State Files To Dismiss Land Suit Town’s Response Expected Today

MASHPEE- The state Attorney General’s office issued its response to the land suit against the commonwealth and the Town of Mashpee filed by two members of the Mashpee Wampanoag Tribe, filing a motion to dismiss the suit on constitutional grounds.
The state’s motion and supporting memorandum, filed in US District Court in Boston on Tuesday, argues that the 11th Amendment to the US Constitution, which bars foreign governments or citizens from suing states in federal court unless the state consents to the suit, should prohibit the case from going forward.
Town Manager Joyce M. Mason said that as of Thursday afternoon, as the Enterprise went to press, the town’s response was in a final draft being reviewed by attorneys in Washington, DC, and would be filed by the end of the day today.
The two tribe members, Amelia G. and Steven P. Bingham, filed a class action suit in October as descendants of the South Sea Indians, claiming that in the 19th century land was illegally taken from their ancestors who were given a deed to nearly all the land in town.
Their suit cites the Fifth Amendment to the constitution, which prohibits property from being taken without due process or just compensation, rather than an obscure 18th century federal law used by the Mashpee Wampanoag Tribal Council in its land suits in Mashpee in the 1970s. They are asking for the court to return the more than 4,000 acres in Mashpee owned by the state and the town, other than municipal buildings, as well as financial compensation for the use of the property since 1870.
The attorneys for the state, however, claimed sovereign immunity under the 11th Amendment, arguing in the six-page supporting memorandum that the state has not consented to the Bingham suit and that Indian tribes and their individual members, like other state residents, are subject to the law’s restrictions.
The motion largely focuses on a 1997 US Supreme Court case involving the state of Idaho and the Coeur d’Alene Tribe, in which the federally recognized tribe sought to claim ownership and control over land submerged under a rural lake and the lake itself.
“This is especially troubling when coupled with the far-reaching and invasive relief the Tribe seeks, which would shift substantially all benefits of ownership and control of vast areas from the State to the Tribe, and thereby entail consequences going well beyond those typically present in a real property quiet title action,” according to the court’s summary of its opinion in the Idaho case.
“The dignity and status of its statehood allows Idaho to rely on its 11th Amendment immunity and to insist upon responding to these claims in its own courts, which are open to hear and determine the case,” according to the summary.
The court ruled that the tribe could not sue even individuals working for the state government, or the government itself, due to the 11th Amendment, though in some cases actions against individuals are warranted.
The court in the Idaho case did not discuss the merits of the tribe’s claim to aboriginal title, which was based on a 19th century state executive order that was adopted by the federal government, according to the summary.
The motion to dismiss the Bingham case compares it to a “quiet title action,” a lawsuit meant to resolve a contested title, which the supreme court decided in the Idaho case could not be filed in requesting a financial reward from the state.
The attorney general’s motion also points to a case between an Alaskan Native tribe and the state of Alaska, in which the court decided that the tribe could not sue the state for financial damages in federal court due to the 11th Amendment.
A spokesman for the attorney general’s office declined to comment, saying the motion should speak for itself.
The Binghams’ Weymouth-based attorney, Robert L. Bowens, said the Idaho case is “like comparing apples to oranges,” as the two claims are fundamentally different. He said he had foreseen the state’s 11th Amendment argument, but he declined to elaborate on why he believed it should not apply.
“I am going to wait to answer it in the papers I submit to the court,” he said in a telephone interview. “But once I prepare my memorandum in opposition to their motion to dismiss, it will be very clear what the court should do.”
Mr. Bowens’s response is due by December 16.