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Mashpee Wampanoagv. Bernhardt: A Tale of
Two Definitions of Indian
August 17,2020
On June 6, 2020, in Mashpee 4i4nPpanoag v. Bemhanlth (Mashpee), the U.S. District Court for the District
of Columbia (D.C. District Court) gave the Mashpee Wampanoag Tribe (Tribe or Mashpee Tribe) another
opportunity to retain reservation status for land in Taunton and Mashpee, Massachusetts, that the
Department of the Interior (DOI) had taken into trust and declared eligible for gaming as an initial
reservation in 2015. The agency's Record of Decision to take the land into trust (2015 ROD) relied on
DOI's interpretation that the Mashpee Tribe met the s ec ond of alternative definitions of Indian in the
Indian Reorganization Act (IRA), the principal statute providing DOI authority to take land into trust for
Indians. In 2016, the U.S. District Court for Massachusetts (Massachusetts District Court) disagreed wih
DOI, holding that the Tribe did not satisfy that definition.
DOI then reviewed the land-into-trust application under the other IRA definition of Indian, and in 2018
released a decision (20 18 ROD) determining that the Tribe did not satisfy that definition either.
Consequently, DOI rejected the Tribe's application. The Tribe challenged the 2018 ROD in the D.C.
District Court. In the meantime, the Mashpee Tribe appealed the Massachusetts District Court decision,
and the U.S. Court of Appeals for the First Circuit (First Circuit) affirmed that decision in February 2020.
DOI then began revoking trust and reservation status of the land. The Tribe added a motion to enjoin DOI
from taking the land out of trust to its challenge to the 2018 ROD in the D.C. District Court. In the June 6,
2020 decision, the D.C. District Court held that the 2018 ROD was arbitrary and capricious under the
Administrative Procedure Act (APA), remanded the decision to DOI for reconsideration, and temporarily
en joined DOI from taking the land out of trust. This Sidebar examines the two cases involving the Tribe's
trust acquisition application and their possible implications for Congress. It begins with an overview of
the statutory process by which DOI may take land into trust, the Supreme Court's interpretation of the
IRA in Carcieri v. Salazar, and DOI's post-Carcieri guidance, which underpinned the Mashpee litigation.
The IRA, Carcieri, and DOI's Post-Carcieri Guidance
The IRA authorizes DOI to take land into trust for Indians. The statute provides two alternative
definitions of the term Indian at issue in this case:
[1] all persons ofIndiandescentwho are members ofanyrecognized Indiantribe nowunderFederal
jurisdiction, and
Congressional Research Service
https://crsreports.congress.gov
LSB10533
CRS Lega i&sebar
Prepa red.r Memn bersand
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