Defense of Nonintercourse Act Claims: The Requirement of Tribal Existence

On August 26, 1976, a group of persons claiming to be the "Mashpee Indian Tribe" commenced suit in the United States District Court for the District of Massachusetts against 146 named defendants alleging, inter alia, these named defendants to be representative of a class of defendants asserting interests in and title to a tract of land comprising all but a small fraction of the Town of Mashpee, Massachusetts. Specifically, the Mashpee plaintiff claimed that all persons asserting an interest in or title to the land in the Town of Mashpee obtained that interest or title in violation of section 12 of the Indian Trade and Intercourse Act of 1834 (the Nonintercourse Act). The plaintiff sought threefold relief: immediate possession of virtually all the land in Mashpee, the fair rental value of any portion of the land to which any defendant or member of the defendant class retained possession after entry of final judgment, and trespass damages from the defendants in the amount of $5,000,000. Trial commenced on October 17, 1977 and continued through January 6, 1978. After deliberation, the jury returned its verdicts, determining that the plaintiff had failed to carry its burden of proving that its predecessors were an Indian tribe in 1790, 1869, and 1870; that the plaintiff constituted an Indian tribe at the time suit was commenced; and that the plaintiff had continuously existed as an Indian tribe. On appeal to the First Circuit Court of Appeals, the plaintiff claimed a variety of errors by the trial court including certain aspects of the court's instructions on the definition of an Indian tribe as that term is used in the Nonintercourse Act. On February 13, 1979, the First Circuit Court of Appeals rejected each of the plaintiff’s assignments of error and affirmed the judgment of the trial court. The result in Mashpee graphically illustrates the importance of a threshold requirement that confronts plaintiffs who claim the benefit and protections of the Nonintercourse Act—pleading and proving tribal existence.