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News - 2019

Nov. 2019

Ben Wish quoted in Law360 article on Indian tribe's appeal

Benjamin J. Wish was quoted in a Law360 article on the 1st U.S. Circuit appeal of the Mashpee Wampanoag Indian Tribe, a federally recognized Indian tribe, challenging the decision of  a federal district court judge in Massachusetts that the U.S. Department of the Interior lacked the authority to take land into trust for the benefit of the Tribe.

The Department's decision to take the Tribe's land into trust was a critical reversal of fortune for the Tribe, which had suffered through four centuries of drastic land theft and outright violence at the hands of non-Indian governments including the United States.

The District Court judge, however, ruled that the Department lacked the authority to take land into trust on the basis that the Tribe does not qualify as “Indian” under federal law.  In the Indian New Deal, the term "Indian" is defined, in part, as “[1] members of any recognized Indian tribe now under federal jurisdiction [in 1934] and [2] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of an Indian reservation."  The Department took the Tribe’s land into trust under the second definition of “Indian” relating to reservations.

At issue in the appeal is the interpretation of the word "such" in the provision defining the term "Indian."  The District Court judge interpreted "such members" to unambiguously refer to the entirety of the first definition, namely, “members of any recognized Indian tribe now under federal jurisdiction [in 1934].”  There was no evidence in the record regarding whether the Tribe was under federal jurisdiction in 1934.

By ruling that “such members” was unambiguous, "the district court not only blazed an unjustified and novel interpretive path but also undercut the core intent of the [statute] to provide Indian tribes like appellant with the ability to regain at least some fraction of the lands stolen and defrauded from them over the centuries," Mr. Wish wrote in the brief.

The ambiguous term “such members,” according to the Tribe, must be interpreted to refer solely to members of any recognized Indian tribe, as the Department did.  Particularly where the Indian New Deal is a remedial statute intended to rectify the disastrous harm inflicted upon Indian tribes, its ambiguous provisions must be interpreted generously to aid Indian tribes, the Tribe argues.

"After four hundred years of land theft, outright violence, and oppression, the Mashpee Wampanoag Indian Tribe is entitled to its own sovereign land, as the Department of the Interior recognized and as Congress intended through the Indian New Deal," Mr. Wish told Law360.

Howard M. Cooper and Max D. Stern of the firm also represent the tribe in the case.