Petition — MASHPEE TRIBE v. NEW SEABURY CORP. (No. 79-62)

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

JUL 13 1979

HAEL RODAK, JR., CLERK

IN THE

— Court of the United States

OcToBER TERM, 1979

No. 74% 9-6 2 i

MASHPEE TRIBE, Petitioner

Vv.

New Serapury Corp., et al., Respondents.

PETITION FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Richard B. Collins

1506 Broadway

Telephone: 303/447-8760

Thomas N. Tureen

178 Middle Street

Portland, Maine 04101

Telephone : 207/773-7166

Counsel for Petitioner

July 1979

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

PE car RIS a ii

ee eee ees kee kab pwhe veccacense 1

SCE RRS Ss aE Se 2

I IUD isc ecb eee cote de cececevccces 2

wa ceases ceccesetns 3

SPATBMENT OF THE CASE ... 2... cc ccc cs ccsccccccess +

ee a ld abs d'g-s o.nagibessee c's 66,0 6

Reasons FoR GRANTING THE WRIT ...............005: 7

I. Tue Issues Are Important ...............-. 7

II. THe Burpen or Proor Was ImproperR_Ly PLacep

on PLAINTIFF ON THE Issue CructIAL to Dis-

Rng, SE ego. od eS ween eee 8

Ill. THe Tria Court’s Famvure to INVESTIGATE

ADEQUATELY A THREAT TO A JUROR REQUIRES A

Tee ee eee cneccann 11

IV. DismissaL Basep on ABANDONMENT OF TRIBAL

Existence Was ERRONEOUS .............0.-. 12

A. The Courts Below Incorrectly Defined Tribe

for Purposes of the Nonintercourse Act .. 12

B. The Trial Court Erred by Instructing the

Jury That It Could Find That the Tribe

Had Disbanded if the Tribe had Adopted

‘English Forms’’ and ‘‘English Labels’’ 15

C. The Jury’s Verdicts Were Irreconcilably

EE EI 16

D. The Trial Court Improperly Failed to De-

fer the Initial Decision on Tribal Existence

to the Department of the Interior ........ 17

CS LOE SE ORE re ea es 19

ii AUTHORITIES

Cases: Page

Best v. Humboldt Mining Co., 371 U.S. 334 (1963) ... 17

Confederated Salish & Kootenai Tribes v. Moe, 392

F.Supp. 1297 (D.Mont. 1975), aff’d, 425 U.S. 463

COO eae cae ce Le ec en owe: 16

Data Processing Service v. Camp, 397 U.S. 150 (1970) 5

Joint Council of the Passamaquoddy Tribe v. Morton,

526 F.2d 370 (1st Cir. 1975) ...........cece. 8, 16, 18

Jones v. Meehan, 175 U.S. 1 (1899) ................. 12

The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867) ... 16

Montoya v. United States, 180 U.S. 261 (1901) ..... 13, 14

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

Dev. Corp., 418 F.Supp. 798 (D.R.I. 1976) ...... 8

The New York Indians, 72 U.S. (5 Wall.) 761 (1867) .. 10

Oneida Indian Nation v. County of Oneida, 414 U.S.

Ok ESMEN 9425 CEGCEd bid aPOEAeee Ere, 8, 10, 12, 18

Oneida Indian Nation v. County of Oneida, 434 F.Supp.

DO CIS ROEED ons shee s Cees Mca bee eee

<VA W Sel, OB7 U.G, BB (ITO) 5 ooaeilic cbs cca 15

United States v. Candelaria, 271 U.S. 432 (1926) ....14,18

United States v. Holliday, 70 U.S. (3 Wall.) 407 (1866) °16

United States v. John, 437 U.S. 634 (1978)

eee aS 18

United States v. Nice, 241 591 (1916) .............. 17

United States v. Southern Pac. Transp. Co., 543 F.2d

Fre Ci Gaey BOGE) as ecto ck be kn ban butane 7

United States v. Western Pac. R., 352 U.S. 59 (1956) . 17

Washington v. Fishing Vessel Ass’n, —— U.S. ——

CEU Wy BOONE 60 ccusp ced end veka ereee tas 14

Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S.

Ee CAMS fad inh Sha eR ekwlc 6 Ree eae aa wees cs 17

Wilson v. Omaha Indian Tribe, Nos. 78-160, 161, 47

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

Authorities Continued iii

Page

STATUTES:

1 Stat. 138 (1790) .......ceee ee ee cece reer tereeeers 12

1 Stat. 330 (1793) ......cceeeccccoccrccsevencecers 12

1 Stat. 472 (1796) ......cceeceeeeeree cece ceereeers 12

1 Stat. 746 (1799) ....creccccccsvcccccccsscccceces 12

2 Stat. 143 (1802) .......ceee cece er reeeereeceeress 12

4 Stat. 729-734 (1834) ..... cee eeeeeeeeenereereces 10, 12

B.S. Tit. 28 ch. 3... cccccccccccccccccecncceccees 10

B.S. Tit. 28 ch. 4 ...ccccdecccccccccccccccccecccess 10

RE Ce a te pas dens RRR eRe Kee Pes as Bae: 10

Se rer rrr eer er Lr Cred. 10

eT a es ois ned ns dege tsp 60a aded veeie en 10

OR UG, GG coe ccc cece caer cacesrscencvedererses 10

yk oe . Oa reas ACE NE ta ta ta 18

% U.B.C. 177 £0. ccee 2, 3, 4,5, 7, 8, 9, 10, 12, 14, 15, 16, 17, 18

8 WMG TOE i.. cance shd bucadstasecogensae otters 9, 10

D5 WS.C, B2B-B2B 2... cc cccccnccccsccccccscnsisocecs 18

Oe WIM Oc ckives> a v'asr at rawedoede renee ns yeie 18

ES cola dacwanviesawkwiane dsssb bons 18

D5 U.G.C. 461-479 2... cc ccccccccccccrccccecccssess 17

Ne EE ME a wat idwon hss tne eboenas 4 08 Remeeee 18

95 U.S.C. 1701-1712 .... ccs ceccccccccsccccccscscees 15

98 U.S.C. 1254(1) .....ceccecccccncccccncccsvceces 2

Oe TEN oo cv cn pak o ns doce es bpeheaes'evacdense > 4

OTHERS

2 Op.A.G. 587 (1833) . 1.0... eee ee cece eee eter eres 12

a Ee OO ee

IN THE

Supreme Court of the United States

OvcToBER TERM, 1979

No. 79-

MaAsHPEE TRIBE, Petitioner,

New Seapury Corp., et al., Respondents.

PETITION FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioner Mashpee Tribe respectfully prays that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

First Circuit entered in this proceeding on February

13, 1979.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

592 F.2d 575 (1st Cir. 1979). The opinion of the Dis-

trict Court for the District of Massachusetts on the

issues raised by this petition is reported at 447 F.Supp.

940 (D.Mass. 1978). An earlier opinion of the District

Court on other issues is reported at 427 F.Supp. 899

(D.Mass. 1977). Each opinion is reproduced in the

appendix to this petition.

JURISDICTION

The judgment of the Court of Appeals was issued

on February 13, 1979. On May 1, 1979, Mr. Justice

Brennan granted petitioner’s application for an exten-

sion of time in which to petition for certiorari through

July 13, 1979. This Court’s jurisdiction is invoked

under 28 U.S.C. 1254(1). |

QUESTIONS PRESENTED

1. In an action to recover Indian tribal land alien-

ated in violation of the Nonintercourse Act (25 U.S.C.

177), did the trial court err by instructing the jury

that plaintiff tribe had the burden of proof on all

issues, where a prima facie case of prior ownership or

possession was shown?

2. Where the Court of Appeals found the trial court’s

investigation of a threat to a juror was inadequate,

should a new trial have been ordered ?

3. Was dismissal of plaintiff’s complaint for recov-

ery of Indian tribal land improperly based on abandon-

ment of tribal existence?

A. Did the courts below incorrectly define

“tribe” for purposes of the Nonintercourse Act

(25 U.S.C. 177)?

B. Did the trial court incorrectly instruct the

jury that a tribe can abandon its existence by

adoption of ‘‘English forms’? and ‘English

labels"?

C. Were the jury’s special verdicts irreconcil-

ably inconsistent ?

D. Did the trial court err by failing to defer to

the Department of the Interior to make the initial

determination whether plaintiff was a tribe?

STATUTES INVOLVED

United States Code, Title 25:

§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 em-

ployed under the authority of the United States,

attempts to negotiate such treaty or convention,

directly or indirectly, or to treat with any stich

nation or tribe of Indians for the title or purchase

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 commis-

sioner 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.

§ 194. Trial of right of property ; burden of proof

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 ownership.

STATEMENT OF THE CASE

Petitioner Mashpee Tribe brought this action to re-

cover tribal land in the Town of Mashpee, Massachu-

setts, which was alienated between 1834-1870 without

federal consent. The basis for the action is the Indian

Nonintercourse Act, 25 U.S.C. 177, which voids con-

veyances of tribal land not made pursuant to federal

authority. Defendants are the class of adverse claim-

ants to the same land, represented by parties desig-

nated by order of the District Court. The District

Court sustained its jurisdiction under 28 U.S.C. 1331.

App. 55a.

The District Court denied defendants’ motions to

dismiss, App. 54a-61a. Defendants’ answer controverted

the complaint’s allegations that plaintiff was an Indian

tribe at relevant times. The District Court ordered a

separate trial on the issues of tribal existence and orig-

inal ownership of the subject land, reserving other

issues, and scheduled it to begin in October 1977.

Plaintiff had earlier asked the Department of the

Interior to determine that plaintiff is an Indian tribe.

At first no action was taken on the request, but prior

to trial the Department announced that it was pre-

pared to entertain plaintiff’s request. Plaintiff then

moved for a delay in the trial pending the Interior

Department’s determination, but the District Court

denied the motion and proceeded to trial.

At the conclusion of the evidence, the District Court

submitted a series of special interrogatories to the

jury on the question of tribal existence. The jury was

asked to determine whether plaintiff had proved that

it was an Indian tribe when the action was filed in

1976 ; whether the tribe had existed in 1870, 1869, 1842,

A ee

1834, or 1790; and whether the Tribe had continuously

existed since those dates. The jury found that the Tribe

had existed in 1834 and 1842 but not on the other dates.

After the verdicts, the District Court heard argu-

ments on whether judgment should be entered. Follow-

ing argument but before entry of judgment, the court

was advised by a member of the bar that a member of

the jury who resided near Mashpee had received an

anonymous, threatening telephone call about the case

during the trial. The court summoned the juror, who

admitted receiving the threat and other anorymous

calls which he attributed to the trial. Based on strenu-

ous objections by defendants’ counsel, the court refused

to ask the juror whether he had told other jurors about

the call or discussed it with them and refused to ask

other jurors about the matter or whether they had

received threats.

In March 1978 the District Court issued its opinion

and judgment. App. 37a-53a. The court held that the

jury’s verdicts meant that plaintiff had been a tribe

within the protection of the Nonintercourse Act in

1842, when most of the disputed land was aliented

without federal approval. App. 48a. The court also held

that the finding that plaintiff was not a tribe in 1976,

when the action was filed, meant plaintiff lacked

‘‘standing”’ to seek a remedy for the violation.’ The

action was accordingly dismissed.

*The District Court dismissed based on ‘‘standing’’, and the

Court of Appeals said that ‘‘it is undisputed’’ that ‘‘standing’’ is

the proper way to denominate the issue. App. 2a. We disagree and

believe that the basis was lack of cause of action to redress the

demonstrated illegal seizure of tribal lands. Plaintiff manifestly

had standing. See, Data Processing Service v. Camp, 397 U.S. 150

(197@).

On appeal plaintiff raised the issues set out in the

Questions Presented in this petition. The Court of

Appeals affirmed the District Court’s dismissal. App.

la-36a.

FACTS

Both courts below recognized that the jury’s ver-

dicts could be rationalized only as an implicit finding

that the Mashpee Tribe voluntarily abandoned its ex-

istence between 1842 and 1869. App. 25a-30a, App. 50a-

52a.” For this reason, the evidence for that period is

pertinent to the issues raised here. Many background

facts are recited in the District Court’s opinion. App.

39a-47a.

Early grants to the land in question were made to

‘the South Sea Indians and their children,’’ being the

Indians already occupying ‘‘the area surrounding the

Indian village of Mashpee.’’ App. 40a. In 1723 Mash-

pee was organized as ‘‘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.’’ App. 41a. In 1746 the Massachusetts General

Court (legislature) imposed a guardianship over the

Indians. Upon petition to King George personally car-

ried to London by one of the Indians, the guardianship

was lifted and a measure of self-government granted

the Mashpees. App. 41a.

After the Revolutionary War, in which many Mash-

pee men were killed fighting for the United States,

Massachusetts reimposed a system of rule by outside

guardians over the Mashpees. In 1833, the Indians

Eb: This was so because the trial court repeatedly instructed the

jury that plaintiff must prove that it was continuously a tribe at

all times between the dates specified. Tr. 40-6, 9, 63.

petitioned the General Court for relief from guardian-

ship, and in 1834 the General Court established the

District of Mashpee with local se!f-government. App.

41a-42a.

In 1842 the General Court allotted most of the tribal

common land to individual residents in restricted fee.

App. 43a. In 1869 the Commonwealth convened a meet-

ing in Mashpee to discuss further legislation removing

all restrictions on land alienation. The Indians voted

against it, but the General Court passed it anyway.

The following year another act established the Town

of Mashpee and transferred the remaining tribal com-

mon land to it.

The present Mashpee Tribe consists of Indians des-

cended from the proprietors of Mashpee who owned

and occupied the land when it was illegally alienated.

App. 44a. The Town of Mashpee remained a predomi-

nantly Indian town until the early 1970’s, App. 44a.

Since losing controi of the Town Council, the Tribe has

established a separate Tribal Council to carry on ad-

ministrative business. The Tribal Council has been rec-

ognized by the Commonwealth of Massachusetts as the

Tribe’s governing body. App. 46a.

REASONS FOR GRANTING THE WRIT

I. The Issues Are Important

This petition raises three questions meriting the exer-

cise of this Court’s jurisdiction. First is the nature of

the Indian entities within the statutory protection for

the lands of ‘‘any . . . tribe of Indians”’ in the Noninter-

course Act (25 U.S.C. 177), and the procedure for an-

swering that question. This is an issue likely to recur.’

*The statute has been interpreted in several reported lower

court decisions in recent years. See, United States v. Southern Pac.

Another aspect of this important statute was reviewed

in Oneida Indian Nation v. County of Oneida, 414

U.S. 661 (1974). The issue here is no less significant.

The second issue involves this Court’s supervisory

responsibilities over the conduct of jury trials by the

federal district courts. The Court of Appeals found that

the District Court mishandled a threat to a juror yet

refused to reverse.

The third reason the Court should exercise its juris-

diction is that the Court of Appeals’ interpretation of

25 U.S.C. 194 is contrary to this Court’s subsequent

reading of the statute in Wilson v. Omaha Indian

Tribe, Nos. 78-160, 161, 47 U.S.L.W. 4758 (June 20,

1979).

II. The Burden of Proof Was Improperly Placed On Plaintiff on the

Issue Crucial To Dismissal.

The District Court instructed the jury that plaintiff

had the burden of proof in all respects. ‘‘ The defendant

[sic] does not have any burden.’’ Tr. 40-8. This and like

instructions erroneously required plaintiff to prove

that it had continuously existed as a tribe since its

lands were alienated in violation of the Nonintercourse

Act; that it had not voluntarily abandoned its exist-

ence; and that the tribe continued to exist notwith-

standing the suppression of tribal activity caused by

the illegal acts.

Transp. Co., 543 F.2d 676 (9th Cir. 1976)); Joint Council of the —

Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975);

Oneida Indian Nation v. County of Oneida, 434 F.Supp. 527

(N.D.N.Y. 1977) ; Narragansett Tribe of Indians v. Southern R.I.

Land Dev. Corp., 418 F.Supp. 798 (D.R.I. 1976). Other cases

pending in the lower courts do not involve reported opinions.

The Court of Appeals reviewed the burden of proof

issue both under 25 U.S.C. 194 and under general evi-

dence law and sustained the District Court. App. 21a-

25a. Both rulings were erroneous.‘ The ruling on 25

U.S.C. 194 in particular was contrary to the subse-

quent interpretation of that statute by this Court in

Wilson v. Omaha Indian Tribe, Nos. 78-160, 161, 47

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

The foundation to invoke Section 134 was clearly

satisfied. The evidence of both sides showed that a com-

munity of Mashpee Indians had long occupied the land

in question, and that Massachusetts had recognized in

these Indians a special Indian communal form of own-

ership of the lands (termed a proprietorship), which

was confined to Mashpee Indians and their descendants

without the right of alienation. App. 41a. The jury also

found that the Mashpee Indians comprised a tribe with-

in the Nonintercourse Act in 1834 and 1842 at the time

most of the Tribe’s communal holdings were taken with-

out federal approval. Plaintiff therefore clearly showed

‘‘previous possession or ownership’’ of the land in

question. Wilson v. Omaha Indian Tribe, supra.

Despite this evidence the courts below declined to

apply Section 194 to the issue of voluntary abandon-

ment of tribal existence, ruling that the statute could

have no application until some later stage in the pro-

ceedings. App. 22a-23a. This was contrary to this

Court’s holding in Wilson v. Omaha Indian Tribe,

supra, Wilson rejected a similar holding by the Dis-

*The Court of Appeals suggested that plaintiff might not have

raised the burden of proof question except under 25 U.S.C. 194.

That is not correct; plaintiff made a general objection to the bur-

den of proof instructions without reference to Section 194. Tr.

40-69. When shifting to Section 194, trial counsel began, ‘‘In the

alternative ...’’ Tr. 40-70.

trict Court in that case that the foundation “involves

the merits of the issue on which this case turns. Slip. op.

at 13.° Since plaintiff here showed both prior possession

and ownership of the land, the fact issue of subsequent

voluntary disbanding of the tribe (untainted by the il-

legality itself) should have gone to the jury with an in-

struction that defendants had the burden of proof. At

the very least this error requires a remand to the Court

of Appeals to reconsider its decision in light of Wilson.

* Application of Section 194 is at least as appropriate here as in

Wilson, because the substantive basis for this action, 25 U.S.C.

177, was enacted as part of the same statute as 25 U.S.C. 194. 4

Stat. 730, 733 §§ 12, 22 (1834). The Court in Wilson cited a

House of Representatives Report implying that the original

drafters of the 1834 Act intended it to apply only in ‘‘Indian

country.’’ Slip. op. at 12. But the Act was later amended on the

Senate floor to preserve the 1802 Trade & Intercourse Act (in-

cluding the predecessors of 25 U.S.C. 177 and 194) for all ‘‘tribes

residing east of the Mississippi.’’ 4 Stat. 734, § 29.

Also, only some sections of the 1834 Act were by terms ap-

plicable in ‘‘Indian country’’; 4 Stat. 729-33, §§ 2-8, 10, 16-21,

23-25. Other sections had no term of location and applied every-

where ; these include the sections at issue here. 4 Stat. 730-33, §§ 9,

11-15, 22. Interpretations of the Act have consistently reflected

this division. In Oneida Indian Nation v. County of Oneida, 414

U.S. 661, 670 (1974), this Court held the Nonintercourse Act

(§ 12 of the 1834 Act) applicable ‘‘in all of the States, including

the original 13,’’ rejecting the argument of the State of New York

to the contrary. The Court reached a like conclusion in The New

York Indians, 72 U.S. (5 Wall.) 761, 771 (1867).

Codifications of the 1834 Act have reflected the same under-

standing. The compilers of the Revised Statutes of 1873 placed the

surviving ‘‘Indian country”’ sections of the 1834 Act under Tit.

28 ch. 4, titled ‘“‘Government of Indian Country.’’ The general

sections, including 12 and 22, were placed under Tit. 28 ch. 3,

titled ‘‘Government and Protection of Indians.’’ See, R.S. 2116

2126. The present Title 25, U.S. Code is organized in the same

way. The surviving ‘Indian ccuntry’’ sections from the 1834 Act

were placed in Chapter 6, ‘‘Government of Indian Country and

Reservations. ” The general sections, including 177, and 194, appear

in chapter 5, ‘‘ Protection of Indians.’’

noe a

Ill. The Trial Court's Failure To Investigate Adequately A Threat

To A Juror Requires A New Trial.

The Court of Appeals concluded that the trial court’s

investigation of a threat to a juror ‘“‘was terminated too

soon,’’ App. 30a, and that defendants’ ‘‘over-zealous ob-

jections”’ prevented an ‘‘obviously proper question”’ of

the errant juror (whether he had discussed the threat

with other jurors). App. 3la, 33a. Yet the court sus-

tained the trial court’s action. Petitioner submits that

this conclusion was based on sheer expediency and is

improper. It is hard to believe that the same conclu-

sion would have been reached had the trial lasted only

a few days. But it was defendants who demanded a jury

trial and who demanded that investigation of the threat

be prematurely terminated. A new trial was the only

proper course in these circumstances.°

An added reason for particular care in investigating

the threat was the racial innuendo injected into the

trial. As the opinions below note, both white and black

persons had married into the Mashpee Tribe during the

18th and 19th Centuries. App. 41a. White intermarriage

was largely ignored, but counsel for defendants argued

(to the all-white jury) that black intermarriage made

the Mashpees’ proper racial identification black instead

of Indian. See, e.g., Tr. 2-65. (. . . there is nothing

wrong with being black.) In these circumstances, par-

ticular caution regarding jury threats was demanded.

*There is no precedent in this Court or the lower courts sup-

porting affirmance of an admittedly inadequate investigation of a

threat to a juror.

IV. Dismissal Based On Abandonment of Tribal Existence Was

Erroneous.

A. The courts below incorrecily defined tribe for purposes

of the Nonintercourse Act.

The trial court gave the jury a restrictive definition

of ‘‘tribe of Indians’’ for purposes of the Noninter-

course Act,’ a definition which few tribes could meet.

Nothing in the history and purpose of the Act justifies

that definition.

By the successive Nonintercourse Acts beginning in

1790, Congress reserved to itself the sole authority to

extinguish tribal property rights. Oneida Indian Na-

tion v. County of Oneida, 414 U.S. 661 (1974). The Acts

in force between 1790-1834 by their terms protected

lands held by ‘‘Indians’’ as well as tribes.* In 1833 At-

torney General Taney held that lands reserved to indi-

vidual Indians from treaties of cession were inalien-

able under the 1802 Nonintercourse Act. 2 Op. A.G. 587

(1833). Within a year ‘‘and perhaps in consequence

thereof,’’ Congress removed the protection for lands

held by individual Indians.’ See, Jones v. Meehan, 175

U.S. 1, 12-13 (1899). Since 1834 the Nonintercourse Act

bas protected the lands of any ‘‘nation or tribe of In-

dians.’’ 25 U.S.C. 177.

As the Court’s review of the matter in Jones v. Mee-

han makes clear, Congress did not intend to use a nar-

row and exclusive definition of tribe in the statute. To

’ The trial court admitted that its definition was especially nar-

row by indicating that plaintiff might be a tribe for other purposes.

App. 52a n.7. .

®2 Stat. 143, § 12 (1802) ; 1 Stat. 746, § 12 (1799) ; 1 Stat. 472,

§ 12 (1796) ; 1 Stat. 330, § 8 (1793) ; 1 Stat. 138, § 4 (1790).

* 4 Stat. 730, § 12 (1834).

the contrary, all Indian lands were divided into two

groups, individually held and tribally held. Clearly the

latter encompassed all lands held communally in the

tribal manner.

Contrary to the purpose of the statute, the trial court

imposed detailed and complex requirements that plain-

tiff must satisfy to be a ‘‘tribe’’ within the Act. One

particularly specialized element was the requirement

that plaintiff prove the trial court’s view of appropri-

ate ‘‘leadership or government’’ in order to be a tribe.

The Court of Appeals’ opinion purported to quote

all the trial instructions on this subject. App. 10a-13a.

Inexplicably the court omitted one to which plaintiff

had particularly objected:

Again, the standard is a leadership which exer-

cised control over the internal affairs of the group

... that there was controlling leadership of signifi-

cant elements in the lives of the people. (Tr.

40-59).”°

This was soon followed by an instruction the Court of

Appeals did quote requiring proof of ‘‘a leadership

that is governing the conduct, the lives of the people in

some significant way,’’ App. 12a, and by the require-

ment that plaintiff prove ‘‘leadership that is passed on

in some orderly way.’’ App. Ila.

These requirements were extrapolated by the courts

below from this Court’s definition of tribe in a very

different context in Montoya v. United States, 180 U.S.

1°The omission of this instruction may explain the Court of

Appeals’ statement that plaintiff’s argument to it that the trial

court had required ‘‘binding authority’’ was ‘‘not true.’’ App.

13a. We fail to perceive any meaningful distinction between ‘‘con-

trolling leadership’’ and ‘‘ binding authority.’’

261, 266 (1901). We do not dispute that definition, but

we think it was seriously misapplied, particularly on

the so-called ‘‘requirement’’ of leadership. Montoya

did not involve proof of tribal existence; the issue was

whether a tribe should be held liable under the depreda-

tions laws for errdnt members’ actions under a re-

spondeat superior theory. In particular, the question

was whether a dissident band responsible for the

wrongs had become separated from the tribe. The

Court’s mention of a group ‘‘under one leadership or

government”’ in context meant one as opposed to two.”

We do not dispute that ‘‘leadership”’ in the broad

sense is implicit in group ownership of property and

other actions, and we did not contend that the jury

could not be told that leadership is an indicium of tribal

status. But we did and do object to the trial court’s

particular, restrictive and ethnocentric view of the

term, particularly in light of the jury’s probable pre-

conceptions on the subject.

It is apparent that these requirements are completely

unrelated to the 1834 statutory purpose retaining pro-

tection of communal lands while relinquishing it over

individual holdings. Tribe must be interpreted broadly

in light of that purpose.

It is also apparent that few tribes could meet that

standard.” As this Court recently noted in Washington

v. Fishing Vessel Ass’n, —~ U.S. —— (July 2, 1979),

some of the aboriginal bands in the Pacific Northwest

The Montoya definition was applied to a Nonintercourse Act

case in United States v. Candelaria, 271 U.S. 482, 433 (1926).

But Candelaria involved a one-sentence conclusion and said noth-

ing about ‘‘leadership’’ or any other detailed requirement.

12 The trial court expressly recognized that fact. Tr. 38-190.

‘thad little or no tribal organization,’’ and territorial

officials ‘‘took initiative in aggregating certain loose

bands into the designated tribes and even appointed

many of the chiefs who signed the treaties.’’ Slip. op.

at 5,5 n. 5,

The trial court imposed its restrictive definition of

tribe based on its view that plaintiff was seeking ‘‘a

very radical remedy.’’ Tr. 38-191. See also App. 52a, n.

7 (‘‘extraordinary remedy’’). But the remedies for vio-

lations of the Nonintercourse Act are spelled out specif-

ically by Congress—all conveyances in violation of the

Act are without ‘‘any validity in law or equity.” It isa

fundamental rule of the separation of powers that it is

for Congress to establish policy and for the courts to

enforce that policy, not revise it. T7VA v. Hill, 4837 U.S.

153 (1978). The policy of the Nonintercourse Act has

consistently been to prevent extinguishment of Indian

property rights other than by Congress. It is for Con-

gress, not the courts, to rectify mistakes, balance equi-

ties and determine the Indians’ just requirements.”

B. The trial court erred by instructing the jury that it could

find that the tribe had disbanded if the tribe had adopted

“English Forms” and “English Labels”.

As already pointed out, the judgment of dismissal

was based on an implicit jury finding that the Mashpee

Tribe voluntarily disbanded after its communal lancs

were unlawfully alienated. The trial court’s instruc-

tions on abandonment of tribal status were therefvre

crucial. As the Court of Appeals acknowledged, A.pp.

17a, 20a, n. 8, the trial court instructed the jury that the

18 That Congress can and will do that with respect to Noninter-

course Act issues involving takings occurring many years ago is

shown by 25 U.S.C. 1701-1712 (Supp. 1979).

tribe could terminate through social or cultural assimi-

lation of ‘‘ English forms”’ and ‘‘ English labels.’’ Under

these and other instructions on the subject, a tribe

could disband even though its members retained a tribal

organization, identified themselves as Indians with a

common tribal ancestry and held communal lands. No

previous authority of continuing validity has held that

an Indian tribe had voluntarily abandoned its exist-

ence. To the contrary, integration and assimilation

have expressly been held insufficient to destroy tribal

rights.”

C. The jury's verdicts were irreconcilably inconsistent.

Validity of the jury’s verdict depends on whether

the evidence supports the implicit finding that the

Mashpee Tribe voluntarily disbanded between 1834 and

1869. App. 26a. The Court of Appeals sustained the ver-

dict based on several factors, at least two of which

were clearly improper. Most clearly wrong was the

court’s reliance in two contexts on the division of the

tribe’s common land. App. 27a-28a. Alienation of tribal

land, no matter how ‘‘voluntary,’’ is the very event ab-

solutely prohibited by the Nonintercourse Act without

federal approval. The Court of Appeais erred in hold-

ing that illegal acts can be the primary basis to sustain

a jury verdict that a tribe dissolved ‘‘voluntarily”’’.

The second error was the Court’s reliance on the

desire expressed by some individuals in an 1869 hearing

to become citizens. App. 27a-28a. It is well settled that

1* United States v. Holliday, 70 U.S. (3 Wall.) 407, 408-10, 417-

20 (1866); The Kansas Indians, 72 U.S. (5 Wall.) 737, 756-57

(1867) ; Joint Council of the Passamaquoddy Tribe v. Morton, 528

F.2d 370, 380 (1st Cir. 1975); Confederated Salish & Kootenai

Tribes v. Moe, 392 F.Supp. 1297, 1315 (D.Mont. 1975), aff’d, 425

U.S. 463 (1976).

;

Indian citizenship is not incompatible with tribal mem-

bership. E.g., United States v. Nice, 241 U.S. 591, 597-

601 (1916).

If these erroneous factors are not considered, the

verdicts cannot stand. The evidence clearly showed

continuity of tribal organization between 1842 and

-1869 (as the Court of Appeals noted, App. 27a). There

was no proper evidence to justify a finding of voluntary

dissolution untainted by the violation of the Act itself.

D. The trial court improperly failed to defer the initial deci-

sion on tribal existence to the Department of the Interior.

This Court has repeatedly held that federal district

courts should defer to administrative agencies on is-

sues where the agencies ‘‘are better equipped than

courts by specialization, by insight gained through ex-

perience, and by more flexible procedure’’ and to se-

cure uniformity and consistency in the conduct of

business entrusted to the agency. Weinberger v. Ben-

tex Pharmaceuticals, Inc., 412 U.S. 645, 654 (1973) ;

see also, United States v. Western Pac. R., 352 U.S. 59,

63 (1956). This doctrine has been applied to a case in-

volving federal interests in land and at the instance

of the United States as plaintiff. Best v. Humboldt

Mining Co., 371 U.S. 334, 338 (1963).

The Court of Appeals rejected application of this

doctrine primarily on the ground that the Interior De-

partment had no expertise in recognizing Indian tribes.

App. 4a-7a. This premise was clearly in error. Many

statutes have required the Department to determine

what groups constitute tribes for various purposes. One

comprehensive example of recent vintage is the In-

dian Reorganization Act of 1934, 25 U.S.C. 461-479.

The Act required the Department to determine what

‘Indian tribe or tribes’’ were entitled to organize un-

der the Act, 25 U.S.C. 476. Cf., United States v. John,

437 U.S. 634 (1978). The Department has particular

expertise in the correct meaning of ‘‘tribe’’ respecting

land restrictions, since it has long administered the

many statutes controlling these matters. F.g., 25 U.S.C.

81, 177, 323-28, 398, 415. The sole reason for the De-

partment’s tardy involvement in the Mashpee situa-

tion was its prior view that tribes in Massachusetts and

‘*unrecognized’”’ tribes were not under its responsibility,

rejected in Oneida Indian Nation v. County of Oneida,

414 U.S. 661, 670 (1974) and Joint Council of the Pas-

samaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir.

1975), respectively. See also App. 56a-57a, for the Dis-

trict Court’s holding on the latter issue.

An added reason why the matter should have been

submitted to the Department is that no conclusive de-

cision on the title avestions at issue in this case is

possible until the United States is bound. United

States v. Candelaria, 271 U.S. 432, 444 (1926). As a

practical matter a decision by the Interior Department

would assist the courts, bind the United States, and

insure consistency with like decisions elsewhere.

CONCLUSION

For the reasons stated, the writ should be granted.

The case should be set for briefing and argument, or in

the alternative it should be remanded to the Court of

Appeais for reconsideration in light of Wilson v. Omaha

Indian Tribe, supra.

Respectfully submitted,

Richard B. Collins

1506 Broadway

Telephone: 303/447-8760

Thomas N. Tureen

178 Middle Street

Portland, Maine 04101

Telephone: 207/773-7166

Counsel for Petitioner

July 1979

APPENDIX

$92 F.2d 575 (1979)

MasHpee Trips, Plaintiff, Appellant,

New Seasury Corp. et al., Defendants, Appellees.

MasuHpre Trise, Plaintiff, Appellee,

New Seasury Corp. et al., Defendants, Appellants.

MasuHpee Trise, Plaintiff, Appellee,

New Seasury Corp. et al., Defendants, Appellees,

Matthew B. Connolly, etc., Defendant, Appellant.

Nos. 78-1272 to 78-1274.

United States Court of Appeals, First Circuit.

Argued Nov. 8, 1978.

Decided Feb. 13, 1979.

Before Corrin, Chief Judge, CampsetL and Bownes,

Circuit Judges.

Corrin, 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 In-

dian 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 be-

tween 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

district 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 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 Janu-

ary 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 federal Nonintercourse Act?

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

Marshpee was established. [sic]

Yes

e. March 3, 1842: The date on which formal partition

of land in the District of Marshpee among the pro-

prietors of Marshpee and their children was autho-

rized 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

people of color known as Indians were removed by act

of the legislature of the Commonwealth of Massachu-

setts?

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

pee was incorporated by act of legislature of the Com-

monwealth of Massachusetts: [sic]

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

tiff’s witnesses, constitute an Indian tribe as of Au-

gust 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 continously exist as such a tribe or nation from

such date or dates up to and including 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 de-

nial of the pre-trial motion for a continuance, certain as-

pects 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 han-

dling 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 discus-

sion of the relevant history may be found in Mashpee Tribe,

supra, 447 F.Supp. at 943-47. We will not attempt to dupli-

eate the district court’s effort.

)

Plaintiff argues that the district court erred by refusing

to grant a continuance pending Department of the In.‘erior

action on Mashpee’s application for federal recognition as

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 De-

partment 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 definitive position on the reguia-

tions” 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 con-

tinuance. The cases cited by plaintiff demonstrate that this

is not the kind of case in which the Supreme Court has re-

quired courts to defer to administrative process. The de-

ference 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, 91 S.Ct. 203, 27 L.Ed.2d 203

(1970); United States v. Western Pacific R. R. Co., 352

U.S. 59, 62, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Far East

Conference v. United States, 342 U.S. 570, 575, 72 S.Ct.

492, 96 L.Ed. 576 (1952) ; Locust Cartage Co., Inc. v. Trans-

american Freight Lines, Inc., 430 F.2d 334, 339 (1st Cir.

1970). It is meant to promote uniformity and take advan-

tage of agencies’ special expertise. Western Pacific R. R.

Co., supra, 352 U.S. at 64, 77 S.Ct. 161; Far East Confer-

ence, supra, 342 U.S. at 574-75, 72 S.Ct. 492. In a recent

pair of antitrust cases against a commodities exchange

regulated by the Commodities Exchange Commission, the

Court looked at three factors to determine whether a court

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 intricate,

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

terminative, the agency determination would materially aid

the court. Chicago Mercantile Exchange v. Deaktor, 414

U.S. 113, 114-15, 94 S.Ct. 465, 38 L.Ed.2d 344 (1973); Ricci

v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct.

573, 34 L.Ed.2d 525 (1973). Other cases have identified

*The doctrine has occasionally been referred to under the label

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

Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 68, 91 S.Ct.

203, 27 L.Ed.2d 203 (1970), but the Court has not used the label

in all its administrative deference cases. The problem, strictly

speaking, is not one of jurisdiction. Indeed it comes into play only

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.

other reasons for deferring to administrative agencies.

Deference can dam a potential flood of suits seeking de novo

review of agency determinations. Weinberger v. Bentex

Pharmaceuticals, Inc., 412 U.S. 645, 653, 93 S.Ct. 2488, 37

L.Ed.2d 235 (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, 91 S.Ct. 203 (agency

had approved the agreement under dispute). The doctrine

recognizes that some problems are better solved by the

more flexible procedures possible before agencies not bound

by Article ITI limitations. Jd. And, finally, agencies often

have prescribed procedures specially designed to resolve

particular kinds of disputes. Best v. Humboldt Placer Min-

img Co., 371 U.S. 334, 339, 83 S.Ct. 379, 9 L.Ed.2d 350

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

77 S.Ct. 161.”

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

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 develop special expertise in dis-

tinguishing tribes from other groups of Indians. More-

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

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

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

eating the law-making power over certain aspects’ of commercial

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

59, 65, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956), it has been applied

somewhat more broadly. See Best v. Humboldt Placer Mining Co.,

371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963) (management of

public lands). Nor is a plaintiff barred from invoking the doctrine.

Id.

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 Depart-

ment’s ultimate decision might be. We can, however, be

certain that the decision will not be available soon. The

court was right to respect the “strong public interest in the

prompt resolution” of the case and not defer to adminis-

trative action of uncertain aid and uncertain speed. It fol-

lows from what we have said, of course, that in another

case, once the Department has finally approved its regula-

tions and developed special expertise through applying

them, we might arrive at a different answer.

II.

The next challenge 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 right to

recovery and to establish standing to bring this suit. This

issue is particularly difficult in this case because the Mash-

pees differ from most other groups who have sought to

assert rights as Indian tribes. The federal government has

never officially recognized the Mashpees as a tribe or ac-

tively supported or watched over them. Moreover, the

Mashpees have a long history of inter-marriage 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 ac-

cept 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, 18 L.Ed. 667 (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. Mor-

ton, 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 primarily on Montoya v. United States, 180 U.S. 261,

266, 21 S.Ct. 358, 359, 45 L.Ed. 521 (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

Tribe v. Morton, 528 F.2d 370, 377 (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 Non-

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

is to be read to exclude a bona fide tribe not otherwise federally

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

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

Congress cannot deal with Indians solely as a racial group. United

States v. Antelope, 430 U.S. 641, 645, 97 S.Ct. 1395, 51 L.Ed.2d

701 (1977). Nor can Congress arbitrarily label a group of people

a tribe. United States v. Candelaria, 271 U.S, 432, 439, 46 S.Ct.

561, 70 L.Ed. 1023 (1926); United States v. Sandoval, 231 U.S.

28, 46, 34 S.Ct. 1, 58 L.Ed. 107 (1913). A tribe must be something

more than a private, voluntary organization. United States v.

Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975).

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, 46 S.Ct. 561, 70 L.Ed. 1023 (1926) ; The

Kansas Indians, 72 U.S. (5 Wall.) 737, 756, 18 L.Ed. 667

(1867); United States v. Wright, 53 F.2d 300 (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.

Plainiff 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”’.

*Though Montoya did not involve the Nonintercourse Act, this

definition was later used in United States v. Candelaria, 271 U.S.

432, 443, 46 S.Ct. 561, 70 L.Ed. 1023 (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, 34 S.Ct. 1, 58 L.Ed. 107 (1913), but it is im-

portant to bear in mind that generally legislation conferring bene-

fits 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 question may be

used to aid in interpreting the Act, Joint Tribal Council, supra,

528 F.2d at 377, but if Congress chooses to give Indian tribes a

——— remedy that choice should not be frustrated by judicial

ecree.

10a lla

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

neighborhood where some people will emerge and or-

ganize a rescue or organize boats or a bucket brigade,

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-

chusetts. It could not have a government like that in

Massachusetts; it could not compete with the govern-

ment 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.’’

‘*The level of leadership or government that was ap-

propriate 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 gov-

ernment is required? Well, that is for you to decide.’’

‘*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 deter-

mine because sporadic grouping, sporadic leadership is

not what is meant by ‘united in a community under one

leadership or government.’

whatever is needed. That is not the kind of leadership

we are talking about. We are talking about something

that goes on, has continuity. Continuity of leadership

in which leadership is passed on in some orderly way.’’

‘‘'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 suffi-

ciently wealthy, ... but that ... should be considered

in the context of a school system, which until recently,

was predominantly Indian, anyway, according to the

testimony.’’

‘‘The testimony most favorable to the plaintiff has

been that these leaders, as identified by various wit-

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

[Y Jou can consider ail of that testimony, whether there

is enough in your opinion to warrant the inference that

there was controlling leadership of significant 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.’’

12a

‘‘There was a core group that was very much con-

cerned about Indian affairs, a good many of them have

shown up in the courtroom, some have not.

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.’’

‘*There will be a diminution of influence from the cen-

ter of the organization to the fringe ... (T]jhere are

some people who are reasonably enthusiastic and at-

tend 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 common characteristic of

all organizations. We are dealing with the human con-

dition 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... .’’

‘*This is nothing more essentially political than speak-

ing on a town meeting floor or lobbying the Governor

13a

of the state, no matter for what purpose. ... [B]ut the

question is, is it significant? Is it evidence of a continu-

ing leadership? That goes back to what I said about

the petitions that were filed in the eighteenth century.”’

‘‘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 significant 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 ‘‘bind-

ing’’ but that they must cause the people to ‘‘order their

lives ... in some significant way’’. The people must ‘‘fol-

low[], adopt[] and obey[]’’ the leadership. And the leader-

ship must be ‘‘controlling .. . of significant elements in the

lives of the people.’’ But the court’s discussion demon-

strates 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 deter-

mine whether the alleged tribal leadership had any follow-

ers. If no one follows, then the would-be leader is not lead-

ing anyone and cannot sustain the claim to leadership.

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 ‘‘are

l4a

leaders with respect to a way of life’’. Such leadership is

certainly not expected to be evercive or binding. Plaintiff

was allowed to show leadership, at least in part, by demon-

strating that the alleged leaders were role-models to whom

a majority of the asserted tribe responded on questions 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 consider

as followers those who responded to the leaders with less

than total enthusiasm. Absolute obedience, voluntary or

coerced, was explicitly not a prerequisite to tribal existence.

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 exam-

ples 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 leader-

ship or government as its situation required. The court

pointed to some legitimate evidence. Plaintiff’s problem

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 suc-

cession. The court never required elections, inheritance, or

any other fixed system of determining a leader’s successor.

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 differen-

tiating the necessary leadership from sporadic, crisis-ori-

ented leadership that would disappear as soon as the crisis

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

a ‘‘tribe’’ that exists only during the disaster.

15a

Accordingly. the court instructed that there must be a

continuous leadership. It suggested as evidence worth con-

sidering, the series of petitions filed on behalf of the Mash-

pees 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 interpret

the court’s instruction to require that there be a recognized

leadership to which the people can turn at any time—a lead-

ership ‘‘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 favorable to plaintiff than the

every day usage of the terms in the Montoya definition

would be. Without the court’s interpretation the jurors

might well have construed the phrase ‘‘leadership or gov-

ernment’’ to imply the formal kinds of structures and insti-

tutions by which the jurors themselves are governed.

Not only did the portions of the court’s instructions com-

plained 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 Supreme Court,

Indian tribes were not nations.

‘* As they had no established laws, no recognized meth-

od 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 tempo-

rary submission to an intellectual or physical superior,

who in some cases ruled with absolute authority, 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 leadership. In short, the

l6a

word ‘nation’ as applied to the uncivilized Indians is so

much of a misnomer as to be little more than a compli-

ment.’’ 180 U.S. at 265, 21 S.Ct. at 359.

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

civilizations, 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

‘‘ynited 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 assimila-

tion without having voluntarily decided to abandon tribal

existence. 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 commu-

nity,’ the Court said. I suggest to you an Indian com-

munity is something different from a community of

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

rates it from the surrounding society, which is per-

ceived 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-

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’’.

17a

‘‘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 dis-

crimination of the white inhabitants against the In-

dians.’’

‘‘Now the question for you to decide is whether in

accepting this property [the proprietorship], accepting

these rights with their limitations, the Indians intended

to give up their tribal organization and assume an Eng-

lish organization, or whether it was simply the tribal

organization carrying on as owners of this plantation

with a different label.’’

‘*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 complete

submission and adoption of an English form instead.

Abandonment being the key word. Abandonment 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 outside.”’

* * « ° & * .

‘*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.’’

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

stances, tribal existence be so suppresed that it be 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

18a

conscious abandonment of tribal status, then you would

not be warranted in finding the existence of a tribe in

1976.”

‘‘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 op-

posed 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 ex-

cept 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 significant

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.° The

Kansas Indians, 72 U.S. (5 Wall.) 737, 757, 18 L.Ed. 667

(1867); The Confederated Salish and Kootenai Tribes v.

Moe, 392 F.Supp. 1297, 1315 (D.Mont.1975) (supplemental

*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 generally,

however, did not guarantee the perpetual existence of any particu-

lar 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.

19a

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

federated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct.

1634, 48 L.Ed. 96 (1976). A tribe, even if it is federally

recognized, however, can choose to terminate tribal exist-

ence. 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 pre-

sumably only to the extent the tribe chose to acquiesce in

that policy); United States v. Joseph, 94 U.S. 614, 617, 24

L.Ed. 295 (1876), overruled as to result but not necessarily

logic, United States v. Sandoval, 231 U.S. 28, 48, 34 S.Ct. 1,

158 L.Ed. 107 (1913). Certainly individual Indians or por-

tions of tribes may choose to give up tribal status. Dela-

ware Tribal Business Committee v. Weeks, 430 U.S. 73, 97

S.Ct. 911, 51 L.Ed.2d 173 (1977) (holding that that portion

of tribe which chose to stay behind when tribe moved dis-

solved relations with tribe and lost interest in tribal

claims); McClanahan v. Arizona State Tax Commission,

411 U.S. 164, 171, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973);

United States v. Wright, 53 F.2d 300 (4th Cir. 1931) (hold-

ing that portion of tribe that chose to stay behind when

tribe moved lost tribal status though gradually restored to

that status by federal recognition 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 volun-

tary’’.” Once the jury found that a tribe existed in 1834 and

1842, that tribe could not cease to exist absent a voluntary

* 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.

20a

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 in-

voluntary 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 discussed 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 yard-

sticks against which to measure the court’s instructions, we

® We reject defendants’ argument that the court did not indicate

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 a tribe.

2la

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 ex-

planation related the elements of the broad legal definition,

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’’ re-

main broad enough and flexible enough to continue to re- ©

flect the inevitable changes in the meaning and importance

of tribal relations for the tribal members and the wide vari-

ations 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 of 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 responsive to the special prob-

lems presented at that time. For these reasons, we think it

preferable not to adopt, word-for-word, the court’s instruc-

tions as the ‘‘true’’ definition of ‘‘tribe’’. Unlike, for in-

stance, explanations of ‘‘ reasonable doubt’’, no one explana-

tion of the Montoya definition can adequately serve in all

cases at all times.

ITI.

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... .’’ Appellant

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

22a

should have shifted to appellee to prove that plaintiff vol-

untarily gave up tribal status.’

Appellant’s first argument, and the only one clearly pre-

sented to the trial court,’® is that 25 U.S.C. § 194 requires

the burden to shift. That section provides:

‘‘Tn 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

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

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

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

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

evidence relating to general 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.

whether plaintiff preserved the burden of 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. § 194 as the grounds for plaintiff's version of the law.

The Federal Rules of Civil Procedure, Rule 51, specifically require

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

grounds for objection. A party cannot reserve grounds for objec-

tion in order to deprive the trial court of the opportunity to correct

the instruction, thereby creating an appealable issue, ‘‘ 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

Sadowski v. Bombardier Ltd., 539 F.2d 615, 624 (7th Cir. 1976) ;

Falkerson 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 issue and because we consider

the substantive issue important enough to err, if we err, in favor

of deciding the merits.

23a

presumption of title in himself from the fact of previ-

ous possession or ownership.’’

Whatever the applicability of § 194 might have been in a

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

stage. There can be no presumption of title in plaintiff

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

tribe at each relevant date. As to these threshold questions,

§ 194 cannot aid the plaintiff.

In the alternative, plaintiff relies on general evidentiary

principles for the same proposition.” Plaintiff, having es-

tablished 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 ter-

mination of the tribe was voluntary. This argument is ap-

pealing. One of the few principles available to guide us is

that normally the party asserting the affirmative of a propo-

sition 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 Machinery & Chemical

Corp., 178 F.2d 541, 547 (9th Cir. 1949) ; eliance Life Ins.

Co. v. Burgess, 112 F.2d 235, 237-38 (8th Cir.), cert. denied,

311 U.S. 699, 61 S.Ct. 137, 85 L.Ed. 453 (1949). Here de-

fendants, by way of rebutting plaintiff’s claim to be 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.

™* 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’’.

** 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. |

24a

As Professor Wigmore noted, however, the affirmative

allegation rule is not invariable.’* In this case, plaintiff

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 plain-

tiff had ever been or continued to be a tribe. Defendants’

case relied in part on evidence that the residents of Mash-

pee were not essentially different from other residents 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 aban-

donment 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 became

assimilated between 1842 and 1869, and if there were in-

sufficient evidence either way or equally balanced evidence

both ways as to whether or not the abandonment was volun-

tary, plaintiff would have failed to prove it was a tribe at a

relevant time.’* Moreover, plaintiff had an advantage be-

cause evidence of coercion from outside the community a

century ago is more likely to be available today than is evi-

dence of the state of mind of the individuals who changed

‘°9 Wigmore on Evidence § 2486, p. 274 (3d ed. 1940). Even

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

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

fairness based on experience in the different situations.’’ Jd., at 275.

**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 un-

likely that the issue was decided for lack of evidence, The jury’s

problem was not so much weighing conflicting evidence as choosing

a plaintiff’s and defendants’ interpretations of the historical

ata.

25a

their lifestyles. That is, historical records would reveal

forced migrations, governmental dealings, urban encroach-

ments, 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 prob-

ably have to try to prove a negative, the absence of coer-

cion.”* Therefore, we conclude 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 ambiguous.

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

& 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 will make the jury’s

finding inconsistent resuits in a collision with the Sev-

enth Amendment.” Atlantic @ Gulf Stevedores, Inc. v.

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

introduce a defendant’s confession in a criminal case. Miranda v.

Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ;

United States v. 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 control of the burdened party.

26a

Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780,

786, 7 L.Ed.2d 798 (1962).

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

The alleged inconsistency is that there is no evidence that

could support the jury’s conclusion that the tribe that ex-

isted 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 general 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 external activities or inter-

nal 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 appel-

lant, 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 becoming a district with certain rights

of self-government was achieved in 1834. That of being per-

mitted to divide common land among Indian members of

the community was achieved in 1842. The jury could infer

that the tribal organization, having accomplished its pur-

poses, became less important to the community.

27a

—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 author-

ized in 1842. There was evidence of substantial in- and out-

migration throughout these years, the newcomers including

Indians, white, and other non-white people, becoming both

proprietors and tenants. Testimony of Mashpee inhabitants,

both Indian and other non-whites, at a legislative 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 hus-

bands of proprietors, observations suggestive not so much

of tribal cohesiveness and communality as of individual as-

pirations 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 ver-

dict. Two of the three Mashpee selectmen, with others, had

filed the petition. Others opposed. At the hearing six spoke

against, and one seemingly straddled. Of the four oppon-

ents, two took the position that action was premature and

wanted from ten to t'irty-four more years before full citi-

zenship 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 select-

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

Mashpee inhabitants), to the opinions of the two apparent-

ly 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

28a

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

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 resi-

dents had begun to focus more on personal than communal

advancement; 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 termi-

nal 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 remain-

ing common land. From this too, particularly in the ab-

sence of any evidence tending to show a discretely “In-

dian” community, the jury could have inferred that Mash-

pee was voluntarily trying to carve a destiny like many

another rural and coastal town; to change from an “In-

dian 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 sig-

nificant 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 focused 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. Plain-

tiff 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).

29a

The verdicts’ alleged ambiguity derives from the follow-

ing passage in the charge:

“Tt is, I suppose, possible that by reason of cir-

cumstances, 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, then you should consider the [conti-

nuity] 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 am-

biguity was present at least as to the 1790 question, Mash-

pee Tribe, supra, 447 F.Supp. at 949,"* but it did not ad-

dress the possible ambiguity of any other answer.

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

ble 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 igsue 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 am-

biguity 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 chal-

lenged before us.

30a

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 cannot be

found because of conditions which have been imposed 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 suppressed, 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 required 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 preju-

dicial is supported by a record which “provides an ade-

quate basis for review”. United States v. Doe, 513 F.2d

709, 712 & n. 3 (1st 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 bus during the time of the trial he had

3la

been approached by a man who identified himself as a

juror in the Mashpee case and that the juror commented

that he had received an anonymous phone call about the

ease. The court promptly asked Mr. Doe to attend a hear-

ing concerning his communication to the court and notified

the 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 phone 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 with the

juror in question, again with counsel in attendance. The

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

tioned it to a fellow commuter but had not sought to in-

form 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 bet-

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

and testified that “the funny part about it” was that the

ealler did not indicate which “way” he should go. He also

mentioned that he had received a series 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. Al-

though allowed, over defendants’ over-zealous objections,

to ask whether other jurors had told this juror that they

had received calls, to which he responded in the negative,

plaintiff’s counsel was not permitted, again upon defend-

32a

ants’ counsel’s objection, to question whether this juror

had told other jurors about his anonymous pi:one call.””

While it clearly would have been better practice to huve

allowed this line of ques‘‘oning, 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 prejudicial’, The call was ambiguous, giving the

juror no clues as to which way he should vote and not at-

tach any consequences to choosing the wrong way. Compar

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 conclu-

sions concerning its intended message, and our reading of

the. record indicates that not only was the juror nzi at all

shaken by the experience but that he seemed to attach little

significance to it."* Compare Remmer v. United States, 350

17 Defendants, in their briefs, suggest that the court did in fact

ask the juror whether he had told other jurors about the phone

eall, 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 &

rephrasing of opposing counsel’s inquiry concerning communica-

tion 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 couri’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 te 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 ver-

dict 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 suggested by the court, indicating to us that it was

33a

U.S. 377, 381-82, 76 S.Ct. 425, 100 L.Ed. 435 (1956), and

United States v. Spinella, 506 F.2d 426, 428 (5th Cir. 1975)

with United States v. Brumbaugh, 471 F.2d 1128, 1130

(6th Cir. 1973). His only concern was that the court under-

stand 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 re-

ceived 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 mes-

sage conveyed, and the lack of identifiable source and threat-

ened consequences, we are unable to say, or to find authori-

ties which under similar facts have held, that plaintiff ‘‘was

deprived of a fair trial 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 wheth-

er 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

apparent that the effect of the call on the juror was minimal, and

the court’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. ;

34a

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

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 in-

quiry, this juror was the only member of the panel who was

residing in the area that was being contested in this law

suit, and thus was a particularly likely target for crank |

calls. See Allen v. Unitea States, supra, 376 F.Supp. at

1388-90.

! We also find that the district court acted within its dis-

leretion when it strongly discouraged counsel from inde-

pendently investigating possible further misconduct on the

bus ** and refused to pursue the inquiry itself. It is true that

Mr. Doe, the commuter who brought this matter to the at-

tention of the court, testified that this juror had discussed

the case with other passengers on the bus, although he could

say nothing about the content of those alleged conversa-

tions, 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, anything 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 un-

reliable 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

1# The court did not, as plaintiff suggests, order counsel to re-

frain from an independent investigation. At one point he so ‘‘in-

structed’’ 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.’’

35a

F.2d at 1130, 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 assignments of error,

we must affirm the judgment of the district court. Defend-

ants’ separate appeal in Nos. 78-1273 and 78-1274, there-

fore, 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 other 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.

Bownes, Circuit Judge (concurring).

I concur with my brothers in all but one respect of the

opinion, namely its treatment of the lower court’s instruc-

tions 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. Ante at 587.

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, 21 S.Ct. 358,

45 L.Ed. 521 (1901), and that we have a duty to find the

instructions legally correct or incorrect and not merely

whether they harmonized with one party’s view of the ap-

propriate legal standards. Both the district court’s delinea-

36a

tion of what constitutes ‘‘tribe’’ as well as this court’s ex-

tensive 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.

37a

447 F. Supp. 940 (1978)

Masupee Trise, Plaintiff,

Town or Masupesg, et al., Defendants.

Civ. A. No. 76-3190-S.

United States District Court,

D. Massachusetts.

March 24, 1978.

Memorandum and Order for Judgment

Skinner, District Judge.

This action was brought by the Mashpee Tribe of In-

dians to recover possession of tribal lands allegedly alien-

ated from the tribe in violation of the Indian Noninter-

course 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 brought

and at other times deemed by the parties to be critical.

The threshold issue of tribal existence was severed for

separate trial by order of the court.

After forty days of trial, the issue of tribal existence

was submitted to the jury in the form of special interroga-

tories. 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 shall here-

inafter appear, but they were included to preserve the

38a

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

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

of land in the District of Marshpee among the pro-

prietors of Marshpee and their children was author-

ized 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 people of color known as Indians 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 legislature 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 August

26, 1976: The date of the commencement of this law

suit?

39a

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 plaintiff’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.

I. Historica, Backcrounp

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 In-

dians* 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.

*I recognize that the plaintiff’s claim of being Indian is con-

tested by the defendants, and that the evidence indicates consider-

able racial mixture among this group.

40a

In 1665, Richard Bourne, a Christian missionary to the

Indians, desired to gather a community of Christian In-

dians in the area surrounding the Indian village of Mash-

pee and comprising the present Town of Mashpee and

parts of present Sandwich and Falmouth. Accordingly, a

deed was executed from two Indian leaders named Weep-

quish 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 rul-

ing council of a tribe known as the Cotichesetts, inhabiting

the area of Mashpee and eastward to present Hyannis. 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, relin-

quished his authority over the area and its inhabitants by

a deed to substantially the same grantees. There is no

evidence as to the 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 Colony granted the area to the South Sea In-

dians 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

* Plaintiff’s Exhibit 38: ‘‘The Court, on considerations of the

p'mises, doth soe far confirme said land 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 assump-

tion that ‘‘English’’ should be broadly construed to include all

non-Indians.

4la

must base its claim of title. Johnson v. McIntosh, 8 Wheat.

543, 5 L.Ed. 681 (1823). In 1692, the Plymouth Colony was

merged with the Province of Massachusetts Bay, and the

powers of its General Court were 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

proprietaries 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 communi-

ties. 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 plantation.

These guardians apparently used their position to ex-

ploit their wards, and the efforts of the Indians to obtain

redress through the General Court were unavailing. By a

remarkable feat of daring and resolve, one of the Indians

(a Mohegan Indian 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 protect their woodlots from depreda-

tion by neighboring non-Indian settlers. |

During the Revolutionary War, the Indian men of Mash-

pee 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 con-

siderable influx of unattached non-Indian males, mostly

black, but including four escaped Hessians and a Portu-

guese sailor.

42a

This influx apparently had a disintegrating effect, as a

result of which the General Court reimposed guardians,

whose approval was required for all significant actions.

By 1833, as under the previous guardians, the Indians

felt that the guardians were not protecting them, but ex-

ploiting them. The precipitating issue was the cutting of

wood from Indian land by outsiders. There was some vio-

lence. The Indians 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 Rev-

erend Phineas Fish, who had been sent down from Harvard

to carry on “the blessed work of converting the poor In-

dian,” 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 gov-

erned substantially in the manner of a Massachusetts town,

with the exception that certain transactions affecting the

common lands and the treasury were subject to the approval

of a Commissioner appointed by the Governor. The Com-

missioner also served as Treasurer. By successive legisla-

tion, the Commissioner’s power was reduced to that ordi-

narily exercised by a Town Treasurer and eventually the

office was filled by election 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 allot-

ments, as well as a list of proprietors. All of the land in the

district, whether held in common or in severalty, was ex-

empt 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.

43a

In 1842, the General Court passed another Act which

substantially altered the land title within the district and

defined who were t+ be deemed proprietors. Each proprie-

tor was to be allotted a sufficient portion of the common

land of the district to bring his holdings (ineluding 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 Selectment of the District.

The title acquired by each proprietor 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 trans-

fer, conveyance or devise to other than a proprietor,

and excepting 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 al-

lotted to her, or 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 inter-

est in the lands of the district shall escheat to the

proprietary.

In 1869, the Governor of the Commonwealth proposed

legislation relieving all the Indians in Massachusetts of

their legal disabilities and admitting them to full citizen-

ship. A legislative committee held a hearing in Mashpee.

The questions being considered were citizenship and re-

moval of the restraints on alienation of the land. About 40

people appeared, including several non-Indian husbands

of female Indian proprietors. Some of the Indians were in

favor of citizenship and removal of the “entailments” on

44a

the land, because under existing restrictions there was no

way that an Indian could acquire mortgage money for im-

provements, or liquidate his land holdings to go into com-

merce. The non-Indians also favored elimination of re-

straints 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.)

Nevertheless, in 1869 the General Court passed an act

granting citizenship to the Indians, removing their legal

disabilities, and releasing the restraints on alienation of

land imposed originally in the 1685 deed and carried for-

ward in the 1842 Act. In 1870, Mashpee was incorporated

as a Town. The common land of the District was trans-

ferred to the Town, and upon application the Superior

Court was authorized to order the sale thereof by Commis-

sioners appointed for the purpose. There were some three

thousand acres of common land remaining after the allot-

ments 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 plain-

tiff complains of as violations of the Nonintercourse Act.

At this point, the ancestors of the present Indians had

complete control of substantially all of the land in Mash-

pee, and they retained it for the next seventy years. “Blind

Joe” Amos’ prediction did not come true. The Selectment of

the District became the Selectment of the Town, and the

45a

Board was composed of Iudians 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 de-

veloped 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 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 Cod and the pressure of population mov-

ing 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 community, leaving them in the minority.

The free access to upland and shore that they so long en-

joyed 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.

* With one exception in the early 20th century.

* This history parallels that of most small towns in eastern Massa-

chusetts and Rhode Island, and more recently in southern Vermont,

New Hampshire and Maine.

46a

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 wit-

nesses had deliberately refrained from teaching his chil-

dren the Indian language, because he wanted them to use

English.

In 1920, there was a revival of interest in Indian cus-

toms. 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 were sometimes recog-

nized as chiefs and medicine men of the Indian community

in Mashpee. The method by which the individuals were se-

lected and their leadership functions were not revealed by

the evidence. In 1956 the Sachem of the Wampanoag Na-

tion appointed Earl Mills Chief of the “Mashpee 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

appears that this group’s functions, if any, were 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 Employ-

ment 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 se-

47a

cured 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 significant leaders by the Indians, were the subject of

extensive and conflicting testimony.

II. Sientricant Times

As stated, the designation of the various times in the

interrogatories to the jury was intended to preserve the

rights of the parties with respect to their legal arguments.

There is no doubt, and no disagreement, about the signifi-

cance of August 26, 1976, the date that this action was com-

meneed, because the right sought to be enforced is exelu-

sively 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 enact-

ment. They go further and assert that the Congressional

power to “regulate Commerce . . . with the Indian Tribes”

granted in Art. I, § 8, el. 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 contrary, e. g., Oliphant v. The

Suquamish Indian Tribe, —— U.S. ——, 98 S.Ct. 1011, 55

L.Ed.2d 209 (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

48a

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 stat-

ute was in effect a release by the successor of 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 perceived as the grant of a right of free alien-

ation, but it was a grant that flowed to the Indians not from

the Indians. It flowed not to an Indian nation or tribe of

Indians, but to individual Indian 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 na-

tion or tribe of Indians,” that is invalidated by the Nonin-

tercourse 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

severalty. If, as the jury determined, the proprietors con-

stituted an Indian tribe at this time, what I assume was

tribal land was perforce conveyed to individual Indians.

The plaintiff dees 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 orig-

inal 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 conveyance of land

from a tribe to individual Indians, and plaintiff has cited no

* The location of these acres was not revealed in any evidence

adduced at this stage of the case.

49a

case creating a judicial exception. 1842, therefore, is a

significant date.

The 1834 Act presages the 1842 disposition of the land,

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 particular families was characteristic of trib-

ally held land and not inconsistent with tribal title. What-

every significance the 1834 Act may have had seems to me

to have been subsumed in the 1842 statute.

The significant dates are therefore 1976 and 1842, and

1870 as to approximately three thousand unidentified acres.

III. Inconsistency or Responses anp Conrusion 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 ad-

duced with respect to 1976, but on the assertion that the

pattern of the jury’s other answers fatally impeach that

finding. The argument has two branches:

1. There was no material change in the circumstances

of the Mashpee proprietors between 1842 and 1869

which warrants the jury’s finding that they were a tribe

in 1842 and were not in 1869. Since I had instructed

the jury that tribal status once abandoned could not be

regained, the mistake with reference to 1869 required

a negative answer with respect to 1976. Thus the an-

swer with respect to 1976 cannot ve the basis of a judg-

ment 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 in-

structions limited the time for the emergence of a tribe

to the period before 1723. The proprietors would not

50a

therefore have become a tribe between 1790 and 1834.

The finding thus reflects either a misunderstanding 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.

TV. Opinion

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 to-

ward assimilation into the general non-Indian community.

This is arguably the tenor of the 1869 statements, the dif-

ferences between 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 im-

mediately prior and succeeding years in evaluating the situ-

ation 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 Indian self-identification, or of the estab-

lishment of tribal common land in the years immediately

following 1869, at a time when the Indians exercised virtu-

ally complete control of the area, may have had some bear-

ing 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 In-

* 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.

5la

dians from here and there and acquired a tribal status

by reason of organizing itself in a tribal manner, some-

where in the course of time between 1665 and 1723. [Tr.

40-53, 1. 1-6]

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 af-

ter the instruction, confusion was compounded by my con-

tradictory 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 state-

ments were out of the presence of the jury, and ..uld 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 activity 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 be-

ing)

52a

The jury’s actual negative answer is therefore susceptible

to two interpretations:

(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 guard-

ianship.

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 answers 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 remain-

ing answers.

Aside from all of these problems, the answer of the jury

that the plaintiff was not a tribe for purposes of the Non-

intercourse Act’ in 1976 was fully supported by the evi-

dence of the circumstances of the plaintiff’s existence in

Mashpee at that time.

V. Orper

Accordingly, the answers of the jury to the special inter-

rogatories shall stand. These answers require that this ac-

tion be Dismtssep on the merits, the plaintiff not having

established its standing to bring suit as an Indian tribe.

So Ordered.

*The standards of that Act, at least as I have interpreted it,

‘ require that a tribe demonstrate a definable organization before it

ean qualify for the extraordinary 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 pro-

grams, concerning which I express no opinion.

53a

MEMORANDUM AND OrpeRS ON Various Motions

1. Plaintiff’s Motion for Entry of Fndings

The entry of findings requested by the plaintiff are in-

appropriate in view of the jury’s answers to special inter-

rogatories. Moreover, the subject of land title was reserved

as a matter of law rather than of fact, given the undisputed

documentary evidence and the jury’s answers. Insofar as

presently material, my conclusions of law are embodied in

the accompanying memorandum on the defendants’ motion

for judgment. Plaintiff’s motion is accordingly Dentep.

2. Defendants’ Motion for a Directed Verdict—the White

Settlement Exception

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 Narragansett Tribe of Indians v.

Southern Rhode Island Land Development Corp., 418 F.

Supp. 798, 808-809 (D.R.1.1976), and also for the reason

that the u derlying 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.

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

evidence is undisputed that by the early eighteenth century

the communities surrounding Mashpee had been substan-

tially settled by non-Indians and had been incorporated as

the towns of Falmouth, Sandwich and Barnstable.

In view of my reading of the statute, however, defendants’

motion for a directed verdict is Denrep.

54a

427 F.Supp. 899 (1977)

Masuree Triste, Plaintiff,

New Seasury Corp. et al., Defendants.

Civ. A. No. 76-3190-S.

United States District Court, D. Massachusetts.

February 28, 1977.

Memorandum and Order On Motion To Dismiss

Sxinver, District Judge.

This case came before me on January 24, 1977, for a

hearing on the defendant own of Mashpee’s (hereinafter,

the Town) motion to dismiss.

This is a defendant class action (see Memorandum and

Order of January 21, 1977) in which the Mashpee Tribe

(Lereinafter, the Tribe) seeks a declaration of its right to

povsession of certain land in the Town of Mashpee, “except-

ing, however, any portion of the subject land which consti-

tuted the actual site of the principal place of residence of

any individual as of the time of commencement of this ac-

tion.” The plaintiff seeks to be restored to possession of the

land, other than principal residences, and a declaration that

it is entitled to the fair rental value of any land continuing

in the possession of any defendant after entry of final judg-

ment in the action.

55a

The Tribe claims that all of the land it seeks was alienated

from the Tribe in violation of the Indian Nonintercourse

Act. 25 U.S.C. §177.' This Act states, in relevant part:

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

or of any title or claim thereto, from any Indian na-

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

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

vention entered into pursuant to the Constitution.

The purpose of this statute has been declared to be “to

prevent unfair, improvident or improper disposition by

Indians of land owned or possessed by them to other par-

ties... .” Federal Power Commission v. Tuscarora Indian

Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 555, 4 L.Ed.2d 584

(1960).

This court has subject matter jurisdiction of this claim

under 28 U.S.C. § 1331. Oneida Indian Nation v. County of

Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974).

The motion to dismiss rests on three asserted grounds:

(1) that by failing to allege official recognition, the Tribe

has failed to state a claim upon which relief may be granted,

_ Fed.R.Civ.P. 12(b) (6); (2) that the Tribe has failed to join

the United States as an indispensable party, Fed.R.Civ.P.

12(b)(7) and 19; and (3) that the Tribe has failed to join

the Commonwealth of Massachusetts as an indispensable

party, Fed.R.Civ.P. 12(b)(7) and 19.

Motion to Dismiss under Fed.R.Civ.P. 12(b)(6)

The elements of a prima facie case demonstrating that

§177 covers the land in question have been set forth in

* The Indian Nonintercourse Act was first adopted, in a form

substantially the same as it now appears, on July 22, 1790, 1 Stat.

137. It was subsequently reenacted several times: 1793, 1 Stat.

329; 1796, 1 Stat. 469, 472; 1799, 1 ‘at. 743, 746; and made

ee ae eee ee ee

177.

56a

Narragansett Tribe of Indians v. So. R.I. Land Develop.,

418 F.Supp. 798 (D.R.I.1976) (hereinafter, Narragansett),

as follows:

... plaintiff must show that:

1) it is or represents an Indian “tribe” within the mean-

ing of the Act;

2) the parcels of land at issue herein are covered by

the Act as tribal land;

3) the United States has never consented to the alien-

ation of the tribal land;

4) the trust relationship between the United States and

the tribe, which is established by coverage of the Act,

has never been terminated or abandoned.

418 F.Supp. at 803; see Joint Tribal Council of the Passa-

maquoddy Tribe v. Morton, 528 F.2d 370 (ist Cir. 1975),

aff'g, 388 F.Supp. 649 (D.Me.1975) (hereinafter Passama-

quoddy).

The Town singles out the first of these elements as having

been defectively alleged. It claims that the plaintiff must

plead that it is “recognized” as a tribe by Congress or its

delegate. Absent such an allegation, says the Town, this

court is faced with a non-justiciable political question.

This argument is virtually identical to one raised by de-

fendants and rejected in a carefully reasoned memorandum

in Narragansett, supra at 813-815. As in that case, none of

the elements which would constitute a non-justiciable politi-

cal question as set forth in Baker v. Carr, 369 U.S. 186,

217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), are present here.’

Recognition as a tribe by the executive branch of govern-

ment, while it would be relevant in determining whether a

* See also Delaware Tribal Business Committee v. Weeks, ——

US. ——, 97 8.Ct. 911, 51 L.Ed.2d 173 (1977).

57a

group is a tribe under the Indian Nonintercourse Act, is not

necessary to such a determination. Passamaquoddy, supra

at 377-378; Narragansett, supra at 813-815. Indeed, recogni-

tion as a tribe by Congress or its executive delegate may

not even be sufficient to bring a group within its authority

if a court, ‘‘[a]ble to discern what is ‘distinctly Indian,’ ”’

strikes down a heedless or arbitrary extension of the label.

Baker v. Carr, supra 369 U.S. at 215-217, 82 S.Ct. at 710.

As Passmaquoddy pointed out, “[t)here is nothing in the

Act to suggest that ‘tribe’ is to be read to exclude a bona

fide tribe not otherwise federally recognized.” Passama-

quoddy, supra at 377.

Once Congress has determined, as it did here, to include

tribes generally within the coverage of an act, Passama-

quoddy, supra, a court is competent to determine whether

a given aggregate of individuals constitutes a tribe. Narra-

gansett, supra; see United States v. Washington, 520 F.2d

676 (9th Cir. 1975, cert. denied, 424 U.S. 978, 96 S.Ct. 1487,

47 L.Ed.2d 750 (1976). The applicable (and “judicially

manageable”) standard for such a determination is to be

found in the definition of “Indian tribe” in Montoya v.

United States, 180 U.S. 261, 266, 21 S.Ct. 358, 359, 45 L.Ed.

521 (1901), and the cases in which that definition has been

applied.

A “tribe”, according to Montoya, is:

.. . & body of Indians of the same or a similar race,

united in a community under one leadership or govern-

ment, and inhabiting a particular, though sometimes

ill-defined, territory.

Montoya, supra, quoted, e. g., United States v. Candelaria,

271 U.S. 432, 442, 46 S.Ct. 561, 70 L.Ed. 1023 (1926) ; Passa-

maquoddy, supra at 377, n. 8; Narragansett, supra at 815.

In Candelaria, supra, the Supreme Court found the Pueb-

los to be a tribe within the terms of this definition, thus

overruling a contrary result in United States v. Joseph,

58a

94 U.S. 614, 24 L.Ed. 295 (1876), but leaving intact an ad-

ditional standard suggested in Joseph: that the tribe for

purposes of the Nonintercourse Act consists of “simple

uninformed people.” A tribe may thus be so sophisticated

or assimilated as to fall outside of the scope of protection

afforded by the Nonintercourse Act. Passamaquoddy, supra

at 378 (dictum) ; see Candelaria, supra; Joseph, supra; cf.

The Kansas Indians, 5 Wall. (72 U.S.) 737, 755-757, 18

L.Ed. 667 (1866); United States v. Cisna, 25 Fed.Cas.No.

14,795 422 (C.C.D. Ohio 1835).

The Tribe has then sufficiently alleged its status. Whether

it meets the criteria for protection under the Noninter-

course Act is a question of fact which is susceptible of

proof like any other. Accordingly, the Town’s motion to

dismiss under Rule 12(b)(6) is Dentep.

Motion to Dismiss for Failure to Join the United States

The Town seeks to have the United States joined under

Rule 19(a) if it has waived sovereign immunity, but if not,

it seeks to have the action dismissed for failure to join an

indispensable party under Rule 19(b).

Tt is well established that a tribe may sue on its own be-

half to protect its rights in real property without the par-

ticipation of the United States as a plaintiff. Z. g., Poafpy-

bitty v. Skelly Oil Co., 390 U.S. 365, 88 S.Ct. 982, 19 L.Ed.

2d 1238 (1968) (involving individual Indian); Creek Na-

tion v. United States, 318 U.S. 629, 63 S.Ct. 784, 87 L.Ed.

1046 (1943); Lane v. Pueblo of Santa Rosa, 249 U.S. 110,

39 S.Ct. 185, 63 L.Ed. 504 (1919); Chocktaw & Chickasaw

Nations v. Seitz, 193 F.2d 456 (10th Cir. 1951) cert. denied,

434 U.S. 919, 72 S.Ct. 676, 96 L.Ed. 1332 (1952); Narra

gansett, swpra; see Moe v. Salish & Kootenai Tribes, 425

U.S. 463, 472-473, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) ;

Oneida Indian Nation v. County of Oneida, 464 F.2d 916,

919 n. 4 (2d Cir. 1972), rev’d on other grounds, 414 U.S.

661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974).

59a

It is also well established that the United States would

not be bound by a result in this action adverse to the Tribe.

United States v. Candelaria, supra; see also, Poafpybitty,

supra 390 U.S. at 371, 88 S.Ct. 982; Fort Mojave Tribe v.

Lafollette, 478 F.2d 1016 (9th Cir. 1973); Seitz, supra;

Narragansett, supra at 810.

Under these circumstances, as the parties agree, the

United States would be a proper party for joinder under

Rule 19(a) if it had waived sovereign immunity. It has

not done so. The general consent to suit against the United

States in civil actions to adjudicate disputed title where the

United States claims expressly excludes actions, like the

one at bar, which involve “trust or restricted Indian lands”.

The Town relies on United States v. Phillips, 362 F.Supp.

462 (D.Neb. 1973), for the proposition that where it has

not been determined that land is “trust or restricted In-

dian lands”, the United States has effectively waived sov-

ereign immunity in § 2409a. The major ground in Phillips

for finding a waiver, however, was that the United States

brought the action to quiet title in the first place and had

thus waived immunity with respect to the very issues raised

in a counterclaim by the defendant to quiet title. There is no

basis for extending the waiver to an action which the

United States has not voluntarily initiated. Such an exten-

sion would violate both the requirement that a statutory

waiver of sovereign immunity be strictly construed, Nicker-

son v. United States, 513 F.2d 31, 33 (1st Cir. 1975), and

the rule that ambiguities in statutes relating to Indians

should never be construed to the Indian’s prejudice. Passa-

maquoddy, 528 F.2d at 380.

Since the United States may not be compelled to join in

this action, the question becomes whether in equity the

action ought to be dismissed under Rule 19(p). Courts have

consistently followed the lead of Seitz, supra, in refusing

to rule that the United States is an indispensable party

where the Indians sue to enforce federally protected rights.

60a

E. g., Poafpybitiy, supra; Fort Mojave Tribe v. Lafollette,

supra; Narragansett, supra.

The Town argues, however, that one important factor

contributing to the results in those cases has since disap-

peared, because Indians now have an adequate alternative

remedy in the event of a dismissal.

Contrary to the assertion of the Town, Passamaquoddy,

pra, does not give a tribe the right to compel the United

States to bring suit to recover possession for the Tribe.

That case stands only for the power of the court to review

a refusal by the United States to bring an action on behalf

of a tribe where the refusal rests solely on the ground that

a fiduciary relationship does not exist. See Passamaquoddy,

388 F.Supp. at 664-666.

The Town also asserts that Edwardsen v. Morton, 369

F.Supp. 1359 (D.D.C.1973), describes an alternative rem-

edy available to Indians. The case is inapposite in that it

deals with liability for specific affirmative action alleged to

be in violation of the government’s fiduciary duty over land

formerly under the direct control of the Department of the

Interior. The case teaches nothing about the right of In-

dians to require the United States or its representatives to

enforce claims against third parties in its fiduciary ca-

pacity.

The availability and nature of such direct relief is too

doubtful to warrant dismissal under Rule 19(b). See gen-

erally, Chambers, Judicial Enforcement of the Federal

Trust Responsibility to Indians, 27 Stan.L.R. 1213 (1975).

Accordingly, the Town’s motion to dismiss for failure to

join the United States as an indispensable part is Dentep.*

Seitz, supra; Narragansett, supra.

*The United States is, however, invited to intervene as it has

been in Narragansett, 418 F.Supp. at 810-811.

6la

Motion to Dismiss for Failure to Join Massachusetts

The Town asserts that the Commonwealth may hold a

superior claim to defendants in this action if the Tribe

proves that the Nonintercourse Act applies to the subject

land. On that basis, the Town seeks joinder of the Com-

immunity anu dismissal under Rule 19(b) if not.

; The Tribe’s claim, however, is to possessory rights, or

rights of occupancy, as against defendants now keeping

the Tribe out of possession. See Oneida Indian Nation v.

County of Oxueida, 414 U.S. at 667, 94 S.Ct. 772. The exist-

ence of any rights in fee in the Commonwealth would be

contingent upon the Tribe’s success in its claim and on the

Commonwealth showing it had not transferred its rights.

See Fellows v. Blacksmith, 19 How. (60 U.S.) 366, 15 L.Ed.

684 (1856). Lack of resolution of such an issue will not

prevent there being complete relief among those already

parties concerning possessory rights. Nor will it subject

any parties to a substantial risk of incurring inconsistent

obligations as to possession or practically impair the Com-

monwealth’s ability to protect its interest. ‘Thus, there is no

ground for attempting to join the Commonwealth under

Rule 19(a), nor, of course, is it an indispensable party

under Rule 19(b). Accordingly, the Town’s motion to join

Massachusetts under Rule 19(a) or to dismiss under Rule

19(b) is Denrep.

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.