United States Court of Appeals For the First Circuit

No. 23-1197

DAVID LITTLEFIELD; MICHELLE LITTLEFIELD; TRACY ACORD; DEBORAH CANARY; FRANCIS CANARY, JR.; VERONICA CASEY; PATRICIA COLBERT; VIVIAN COURCY; WILL COURCY; DONNA DEFARIA; ANTONIO DEFARIA; KIM DORSEY; KELLY DORSEY; FRANCIS LAGACE; JILL LAGACE; DAVID LEWRY; KATHLEEN LEWRY; MICHELE LEWRY; RICHARD LEWRY; ROBERT LINCOLN; CHRISTINA ALMEIDA; CAROL MURPHY; DOROTHY PEIRCE; DAVID PURDY,

Plaintiffs, Appellants,

v.

U.S. DEPARTMENT OF THE INTERIOR; DEBRA HAALAND, in her official capacity as Secretary of the Interior; BUREAU OF INDIAN AFFAIRS; BRYAN NEWLAND, in his official capacity as Assistant Secretary for Indian Affairs; MASHPEE WAMPANOAG INDIAN TRIBE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Angel Kelley, U.S. District Judge]

Before

Montecalvo, Lynch, and Rikelman, Circuit Judges.

David H. Tennant, with whom Kathy L. Eldredge, Law Office of David Tennant PLLC, David J. Apfel, and Goodwin Procter LLP were on brief, for appellants. Christopher Anderson, Attorney, Department of Justice, Environment and Natural Resources Division, with whom Todd Kim, Assistant Attorney General, and Mary Gabrielle Sprague, Attorney, were on brief, for federal appellees. Tami Lyn Azorsky, with whom V. Heather Sibbison, Suzanne R. Schaeffer, Samuel F. Daughety, Catelin Aiwohi, and Dentons US LLP were on brief, for appellee Mashpee Wampanoag Indian Tribe.

October 31, 2023 LYNCH, Circuit Judge. Appellants David and Michelle

Littlefield and twenty-two others assert the district court erred

in rejecting their challenge to a decision by the Department of

the Interior's Bureau of Indian Affairs ("BIA"), made in 2015 and

reaffirmed in 2021, to take two parcels of land in Massachusetts

into trust for the Mashpee Wampanoag Indian Tribe ("the Tribe").

The Secretary of the Interior has the power to take land into trust

pursuant to the Indian Reorganization Act ("IRA") "for the purpose

of providing land for Indians."

. Appellants

have abandoned any Chevron challenge to the Secretary's legal

interpretation of section 19 of that statute,

,

defining the term "Indians." Accordingly, we determine only

whether the BIA's application of its legal interpretation to the

facts was "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law" under the Administrative

Procedure Act ("APA"),

(2)(A). We uphold the BIA's

determination and affirm on somewhat different reasoning than the

district court.

I.

A. Prior relevant legal proceedings

The Secretary of the Interior may, under the IRA,

"acquire land and hold it in trust 'for the purpose of providing

land for Indians.'" Carcieri v. Salazar,

, 381-82

- 3 - (2009) (quoting

, then codified at

). Section 19 of the statute defines the term "Indian" as:

[1] all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and [2] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include [3] all other persons of one-half or more Indian blood.

(numbers in brackets added).

In Carcieri, the Supreme Court, interpreting the word

"now" in the first definitional phrase in this section, held that

it "unambiguously refers to those tribes that were under the

federal jurisdiction of the United States when the IRA was enacted

in 1934." Carcieri,

. As such, the Secretary must

first have determined, before acquiring land for a tribe pursuant

to the first definition of "Indian," that the tribe was under

federal jurisdiction in 1934.

The Carcieri decision did not

address the meaning of the phrase "under Federal jurisdiction."

In Littlefield v. Mashpee Wampanoag Indian Tribe, a

decision of this Court concerning the Mashpee Tribe, we held that

the clause "under Federal jurisdiction" contained in the first

definition of "Indian" also applies to the second definition.

(1st Cir. 2020). The term "such members" in that

definition refers to the entire antecedent clause "members of any

recognized Indian tribe now under Federal jurisdiction." See

- 4 - In 2014, the Solicitor of the Department of the Interior

issued a legal interpretation of the phrase "under Federal

jurisdiction" in a memorandum ("the M-Opinion").1 U.S. Dep't of

Interior, M-37029, The Meaning of "Under Federal Jurisdiction" for

Purposes of the Indian Reorganization Act (Mar. 12, 2014). The M-

Opinion also addressed whether a tribe must have been "recognized"

as of 1934. M-Opinion at 23-24; see

(defining as

"Indian," among others, "all persons of Indian descent who are

members of any recognized Indian tribe now under Federal

jurisdiction" (emphasis added)). The M-Opinion, agreeing with

Justice Breyer's concurrence in Carcieri, found that "the IRA does

not require that the agency determine whether a tribe was a

'recognized Indian tribe' in 1934; a tribe need only be

'recognized' at the time the statute is applied." M-Opinion at

25.

The D.C. Circuit and the Ninth Circuit have upheld

against Chevron challenges the M-Opinion's interpretation of the

phrase "under Federal jurisdiction," as well as its conclusion

that recognition need only be shown as of the time that the

Secretary invokes the statute. Confederated Tribes of Grand Ronde

1The M-Opinion is binding on the Department and its officials unless withdrawn. Mashpee Wampanoag Tribe v. Bernhardt,

, 208 (D.D.C. 2020). Interior withdrew the M- Opinion in March 2020,

, but reinstated it in April 2021. The agency applied the M-Opinion's standards in the decision that is at issue in this case.

- 5 - Cmty. of Or. v. Jewell,

(D.C. Cir. 2016);

County of Amador v. U.S. Dep't of the Interior,

(9th Cir. 2017).

B. Prior relevant determinations

In 2007, the BIA granted formal recognition to the

Tribe.2 Final Determination for Federal Acknowledgment of the

Mashpee Wampanoag Indian Tribal Council Inc. of Massachusetts,

-01 (Feb. 22, 2007). Shortly after the recognition

decision, the Tribe requested that Interior take into trust for

its use two parcels of land in Massachusetts, one in Mashpee and

the other in Taunton.

In 2015, Interior issued a Record of Decision ("2015

ROD") approving the Tribe's request. The BIA found that the Tribe

was eligible to have land taken into trust because it qualified

under the second definition of "Indian" in the IRA. See

("The term 'Indian' as used in this Act shall include . . .

[2] all persons who are descendants of such members who were, on

June 1, 1934, residing within the present boundaries of any Indian

2 The BIA's 2015 Record of Decision provides a summary of the Tribe's history, in a section that is incorporated in the 2021 Record of Decision that is at issue in this case. Bureau of Indian Affairs, Record of Decision: Trust Acquisition and Reservation Proclamation for 151 Acres in the City of Taunton, Massachusetts, and 170 Acres in the Town of Mashpee, Massachusetts, for the Mashpee Wampanoag Tribe, at 101-17 (Sept. 18, 2015), https://www.bia.gov/sites/bia.gov/files/assets/public/oig/pdf/id c1-031724.pdf.

- 6 - reservation. . . ."). The agency did not consider whether the

Tribe met the requirement of being "under Federal jurisdiction" in

1934.

In February 2016, a group of Taunton residents (the

appellants in this case plus another individual), who opposed the

Tribe's plan to develop the land commercially, filed suit against

Interior in the U.S. District Court for the District of

Massachusetts, challenging the 2015 ROD. Littlefield v. U.S. Dep't

of Interior,

(D. Mass. 2016), aff'd sub

nom. Littlefield v. Mashpee Wampanoag Indian Tribe,

(1st Cir. 2020). The district court agreed with the plaintiffs

that the second definition of "Indian" in the IRA unambiguously

incorporates the "now under Federal jurisdiction" requirement from

the first definition. Littlefield,

. Because BIA

had found the Tribe to be eligible under the second definition

without considering whether it was under federal jurisdiction in

1934, the court vacated the agency's decision.

In a

subsequent order, the court clarified that Interior was permitted

to consider, on remand, whether the Tribe met the "now under

Federal jurisdiction" requirement.

In February 2020, this

Court affirmed the district court's ruling.

.

Meanwhile, in 2018, Interior issued a new Record of

Decision ("2018 ROD") finding that the Tribe was not "under Federal

jurisdiction" in 1934, and so did not qualify to have lands taken

- 7 - into trust.

. The Tribe then sued Interior in the U.S.

District Court for the District of Columbia ("D.D.C."), arguing

that the agency had misapplied the standards in the M-Opinion.

Mashpee Wampanoag Tribe v. Bernhardt,

, 217

(D.D.C. 2020). The court agreed.

. In a decision

issued in June 2020, it found that the "Secretary [had] misapplied

the M-Opinion by evaluating each piece of evidence in isolation,"

whereas the M-Opinion had stated that "a variety of actions

when viewed in concert may demonstrate that a tribe was under

federal jurisdiction,"

(quoting M-Opinion at 19). The court

also found that the Secretary's treatment of several pieces of

evidence was inconsistent with the M-Opinion's standards, e.g.,

, and with the agency's treatment of similar types of

evidence in prior decisions, and that the agency had not offered

a reasoned explanation for those inconsistencies, e.g.,

. As such, the court vacated the 2018 ROD and remanded to

Interior "for a thorough reconsideration and re-evaluation of the

evidence . . . consistent with this Opinion, the 2014 M-Opinion,

. . . and the Department's prior decisions."3

.

Interior revisited the issue in response to the vacate

and remand order and, in 2021, issued a new Record of Decision.

3 Interior filed a notice of appeal but later moved to dismiss the appeal. See Mashpee Wampanoag Tribe v. Bernhardt, No. 20-5237,

, at *1 (D.C. Cir. Feb. 19, 2021).

- 8 - Bureau of Indian Affairs, Mashpee Wampanoag Tribe, Trust

Acquisition Decision Letter (Dec. 22, 2021) [hereinafter "2021

ROD"]. The agency reevaluated the evidence in light of the M-

Opinion's standards and the D.D.C.'s instructions on remand,

concluding that the Tribe met the "under Federal jurisdiction"

requirement. 2021 ROD at 25. Interior also found that the Tribe

could conduct gaming activities on the land taken into trust

because the land qualified as the Tribe's "initial reservation"

under the Indian Gaming Regulatory Act ("IGRA").

(b)(1)(B)(ii); 2021 ROD at 31-54.

C. Procedural history of the litigation that gives rise to this appeal

The appellants in this action then filed suit in the

U.S. District Court for the District of Massachusetts, challenging

the 2021 ROD as "arbitrary, capricious, . . . or otherwise not in

accordance with law" under the APA.

(2)(A). They

argued that the Tribe did not, as of 1934, qualify as a "tribe"

within the meaning of the IRA, and that it was not "under Federal

jurisdiction." They also claimed that the parcel of land located

in Taunton was not eligible for gaming activities under the IGRA.4

After considering the parties' motions, the district

court granted summary judgment in favor of Interior and the Tribe,

finding that the 2021 ROD was not arbitrary or capricious.

4 The appellants have abandoned this challenge.

- 9 - Littlefield v. U.S. Dep't of the Interior, No. 22-CV-10273,

, at *15 (D. Mass. Feb. 10, 2023). The plaintiffs

appealed.

II.

We review de novo the district court's decision on the

parties' cross-motions for summary judgment. Bos. Redevelopment

Auth. v. Nat'l Park Serv.,

(1st Cir. 2016). Under

the APA, we "hold unlawful and set aside agency action, findings,

and conclusions found to be . . . arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law."

(2)(A). "Because the APA standard affords great deference to

agency decisionmaking and because the Secretary's action is

presumed valid, judicial review, even at the summary judgment

stage, is narrow." Visiting Nurse Ass'n Gregoria Auffant, Inc. v.

Thompson,

(1st Cir. 2006) (quoting Associated

Fisheries of Maine, Inc. v. Daley,

(1st Cir.

1997)).

We find agency action to be "arbitrary and capricious

when the agency 'relie[s] on improper factors, fail[s] to consider

pertinent aspects of the problem, offer[s] a rationale

contradicting the evidence before it, or reache[s] a conclusion so

implausible that it cannot be attributed to a difference of opinion

or the application of agency expertise.'" Bos. Redevelopment

Auth.,

(quoting Daley,

). Although

- 10 - the standard of review is highly deferential, we must conduct a

searching examination to ensure that the agency's decision is

reasonably supported by the administrative record. See, e.g., id.

at 48-49. Still, we "uphold an agency determination if it is

'supported by any rational view of the record.'" Marasco &

Nesselbush, LLP v. Collins,

(1st Cir. 2021)

(quoting Atieh v. Riordan,

(1st Cir. 2015)).

III.

The appellants' principal argument on appeal is that the

2021 ROD is "not in accordance with law,"

(2)(A),

because the Supreme Court's decision in Carcieri precludes a

finding that the Mashpee Tribe was "under Federal jurisdiction" in

1934. The appellants also argue that the Secretary's failure to

consider this argument makes the 2021 ROD arbitrary or capricious

under the APA.

The Carcieri case did not involve the Mashpee Tribe,

but, rather, the Narragansett Tribe, which is another tribe that

has historically resided in southern New England. See Carcieri,

. The Court held in Carcieri that the Narragansett

Tribe was not under federal jurisdiction in 1934.

.

The appellants argue that the "Narragansetts' historical record is

indistinguishable from the Mashpees['] from the 17th century on,"

and so the Secretary cannot conclude that the Mashpee Tribe was

- 11 - "under Federal jurisdiction" in 1934 "except by conflicting with

Carcieri."

This argument rests on many faulty premises, starting

with the appellants' misreading of Carcieri. The Court there held:

None of the parties or amici, including the Narragansett Tribe itself, has argued that the Tribe was under federal jurisdiction in 1934. . . . Moreover, the petition for writ of certiorari filed in this case specifically represented that "[i]n 1934, the Narragansett Indian Tribe . . . was neither federally recognized nor under the jurisdiction of the federal government." Respondents' brief in opposition declined to contest this assertion. Under our rules, that alone is reason to accept this as fact for purposes of our decision in this case. We therefore reverse the judgment of the Court of Appeals.

Carcieri, 555 U.S. at 395–96 (internal citations omitted and

alterations and second omission in original). The Court

"accept[ed] . . . as fact" that the Narragansett Tribe was not

under federal jurisdiction in 1934 because Interior had failed to

contest petitioners' assertion to that effect.

Although the

Court did suggest that the extremely limited evidence in the record

before it was not indicative of federal jurisdiction in 1934, see

, its conclusion rested on the parties' concessions

rather than on an analysis of the Narragansett Tribe's history,

. Indeed, given the Secretary's pre-Carcieri

interpretation of the statute, which did not consider a tribe's

jurisdictional status in 1934, "it is not surprising that neither

- 12 - he nor the Tribe raised a claim that the Tribe was under federal

jurisdiction in 1934: they simply failed to address an issue that

no party understood to be present." Carcieri,

(Souter, J., concurring).

The Carcieri holding with respect to the Narragansett

Tribe does not compel the Department as a matter of law, then, to

find that the Mashpee Tribe was also not "under Federal

jurisdiction" in 1934. The appellants point to some surface

similarities between the Mashpees and the Narragansetts, such as

the fact that they both had contact with 17th-century colonists

and were both subject to "assimilation/citizenship/detribalization

laws that ma[de] the[ir] tribal members citizens of the[ir

respective] state[s]." But those alleged similarities do not

require Interior to conclude that the Narragansetts' history is

indistinguishable from the Mashpees' in all relevant respects, and

much less that the two tribes' administrative records are

identical. As explained, Interior had no reason to compile

evidence that the Narragansetts were under federal jurisdiction in

1934 because its pre-Carcieri interpretation of the statute

obviated that requirement. See M-Opinion at 3 n.15 ("The issue of

whether the Narragansett Tribe was 'under federal jurisdiction in

1934' was not considered by the BIA in its decision [that led to

Carcieri], nor was evidence concerning that issue included in the

administrative record before the courts.").

- 13 - For the same reasons, we reject the argument that the

Secretary failed, arbitrarily, to compare the Mashpee Tribe's

history to the Narragansett's.5

IV.

The appellants also argue that the 2021 ROD is "not in

accordance with law" under the APA because, at the time the IRA

was enacted, the Mashpee Tribe was not a "tribe" within the meaning

of the first definition of "Indian" in the IRA. That definition

comprises "all persons of Indian descent who are members of any

recognized Indian tribe now under Federal jurisdiction."

. The appellants claim that, because a "tribe" must have

been "under Federal jurisdiction" in 1934, it must, as a matter of

logic, have been in existence at that time.6 We do not express a

view on this question of statutory interpretation because

appellants have not shown, as a matter of law, that the Mashpee

Tribe did not qualify as a "tribe" in 1934.

5 Because we dispose of the appellants' argument on the merits, we do not consider whether the D.D.C.'s rejection of the same argument in prior litigation between the parties, see Bernhardt, 466 F. Supp. 3d at 215 n.9, would preclude the appellants from raising it again here. 6 The appellants do not contend that the Tribe must have been "recognized" as of 1934. To the extent that they advance this argument in their reply brief, it is waived. United States v. Vanvliet,

, 265 n.3 (1st Cir. 2008) ("Arguments raised for the first time in a reply brief are waived.").

- 14 - The federal government formally acknowledged the Mashpee

Tribe as an Indian tribe in 2007. Final Determination for Federal

Acknowledgement of the Mashpee Wampanoag Indian Tribal Council,

Inc. of Massachusetts,

-01 (Feb. 22, 2007). As

part of that process, Interior evaluated the Tribe's historical

record and determined, among other things, that the Tribe has been

"identified . . . as an American Indian entity on a substantially

continuous basis since 1900,"

at 8007 (citing

(a) (2007)), that "a predominant portion" of the Tribe

"comprise[d] a distinct community and has existed as a community

from historical times until the present,"

(citing

(b) (2007)), and that the Tribe "has maintained political

influence or authority over its members as an autonomous entity

from historical times until the present,"

at 8008 (citing

(c) (2007)). Given those findings, a determination

that the Mashpee existed as a tribe in 1934 is supported by a

rational view of the record. See Collins,

("[C]ourts should uphold an agency determination if it is

'supported by any rational view of the record.'" (quoting Riordan,

)).

The appellants argue that the Secretary was in error

because the modern criteria for federal acknowledgment of a tribe

are irrelevant, as they postdate passage of the IRA, and the term

"tribe" in the statute unambiguously refers to the definition

- 15 - proposed by the Supreme Court in Montoya v. United States,

(1901). Interpreting a statute not at issue here, the

Court noted in that case that "[b]y a 'tribe' we understand a body

of Indians of the same or a similar race, united in a community

under one leadership or government, and inhabiting a particular

though sometimes ill-defined territory."

. The Court

referenced that definition in a later case, finding that a statute

limiting alienation of land "from any Indian nation or tribe of

Indians" was "more reasonabl[y] view[ed] . . . in the sense" given

in Montoya, such that Pueblo Indians were "easily include[d]."

United States v. Candelaria,

, 441–42 (1926).

The appellants argue that "Congress in 1934 is presumed

to have incorporated that common law definition into the IRA."

They claim, then, that the Secretary's failure to test the

Mashpee's status as a "tribe" under the Montoya definition was

arbitrary or capricious. We disagree, because the IRA did not

unambiguously incorporate that definition and so the Secretary was

not required to consider it.

This Court has noted that "when Congress uses a common

law term and does not otherwise define it, it is presumed that

Congress intended to adopt the common law definition." United

States v. Gray,

(1st Cir. 2015) (quoting United

States v. Patterson,

(1st Cir. 1989)). But,

contrary to the appellants' assertion, the term "tribe" is neither

- 16 - a "common law term" of art nor is it "otherwise [un]define[d]" in

the statute. See id. at 466.

In the IRA, Congress defined both "Indian" and "tribe"

in particular ways, without mentioning the Montoya definition.

See

. And, although the Montoya Court had provided

a definition of "tribe" in the context of interpreting a different

statute, the term "tribe" is not a "term[] of art in which [is]

accumulated the legal tradition and meaning of centuries of

practice," such that Congress, in "borrow[ing]" the term, should

be presumed to "know[] and adopt[] the cluster of ideas that were

attached . . . and the meaning its use will convey to the judicial

mind." See Morissette v. United States,

(1952);

Carter v. United States,

(2000) ("Th[e] limited

scope of the canon on imputing common-law meaning has long been

understood."). The cases that appellants cite to are inapposite:

the term "tribe" is not, like the term "prosecution," a "familiar

legal expression[]" used in a "familiar legal sense," Bradley v.

United States,

(1973) (quoting Henry v. United

States,

(1920)), nor is it a term, like

"bequest," with a "judicially settled meaning," United States v.

Merriam,

(1923). The Montoya definition applied

to the statute at issue in that case, but it was not incorporated

as a matter of law into the IRA.

- 17 - For that reason, we also reject the appellants' argument

that Interior acted arbitrarily in failing to consider a 1978 jury

verdict determining that the Tribe did not meet the Montoya

definition at particular times.

V.

The appellants' final challenge is that the 2021 ROD

is arbitrary or capricious in its treatment of the evidence, for

a number of reasons. The appellants concede that Interior's M-

Opinion provides the controlling standards,7 but they disagree

with the Secretary's application of those standards to the

Tribe's historical evidence.

We begin by describing the M-Opinion's interpretation of

"under Federal jurisdiction." The M-Opinion first determined that

the phrase is ambiguous and that the agency's reasonable

interpretation of it should be entitled to deference. M-Opinion

at 17. The M-Opinion then rejected the view that "Congress'

constitutional plenary authority over tribes is enough to fulfill

the 'under federal jurisdiction' requirement." Id. at 17-18.

7 At the district court, the appellants contested the validity of the M-Opinion, but they have abandoned this argument on appeal. At oral argument, the appellants emphasized that they challenged the M-Opinion and the 2021 ROD to the extent that they "treat BIA school attendance as a 'tag, you're it' form of federal jurisdiction, where the attendance of a single child at such a school becomes the basis" for "under Federal jurisdiction" status that can then be terminated only through express congressional action. We address that argument below.

- 18 - Instead, after reviewing "the text of the IRA, its remedial

purposes, legislative history, and the Department's early

practices, as well as the Indian canons of construction, [the M-

Opinion] construe[d] the phrase . . . as entailing a two-part

inquiry." Id. at 19. The Secretary must first "examine whether

there is a sufficient showing in the tribe's history, at or before

1934, that it was under federal jurisdiction." Id. If that is

the case, the Secretary then "ascertain[s] whether the tribe's

jurisdictional status remained intact in 1934." Id.

With respect to the first part of the inquiry, the focus

is on "whether the United States had, in 1934 or at some point

. . . prior to 1934, taken an action or series of actions . . .

for or on behalf of the tribe or in some instance[s] tribal members

. . . establish[ing] or . . . reflect[ing] federal obligations,

duties, responsibility for or authority over the tribe." Id. The

M-Opinion noted that while in certain cases particular actions

"may in and of themselves demonstrate that a tribe was . . . under

federal jurisdiction," in other situations "a variety of actions

when viewed in concert may demonstrate" that as well. Id.

The M-Opinion listed, as examples of actions

demonstrating the exercise of federal jurisdiction, the

negotiation or ratification of treaties with the tribe, "the

approval of contracts between [the] tribe and non-Indians,"

"enforcement of the Trade and Intercourse Acts," "education of

- 19 - Indian students at BIA schools," and "provision of health or social

services to [the] tribe." Id. But those examples are not

exhaustive and other actions may show that a tribe was under

federal jurisdiction. Id.

If the United States' actions towards a tribe, viewed

either individually or "in concert," show that the tribe was under

federal jurisdiction before 1934, the Secretary proceeds to

examine whether that "jurisdictional status remained intact in

1934." Id. Some evidence, such as a tribal vote on "whether to

opt out of the IRA in the years following enactment," may be so

conclusive that it obviates the need for further inquiry. Id. at

19-20. In other cases, "it will be necessary to explore the

universe of actions or evidence that might be relevant" to a

determination that the tribe's jurisdictional status was retained.

Id. at 19. And "there may be periods where federal jurisdiction

exists but is dormant," such that "the absence of any probative

evidence that a tribe's jurisdictional status was terminated or

lost prior to 1934 would strongly suggest that such status was

retained in 1934." Id. at 20. The M-Opinion notes, further, that

"evidence of executive officials disavowing legal responsibility

in certain instances cannot, in itself, revoke jurisdiction absent

express congressional action." Id.

In the 2021 ROD, Interior evaluated four categories of

evidence of "federal dealing with the Mashpee Tribe from 1820 to

- 20 - 1934," 2021 ROD at 25: (1) the federal government's consideration

in the 1820s of whether to remove the Mashpee Tribe to the western

part of the United States and its decision not to do so, id. at

12-16; (2) the attendance of Mashpee children at the federally

operated Carlisle Indian School, id. at 16-19; (3) federal surveys

and reports discussing the Tribe, id. at 20-23; and (4) the

enumeration of the Tribe and its members in federal census records,

id. at 23-25. "[V]iew[ing] in concert the totality of the

evidence," Interior found that the Tribe was under federal

jurisdiction prior to 1934. Id. at 25.

Proceeding to the second step of the M-Opinion's test,

Interior examined whether the Tribe's jurisdictional status

remained intact as of 1934. See id.; M-Opinion at 19. Interior

considered two additional lines of evidence: first, that the

federal government "did not seek to implement [the] IRA for the

Tribe" in the years following its enactment, 2021 ROD at 26, and

second, that some federal officials at the time wrote letters

tending to disclaim responsibility over the Tribe, id. at 27-28.

Viewing the "greater weight of the probative evidence . . . in its

entirety," Interior determined that the federal government had not

terminated its jurisdictional relationship with the Tribe. Id. at

29.

The appellants challenge the Secretary's application of

the M-Opinion's standards by asserting that, to satisfy the "under

- 21 - Federal jurisdiction" standard, the Secretary must point to

specific actions by the federal government and cannot rely simply

on evidence of Congress's and the United States' reserved or

unexercised plenary power over Indian affairs. See Haaland v.

Brackeen,

(2023) ("In a long line of cases, we

have characterized Congress's power to legislate with respect to

the Indian tribes as '"plenary and exclusive."'") (quoting United

States v. Lara,

(2004)). We agree with this

general proposition, and so does the M-Opinion. See M-Opinion at

17-18. If the Secretary's decision were to rest solely on evidence

of Congress's potential, but not actually exercised, power over

Indian affairs, that would be in error, as it would thwart

Congress's intent in imposing the limitation expressed in the

"under Federal jurisdiction" requirement. See id. at 9-12

(reviewing the legislative history and concluding that it was

inconclusive as to the meaning of the requirement but that it

"indicat[ed] a desire to limit the scope of eligibility for IRA

benefits"); see also United States v. Flores,

(1st Cir. 1992) ("Courts should not lightly read entire clauses

out of statutes, but should, to the exact contrary, attempt to

give meaning to each word and phrase.") But, for the reasons

elaborated below, we do not view the Secretary as having committed

any such error in the 2021 ROD.

- 22 - We reject at the outset, also, the appellants' general

argument that the Secretary was not free in the 2021 ROD to depart

from the positions taken in the 2018 ROD. That argument is self-

evidently wrong. The 2018 decision was vacated by judicial order

and the agency was required to reconsider the evidence in

accordance with the remand instructions. Bernhardt, 466 F. Supp.

3d at 236. Interior was then allowed to "change its existing

position . . . 'as long as [it] provide[d] a reasoned explanation

for the change.'" Housatonic River Initiative v. U.S. EPA,

(1st Cir. 2023) (first alteration in original)

(quoting Encino Motorcars, LLC v. Navarro,

(2016)). Interior did so. The 2021 ROD specifically addressed

why the Secretary evaluated several pieces of evidence differently

than in the 2018 ROD. 2021 ROD at 15, 19, 22-23, 25. Generally,

in the 2021 ROD, Interior considered all of the evidence "in

concert" to determine whether the Tribe was "under Federal

jurisdiction." In the 2018 ROD, by contrast, Interior had

evaluated only whether each piece of evidence "in and of itself"

could unambiguously establish such jurisdiction. See Bernhardt,

466 F. Supp. 3d at 218. Interior's revised approach in the 2021

ROD was in accordance with the M-Opinion and the D.D.C.'s remand

order. See M-Opinion at 19; Bernhardt, 466 F. Supp. 3d at 218

("On remand, the Secretary must follow the directive of the M-

- 23 - Opinion and consider the probative evidence 'in concert' with each

piece of other probative evidence.").

We proceed to the appellants' other challenges as they

pertain to the Secretary's consideration of each line of evidence

in the 2021 ROD.

A. Decision not to remove the Tribe

First, the Secretary considered evidence related to the

federal government's decision, in the 1820s, not to remove the

Mashpee Tribe from their lands in Massachusetts to the western

parts of the United States. 2021 ROD at 12. As the 2021 ROD

notes, "[d]uring the almost 30-year period between 1815 and 1845,

federal Indian policy focused almost entirely on removal of tribes

like the Mashpee from the east to relatively less populated areas

to the west." Id.

The Secretary evaluated a report from 1822 (the "Morse

Report"), commissioned by the federal government, which, after

discussing the conditions of the Mashpee and listing it as a

"tribe[] within the jurisdiction of the United States," id. at 13

(emphasis removed), recommended against removing the Tribe "due to

their industriousness and tenacious ties to their land," id. at

15. The full report was "circulated to Congress, as well as within

the Executive, and debated in the House of Representatives." Id.

at 14. "President James Monroe and the executive" also "relied"

- 24 - on the report "when formulating the . . . removal policy and the

decision" not to apply it to the Mashpee Tribe. Id.

The Secretary determined that "[t]he Morse Report and

federal officials' subsequent reliance on it[] provide probative

evidence that the Federal Government actively considered the

Mashpee within its jurisdiction and subject to the removal policy."

Id. at 15. While the 2018 ROD had assessed this evidence as

"show[ing]" only the "potential[]" and not the "actual[]"

"exercise of federal Indian authority," the 2021 ROD viewed it as

demonstrating that "the United States took specific action" by

"consider[ing] and ultimately reject[ing] application of the

removal policy to the Mashpee." Id. (emphasis removed).

The appellants argue that, under the M-Opinion's

standards, only "affirmative actions" can show federal

jurisdiction, and the government's decision not to remove the Tribe

was "in-action[] . . . that left the Mashpees exactly where they

had always been." We agree with the appellants that mere passivity

or neglect towards a tribe would not demonstrate the exercise of

federal jurisdiction under the M-Opinion's standards, which

require evidence of "actions . . . reflect[ing] federal

obligations, duties, responsibility for or authority over the

tribe." M-Opinion at 19. But we view the Secretary's

determination that the federal government took "specific action"

in this case as not arbitrary or capricious. The federal

- 25 - government commissioned a report that examined, among other

things, the condition of the Mashpee Tribe and its susceptibility

to removal; it issued a specific recommendation not to remove the

Tribe; the recommendation was adopted by the Executive Branch and

transmitted to Congress; and the Mashpee were exempted from the

removal policy. 2021 ROD at 13-15. The decision not to remove

the Tribe was the culmination of a process, or a "series of

actions," conducted by the federal government and "reflect[ing]

. . . responsibility for or authority over the tribe." M-Opinion

at 19; see Bernhardt, 466 F. Supp. 3d at 229-30 (finding "the 2018

ROD's treatment of the Morse Report [to be] arbitrary and

capricious" partly because "[t]he making of a recommendation is,

in and of itself, an action").8

8 At oral argument, counsel for the appellants advanced, for the first time, the somewhat different argument that, because the federal government's decision supposedly encompassed all of the Indian tribes in Massachusetts, and not just the Mashpee Tribe, it should be viewed as unexercised plenary power rather than as an action showing federal jurisdiction over the Tribe specifically. Setting aside the factual issue of whether all tribes in Massachusetts were exempted from removal, which appellants have not proven to be the case, the argument is waived, as it was not raised in the briefs. United States v. Leoner- Aguirre,

(1st Cir. 2019). We note, too, that the Morse Report -- as quoted in the 2021 ROD -- recommends against removal of the Mashpee Tribe in particular, and contains a rationale for exempting the Tribe that is specific to it: "They are [of] public utility here as expert whalemen and manufacturers of various light articles; have lost their sympathy with their brethren of the forest; are in possession of many privileges, peculiar to a coast, indented by the sea; their local attachments are strong; they are tenacious of their lands." 2021 ROD at 13- 14.

- 26 - As such, the Morse Report constitutes probative evidence

of federal jurisdiction over the Tribe, "[w]hen viewed in concert

[with] the totality of the evidence." 2021 ROD at 25. Indeed,

the Secretary does not rest the finding that the Tribe was "under

Federal jurisdiction" solely on this or on any other single factor

in and of itself, but, rather, views all of the evidence "in

concert" as establishing that conclusion.

That approach

accords with the M-Opinion's standards, see M-Opinion at 19, and

so we hold that the Secretary's treatment of this evidence was not

arbitrary or capricious.

B. Attendance at the Carlisle School

The Secretary also considered evidence related to the

attendance of Mashpee children at the Carlisle Indian School, a

federally operated institution, "every year between 1905 and

1918." 2021 ROD at 16, 18.

The Carlisle School was established in 1882 through

congressional appropriations for the purpose of educating Indian

children. Id. at 17. To ensure compliance with the "regulations

regarding admission," the school would evaluate each "student's

tribe, blood quantum," and whether he or she had been "living in

'Indian fashion.'" Id. at 18. The overarching goal, the Secretary

noted, was to advance the federal government's prevailing

"'civilization' policy," id. at 16, which involved promoting the

assimilation of Indians "into a Western, capitalist way of life,"

- 27 - as a scholar quoted in the ROD explained, id. (quoting Addie C.

Rolnick, Assimilation, Removal, Discipline, and Confinement:

Native Girls and Government Intervention, 11 Colum. J. Race & L.

811, 826-27 (2021)). To that end, the Carlisle students were

"subject to significant federal control" over their "education,

finances, physical health, and freedom of movement." 2021 ROD at

17-18. They were essentially "treat[ed] . . . as wards of the

federal government." Id. at 18.

Citing the M-Opinion, the Secretary noted that the

federal government's actions toward individual "tribal members"

may "in some instances" constitute probative evidence that the

tribe was "under Federal jurisdiction." Id. at 19 (citing M-

Opinion at 19). In this case, the "extraordinary control"

exercised by "federal Indian agents" over Mashpee students'

"education, finances and health," as well as the "provision of

health and social services" to those students, "constitute[d] a

clear assertion of federal authority over the Tribe and its

members." Id.; see also M-Opinion at 19 (listing, as examples of

probative evidence, the "education of Indian students at BIA

schools" and "provision of health or social services to [the]

tribe").

The appellants counter with three arguments. First,

they claim that Interior "multipli[ed]" the significance of the

school-related evidence by considering, as though they were

- 28 - "separate categories" of evidence, different types of actions

undertaken by federal officials at the school -- like control over

the students' finances, health care, and education -- that should

all "logically collapse into one" category of evidence. But

Interior merely examined the multiple "actions," within the

meaning of the M-Opinion, that the federal government took in

connection with the Carlisle School. We do not see a reason why

Interior should be precluded from considering different ways in

which certain evidence may be probative.

Second, the appellants argue that the Mashpee children

who attended Carlisle School did so voluntarily, which contradicts

the Secretary's "rhetoric-filled narrative" that they were forced

to attend the school. But, contrary to the appellants'

representation, nowhere did the Secretary claim that the Mashpee

children were educated at Carlisle without their parents'

ostensible consent. See 2021 ROD at 8, 17-19. Setting aside this

dispute, the Secretary's reasoning as to why the school-related

evidence is probative did not rely on whether the Mashpee children

attended the school voluntarily or not. The key factor,

uncontested by the appellants, was the degree of control exercised

by federal officials over all aspects of those students' lives.

Only by way of context did the Secretary explain that such control

served a broader policy of assimilation.

- 29 - The appellants argue that the M-Opinion and the 2021 ROD

"irrationally" treat "attendance of a single child" at a BIA school

like Carlisle as "the basis for a tribe being under federal

jurisdiction in 1934 even when the attendance" ended in 1918, when

the Carlisle School closed. But that proposition misrepresents

the M-Opinion and the 2021 ROD, under which "BIA school attendance"

is a probative piece of evidence supporting the existence of

federal jurisdiction but not necessarily the entire basis for such

a finding.

Having rejected the appellants' arguments, we find that

the Secretary's treatment of the Carlisle School evidence was not

arbitrary or capricious.

C. Federal reports

Next, the Secretary evaluated evidence related to three

reports commissioned or produced by federal officials that

documented, among other things, the Mashpee Tribe's conditions at

the time of the reports. Id. at 20-23. Because the reports

"provided detailed information regarding the Tribe's status and

set forth plans for exercising federal authority over the Tribe,"

and the government "relied on these reports in making significant

decisions regarding the Tribe," they "constitute probative

evidence of ['under Federal jurisdiction' status]." Id. at 23.

Appellants argue these reports "resulted in no actions"

toward the Tribe. But, again, the Secretary found that the federal

- 30 - government's collecting information about the Tribe, setting it

out in a report that makes recommendations, and subsequently

relying on that report to make decisions regarding the Tribe (even

the decision not to interfere with it) all constituted "federal

actions" under the M-Opinion. Id. at 22-23. The appellants assert

those actions should be viewed as "inactions", but they do not

explain why, aside from suggesting that they are not "affirmative"

or "major" actions. That argument goes to the weight that the

Secretary should accord the evidence, and not to whether it

constitutes acceptable evidence under the M-Opinion's standards.

But the Secretary did not view any individual report or even all

of the reports considered together as establishing the existence

of federal jurisdiction "in and of [themselves]," but only when

they were viewed "in concert" with the totality of the evidence.

Id. at 23. We cannot conclude that the reports were given undue

weight.

D. Federal census records

Interior considered evidence that the federal government

had classified Mashpee tribal members as "Indians" on multiple

general censuses and had also included them in specially prepared

censuses covering BIA schools such as the Carlisle School. Id. at

23-24. The agency found that those "consistent efforts to

enumerate the Tribe and its members in federal reports and census

records . . . are probative of and demonstrate the Tribe's

- 31 - jurisdictional relationship with the Federal Government[,] [w]hen

viewed in concert with other probative evidence." Id. at 25.

The appellants claim that enumeration of tribal members

in the general censuses "is no different from the principle of

plenary power," and only censuses conducted by the Office of Indian

Affairs constitute evidence of a tribe's being "under Federal

jurisdiction." But this rule is not supported by the M-Opinion,

and the appellants do not provide any other authority for it. We

uphold, then, the Secretary's determination that inclusion of

Mashpee tribal members in federal census rolls is probative of the

Tribe's being "under Federal jurisdiction."

E. Determination that the Tribe continued to be "under Federal jurisdiction" as of 1934

After determining that the Tribe had been under federal

jurisdiction prior to 1934, when the IRA was enacted, the ROD

proceeded to examine whether the relationship remained intact as

of that year. See id. at 25; M-Opinion at 19. The Secretary

evaluated two lines of evidence and found that they did not show

the Tribe had lost its jurisdictional status. 2021 ROD at 26-28.

First, the Secretary considered the fact that, following

the IRA's enactment, the federal government "did not seek to

implement [the statute] for the Tribe." Id. at 26. The IRA

"directed the Secretary to conduct elections for Indians residing

on a reservation to vote to accept or reject application of the

- 32 - Act," but no such election was organized for the Mashpee Tribe.

Id. But, the Secretary noted, "federal officials made several

errors in their effort to implement the IRA," and "certain tribes

were later recognized as eligible" under the statute even though

they had not held an IRA election. Id. As such, "the failure to

implement the IRA for the Tribe is not an indication that the

Tribe's jurisdictional status was terminated." Id.

Second, the Secretary reviewed a body of correspondence

from the 1930s in which BIA officials "generally disclaim[ed]

federal jurisdiction over the Tribe." Id. at 27. In particular,

Commissioner for Indian Affairs John Collier, denying a Mashpee

Tribe member's request for assistance, explained that the Tribe's

needs "w[ould] have to be met . . . through local and State

channels" until such time as "the Federal Government should

undertake further provision for small Eastern groups under the

States." Id. The Secretary found that "Collier's letter

reflect[ed] the contemporaneous federal policy of deferring to

state jurisdiction over New England tribes," as well as

"[p]ractical budgetary constraints . . . exacerbated by the Great

Depression," and that it "did not rest on a legal analysis as to

whether the BIA had legal authority over the Tribe." Id. at 27-

28. Other letters disclaiming responsibility over the Mashpee

contained erroneous statements. Id. at 28. The Secretary

concluded, then, that the letters were "best characterized as

- 33 - reflections of evolving federal policy, practical constraints on

implementing the IRA, and factual mistakes, rather than

termination of the Tribe's jurisdictional relationship with the

Federal Government." Id. at 27.

As an additional reason not to view the letters'

disclaimers as signifying termination of the Tribe's

jurisdictional status, the Secretary observed, quoting the M-

Opinion, that "evidence of executive officials disavowing legal

responsibility in certain instances cannot, in itself, revoke

jurisdiction." Id. at 29 (quoting M-Opinion at 20). And "Congress

never adopted nor considered any termination legislation regarding

the Tribe." Id. So, considering all the "probative evidence . . .

in its entirety," the Secretary determined that "the Tribe's

jurisdictional status remained intact through 1934." Id.

The appellants argue that BIA officials' failure to

apply the IRA to certain tribes that were later found to be

eligible does not establish that they committed the same error

with respect to the Mashpee Tribe. But the Secretary did not find

that the implementation errors proved in and of themselves that

the Tribe was under federal jurisdiction, but only that they

diminished the weight of the letters' disavowal of responsibility.

Id. at 26-28. That determination is not arbitrary or capricious.

The appellants also challenge the 2021 ROD and the M-

Opinion to the extent that they set up the principle that only

- 34 - Congress, acting expressly, can terminate "under Federal

jurisdiction" status once it is established. That principle is

indeed doubtful. But we do not understand the Secretary's

determination as resting on any such broad proposition. Rather,

the 2021 ROD concluded that the Tribe's jurisdictional status still

existed in 1934 because, as the Secretary determined, the letters

disclaiming jurisdiction had been motivated by error or prevailing

policy considerations, and not by Interior's considered

termination of its jurisdiction over the Tribe. Id. As such,

there was little probative evidence showing that jurisdiction had

been lost, and "the greater weight of the probative evidence, when

viewed in its entirety," showed that it had "remained intact

through 1934." Id. at 29. The Secretary did not act arbitrarily

or capriciously in making that determination.

VI.

For the foregoing reasons, we affirm the judgment of the

district court.

- 35 -