The Hon. David H. Souter, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.

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
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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
Our review of a motion to dismiss on grounds of standing 1

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. 

Because plaintiffs claim property rights based on formal 2

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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part of them shall be granted to or purchased by any English [nontribal 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. In support of this 2

contention, plaintiffs listed their predecessors going back five
We use the term "Indians," as opposed to "Native 3

Americans," for the sake of consistency with the language of the

original deeds and relevant statutes. 

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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. See Mashpee I, 447 F. Supp. at 945 3

(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
The 1869 act, entitled "An Act to Enfranchise the Indians 4

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. 

The 1869 act permitted but did not require any Indian to 5

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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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. The law removed restraints on the 4

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
Plaintiffs did not assert claims under any other specific 6

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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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
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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). 
We bypass the Commonwealth's arguments that our 7

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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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
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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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
Indeed, the tribe and its authorized representatives have 8

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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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-
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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 seventeenthcentury 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.