United States Court of Appeals
For the First Circuit
No. 09-2049
AMELIA PETERS BINGHAM, ET AL.,
Plaintiffs, Appellants,
v.
COMMONWEALTH OF MASSACHUSETTS,
Defendant, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
Robert L. Bowens with whom Bowens Law Office was on brief
for appellants.
John Michael Donnelly, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief for appellee.
July 30, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LYNCH, Chief Judge. In 2008, plaintiffs Amelia Peters
Bingham and her son, Steven, brought a Takings Clause claim against
the Commonwealth of Massachusetts and the Town of Mashpee, seeking
just compensation and the return of some of the lands in
Massachusetts they say were granted in perpetuity to their
ancestors, the South Sea Indians, in deeds from 1665 and 1667.
Plaintiffs styled this claim as a class action on behalf
of themselves and all similarly situated descendants of the South
Sea Indians, now known as the Mashpee Wampanoag. The Mashpee
Wampanoag have been a federally recognized tribe since 2007. 72
Fed. Reg. 8007-01 (Feb. 22, 2007). Plaintiffs do not claim that
the Commonwealth or Town directly seized lands from their tribal
ancestors. Rather, plaintiffs argue that two Massachusetts
statutes enacted in 1869 and 1870 deprived them of their right to
hold in perpetuity all of the land currently comprising the Town of
Mashpee by removing restraints on alienation and, later, by
facilitating the sale of certain lands.
The district court held that the plaintiffs lacked
standing and dismissed their claims against the Commonwealth and
Town, Bingham v. Massachusetts (Bingham I), No. 08-11770, 2009 WL
1259963, at *1-2 (D. Mass. May 6, 2009), and affirmed that
dismissal on plaintiffs' motion for reconsideration, Bingham v.
Massachusetts (Bingham II), No. 08-11770, 2009 WL 1886128, at *2
(D. Mass. July 2, 2009). Plaintiffs appeal only the dismissal of
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their claims against the Commonwealth. The Commonwealth asserts
that the Eleventh Amendment bars this suit from being brought
against it in federal court and that plaintiffs, in any event, lack
standing.
We affirm and hold that there is no jurisdiction to hear
this case, because even when viewing all factual allegations in
plaintiffs' favor, plaintiffs cannot show they have suffered a
personal injury as a result of the challenged state actions. We do
not reach the Eleventh Amendment issues, nor do we reach any
statute-of-limitations issues.
I.
We accept as true the following allegations of fact, as
stated in plaintiffs' complaint and in supporting documentation,
and construe them in the light most favorable to plaintiffs. See
Sanchez v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir. 2009); Alt.
Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33-34
(1st Cir. 2001).
Deeds in 1665 and 1667 granted the subject land--
substantial portions of the land that currently comprise the Town
of Mashpee--to "the South Sea Indians: and their[] Children for
ever: and not to be sold or given away from them by any one:
without all their[] Consents there unto." In 1685, the General
Court of Plymouth Colony "confirme[d] said land to the said
Indians, to be perpetually to them & their children, as that no
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part of them shall be granted to or purchased by any English [non-
tribal member] whatsoe[v]er . . . without the consent of all the
said Indians." See Mashpee Tribe v. Town of Mashpee (Mashpee I),
447 F. Supp. 940, 944 & n.2 (D. Mass. 1978), aff'd sub nom. Mashpee
Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979)
(interpreting the word "English" in the 1685 grant to include any
non-Indians).1
Plaintiffs' complaint alleges that these deeds conveyed
individual, inheritable rights in the subject lands to the grantees
and that these interests passed to plaintiffs as the direct lineal
descendants of the South Sea Indians.2 In support of this
contention, plaintiffs listed their predecessors going back five
1
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.
2
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).
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generations. The complaint did not specify birth or death dates,
details about residency, or their predecessors' relationship to the
South Sea Indians. It explained that "[a]s a general rule,"
records prior to the nineteenth century "were not maintained for
Indians."
Between 1685 and 1834, Plymouth Colony, and later the
Commonwealth, continually recognized the restraints on alienation
contained in the original deeds as the subject land evolved from an
Indian plantation to the "Mashpee Propriety." In 1834, parts of
the subject land became the "District of Mashpee," but the
restraints on alienation in the original deeds endured.
In 1842, the Massachusetts General Court passed a law
providing that much of the lands in the district would now be held
in severalty by proprietors, who included Indians who had occupied
and improved the land.3 See Mashpee I, 447 F. Supp. at 945
(describing proprietors). Proprietors were allotted acreage from
the common lands, in addition to any lands they already held in
severalty, so that each proprietor held at least sixty acres. Id.
The remainder of the subject land--some three thousand acres--was
still held in common by the selectmen of the district, who were all
Indians. Id. at 945-46. The 1842 law again confirmed the
3
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.
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restraints on alienation from the seventeenth-century deeds. Id.
at 945.
In 1869, however, the Massachusetts General Court enacted
a statute providing, in relevant part, that
[a]ll lands heretofore known as Indian lands,
and rightfully held by any Indian in
severalty, and all such lands which have been
or may be set off to any Indian, shall be and
become the property of such person and his
heirs in fee simple . . . and all Indians
shall hereafter have the same rights as other
citizens to take, hold, convey and transmit
real estate.
1869 Mass. Acts ch. 463, § 2.4 The law removed restraints on the
alienation of the subject land, and plaintiffs allege this was over
the objections of a majority of South Sea Indian descendants who
attended a hearing on the legislation.5
A year later, in 1870, the Massachusetts General Court
passed a law creating and incorporating the Town of Mashpee. The
4
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.
5
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.
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law provided that "[a]ll common lands . . . held by the district of
Marshpee, are hereby transferred to the town of Mashpee, and shall
be owned and enjoyed as like property and rights of other towns are
owned and enjoyed." 1870 Mass. Acts ch. 293, § 1. Another
provision of the 1870 law stated that upon application of the
Town's selectmen, a superior court justice could, after notice to
all interested parties and a hearing, determine that "it is for the
interest of said parties that any or all of the common lands of
said town, or of the people heretofore known as the Marshpee tribe
of Indians, be divided." Id. § 6. The justice could then appoint
three "discreet, disinterested persons [as] commissioners to make
partition of the same." Id.
The gravamen of plaintiffs' complaint is that the 1869
and 1870 statutes "took ownership interests in the subject land
that belonged to the plaintiffs without paying just compensation,"6
in violation of the Takings Clause. They allege that the removal
of restraints on the alienation of Indian lands in the 1869 act
6
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.
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deprived plaintiffs of their "perpetual interest in . . .
ownership." "[T]hrough" the 1870 act creating the Town, the
Commonwealth also "transferred the common land of substantial
portions of the subject land" to the Town, which sold
"[a]pproximately three thousand acres of the subject land" at an
unspecified later date. "Between 1870 and the present date,"
plaintiffs conclude, most of the subject land promised to the tribe
in perpetuity has been conveyed to non tribal members without the
consent of all tribal descendants.
Plaintiffs seek the return of "every portion of the
subject land which is claimed, held, occupied, and/or used" by
defendants, "with the exception of any substantial building
structures and any other structures of improvements that serve a
critical role in state or town operations." They also seek fees
for the use of land so held or used and just compensation "for the
ownership interests in the subject land that were taken from the
plaintiffs in 186[9] and 1870." They do not seek the return of
land held by private parties.
On May 6, 2009, after a hearing on the Commonwealth and
Town's separate motions to dismiss, the district court granted the
motions and dismissed plaintiffs' complaint for lack of
jurisdiction. See Bingham I, 2009 WL 1259963, at *1-2. It held
that plaintiffs lacked standing to sue irrespective of whether the
deeds conveyed lands to the South Sea Indians as a tribe or to
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individual members. Id. at *1. Plaintiffs did not represent the
tribe and thus could not sue on the tribe's behalf. Id. at *1-2.
Even if the deed conveyed rights to individual tribal members,
plaintiffs failed to identify individual ancestors who had actually
inherited property under the deeds or to otherwise trace their
interest through successive generations. Id. at *1.
On July 2, 2009, the district court denied plaintiffs'
motion for reconsideration. See Bingham II, 2009 WL 1886128, at
*2.
II.
We review the district court's dismissal for lack of
standing de novo. Though we construe the facts and draw reasonable
inferences in plaintiffs' favor, plaintiffs bear the burden of
"clearly alleging definite facts to demonstrate that jurisdiction
is proper." Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18,
25 (1st Cir. 2007).
To establish standing under Article III of the U.S.
Constitution, plaintiffs "must allege personal injury fairly
traceable to the defendant's allegedly unlawful conduct and likely
to be redressed by the requested relief." Hein v. Freedom from
Religion Found., Inc., 551 U.S. 587, 598 (2007) (quoting Allen v.
Wright, 468 U.S. 737, 751 (1984)) (internal quotation marks
omitted).
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The district court correctly held that plaintiffs lack
standing because they failed to show a personal injury. Plaintiffs
must show they had an individual interest in the property rights
granted in the seventeenth-century deeds in order to show they were
personally injured by the later state actions affecting those
property rights. Plaintiffs can do so only if the deeds conveyed
to plaintiffs' individual ancestors discrete property interests
that passed through successive generations. Even when viewing all
facts in the light most favorable to plaintiffs, and taking all
reasonable inferences in their favor, plaintiffs have not alleged
sufficient facts to surmount this bar.
The relevant language in the 1665 deed conveyed the
subject lands to "the South Sea Indians: and their[] Children for
ever: and not to be sold or given away from them by any one:
without all their[] Consents there unto." The 1685 grant contained
similar material language. In plaintiffs' favor, we will assume,
as the district court did, that the reference to the "South Sea
Indians . . . and their[] children" is ambiguous.7
7
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
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Plaintiffs insist the deed and grant did not convey the
lands to the collective members of the tribe in common. Under that
interpretation, the ownership of the land would belong to the tribe
as a whole, and no individual member would have a personal interest
in a particular share of the property. See N. Newton et. al.,
Cohen's Handbook of Federal Indian Law § 16.01[2], at 1037 (2005
ed). Only the tribe would have standing to sue for any injury to
its interests under the deed. Plaintiffs argue the deed must be
read as conveying individual interests in the land to individual
tribal members.
We need not determine whether the conveyances were to
individual tribal members or to the collective tribe, because
plaintiffs lack standing under either interpretation. Plaintiffs
do not represent the tribe, nor do they claim the capacity to do
so. Plaintiffs cannot assert the rights of the tribe, as an
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.
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entity, simply by styling their claim as a class action on behalf
of all tribal descendants.8
Even assuming arguendo that the deed conveyed discrete
property rights to the tribe's individual members, plaintiffs still
cannot show a personal injury. Plaintiffs have alleged they are
direct descendants of South Sea Indian grantees who were the
original beneficiaries of the deeds. Plaintiffs have not, however,
alleged any facts showing that their ancestors actually held an
individual, inheritable interest in the subject land that passed
through successive generations. And they have not alleged any
facts showing their ancestors actually held individual and
inheritable interests in the subject land as of 1869-70.
Plaintiffs have also failed to allege that any such
interests were affected as a result of the 1869 and 1870 acts in
ways that resulted in the transfer or loss of ownership of those
lands. Nor have they pled any facts showing that the loss of any
"right" to hold the lands in perpetuity has caused them any injury.
Plaintiffs say that "[t]hrough" the 1870 act, between 1870 and the
present, many of the subject lands were ultimately conveyed to non-
8
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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Indians, but a vague allegation of harms occurring over an
undefined, 140-year time period is not the kind of concrete,
particularized injury required to show standing. See, e.g.,
Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325-26 (1st Cir.
2009). These shortcomings are fatal to plaintiffs' ability to show
that they had an identifiable personal stake in the property rights
at issue and that they suffered a concrete injury fairly traceable
to the Commonwealth's allegedly unlawful conduct. This holding, of
lack of pleading of individual harm from the 1869-1870 acts, also
disposes of their procedural due process claim, which fails for
futility.
Plaintiffs argue the district court erred when it
dismissed their complaint sua sponte on the ground that the
Binghams failed to allege sufficient genealogical data to support
individual interest standing and they could not assert standing on
behalf of the tribe. The Town's motion to dismiss had argued only
that the tribe, not individual tribal members, had standing to sue
for injuries to property interests granted in the seventeenth-
century deeds. The Town did not address, until its reply brief to
the motion for reconsideration, the issue of lack of individual
interest standing.
Plaintiffs' motion to reconsider and to amend their
complaint to add the names of ancestors going back to the 1665 and
1667 deeds, dates of birth and death for previous generations, and
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the names of ancestors who were grantees under the deeds would, as
we have held, not have changed the outcome. In light of that
futility, there was no error in denial of reconsideration and the
motion for leave to amend.
The judgment is affirmed.
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