Massa-

*Though Montoya did not involve the Nonintercourse Act, this

definition was later used in United States vy. Candelaria, 271 US.

432, 443 (1926), which did involve the Nonintercourse Act. The

scope of the phrase ‘‘Indian tribe’? may vary from statute to

statute, see United States v. Sandoval, 231 U.S. 28, 48-49 (1913),

but it is important to bear in mind that generally legislation con-

ferring benefits or protection on Indians is to be construed liberally

in their favor. Joint Tribal Council of the Passamaquoddy Tribe

v. Morton, 388 F. Supp. 649, 660 (D. Me. 1975), aff’d, 528 F.2d

370 (1st Cir. 1975), and cases cited. The policies of the Act in

— may be used to aid in interpreting the Act, Joint Tribal

ouncil, supra, 528 F.2d at 377, but if Congress chooses to give

Indian tribes a far-reaching remedy that choice should not be

frustrated by judicial decree.

15a

MASHPEE TRIBE VU. NEW SEABURY CORP.

chusetts. It could not have a government like that

in Massachusetts; it could not compete with the gov-

ernment of Massachusetts. Clearly, there was an area

in which it could exercise control over its own internal

relations, to control the relationship . .. among its own

members ..., between the management and the others

and among all of the members of the group.’’

ees? *#

‘*The level of leadership or government that was

appropriate for this situation also has to be considered

in terms of the need. How much government do you

need? You’ve got three or four hundred people on

13,000 acres of land, and their interaction may not

have been so intense as to require constant regulation.

Bear in mind these . . . three and four hundred people

. were grouped in families, in family households,

and it may well be they were spread kind of thin. How

much government is required? Well, that is for you

to decide.’’

e® ee e#

‘There were a series of petitions in the 1740’s - 1760’s,

leading to the formation of the district. After 1788

some more petitions complaining about the grieved

position under the guardians. It may be a reasonable

inference from those events that there was a continu-

ing political leadership, but you must be prepared to

make that inference, and that is solely for you to

determine because sporadic grouping, sporadic leader-

ship is not what is meant by ‘united in a community

under one leadership or government.’

You can have that any time in a fire or flood in the

neighborhood where some people will emerge and

organize a rescue or organize boats or a bucket bri-

gade, whatever is needed. That is not the kind of

leadership we are talking about. We are talking about

l6a

OPINION OF THE COURT. 1l

something that goes on, has continuity. Continuity of

leadership in which leadership is passed on in some

orderly way.’’

e*eees.

**[T he notion of sovereignty .. . is not an element, a

necessary element of tribal existence. What it is is a

leadership which has evolved in some respect . . . which

has its roots and has evolved from a once sovereign

Indian community. Now, it may take different forms.’’

‘*Clearly, whatever kind of leadership or government

the tribe has, if it is a tribe, it cannot compete with

the duly established government of the Commonwealth.

You would not expect, under these circumstances, and

it would not be legally permissible for a group within

a town to have its own courts, in any formal sense.

It could conceivably set up a school system if it were

sufficiently wealthy, ... but that . . . should be consid-

ered in the context of a school system, which until

recently, was predominantly Indian, anyway, accord-

ing to the testimony.’’

‘*The testimony most favorable to the palintiff has

been that these leaders, as identified by various wit-

nesses, are leaders with respect to a way of life... .

[YJou can consider all of that testimony, whether

there is enough in your opinion to warrant the infer-

ence that there was controlling leadership of signifi-

cant elements in the lives of the people. Significant

elements. For the leadership to be such as qualifies

the group as a tribe, there must be followers.’’

e*ee#ee

‘There was a core group that was very much concerned

about Indian affairs, a good many of them have shown

up in the courtroom, some have not.

17a

MASHPEE TRIBE VU. KEW SEABURY CORP.

Now, the existence of 30, 40, 50, 60 people, who are

concerned with the existence of a chief, who pay atten-

tion to what the chief is doing, expect various things

from the chief of the tribe or the leaders of the tribe,

or the leaders of the group, rather, is not enough.

You’ve got to find that the leadership, whatever it is,

has a significant effect upon at least a majority of the

claimed group.’’

R . eee? e#

‘‘There will be a diminution of influence from the center

of the organization to the fringe... [TJhere are some

people who are reasonably enthusiastic and attend all

the time, and out at the fringe there are some people

that don’t show up but once a year and not every year

at that. That is a common characteristic of all organ-

izations. We are dealing with the human condition

here, as well. I suppose, if you found that to be the

-situation, it would not mean that there was no tribe.

But you do have to find that it is something more than

just a small coterie, a small band of enthusiasts who

are supporting the Indian leadership, if that is what

it is, in Mashpee.

... Obviously, more enthusiasm should be e[xp]ected

of those within the town than those that are without.

... Well, ... it’s up to you to decide whether you’ve

got a leadership that is governing the conduct, the

lives of the people in some significant way, that people

order their lives in response to these leaders’ require-

ments in some significant way... .’’

e*ees

‘*This is nothing more essentially political than speak-

ing on a town meeting floor or lobbying the Governor

of the state, no matter for what purpose.... [BJut

the question is, is it significant? Is it evidence of a

continuing leadership? That goes back to what I said

18a

OPINION OF THE COURT. 13

about the petitions that were filed in the eighteenth

century.’’

e* ee @ @

‘*Now, that is for you to decide, under all the circum-.

stances, whether that leadership is tribal leadership,

whether it’s the leadership which would be followed,

adopted and obeyed in some cignificant degree by at

least a majority of the people who are going to be a

tribe in 1976.’’

Plaintiff complains that the court erroneously required

it to prove ‘‘binding authority’’ over the group’s members

and an orderly means of transmitting the leadership. The

first complaint is not true as a matter of fact. The

court never said that a tribe’s leaders’ influence must be

‘*binding’’ but that they must cause the people to ‘‘order

their lives . .. in some significant way’’. The people must

‘*follow[ J], adopt[ ] and obey[ ]’’ the leadership. And the

leadership must be ‘‘controlling . . . of significant elements

in the lives of the people.’’ But the court’s discussion

demonstrates that it did not require plaintiffs to show

‘‘coercive power or binding authority’’ or to ‘‘exhibit the

full panoply of governmental powers exercised by advanced

groups....’’ The court was trying to establish a fair test

to determine whether the alleged tribal leadership had any

followers. If no one follows, then the would-be leader is

not leading anyone and cannot sustain the claim to leader-

ship.

The court explicitly charged that plaintiff did not have to

show any kind of sovereignty or an ability to compete with

the Commonwealth of Massachusetts for power over the

Mashpees. The court pointed out that plaintiff need not

have a court system, a school system, or any other formal

governmental institutions. Further, the court instructed

the jury to consider the claims that the asserted leaders

‘fare leaders with respect to a way of life’’. Such leader-

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14 MASHPEE TRIBE V. KEW SEABURY CORP.

ship is certainly not expected to be coercive or binding.

Plaintiff was allowed to show leadership, at least in part,

by demonstrating that the alleged leaders were role-models

to whom a majority of the asserted tribe responded on ques-

tions of tribal or ethnic significance. In the same vein the

court, in its discussion of diminution of influence towards

the fringe of an organization, permitted the jury to con-

sider as followers those who responded to the leaders with

less than tota] enthusiasm. Absolute obedience, voluntary

or coerced, was explicitly not a prerequisite to tribal exist-

ence. Furthermore, the examples of political activity that

the court allowed the jury to consider in deciding whether

the requisite leadership or government existed were not

examples of coercive power over constituents, but of repre-

sentation of constituents’ interests before non-Indian gov-

ernmental bodies. One need have no coercive power to

speak at town meetings, submit petitions, or lobby a gov-

ernor. The court required plaintiff to show only such

leadership or government as its situation required. The

court pointed to some legitimate evidence. Plaintiff’s prob-

lem was that it did not submit sufficient evidence to convince

the jury that the asserted leaders had enough followers

on significant issues.

Turning to the issue of continuity of leadership, it is

true that the court at one point required that leadership

be ‘‘passed on in some orderly way’’. Read in the context

of the entire instruction, however, it is clear that the court

was not imposing a requirement of formal systems of

succession. The court never required elections, inheritance,

or any other fixed system of determining a leader’s succes-

sor. The court’s concern was not with how the leadership

passed, but with making sure that the leadership did pass.

The sentence on which plaintiffs seize was a way of differ-

entiating the necessary leadership from sporadic, crisis-

oriented leadership that would disappear as soon as the

20a

OPINION OF THE COURT. 15

crisis was resolved. We agree that a fire or a flood cannot

spawn a ‘‘tribe’’ that exists onl) during the disaster.

Accordingly, the court instructed that there must be a

continuous leadership. It suggested as evidence worth

considering, the series of petitions filed on behalf of the

Mashpees beginning in the middle of the eighteenth century.

The court permitted the inference that those petitions might

be evidence of a continuing political leadership. We inter-

pret the court’s instruction to require that there be a recog-

nized leadership to which the people can turn at any time

—a leadership ‘‘orderly’’ in the sense that, whether or not

there is a specific short-term crisis, the need for ongoing

leadership is always met without a significant break in

continuity. Nothing the court said contradicted plaintiff’s

position that a tribe ought to be able to choose its leaders

in any way it sees fit and for whatever purposes are

necessary. Montoya held that a group without leaders or

government could not be a tribe. The district court’s

instructions are consistent with and, probably, more favor-

able to plaintiff than the every day usage of the terms in

the Montoya definition would be. Without the court’s in-

terpretation the jurors might well have construed the

phrase ‘‘leadership or government’’ to imply the formal

kinds of structures and institutions by which the jurors

themselves are governed.

Not only did the portions of the court’s instructions

complained of not mean what plaintiff suggests, but the

court read to the jury the very language that plaintiff

argues is a more correct statement of law. That passage,

also from Montoya, explained why, according to the Su-

preme Court, Indian tribes were not nations.

‘*As they had no established laws, no recognized method

of choosing their sovereigns by inheritance or elec-

tion, no officers with defined powers, their governments

in their original state were nothing more than a

— _<

— —™

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16 MASHPEE TRIBE UV. KEW SEABURY CORP.

temporary submission to an intellectual or physical

superior, who in some cases ruled with absolute au-

thority, and in others, was recognized only so long as

he was able to dominate the tribe by the qualities

which originally enabled him to secure their leader-

ship. In short, the word ‘nation’ as applied to the

uncivilized Indians is so much of a misnomer as to

be little more than a compliment.’’ 180 U.S. at 265.

Though not ‘‘nations’’ in the eyes of turn-of-the-century

civilization, the groups so described were tribes. The dis-

cussion in Montoya of ‘‘nation’’ supplements that Court’s

definition of ‘‘tribe’’. Different sections of an opinion

should be read as consistent with each other. Moreover, the

district court’s definition of ‘‘tribe’’ is consistent with the

passage cited above. Therefore, plaintiff’s challenge to

this aspect of the instruction must fail.

Plaintiff interprets the court’s instruction relative to the

‘united in a community’’ requirement to permit the jury

to find there is no tribe if the Indians have become assimi-

lated into the general society. Its concern is that the jury

could find that the tribe ceased to exist through assimilation

without having voluntarily decided to abandon tribal exist-

ence. Such a finding, it asserts, would be contrary to

established law. Again, we will reprint the relevant por-

tions of the court’s instruction before discussing plaintiff’s

position.

‘‘There has to be a community. ‘United in a com-

munity,’ the Court said. I suggest to you an Indian

community is something different from a community

of Indians. That is to say, it has some boundary that

separates it from the surrounding society, which is

perceived as Indian and not merely as neighborhood

or territory.’’®

® The word ‘‘boundary’’ was used during the trial as an anthro-

pological concept. A boundary in this sense is not something tan-

22a

‘ OPINION OF THE COURT. 17

‘*It would be permissible to find that the boundary

was in part established by the outside, that is, that

there was a social boundary established in part by

discrimination of the white inhabitants against the

Indians.’’

e® @ e828 @

_ “*Now the question for you to decide is whether in

accepting this property [the proprietorship], accept-

ing these rights with their limitations, the Indians

intended to give up their tribal organization and as-

sume an English organization, or whether it was

simply the tribal organization carrying on as owners

of this plantation with a different label.’’

es @ @ @

‘The question comes when English forms are adopted.

English labels are adopted, whether that has consti-

tuted an abandonment of the tribal form in a com-

plete submission and adoption of an English form

instead. Abandonment being the key word. Abandon-

ment of a right or status does not occur unless it is

voluntary, unless it is a knowing and willing and

voluntary act. Abandonment cannot be found because

of conditions which have been imposed from the out-

side.’’

e® @e?28 @

‘‘Again [looking at 1976], we have the question of

community and whether that community is defined by

characteristics which are identifiable as Indian, not

necessarily aboriginal Indian.’’

e* ¢© es @

‘*It is, I suppose, possible that by reason of circum-

stances, tribal existence be so suppressed that it be

gible or territorial like a fence or a border. Rather, it is an attitude

or consciousness of difference from others, a sense of distinction

between ‘‘we’’ and ‘‘they’’.

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18 MASHPEE TRIBE VU. KEW SEABURY CORP.

in limbo for a period, that it not be manifest for a

period without there being an abandonment. If you

find that there was, by reason of the activities in 1869,

1870, a conscious abandonment of tribal status, then

you would not be warranted in finding the existence

of a tribe in 1976.”’

*eee#

‘‘Now, there is one other aspect that I would like

to address, and that is the subject of assimilation.

In one of the cases it is said that the Nonintercourse

Act, really, refers to poor and uninformed people as

opposed to assimilated and sophisticated... . And

by saying a group is assimilated is the reverse of the

coin of saying they have a distinct Indian community,

and so I suggest that you not be concerned about that

except in that context.

If you find that the group is assimilated, well, it

doesn’t have a distinct community, it’s just blended

in with everybody else, in all respects or in all signifi-

cant respects. So assimilation is simply a way of

expressing the reverse of the existence of an Indian

community.’’

We agree that if a group of Indians has a set of legal

rights by virtue of its status as a tribe, then it ought not

to lose those rights absent a voluntary decision made by

the tribe and by its guardian, Congress, on its behalf.®

® In, Passamaquoddy, supra, we held that the Nonintercourse Act

established a trust relationship between Congress and the Indian

tribes, 528 F.2d at 379, and that ‘‘Congress alone has the right to

determine when its guardianship shall cease.... Neither the...

Tribe nor the State ..., separately or together, would have the

right to make that decision and so terminate the federal govern-

ment’s responsibilities.’’ Jd. at 380 (citations and footnote omit-

ted). The establishment of a trust relationship with tribes gener-

ally, however, did not guarantee “the perpetual existence of any

particular tribe. Plaintiff here must still prove that it was a tribe

at the relevant times before it can claim the benefit of a trust

relationship.

24a

OPINIOX OF THE COURT. 19

The Kansas Indians, 72 U.S. (5 Wall.) 737, 757 (1867);

The Confederated Salish and Kootenai Tribes v. Moe, 392

F. Supp. 1297, 1315 (D. Mont. 1975) (supplemental order

of three-judge court), aff’d sub nom. Moe v. Confederated

Salish and Kootenat Tribes, 425 U.S. 463 (1976). A tribe,

even if it is federally recognized, however, can choose to

terminate tribal existence. See The Kansas Indians, supra,

72 U.S. at 759 (a state’s policy of treating Indians the same

as other citizens could ‘‘eventually succeed in disbanding

the tribe,’’ but presumably only to the extent the tribe

chose to acquiesce in that policy) ; United States v. Joseph,

94 U.S. 614, 617 (1876), overruled as to result but not

necessarily logic, United States v. Sandoval, 231 U.S. 28, 48

(1913). Certainly individual Indians or portions of tribes

may choose to give up tribal status. Delaware Tribal Busi-

ness Committee v. Weeks, 430 U.S. 73 (1977) (holding that

that portion of tribe which chose to stay behind when tribe

moved dissolved relations with tribe and lost interest in

tribal claims) ; McClanahan v. Arizona State Taz Commis-

ston, 411 U.S. 164, 171 (1973); United States v. Wright,

53 F.2d 301 (4th Cir. 1931) (holding that portion of tribe

that chose to stay behind when tribe moved lost tribal status

though gradually restored to that status by federal recog-

nition and protection). If all or nearly all members of a

tribe chose to abandon the tribe, then, it follows, the tribe

would disappear.

The court instructed the jury that any abandonment of

tribal status must be ‘‘knowing and willing and voluntary’’.’

Once the jury found that a tribe existed in 1834 and 1842,

that tribe could not cease to exist absent a voluntary

7 This standard for abandonment is sufficiently favorable to the

plaintiff. Choosing not to continue as a tribe raises issues very

different from those raised when one claimant to property asserts

that another abandoned the property. We can think of no reason

to import the property law rules concerning abandonment into our

context simply because the same word has been used.

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20 MASHPEE TRIBE 1". NEW SEABURY CORP.

decision.* The instructions barred the jury from deciding

that the tribe went out of existence through some involun-

tary process of assimilation. The court instructed that

involuntary imposition of conditions could not constitute

an abandonment. The Indians had to ‘‘intend[ ] to give

up their tribal organization’ and abandon their tribal

rights and status voluntarily. The jury obviously found

that the tribe had made such a decision. It was open to the

jury to decide whether the tribe had decided to give up

being a distinct community and instead to merge with the

rest of society in all significant respects. We cannot know

whether the jury based its verdict on a finding of voluntary

assimilation, but such a decision would not go contrary

to law.

We conclude that though a few isolated sentences of the

charge may have been unclear or overstated, the instruc-

tions taken as a whole were largely consistent with the

position plaintiff argued before us. Therefore, we will not

reverse on the basis of the court’s instructions. This hold-

ing is a narrow one, and it may be useful to point out

what we do not hold. We have no occasion to pass on

portions of the court’s instruction other than those dis-

cussed above. Even as to those portions we have considered,

the issue we have decided, technically, is not whether those

portions are correct as a matter of law, but whether they

conform to the objecting party’s view of the law. Finding

they do, we see no remaining controversy. Because there

are no sure yardsticks against which to measure the court’s

®We reject defendants’ a ent that the court did not indi-

cate that tribal existence could terminate through social or cultural

assimilation. The court instructed that if the group were sufficiently

assimilated then it could not be a tribe. Since the plaintiff was

required to prove its tribal status at each relevant date, if the jury

found the group was a tribe at one date, but later had voluntarily

become assimilated—had ceased to exist as a separate and distinct

community—then the jury would have to find they were no longer

& tribe.

26a

OPINION OF THE COURT. 21

instructions, we cannot say that even those we considered

are correct or the best possible, but we have not found any

law conflicting with the portions of the charge we have

reviewed.

The court did a good job with a very difficult task. Its

explanation related the elements of the broad legal defi-

nition, developed when Indian tribes’ relationship to the

United States was very different, to the particular history

of this group and to the modern position of Indians in our

society. We think it appropriate that the definition of

‘‘tribe’’? remain broad enough and flexible enough to con-

tinue to reflect the inevitable changes in the meaning and

importance of tribal relations for the tribal members and

the wide variations among tribal groups living in different

parts of the country under different conditions. That the

Mashpees have lost this case represents not a failure of

the law to protect Indians in changing times, but a failure

of the evidence to show that this group was an object oi

the protective laws. In future cases, if the issue of tribal

status is raised, the court, with the aid of the parties and

expert witnesses, will be able to shape instructions respon-

sive to the special problems presented at that time. For

these reasons, we think it preferable not to adopt, word-for-

word, the court’s instructions as the ‘‘true’’ definition of

‘‘tribe’’. Unlike, for instance, explanations of ‘‘ reasonable

doubt’’, no one explanation of the Montoya definition can

adequately serve in all cases at all times.

IT.

Plaintiff next objects to the trial court’s allocation of

the burden of proof. The court instructed the jury that the

plaintiff carried the burden of proof on every issue and

that the defendant had no burden. ‘‘What this means is

that if you are left in doubt as to a particular issue that

is material, you must find for the defendant ... .’’ Appel-

lant contends that once it showed it was a tribe, the burden

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22 MASHPEE TRIBE t. XEW SEABURY CORP.

should have shifted to appellee to prove that plaintiff

voluntarily gave up tribal status.’

Appellant’s first argument, and the only one clearly

presented to the trial court,” is that 25 U.S.C. § 194 re-

quires the burden to shift. That section provides:

“In all trials about the right of property in which

an Indian may be a party on one side, and a white

person on the other, the burden of proof shall rest

upon the white person, whenever the Indian shall

make out a presumption of title in himself from the

fact of previous possession or ownersbip.’’

Whatever the applicability of § 194 might have been in

* The court did ease the plaintiff’s task somewhat by instructing

the jury that it could ‘‘infer that . . . conditions . . . tend to

continue and change if they do change, gradually.’’ Though the

specific purpose of this instruction was to permit the jury to use

evidence relating to genera] periods of time in deciding, whether

plaintiff was a tribe on the specific dates mentioned in the special

verdicts, it permitted the jury to consider whether the defendants

had presented evidence to show that conditions, once established,

changed. The jury might have chosen, in effect, to shift the burden

to defendants.

10 Though defendants did not argue the point, it is questionable

whether plaintiff preserved the burden oi proof issue for appeal

except as a matter of statutory law. Both the request for instruc-

tions and the objection to the instructions specifically referred to

25 U.S.C. 5 194 as the grounds for plaintiff’s version of the law.

The Federa) Rules of Civil Procedure, Rule 51, specifically re-

quire a party not only to object to an instruction, but to state

the grounds for objection. A party cannot reserve grounds for

objection in order to deprive the trial court of the opportunity

to correct the instruction, thereby creating an appealable issuc.

‘‘ As a general rule, where a party fails to object to an instruction,

we will not consider that objection upon appeal. Stafford v. Perini

Corp., 475 F.2d 507, 511 (1st Cir. 1973).’’ Johnston v. Holiday

Inns, Inc., 565 F.2d 790, 797 (1st Cir. 1977). The same rule can

apply to limit parties to those grounds for objection preserved

below. See Sadaowski v. Bombardier Lid., 539 F.2d 615. 624 (7th

Cir. 1976); Folkerson v. The New York, New Haven & Hartford

RR., 188 F.2d 892, 896 (2d Cir. 1951). We discuss other arguments

below because defendants do not raise the issne and because we

consider the substantive issue important’ enough to err, if we err,

in favor of deciding the merits.

28a

OPINION OF THE COURT. 23

a later stage of this case," it was not of any relevance at

this stage. There can be no presumption of title in plain-

tiff until plaintiff has proved it is an Indian tribe and was

a tribe at each relevant date. As to these threshold ques-

tions, § 194 cannot aid the plaintiff.

In the alternative, plaintiff reiies on general evidentiary

principles for the same proposition.” Plaintiff, having

established tribal] status in 1834 and 1842, could not cease

to be a tribe involuntarily. Therefore, plaintiff suggests, the

defendants should have been required to prove that the

termination of the tribe was voluntary. This argument is

appealing. One of the few principles available to guide

us is that normally the party asserting the affirmative

of a proposition should bear the burden of proving that

proposition. 9 Wigmore on Evidence § 2486, at 274 (3d

ed. 1940). See Pacific Portland Cement Co. v. Food Ma-

chinery € Chemical Corp., 178 F.2d 541, 547 (9th Cir. 1949) ;

Reliance Life Ins. Co. v. Burgess, 112 F.2d 235, 237-38

(8th Cir.), cert. dented, 311 U.S. 699 (1949). Here defen-

dants, by way of rebutting plaintiff’s claim to be a tribe,

argued that, assuming plaintiff was a tribe at some point,

the tribe voluntarily gave up its separate status. If the

jury did not find that the termination was voluntary, then

it would have found the tribe still existed pursuant to the

court’s instruction that an abandonment must be knowing

and willing and voluntary.

As Professor Wigmore noted, however, the affirmative

allegation rule is not invariable.” In this case, plaintiff

11 'We need not decide whether an Indian tribe, as opposed to

an individual Indian, may take advantage of the statute. Nor need

we determine how to construe ‘‘white person’’.

12 We have already rejected application of the specific law of

abandonment, supra, note 7, and as plaintiff recognizes. merely

labelling abandonment an affirmative defense does not advance the

argument.

439 Wigmore on Evidence § 2486. p. 274 (3d ed. 1940). Even

Professor Wigmore was forced to confess, ‘‘The truth is that there

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24 MASHPEE TRIBE t. NEW SEABURY CORP.

could not avail itself of the Nonintercourse Act until it

established that it either had always been or became and

continued to be a tribe of Indians. Defendants denied

plaintiff had ever been or continued to be a tribe. Defen-

dants’ case relied in part on evidence that the residents of

Mashpee were not essentially different from other resi-

dents of Massachusetts, that they were assimilated into the

general society and had abandoned tribal life. Consistent

with the court’s charge, plaintiff had an opportunity to

rebut such evidence by introducing evidence showing that

any abandonment was the involuntary product of outside

coercion. The jury evidently found a change in status that

was not involuntary, and, therefore, plaintiff stopped being

a tribe.

So characterized, the voluntariness issue is part of the

plaintiff’s case. We think it fair that plaintiff bore the

risk of nonpersuasion. If the jury found that plaintiff be-

came assimiliated between 1842 and 1869, and if there were

insufficient evidence either way or equally balanced evi-

dence both ways as to whether or not the abandonment

was voluntary, plaintiff would have failed to prove it was

a tribe at a relevant time.* Moreover, plaintiff had an

advantage because evidence of coercion from outside the

community a century ago is more likely to be available

today than is evidence of the state of mind of the indivi-

duals who changed their lifestyles. That is, historical

records would reveal forced migrations, governmental

is not and cannot be any one general solvent for [allocating the

burden of proof in] all cases. It is merely a question of policy and

— based on experience in the different situations.’’ Zd., at

44 The importance of the burden of proof is minimized in this

ease because each party presented some evidence relevant to the

voluntariness of the tribe’s change in status. Therefore. it is unlikely

that the issue was decided for lack of evidence. The jury’s —

was not so much weighing conflicting evidence as choosing

plaintiff’s and defendants’ interpretations of the historical data.

30a

OPIXIOXN OF THE COURT. 25

dealings, urban encroachments, the presence of outsiders,

or other arguably coercive forces more readily than the

important concerns or thought processes of the Indians.

Consequently, in order to prove that abandonment was

voluntary, defendants would probably have to try to prove

& negative, the absence of coercion.” Therefore, we con-

clude that the court did not err in leaving the burden on

the plaintiff.

IV.

Plaintiff argues that the special verdicts returned by

the jury are irreconcilably inconsistent and fatally ambig-

uous. As a consequence, plaintiff suggests that it was error

to enter judgment and that the only solution was to order

a new trial. Where a trial court has entered judgment on

the basis of a jury's special verdicts, ‘‘an appellate court

must affirm if there is a view of the case that makes the

jury’s answers to the interrogatories consistent.’’ Atlantic

Tubing d Rubber Co. v. International Engraving Co., 528

F.2d 1272, 1276 (1st Cir. 1976). This duty is drawn, at

least in part, from the Seventh Amendment.

‘‘Where there is a view of the case that makes the

jury’s answers to special interrogatories consistent,

they must be resolved that way. For a search for one

possible view of the case which wil] make the jury’s

finding inconsistent results in a collision with the

Seventh Amendment.”’ Atlantic ¢ Gulf Stevedores,

Inc, v. Ellerman Lines, Lid., 369 U.S. 355, 364 (1962).

We rule that the jury’s answers can support the judgment.

The alleged inconsistency is that there is no evidence that

* This burden is placed on the government when it sceks to

introduce a defendant's confession in a criminal case. Mirande v.

Arizona, 384 U.S. 436. 475 (1966); United Stotes +. Christian.

571 F.2d 64. 69 (1st Cir. 1978). But the defendant's right at issue

is constitutionally protected. and the evidence available to the

government is much fresher and more within the contro] of the

burdened party.

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26 MASHPEE TRIBE U. XEW SEABURY CORP.

could support the jury's conclusion that the tribe that

existed in 1842 voluntarily abandoned tribal status at some

time prior to 1869 when the jury found it was no longer

a tribe. On the evidence of the case, viewed most favorably

for defendants, the district court found that the jury could

(though it was by no means compelled to) conclude that

the tribe had assimilated into genera] non-Indian society,

and that that assimilation was voluntary. Mashpee Tribe

v. Town of Mashpee, supra, 447 F.Supp. at 948-49.

In agreeing with the district court on this issue, we stress

that our review constrains us to look at that evidence and

the inferences reasonably drawn therefrom which support

the special verdicts. We add that there is not an abundance

of evidence relating either to the externa] activities or

internal attitudes of the Indians at Mashpee during this

quarter of a century. Nevertheless, even apart from the

burden of proof, which we have held to be correctly imposed

on appellant, the evidence and inferences were sufficient

to support a jury finding that what was a tribe in 1842 had

voluntarily assimilated into the general society by 1869.

These are the factors on which we rest that conclusion.

— First, the same intense political activity that could

have led the jury to find tribal existence in 1834 and 1842

was novel for the group and limited in time and scope of

objective. The goal of decoming a district with certain

rights of self-gove*ament was achieved in 1834. That of

being permitted to divide common land among Indian mem-

bers of the community was achieved in 1842. The jury

could infer that the tribal organziation, having accom-

plished its purposes, became less important to the com-

munity.

— While the political structure of Mashpee, governed

by ‘‘proprietors’’, remained essentially the same from

1834 to 1870, the jury could have found the seeds of change

to have been sown when division of the common land was

32a

OPINION OF THE COURT. 27

authorized in 1842. There was evidence of substantial in-

and out-migration throughout these years, the newcomers

including Indians, white, and other non-white people, be-

coming both proprietors and tenants. Testimony of Mashpee

inhabitants, both Indian and other non-whites, at a leg-

islative hearing in 1869 revealed sad experiences in land

use such as the gradual loss of the forests, inability to use

the land as security for loans, and pauperization of non-

Indian husbands of proprietors, observations suggestive

not so much of tribal cohesiveness and communality as of

individual aspirations and frustrations. Indeed, one of the

speakers told of many young people who had left Mashpee

rather than live on common lands and returned only after

the law of 1842.

— The report of an 1869 legislative hearing on a

petition to remove restrictions on the alienation of land

and to grant citizenship could also have supported the

special verdict. Two of the three Mashpee selectmen, with

others, had filed the petition. Others opposed. At the hear-

ing six spoke for removing restrictions, four spoke against,

and one seemingly straddled. Of the four opponents, two

took the position that action was premature and wanted

from ten to thirty-four more years before full citizenship

and freedom to alienate were given. In a straw vote 14

voted for removal of restrictions and 26 voted against

removal, while the vote for immediate citizenship was

18 to 18. While this report shows a split opinion, the jury

was entitled to give weight to the endorsement of removal

of restrictions on alienation by a majority of the selectmen

(and the reflection of the larger community of 300-400

Mashpee inhabitants), to the opinions of the two apparentlr

most venerated leaders, who both wanted to secure equal

rights without special restrictions and disagreed only as

to the timing of the change, and to the vote of approval

at the first meeting of the newly authorized town the fol-

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28 MASHPEE TRIBE t'. NEW SEABURY CORP.

lowing year. The desire of Mashpee residents to be able to

alienate land, though not in itself inconsistent with tribal

existence, could support the inference that the residents

had begun to focus more on personal than communal ad-

vancement; more on the ability of individuals to compete

as members of society than of the tribe to resist society's

impositions.

— Under the court’s instructions the jury was allowed

to consider evidence of Mashpee life shortly after the

terminal year, 1869. Such evidence as there was indicated

that many of the young men were serving on vessels, and

that farming, some manufacturing, a shipping enterprise, a

hotel, and a burgeoning hunting and fishing business con-

stituted the economy. Also, the town took over the re-

maining common land. From this too, particularly in the

absence of any evidence tending to show a discretely ‘‘In-

dian’? community, the jury could have inferred that

Mashpee was voluntarily trying to carve a destiny like

many another rural and coastal town; to change from an

‘(Indian community’’ to a community that happened to be

made up largely of Indians.

Neither party took the position at trial that the Mash-

pees’ tribal status or lack of status changed in any signi-

ficant way in the period between 1842 and 1869. Indeed

defendants’ counsel often spoke of the period from 1834

to 1870, during which Mashpee was a district, as a distinct

era to be dealt with as one unit. Consequently, neither party

focussed attention on the voluntariness of whatever

changes did take place in Mashpee between 1842 and

1869. Nevertheless, the special interrogatories asked the

jury to make a separate decision about each of the dates.

Plaintiff cannot now take advantage of having failed to

discuss a distinction that was apparent to the jury, and

at least suggested in the court’s instructions (see quotation

in next paragraph). Aer

JAa

OPINION OF THE COURT. 29

The verdicts’ alleged ambiguity derives from the follow-

ing passage in the charge:

‘*It is, I suppose, possible that by reason of circum-

stances, tribal existence be so suppressed that it be

in limbo for a period, that it not be manifest for a

period without there being abandonment. If you find

that there was, by reason of the activities in 1869,

1870, a conscious abandonment of tribal status, then

you would not be warranted in finding the existence

of a tribe in 1976. However, if you find there was no

such abandonment, :-tlen you should consider the [con-

tinuity] question.’’

Plaintiff suggests that if the jury thought tribal existence

were temporarily suppressed in 1869 it would not know

whether to answer the interrogatory yes (there was a

tribe but it was suppressed) or no (temporarily there was

no functioning tribe). The trial court agreed that this

ambiguity was present at least as to the 1790 question,

Mashpee Tribe, supra, 447 F. Supp. at 949,* but it did not

address the possible ambiguity of any other answer.

First, we note that plaintiff did not point out the pos-

sible ambiguity during its objections to the instructions

at the close of the charge. That was the appropriate time,

and plaintiff then had all necessary information. General

objections relating to the abandonment issue were not suf-

ficient to give the court an opportunity to correct the

charge, had it so desired, before the jury began delibera-

tions. Unlike the alleged inconsistency in verdict, any

ambiguity was discoverable on the face of the charge, and

was not created by the verdict. The fact that this argument

was not specifically made until the verdict had come in

%* Massachusetts imposed a guardianship on the Mashpees in

1788. The court decided this ambiguity was immaterial. however.

because 1790 was an irrelevant date. That conclusion is not:

challenged before us.

adhe

35a

30 MASHPEE TRIBE U. NEW SEABURY COND.

suggests that plaintiff did not consider this a problem until

it discovered its case badly needed some new source of life.

Moreover, we are not persuaded that the interrogatory

relative to 1869 was so ambiguous as to bar entry of judg-

ment. The court clearly instructed that a tribe could cease

to exist only voluntarily and that outside suppression

would not constitute abandonment. ‘‘Abandonment can-

not be found because of conditions which have been im-

posed from the outside.’’? We must assume that the jury

listened to and understood the court’s entire charge.

Therefore, if it thought that tribal existence were sup-

pressed, the jury would have had to find that the tribe

had not ceased to exist and would have answered ‘‘yes”’

to the interrogatory. The fact that the jury answered ‘‘no’’,

as we have already discussed, is a legitimate verdict based

on the jury’s view of the facts. A new trial was not re-

quired on the basis of the special verdicts.

Finally, plaintiff maintains that the trial court failed to

investigate sufficiently the impact on the jury verdict of

an anonymous phone call made to one of the jurors, and

that a new trial therefore is mandatory. Although the

trial court’s inquiry was terminated too soon to have

been fully satisfactory, we find that it acted within the

bounds of its discretion in conducting the investigation

as it did and that its conclusion that the communication

was not prejudicial is supported by a record which ‘‘pro-

vides an adequate basis for review”. United States v. Doe,

513 F.2d 709, 712 & n. 3 (Ist Cir. 1975).

Approximately three months after the close of the trial,

the court received a communication from one John Doe,

a resident of Falmouth, Massachusetts, claiming that while

riding a commuter bns during the time of the tria] he had

been approached by a man who identified himself as a

juror in the Mashpee case and that the juror commented

36a

OPINION OF THE COURT. 3]

that he had received an anonymous phone call about the

case. The court promptly asked Mr. Doe to attend a hearing

concerning his communication to the court and notified thie

parties. With counsel for both sides present, Mr. Doe

testified as to the contents of his bus conversation with

the juror, including his advice that the juror inform the

court about the pnone call. He also suggested, although

somewhat unclearly, that the juror had engaged in a pat-

tern of mentioning his involvement in the Mashpee case

to other commuters.

The court then determined that a further inquiry was

necessary and the next day a hearing was held vith the

juror in question, again with counsel in attendance. The

juror testified that be had received the call, and had men-

tioned it to a fellow commuter but had not sought to inform

the court about the incident. In response to the court’s

questioning, the juror stated that he had received the

call about two or three weeks before jury deliberations

in which the speaker said, ‘‘You know which way you better

go’’ and then hung up. He did not recognize the voice, and

testified that ‘‘the funny part about it’? was that the

caller did not indicate which ‘‘way’’ he should go. He also

mentioned that he had received a scries of calls in which

he only heard a click as he picked up the receiver, both

before and during his service as a juror, and that he had

not been certain about the motivation for the calls. Finally,

he maintained that he had never discussed the merits of the

case outside of the jury room.

The court was unwilling to extend its investigation into

several areas that plaintiff’s counsel wished to explore.

Although allowed, over defendants’ over-zealous objec-

tions, to ask whether other jurors had told this juror that

they had received calls, to which he responded in the

negative, plaintiff’s counse] was not permitted, again upon

defendants’ counsel’s objection, to question whether this

EV icearetcnes te és

37a

32 MASHPEE TRIBE t'. KEW BEABURY CORP.

juror had told other jurors about his anonymous phone

call.”

While it clearly would have been better practice to have

allowed this line of questioning, the court did satisfy itself

that ‘‘while what happened was unfortunate and improper,

it did not impeach the jury’s verdict in any way at all’’,

describing the phone call as ‘‘neutral’’ and not ‘‘prima

facie prejudicia]’’. The call was ambiguous, giving the

juror no clues as to which way he should vote and not at-

taching any consequences to choosing the wrong way.

Compare Krause v. Rhodes, 570 F.2d 563, 566 (6th Cir.

1977). It occurred several weeks before jury deliberations

began and was not reported. The juror apparently drew no

conclusions concerning its intended message, and our

reading of the record indicates that not only was the juror

not at all shaken by the experience but that he seemed

to attach little significance to it.* Compare Remmer v.

17 Defendants, in their briefs. suggest that the court did in fact

ask the juror whether he had told other jurors about the phone

call, pointing to this question: ‘‘{ What is} your best recollection,

whether you talked to one person or more than one person on this

subject?’’ As the record clearly shows, this question was a re-

phrasing of opposing counsel’s inquiry concerning communication

to other passengers on the bus, and not other members of the jury

panel. This misconstruction of the record. it seems to this court,

cannot be explained on any excusable basis.

18 We are somewhat puzzled by the court’s statement to counsel

that:

‘‘The only thing that would seem to me to be left and

asked of the juror is whether his decision on the case was

affected by the call which seems to me not an inappropriate

question at. this point, but it is my present disposition to

bring this inquiry to a close. I’m satisfied that while what

happened was unfortunate and improper, it did not impeach

the jury’s verdict in any way at all.’’

It would have been preferable for the court to ask the juror this

obviously relevant question. But, given counsel’s failure to pursue

the question ed by the court, indicating to us that it was

apparent that the effect of the call on the juror was minimal, and

the ecourt’s conclusion that the incident was insufficient to upset

the jury process, based in part on the juror’s demeanor, we do not

consider the omission a fatal one.

38a

OPINION OF THE COURT. 3h

United States, 350 U.S. 377, 381-82 (1956), and United

States v. Spinella, 506 F.2d 426, 428 (Sth Cir. 1975) with

United States v. Brumbaugh, 471 F.2d 1128, 1130 (6th Cir.

1973). His only concern was that the court understand

that he never intended to act improperly, stating that he

had ‘‘peace of mind’’ concerning the trust the court had

placed in him as a juror. Furthermore, his testimony that

none of the other jurors had mentioned having received a

call at least suggests that the subject of phone calls had

not arisen in discussions among the jurors. But even if we

assume that had the obviously proper question been

asked the juror would have responded that he had told

his fellow jurors of the call, because of the remoteness

in time, the isolated nature of the call, the ambivalence of

the message conveyed, and the lack of identifiable source

and threatened consequences, we are unable to say, or to

find authorities which under similar facts have held, that

plaintiff ‘‘was deprived of a fair tria] and an impartial

jury’’. United States v. Doe, supra, 513 F.2d at 713. See

Allen v. United States, 376 F. Supp. 1386, 1390 (E.D. Pa.

1974), aff’d, 511 F.2d 1392 (3d Cir. 1975).

Plaintiff contests several other restraints placed upon

the investigation by the court, maintaining, first, that the

court should have called in the jury members to determine

whether they had received similar communications during

the trial and, second, that the court should not have ordered

counsel to refrain from making an independent investiga-

tion into whether the juror in question had had impermis-

sible conversations with other passengers on his commuter

bus. We reject both contentions. First, it was well within

the court’s discretion to refuse to question other members

of the jury panel. Plaintiff’s assertion that the call received

by this juror was prima facie evidence of possible calls

made to other jurors and thus necessitated further inquiry

is unpersuasive. The juror testified that no other juror

ow tll

er n

39a

34 MASHPEE TRIBE 7°. NEW SEABURY CORP.

had mentioned having received a communication, giving

the court reason to believe that the calls had been limited

to this one juror. Moreover, as the court explained at the

inquiry, this juror was the only member of the pane] who

was residing in the area that was being contested in this

law suit, and thus was a particularly iikely target for

crank calls. See Allen v. United States, supra, 376 F. Supp.

at 1388-90.

We also find that the district court acted within its

discretion when it strongly discouraged counsel from

independently investigating possible further misconduct

on the bus” and refused to pursue the inqniry itself. It is

true that Mr. Doe, the commuter who brought this matter

to the attention of the court, testified that this juror had

discussed the case with other passengers on the bus, al-

though he could say nothing about the content of those

alleged conversations, noting that he ‘‘was asleep most

of the time’’. The juror, however, flatly denied having ever

mentioned more than the fact that he was on the jury and

testified, ‘‘([t]his case per se, merits, any testimony, any-

thing said in the courtroom, I never discussed it or not

knowingly anything that would be — I’ve been fairly

discreet, I believe, most discreet.’’ The court expressly

found Mr. Doe to be an unreliable witness, and stated,

‘‘The juror strikes me as a pretty solid [person], and I

don’t think there is anything to suggest he was doing

anything improper.’’ The court was in a position to

evaluate the demeanor and credibility of both witnesses,

see United States v. Brumbaugh, supra, 471 F.2d at 1130,

% The court did not, as plaintiff suggests. order counsel to

refrain from an independent investigation. At one point he so

‘‘instructed’’ him but later stated that ‘‘I think that would be a

very. very foolish thing for you to do, . . . extremely foolish. If

you insist on doing it, you may have a right to do it, but I think

it would be very bad judgment.’’

40a

CONCURRING OPIXION — BOWNES, J. 35

and to conclude that no further inquiry into events on the

bus, by the court or counsel, was warranted.

VI.

Having rejected each of plaintiff’s a-signments of error,

we must affirm the judgment of the district court. De-

fendants’ separate appeal in Nos. 78-1273 and 78-1274,

therefore, need not be decided. Defendants appealed from

the district court’s construction of the ‘‘white settlements’’

exception to the Nonintercourse Act. Mashpee Tribe, supra,

447 F. Supp. at 950. We reject defendants’ suggestion

that we should afford them an advisory opinion on the

subject because of its intrinsic importance and possible

relevance to otter suits now pending or soon to be filed.

Affirmed, except as to that part of the judgment below of

which prosecution of the appeal was deferred by order of

this court entered August 11, 1978. One third of their costs

to defendants.

Bowxes, Circuit Judge. (concurring) I concur with my

brothers in all but one respect of the opinion, namely its

treatment of the lower court’s instructions on the definition

of ‘‘tribe.’? The majority suggests that it is not ruling on

whether the instructions are correct as a matter of law,

but simply ruling that the instructions conform to the

plaintiff’s view of the law. Anfe at 20. There is an

understandable reluctance not to be placed in a straight-

jacket by embracing one definition for all time and for

all circumstances. However, I believe that the district

court’s instructions were correct as a matter of law, that

they comported with the applicable standards as set forth

in Montoya v. United States, 180 U.S. 261, 266 (1901), and

that we have a duty to find the instructions legally

correct or incorrect and not merely whether they harmo- —

4la

At MASHPEE TRIBE 1’. NEW SEABURY CORP.

nized with one party’s view of the appropriate legal stand-

ards. Both the district court’s delineation of what consti-

tutes ‘‘tribe’’ ax well as this court’s extensive explication

should, in my opinion, serve as a firm foundation for

future cases dealing with this sensitive and difficult issue.

I would not shy away from reliance on these instructions

and our comments thereon in future cases.

42a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MASHPEE TRIBE,

PLAINTIFF

Crvit ACTION

v. No. 76-3190-S

TOWN OF MASHPEE, er Au.,

DEFENDANTS

Memorandum and Order for Judgment.

March 24, 1978.

SKINNER, D.]J.

This action was brought by the Mashpee Tribe of Indians to

recover possession of tribal lands allegedly alienated from the

tribe in violation of the Indian Noniatercourse Act (25 U.S.C.

§ 177). The defendants’ answer put in issue whether the

plaintiff group was in fact an Indian tribe for purposes of the

Act at the time suit was brougit and at other times deemed by

the parties to be critical. The threshold issue of tribal exis-

tence was severed for separate trial by order of the court.

After forty days of trial, the issue of tribal existence was sub-

mitted to the jury in the form of special interrogatories. The

issue of tribal title was reserved as a matter of law for the court

to resolve after receiving the jury’s answers. The dates chosen

in the special interrogatories were those deemed significant by

the parties with respect to their several legal theories. I am of

the opinion that several of these dates are not significant, as

43a

shall hereinafter appear, but they were included to preserve

the widest possible scope of review of the legal issues. The

interrogatories and answers were as follows:

1. Did the proprietors of Mashpee, together with their

spouses and children, constitute an Indian tribe on any of the

following dates:

a. July 22, 1790: The date of the enactment of the

first version of the federal Nonintercourse Act?

b. March 31, 1834: The date on which the District of

Marshpee was established. [sic]

Yes

c. March 3, 1842: The date on which formal partition

of land in the District of Marshpee among the proprietors

of Marshpee and their children was authorized by act of

the legislature of the Commonwealth of Massachusetts?

Yes

d. June 23, 1869: The date on which all restraints on

alienation of land held individually by Indians and peo-

ple of color known as Indians were removed by act of the

legislature of the Commonwealth of Massachusetts?

44a

e. May 28, 1870: The date on which the Town of

Mashpee was incorporated by act of legislature of the

Commonwealth of Massachusetts: [sic]

2. Did the plaintiff group, as identified by the plaintiff's

witnesses, constitute an Indian tribe as of August 26, 1976:

The date of the commencement of this law suit?

3. If you find that people living in Mashpee constituted an

Indian tribe or nation on any of the dates prior to August 26,

1976 listed in Special Question No. 1, did they continuously

exist as such a tribe or nation from such date or dates up to and

including August 26, 1976?

The case is now before me on the defendants’ motion for

judgment of dismissal on the merits based on the jury’s answer.

Plaintiff has filed an opposition thereto claiming that the jury's

answers are fatally inconsistent and on their face violate the

court’s instructions. It appeared at argument that the plain-

tiff’s preferred remedy is a new trial, and that indeed appears

to be the only alternative to the entry of judgment for the

defendants. All parties agree that the plaintiff must establish

its status as an Indian tribe as of the date that the action was

commenced in order to maintain this action in the form

elected by the plaintiff.

45a

I. Husrornicat BAckcRouND.

The basic history of Mashpee is not disputed, and a review

thereof is necessary to the resolution of the pending motions.

For simplicity’s sake, I shall refer to the people claiming to be a

tribe and their Indian ancestors as Indians' and everybody else

as non-Indians, except where it is necessary to differentiate

non-Indians of African and European ancestry who will be

referred to respectively as blacks and whites. References to

statutes and deeds in the following exposition include my legal

interpretation and construction, to which the parties do not in

every case agree.

In 1665, [Richard] Bourne, a Christian missionary to the In-

dians, desired to gather a community of Christian Indians in

the area surrounding the Indian village of Mashpee and com-

prising the present Town of Mashpee and parts of present

Sandwich and Falmouth. Accordingly, a deed was executed

from two Indian leaders named Weepquish and Tookenchosen

to five other named persons for the benefit of the “South Sea

Indians.” The status of the grantors and their capacity to

grant title is unknown. One of the expert witnesses gave an

opinion that the grantees were a group of village headmen

who constituted the ruling council of a tribe known as the

Cotichesetts, inhabiting the area of Mashpee and eastward to

present Hiyannis. The area granted contained a group of small

villages of ten or twenty families, the remnants of a once

numerous and thriving agricultural community largely wiped

out in 1617 by an unidentified epidemic.

In 1666, Quichatisset, the sachem of Manomet, relinquished

his authority over the area and its inhabitants by a deed to

substantially the same grantees. There is no evidence as to the

"I recognize that the plaintiff's claim of being Indian is contested by the

defendants, and that the evidence indicates considerable racial mixture

among this group.

46a

form of governance of the area or its inhabitants from this

period until 1723.

In 1685, apparently at the instance of Shearjashub Bourne,

the son of [Richard], the General Court of the Plymouth Col-

ony granted the area to the South Sea Indians and their

children, subject to a restraint on alienation, namely, that no

land should be sold to an Englishman without the consent of

all the Indians and the permission of the General Court.’ It is

on this grant that the plaintiff must base its claim of title.

Johnson v. McIntosh, 8 Wheat 543 (1823). In 1692, the

Plymouth Colony was merged with the Province of Massachu-

setts Bay, and the powers of its General Court we*2 preempted

by the General Court at Boston.

By 1723, Mashpee had been organized as a proprietary. As

a result of the 1685 deed, Mashpee differed from other pro-

prietaries in an essential respect. Mashpee was designed to be

a permanent Indian plantation, in which the land was to be

held in common, entailed, and with a restraint on alienation

into the indefinite future. Other proprietaries were designed

for founding and developing new communities. They were

self-liquidating. The common land of the proprietary was

sold off to settlers who organized towns. In 1746, the General

Court appointed guardians to control the finances of the plan-

tation.

These guardians apparently used their position to exploit

their wards, and the efforts of the Indians to obtain redress

through the General Court were unavailing. By a remarkable

*Plaintiff’s Exhibit 38: “The Court, on considerations of the p'mises, doth

soe far confirme said iand to the said Indians, to be perpetually to them &

their children, as that no part of them shall be granted to or purchased by

any English whatsoeuer, by the Courts allowance, without the consent of all

the said Indians.” The case has been tried, and I think properly so, on the

assumption that “English” should be broadly construed to include all non-

Indians.

47a

feat of daring and resolve, one of the Indians (a Mohegan In-

dian from Connecticut, who had settled in Mashpee) carried a

petition to the King of England. As a result, in 1763, the

Mashpee Proprietors were given a large measure of self-

government, including the right to appoint constables to pro-

tect their woodlots from depredation by neighboring non-

Indian settlers.

During the Revolutionary War, the Indian men of Mashpee

fought against the British, and a very large number of them

were killed. After the war, there were said to be 70 widows in

Mashpee out of a population of a few hundred. As one might

suppose, this situation encouraged a considerable influx of

unattached non-Indian males, mostly black, but including

four escaped Hessians and a Portuguese sailor.

This influx apparently had a disintegrating effect, as a result

of which the General Court reimposed guardians, whose ap-

proval was required for all significant actions.

By 1833, as under the previous guardians, the Indians felt

that the guardians were not protecting them, but exploiting

them. The precipitating issue was the cutting of wood from

Indian land by outsiders. There was some violence. The In-

dians hired a lawyer and filed a petition with the General

Court for relief from the guardianship. At the same time, the

Indians rejected the ministry of the Reverend Phineas Fish,

who had been sent down from Harvard to carry on “the bles-

sed work of converting the poor Indian,” and established their

own Baptist Church under an Indian preacher, “Blind Joe”

Amos.

In response to this well organized effort, the General Court

created the District of Mashpee in 1834. Under the district

organization, Mashpee (or “Marshpee”) was governed sub-

stantially in the manner of « Massachusetts town, with the ex-

ception that certain transactions affecting the commion iands

and the treasury were subject to the 2pproval of a Commis-

48a

sioner appointed by the Governor. The Commissioner also

served as Treasurer. By successive legislation, the Commis-

sioner’s power was reduced to that ordinarily exercised by a

Town Treasurer and eventually the office was filled by elec-

tion of the proprietors of the district.

The 1834 Act also confirmed the allotment of land to those

proprietors who had occupied and improved it, and required

the Commissioner to keep a record of the allotments, as well as

a list of proprietors. All of the land in the district, whether

held in common or in severalty, was exempt from execution,

and the proprietors were exempt from state and county taxes.

From 1834 onward, records of the district show that the

proprietors voted various ordinances, including regulation of

herring fishing. There are no existing records showing such

regulations prior to this time.

In 1842, the General Court passed another Act which sub-

stantially altered the land title within the district and defined

who were to be deemed proprietors. Each proprietor was to

be allotted a sufficient portion of the common land of the

district to bring his holdings (including the acreage confirmed

to his use by the 1834 Act) up to sixty acres. All the land not so

allotted remained common land under the control of the

Selectmen of the District. The title acquired by each pro-

prietor was described in Section 8 of the Act as follows:

The lands set off in severalty to the proprietors, and all

other lands held or acquired by them, shall have all the

incidents of estates in fee, except the right of transfer,

conveyance or devise to other than a proprietor, and ex-

cepting further, that the said lands shall not be liable to

be taken in execution; . . . [various detailed provisions for

allotment, and for the preservation of the rights of

minors] . . . And no land now belonging to a married

female proprietor, or which may be allotted to her, or

49a

which she may hereafter acquire or inherit in her own

right, shall, without her consent, be conveyed or leased,

or the wood sold therefrom; and all contracts therefor by

her husband, in which she does not join, shall be void:

provided, also, that upon the death of any proprietor

leaving no heirs, all his interest in the lands of the district

shall escheat to the proprietary.

In 1869, the Governor of the Commonwealth proposed leg-

islation relieving all the Indians in Massachusetts of their legal

disabilities and admitting them to full citizenship. A legisla-

tive committee held a hearing in Mashpee. The questions be-

ing considered were citizenship and removal of the restraints

on alienation of the land. About 40 people appeared, in-

cluding several non-Indian husbands of female Indian propri-

etors. Some of the Indians were in favor of citizenship and

removal of the “entailments” on the land, because under ex-

isting restrictions there was no way that an Indian could ac-

quire mortgage money for improvements, or liquidate his land

holdings to go into commerce. The non-Indians also favored

elimination of restraints on alienation because they wished to

be able to vote and hold property in Mashpee in their own

right. “Blind Joe” Amos, by then describing himself as among

the oldest inhabitants, opposed the changes on the ground that

the Indians were not yet ready to deal on an equal footing with

outsiders and would imprudently sell off all their land. He

was in favor of the removal of the restrictions, but not until the

generation then in school should come of age. A vote was

taken which was split 18 to 18 on the question of citizenship

and 26 to 14 in opposition to the removal of the restrictions on

the land. (Plaintiff’s Exhibit 180, “Phonographic” Transcript

of Hearing.)

‘%

50a

Nevertheless, in 1869 the General Court passed an act

granting citizenship to the Indians, removing their legal dis-

abilities, and releasing the restraints on alienation of land im-

posed originally in the 1685 deed and carried forward in the

1842 Act. In 1870, Mashpee was incorporated as a Town. The

common land of the District was transferred to the Town, and

upon application the Superior Court was authorized to order

the sale thereof by Commissioners appointed for the purpose.

There were some three thousand acres of common land re-

maining after the allotments of 1842. Most of this land was

sold, presumably to the then inhabitants of Mashpee. See

Coombs, petitioner, 127 Mass. 278 (1879).

It is these two acts of the General Court that the plaintiff

complains of as violations of the Nonintercourse Act.

At this point, the ancestors of the present Indians had com*

plete control of substantially all of the land in Mashpee, and

they retained it for the next seventy years. “Blind Joe” Amos:

prediction did not come true. The Selectmen of the District

became the Selectmen of the Town, and the Board was com-

posed of Indians until 1968,* and a majority were Indians until

1972.

In the early part of the 20th century, it appears that some

small part of the Town was sold to outsiders and developed as

summer property. Up through the 1930’s and early 1940’s,

however, the area remained substantially as it had been from

the 1870’s on. Indian witnesses testified that when they were

growing up in Mashpee the land was still open and unfenced

by its Indian owners, and the upland and shores were readily

accessible to everyone for hunting, shellfishing and recreation.

By the 1930's, however, agriculture in New England was in

general decline, and so it was in Mashpee. Some land was

taken from Indian owners by the Town for taxes, but at least

?With one exception in the early 20th century.

5la

some tax title property was purchased at tax title auction by

other Indians.

In the early 1950's and thereafter, the building of super

highways to Cape Code and the pressure of population moving

out from the cities encouraged land developers to buy land on

Cape Cod and in Mashpee. Some of the Indians sold their

land during this period, and some retained their land. While

each land sale doubtless appeared profitable to the individual

seller at the time, the Indians now find that the aggregate of

these land sales has substantially altered the life of their com-

munity, leaving them in the minority. The free access to

upland and shore that they so long enjoyed has disappeared.‘

It is principally these land sales by individual Indians to

non-Indians which the plaintiff seeks to have declared null

and void as in violation of the Nonintercourse Act.

There was virtually no evidence introduced concerning life

in Mashpee between 1870 and 1920. There was evidence that

several students at the Carlisle Indian School had given

“Mashpee” as their tribal designation during this period, but

also that the grandfather of one of the witnesses had

deliberately refrained from teaching his children the Indian

language, because he wanted them to use English.

In 1920, there was a revival of interest in Indian customs.

From 1928 to the present, there has been a “Pow-wow” held at

Mashpee, more or less annually. This is a three or four day

celebration featuring Indian dances and songs. Most of these

are borrowed from Plains Indians, however, as are many of

the decorative symbols and styles of dress, because the ancient

modes of east coast Indians have been lost. From the early

1920’s through the early 1940's, there were individuals who

‘This history parallels that of most small towns in eastern Massachusetts

and Rhode Island, and more recently in southern Vermont, New Hampshire

and Maine.

52a

were sometimes recognized as chiefs and medicine men of the

Indian community in Mashpee. The method by which the in-

dividuals were selected and their leadership functions were

not revealed by the evidence. In 1956 the Sachem of the

Wampanoag Nation appointed Earl Mills Chief of the “Mash-

pee Tribe,” on the petition of some of the Indians in Mashpee.

Mr. Mills remains the Chief to this day. Mr. John Peters was

similarly appointed as Medicine Man and filled that post up

until the time of trial, when he was appointed Supreme

Medicine Man of the Wampanoag Nation. At one time there

was a Tribal Council which met from time to time, but it ap-

pears that this groups’ [sic] function, if any, was primarily

social. In 1974 the Mashpee-Wampanoag Indian Tribal

‘Council, Inc., was incorporated. It has acted as representa-

tive for the Indians in Mashpee with respect to securing federal

educational grants and Comprehensive Employment and

Training Act projects, and has been designated as the official

representative of the Mashpee Indians in an executive order of

the Governor of the Commonwealth. It lobbied for the

passage of the executive order, and also secured the title to

fifty-five acres of land in Mashpee granted to it by the Town,

to be used for tribal purposes.

The leadership functions of the chief, the Medicine Man

and the incorporated Tribal Council, and the extent to which

these individuals and the corporation were recognized as sig-

nificant leaders by the Indians, were the subject of extensive

and conflicting testimony.

II. SIGNIFICANT TIMEs.

As stated, the deisgnation of the various times in the inter-

rogatories to the jury was intended to preserve the rights of the

parties with respect to their legal arguments. There is no

53a

doubt, and no disagreement, about the significance of August

26, 1976, the date that this action was commenced, because

the right sought to be enforced is exclusively a tribal right.

The defendants claim that 1790 is a critical date because the

original trade and Intercourse Act and its successors only deal

with tribes existing at the time of original enactment. They go

further and assert that the Congressional power to “regulate

Commerce. . . with the Indian Tribes” granted in Art. I, § 8,

cl. 3, restricts congressional action to existing tribes. It is

doubtful if authority to regulate Indian affairs is limited to the

Commerce Clause, but, in any case, the defendants’ position

flies in the face of a basic canon of construction of organic law.

There is no support for it in the cases; in fact, quite the con-

trary, e.g., Oliphant v. The Suquamish Indian Tribe, 46

L.W. 4210 (U.S. March 6, 1978). In my opinion, the 1790

date is entirely without significance in this case.

The plaintiff insists that 1869 and 1870 are crucial dates.

Since the jury’s return the defendants have enthusiastically

joined in this position. If the proprietors of Mashpee were a

tribe in 1870, the common land held by the District of

Mashpee would very likely be tribal land, and its division or

sale pursuant to the statute of 1870 might well have been a

violation of the Nonintercourse Act. In my opinion, 1870 is

significant with respect to approximately three thousand

acres® of the former common land, but not in any other

respect.

With respect to the allotted land, however, the 1869 statute

was in effect a release by the successor o1 the original grantor

of a restraint on alienation included in the 1685 deed from the

General Court of the Plymouth Colony. It might also be per-

ceived as a grant of a right of free auenation, but it was a grant

®The location of these acres was not revealed in any evidence adduced at

this stage of the case.

54a

that flowed to the Indians not from the Indians. It flowed not

to an Indian nation or tribe of Indians, but to individual In-

dian holders of estates in fee. It is only a “purchase, grant,

lease, or other conveyance of lands, or of any title or claim

thereto, from any Indian nation or tribe of Indians,” that is in-

validated by the Nonintercourse Act. None of these occurred

in 1869, and 1869 is therefore not a significant date.

The statute of 1842, in contrast, did bring about a basic

change in the title to the land in Mashpee. Common land was

converted by operation of the statute into land held in several-

ty. If, as the jury determined, the proprietors constituted an

Indian tribe at this time, what I assume was tribal land was

perforce conveyed to individual Indians. The plaintiff does

not wish this to be considered a critical date, because if it is,

the operation of the Nonintercourse Act invalidates the title of

the Indians themselves, some of whose present titles doubtless

derive directly from the original proprietors. (Other present-

day Indians own land in Mashpee which they bought from

non-Indians; their title is, of course, no better than that of the

non-Indians in their chain of title.) The Nonintercourse Act

does not by its terms provide for any exception for the convey-

ance of land from a tribe to individual Indians, and plaintiff

has cited no case creating a judicial exception. 1842, there-

fore, is a significant date.

The 1834 Act presages the 1842 disposition of the land, but,

while it provides for permanent, transferable rights of use and

occupancy, it does not, strictly speaking, affect title. Use and

occupancy are interests in land nevertheless, and 1834 may be

a significant date to that extent. There was some evidence

that allotment of tribal land for the use and occupancy of par-

ticular families was characteristic of tribally held land and not

inconsistent with tribal title. Whatever significance the 1834

Act may have had seems to me to have been subsumed in the

1842 statute.

55a

The significant dates are therefore 1976 and 1842, and 1870

as to approximately three thousand unidentified acres.

III. INCONSISTENCY OF RESPONSES AND CONFUSION OF JURY.

Plaintiff's attack on the jury’s finding that it was not a tribe

in August of 1976 is not based on the evidence adduced with

respect to 1976, but on the assertion that the pattern of the

jury’s other answers fatally impeach that finding. The argu-

ment has two branches:

1. There was no material change in the circumstances of

the Mashpee proprietors between 1842 and 1869 which war-

rants the jury’s finding that they were a tribe in 1842 and were

not in 1869. Since I had instructed the jury ' at tribal status

once abandoned could not be regained, the mistake with refer-

ence to 1869 required a negative answer with respect to 1976.

Thus the answer with respect to 1976 cannot be the basis of a

judgment adverse to the plaintiff.

2. The finding of the jury that the proprietors were not a

tribe in 1790 is inconsistent with the finding that they were a

tribe in 1834. Plaintiff claims that the instructions limited the

time for the emergence of a tribe to the period before 1723.

The proprietors would not therefore have become a tribe be-

tween 1790 and 1834. The finding thus reflects either a mis-

understanding of the instructions, or a refusal by the jury to

abide by them, either of which vitiates all of the jury’s answers

including the answer that the plaintiff was not a tribe when

the suit was commenced in 1976.

56a

IV. OPtnion.

In my view, the evidence would support the jury’s finding

that between 1842, when the Indians in Mashpee were active

in establishing self-determination and asserting their right to

their own customs, and 1869 when the legislative hearing was

held, the proprietors had reoriented their efforts toward as-

similation iato the general non-Indian community. This is

arguably the tenor of the 1869 statements, the differences be-

tween the speakers involving only the timing of the proposed

changes. (Plaintiff's Exhibit 180.) I instructed the jury that

they could also consider the events of the immediately prior

and succeeding years in evaluating the situation at any one of

the given dates, insofar as they bore on the attitude and

customs of the Indians. The absence of any indication of In-

dian self-identification, or of the establishment of tribal com-

mon land in the years immediately following 1869, at a time

when the Indians exercised virtually complete control of the

area, may have had some bearing on the jury’s response. From

all of the circumstances, the jury was entitled to find that

tribal identity had been abandoned at some time between

1842 and 1869.°

The basis of the plaintiff’s argument with respect to 1790 is

the following section of the original instructions to the jury:

You may also consider whether the group started off in

1665 as a mere remnant or an accumulation of Indians

from here and there and acquired a tribal status by

reason of organizing itself in a tribal manner, somewhere

in the course of time between 1665 and 1723. [Tr. 40-53,

1. 1-6)

*These various instructions, including the instruction that tribal status

may be abandoned, are challenged by the plaintiff as a matter of law, but I

have in effect already ruled on these matters.

sw iy et i a TC - ”

ence ee

57a

The plaintiff treats this statement as a limitation. It seems to

me that the word “also” defeats that interpretation, but the

lack of further amplification certainly left the matter unclear

at that point.

Unfortunately, during the long colloquy with counsel after

the instruction, confusion was compounded by my contradic-

tory statements regarding the foregoing, neither of which were

correct statements of the applicable rule. [Tr. 40-107, 1. 1-2;

Tr. 40-86, 1. 8-13.] Fortunately, these statements were out of

the presence of the jury, and could not have affected their

answers.

In any case, the supplementary instructions permitted the

jury to find the evolution of a tribal organization occurred at

any time “in their course of history.” [Tr. 41-17, 1. 16

through 41-18, 1. 11.] This answers the plaintiff's objection.

There remains yet one more ambiguity in the jury’s 1790

answer, however, which should be pointed out, even though

in my opinion it is of no consequence. The 1790 date falls just

after the imposition of guardians under the statute of 1788. I

advised the jury that an involuntary repression of tribal activi-

ty would not constitute an abandonment of tribal existence,

but I did not say how they should answer if they found that

such repression did exist; i.e.,

Yes (there was a tribe, but it was unable to function)

No (There was not a functioning tribe for the time being)

The jury’s actual negative answer is therefore susceptible to

two interpretations:

58a

(1) That the tribe did not evolve until sometime after

1788.

(2) That the tribe had evolved sometime prior to 1788,

but was in temporary eclipse because of the guardianship.

On the evidence the latter is the more likely conclusion, but

there is no way of telling what the jury thought.

In my considered view, it doesn’t matter, because as I have

said, 1790 is in my opinion a totally irrelevant date. The an-

swers of the jury are perfectly rational under either view, and

do not reflect such lack of understanding or lack of compliance

with the instruction as to vitiate the remaining answers.

Aside from all of these problems, the answer of the jury that

the plaintiff was not a tribe for purposes of the Nonintercourse

Act’ in 1976 was fully supported by the evidence of the cir-

cumstances of the plaintiff's existence in Mashpee at that time.

V. Onpen.

Accordingly, the answers of the jury to the special interroga-

tories shall stand. These answers require that this action be

’ The standards of that Act, at least as I have interpreted it, require that a

tribe demonstrate a definable organization before it can qualify for the extra-

ordinary remedy of the total voiding of land titles acquired in good faith and

without fraud. Nothing herein, or in the answers of the jury, should be

taken as holding or implying that the Mashpee Indians are not a tribe for

other purposes, including participation in other federal or state programs,

concerning which I express no opinion.

DISMISSED on the merits, the plaintiff not having established

its standing to bring suit as an Indian tribe.

So Ordered.

WALTER JAY SKINNER,

United States District Judge

60a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MASHPEE TRIBE,

PLAINTIFF

Crvit ACTION

v. No. 76-3190-S

TOWN OF MASHPEE, er At.,

DEFENDANTS

Erratum.

March 24, 1978.

Skinner, D. J.

The references to James Bourne on p.4 of the Memorandum

and Order dated March 24, 1978 are in error. The proper ref-

erences are to Richard Bourne.

WALTER JAY SKINNER,

U.S. District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.