On today’s episode of A Hard Look, a Junior Staffer on ALR, Olivia Miller, joins host, Sarah Knarzer, and Professor Matthew Fletcher to discuss the tribal recognition process and the barriers it poses to tribes across the United States, and in particular the Mashpee Wampanoag tribe. Earlier this year, and in the middle of a surging coronavirus pandemic, the Bureau of Indian Affairs announced its intention to revoke the Mashpee Wampanoag’s land from its federal trust. This action is only a continuation of the Mashpee Wampanoag’s four hundred year struggle for tribal survival, dating back to the origins of the Thanksgiving myth.
Olivia and Professor Fletcher discuss Olivia’s comment, which she wrote as part of ALR’s comment writing process, to identify why the tribal recognition process is such a difficult, expensive, and frustrating administrative process for tribes who want and need to be federally recognized.
HuffPo. [with link to Trump’s bigoted testimony against the tribe in 1993]
The Mashpee Wampanoag Tribe of Massachusetts is currently involved in federal litigation against the U.S. Department of Interior, challenging its decision that the Indian Reorganization Act of 1934 did not bring it under federal jurisdiction.
See the filings below:
Doc 1 – Complaint
Doc 15 – Intervenors’ Motion to Transfer Venue
Doc 17 – Memo in Opp to Motion to Transfer Venue
Doc 20 – Reply in Support of Motion to Transfer
Doc 21 – Order on Motion to Transfer
Here are the materials, so far, in Littlefield et. al. v. U.S. Department of Interior (D. Mass.):
Doc. 1 – Complaint for Declaratory and Injunctive Relief
Doc. 10 – United States’ Memorandum of Law in Support of Motion for Partial Dismissal
Plaintiffs’ Fifth Cause of Action seeks a declaration that the IRA, enacted over eighty years ago, is unconstitutional. Plaintiffs specifically allege that the IRA’s provision authorizing the Secretary to acquire land in trust on behalf of federally-recognized Indian tribes somehow reflects an unconstitutional delegation of legislative authority. This legal question, however, has long been resolved against Plaintiffs by all courts to consider it, including the First Circuit in a decision binding on this Court. Federal courts have held, consistently and repeatedly, that the Secretary’s authority to acquire land in trust under the IRA does not violate the United States Constitution because there are sufficient intelligible principles provided in the statute and its legislative history to guide the Secretary’s discretion whether to acquire land in trust on behalf of a tribe. Moreover, it has been over 85 years since the Supreme Court invalidated any statute on the grounds of excessive delegation of legislative authority. The Supreme Court in fact has only found two statues to be a violation of the non-delegation doctrine, neither of which are comparable to the statute at issue here. Accordingly, the Court must dismiss Plaintiffs’ Fifth Cause of Action.
Here are the materials in Ramos v. Bureau of Indian Affairs (D. Mass.):
9 Amended Complaint
11 BIA Motion to Dismiss
12 Ramos Response
15 BIA Reply
22 DCT Order Dismissing Claim
The Plaintiffs, enrolled members of the Mashpee Wampanoag Tribe (“Tribe”), have sued the Defendants, the Bureau of Indian Affairs (“BIA”); Michael Black, Director of the BIA; Mike Smith, Deputy Director; Franklin Keel, Regional Director; and Kevin Washburn, Assistant Secretary (collectively, the “Defendants”) seeking an injunction requiring the Defendants to conduct an investigation into the Tribe’s 2009 election and to take action to ensure that the Tribe’s elections are properly conducted. D. 9 at 10. The Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction, failure to state a claim and failure to join a necessary party. D. 10. Because the Court concludes that it does not have subject matter jurisdiction over this matter, the Court ALLOWS the motion to dismiss.