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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979

## 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.

tl

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

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,
v.

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

2

(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"?

3

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.

4

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

5

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@).

6

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.

7

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.

8

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.

9

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.

10

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

11

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.

12

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).

13

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.’’

14

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.

15

‘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).

16

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).

;
4
4
4
4
:

17

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.

18

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.

19

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

la
APPENDIX
$92 F.2d 575 (1979)

MasHpee Trips, Plaintiff, Appellant,
v.

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

MasuHpre Trise, Plaintiff, Appellee,
v.

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

MasuHpee Trise, Plaintiff, Appellee,
v.

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-

2a

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?

No

b. March 31, 1834: The date on which the District of
Marshpee was established. [sic]

Yes

3a

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?

No

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]

No

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?

No

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).

ta

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.”

5a

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.

6a

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.

7a

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

8a

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).

9a

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.

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

a
‘°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.

V.

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,
v.
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?

No

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?

No

e. May 28, 1870: The date on which the Town of
Mashpee was incorporated by act of legislature of
the Commonwealth of Massachusetts: [sic]

No

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?

No

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?

No

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0549%3A1. Public record. Not legal advice.