Bingham, et al v. Commonwealth of Massachusetts, et al

Filing 920100730

Opinion

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var WPFootnote1 = '                   The Hon. David H. Souter, Associate Justice (Ret.) of the\
Supreme Court of the United States, sitting by designation.\
'

var WPFootnote2 = '                   Our review of a motion to dismiss on grounds of standing\
is ordinarily confined to the complaint and to "further\
particularized allegations of fact deemed supportive of plaintiff\'s\
standing." Warth v. Seldin, 422 U.S. 490, 501 (1975). However,\
the text of the deeds and earlier judicial opinions addressing\
prior, related claims to the land in the Town fall under a narrow\
exception, which allows courts to additionally consider "official\
public records" and "documents sufficiently referred to in the\
complaint," among other materials. Alt. Energy, Inc., 267 F.3d at\
33-34. \
'

var WPFootnote3 = '                   Because plaintiffs claim property rights based on formal\
deeds they say the Pilgrims granted, we understand plaintiffs\'\
claim as not relying on the theory of aboriginal title. See N.\
Newton et al., Cohen\'s Handbook of Federal Indian Law § 15.04[2],\
at 969-70 & 969 n.28 (2005 ed.) (describing different ways in which\
Indian tribes and individual Indians have obtained interests in\
real property). Aboriginal title (also called "original Indian\
title") derives from the tribe\'s continuous possession of lands and\
is a "right of occupancy in the Indian tribes . . . good against\
all but the sovereign," Oneida Indian Nation v. Cnty. of Oneida,\
414 U.S. 661, 667 (1974), as distinguishable from fee title, see\
James v. Watt, 716 F.2d 71, 74 (1st Cir. 1983). \
'

var WPFootnote4 = '                   We use the term "Indians," as opposed to "Native\
Americans," for the sake of consistency with the language of the\
original deeds and relevant statutes. \
'

var WPFootnote5 = '                   The 1869 act, entitled "An Act to Enfranchise the Indians\
of the Commonwealth," was a general recognition statute that also\
conferred full citizenship on "[a]ll Indians . . . within this\
Commonwealth." Section 1 of the law declared all Indians "to be\
citizens of the Commonwealth, and entitled to all the rights,\
privileges and immunities, and subject to all the duties and\
liabilities to which citizens of this Commonwealth are entitled or\
subject." 1869 Mass. Acts ch. 463, § 1. \
'

var WPFootnote6 = '                   The 1869 act permitted but did not require any Indian to\
alienate his lands. 1869 Mass. Acts ch. 463, § 2. Some have\
viewed the act as beneficial to the Indians because it added to the\
bundle of property rights the same rights of alienation as others\
held. See, e.g., James, 716 F.2d at 75. Plaintiffs\' complaint\
simply alleges the act was a source of unidentified harm to their\
ancestors\' property rights.\
'

var WPFootnote7 = '                   Plaintiffs did not assert claims under any other specific\
constitutional provisions or statutes applicable to Indian tribes,\
such as the Indian Commerce Clause, U.S. Const. art. I, § 8, cl. 3,\
or the Indian Nonintercourse Act (INA), 25 U.S.C. § 177. \
Plaintiffs have also consistently portrayed the instruments at\
issue as deeds, not treaties.\
              Plaintiffs\' complaint cursorily asserted that the Town and\
Commonwealth had "violated the plaintiffs\' rights pursuant to\
federal common law and federal Indian policies through their\
ongoing claim, holding, and/or use and occupancy of portions of the\
subject land." That language is too vague to state a claim on\
these grounds under any standard. \
'

var WPFootnote8 = '                   We bypass the Commonwealth\'s arguments that our\
precedents involving these instruments conclusively interpreted\
this language. The Commonwealth cites Mashpee I, 447 F. Supp. 940,\
and Mashpee Tribe v. Watt (Mashpee II), 542 F. Supp. 797 (D. Mass.\
1982), aff\'d, 707 F.2d 23 (1st Cir. 1983), in support of its\
contention. In neither case was the district court faced with\
construing the 1665 deed. And those arguments were not at issue in\
the appeals to this circuit, which affirmed on other grounds not\
relevant to the issue of land status.\
              Indeed, those earlier cases concerning the Mashpee Tribe\'s\
claims to the subject lands at issue here concerned different\
issues entirely. Mashpee I primarily discussed claims under the\
INA asserted by the "Mashpee Tribe" as a collective tribe. \
Plaintiffs\' primary theory was that the 1869 and 1870 acts lifted\
restraints on alienation in violation of the INA, which permits\
only the federal government to do so. See New Seabury Corp., 592\
F.2d at 579; Mashpee I, 447 F. Supp. at 942-43. Mashpee II\
involved claims under the INA, Indian Commerce Clause, and\
Supremacy Clause by individual tribal members as well as the tribe. \
The district court held, and this circuit affirmed, that only the\
tribe had standing to bring such claims and that Mashpee I had\
conclusively established that the Mashpee Tribe was not recognized\
as a tribe under federal law. 707 F.2d at 24-25; 542 F. Supp. at\
800-06. We do not decide what effect the Department of the\
Interior\'s 2007 designation of the Mashpee Wampanoag as a federally\
recognized tribe has on those opinions. \
'

var WPFootnote9 = '                   Indeed, the tribe and its authorized representatives have\
repeatedly and strenuously disavowed plaintiffs\' suit. In April\
2008, the tribe entered into an agreement with the Town in which it\
received certain Town lands in exchange for waiving all claims to\
property located within the Town. On November 5, 2008, the tribe\
further distanced itself from plaintiffs\' suit, formally resolving\
at a tribal council meeting that "the Tribal Counsel condemns the\
land claim action brought by Steven Bingham and Amelia Bingham." \
'

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