Dear USET/USET SPF Family,
We write in celebration of the U.S. Supreme Court’s denial of a Petition for Certiorari challenging the Department of the Interior’s acquisition of land into trust for the Mashpee Wampanoag Tribe.
"We rejoice with our Mashpee relatives as they turn the page on this painful chapter and look forward toward the continued restoration of their homelands and Nation rebuilding," said USET/USET SPF President, Chief Kirk Francis.
This decision is part of a larger story spanning years and multiple rounds of litigation. In 2009, the Supreme Court in Carcieri v. Salazar interpreted the Indian Reorganization Act (IRA) to require a Tribal Nation to have been “under Federal jurisdiction” when the IRA was enacted in 1934 to be eligible to acquire trust land under the IRA’s first definition of “Indian.”
In 2015, Interior approved a trust acquisition under the IRA for Mashpee, but it did so under the IRA’s second definition of “Indian,” thereby avoiding the under federal jurisdiction assessment. Plaintiffs challenged that decision, and a reviewing court said the second definition still requires a Tribal Nation to have been under federal jurisdiction in 1934. The court vacated and remanded the decision back to Interior to determine whether Mashpee was under federal jurisdiction in 1934.
In 2018, Interior issued a new decision, this time taking the position that Mashpee was not under federal jurisdiction in 1934. Mashpee challenged that decision, and USET SPF prepared an amicus brief in support of Mashpee. We informed the court that Interior was undertaking a series of actions to restrict its trust acquisition authority—including revoking the 2014 Carcieri M-Opinion and issuing new guidance—without a legal impetus to do so, in violation of its legal obligations to interpret its IRA trust acquisition authority broadly, and without Tribal consultation. The court struck down Interior’s decision, concluding Interior had not properly applied its own standards. Again, the decision was vacated and remanded to Interior, with direction to issue a decision consistent with the 2014 M-Opinion’s standards and the evidence permitted therein, Interior’s prior decisions applying those standards, and the court’s own decision.
In 2021, Interior issued a decision that was positive for Mashpee, concluding Mashpee was under federal jurisdiction in 1934 and therefore eligible to acquire trust land under the IRA in accordance with the Carcieri decision. Again, plaintiffs challenged that decision, which was upheld by the lower court and then the U.S. Court of Appeals for the First Circuit.
Thereafter, the case came before the U.S. Supreme Court on a Petition for Certiorari. On April 1, 2024, the Court denied the Petition. We celebrate what we hope is the end of Mashpee’s journey to its recognized status as eligible for trust land under the IRA. Mashpee can now continue its efforts to rebuild its homelands with the certainty that they will remain in trust.
The Case Number before the U.S. Supreme Court is 23-839, and the Case Number before the U.S. Court of Appeals for the First Circuit is 23-1197.
For more information, please contact Liz Malerba, USET SPF Director of Policy and Legislative Affairs, at lmalerba@usetinc.org or Katie Klass, USET SPF General Counsel, at kklass@usetinc.org.
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