ROBERT WOLPE, MICHELLE WOLPE, JAMES ATKINS, JR., JOHN WELTMAN, and WEBSTER BANK N.A. v. MATTHEW HANEY as trustee of SN Trust, THE TRUSTEES OF RESERVATIONS, ARNOLD CHACE, STEPHEN ORANGE, CRYSTAL ORANGE, and MARY GRANT.

Introduction

At issue in these consolidated cases is the ownership of a tract of salt marsh off Punkhorn Point, near Gooseberry Island, in the Town of Mashpee. Defendant Matthew Haney, as trustee of SN Trust, claims ownership of that marshland and wants to build a private bridge across it to access his Gooseberry Island property for development. Each of the other parties, on theories of record or adverse possession title, claims ownership [Note 1] of some or all of that marshland as well.

The case is not straightforward. The salt marsh was divided by Commissioners in the late 1800’s in accordance with a division plan. That plan, however, has now been lost and must thus be re-created from other sources. This will not be easy. Subsequent plans are alleged to be inaccurate, and a critical page may be missing from the records at the Barnstable Superior Court. Adverse possession and long-standing lines of occupation may thus be of particular importance in the ultimate resolution of the parties’ competing claims.

Mr. Haney believes he can prove he has record title. [Note 2] He intends to rebut the other parties’ claims of adverse possession by showing that none of them has been in actual, open, and notorious possession of the marshland at issue, adversely, exclusively, and continuously, for twenty years or more. See Ryan v. Stavros, 348 Mass. 251 , 262 (1964) (elements of adverse possession). Important to this, he contends, will be the testimony of George Green and Jessie Little Doe Baird who, in speaking before the Mashpee Conservation Commission when it was considering Mr. Haney’s application for an Order of Conditions to build his bridge, claimed to have regularly shell-fished in this area of the salt marsh and may have observed others doing so as well. Mr. Haney has noticed their depositions to learn the details — where and how they shell-fished; when they did so; and what they saw of others doing the same.

Mr. Green and Ms. Baird have moved to quash those depositions. According to their counsel: (1) they are officials of the Mashpee Wamponoag Tribe (a non-party to the case), (2) the Tribe has a grant to harvest shellfish in the area, (3) they shellfished solely in their capacity as Tribe officials. In reliance on the Tribe’s sovereign immunity from suit, see, e.g., Michigan v. Bay Mills Indian Community, 572 U.S. ____, 134 S.Ct. 2024, 2030 (2014), they contend that they cannot be subpoenaed to testify as third-party witnesses to anything they did or observed while on official business. On the facts of this case, for the reasons that follow, I disagree. Once proper service has been made on Mr. Green and Ms. Baird, the motions to quash their depositions are DENIED.

Discussion

The Mashpee Wamponoag Tribe has sovereign immunity from suit. See Michigan v. Bay Mills Indian Community, supra. The question before me is whether that immunity stretches to protect Mr. Green and Ms. Baird from testifying as percipient fact witnesses to their actions and observations while on the marsh, simply because they were there harvesting shellfish on behalf of the Tribe. I rule that it does not.

I start with a basic proposition. The judicial process has legitimate needs, and one of those is “the right to every man’s evidence except for those persons protected by a constitutional, common-law or statutory privilege.” United States v. Nixon, 418 U.S. 683, 709 (1974). Importantly,“[w]hatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Id. at 710.

Cases have held that a subpoena to a Tribe in private civil litigation to which it is not a party is a “suit” within its sovereign immunity. See, e.g., Bonnet v. Harvest (U.S.) Holdings Inc., 741 F. 3d 1155, 1160 (10th Cir. 2014); Alltel Communications LLC v. DeJordy, 675 F.3d 1100, 1102 (8th Cir. 2012). Some courts have extended this immunity to individual tribe members when the subject of their testimony will be contracts by the Tribe, Tribal policy-making, or internal Tribal affairs — matters at the core of “tribal self-determination, economic development, and cultural autonomy that underlie the federal doctrine of tribal immunity” and the third-party subpoenas would be “disruptive” of those interests. Alltel, 675 F.3d at 1104-1105. See also United States v. Wahtomy, 2008 WL 4690519 (D. Idaho, Oct. 22, 2008) (Winmill, J.) (noting that subpoenas being quashed “seek to inquire into the integrity of the Tribal Court system, including the selection process for its judges”); Grand Canyon Skywalk Development LLC v. Ciesiak, 2015 WL 4773585 at *3-*4 (D. Nevada, Aug. 13, 2015) (Foley, Magistrate-Judge) (ruling at *7, however, that the subpoena at issue did not fall within the immunity because the testimony it sought would have no effect on the tribe’s treasury, and then quashing it on other grounds); Dillon v. BMO Harris Bank N.A., 2016 U.S. Dist. LEXIS 13433 (N.D. Oklahoma, Feb. 4, 2016) (Wilson, Magistrate-Judge).

I am aware of no case, however, and certainly none persuasive, that quashed a subpoena to a tribal official seeking simply, as here, strictly factual testimony of the witnesses’ own actions and observations, simply because the witness was on “tribal business” at the time. No relief is sought against the Tribe (none could be granted anyway, due to its sovereign immunity). No inquiry is sought into tribal contracts, policy-making or internal affairs. The witnesses were shellfishing. What is sought is nothing more than the equivalent of the testimony of the driver of a Tribal-owned vehicle, on Tribe business, of an accident scene the driver happened to pass by, and with which he had no involvement. Tribal sovereignty does not bar the right of litigants to obtain such testimony. See Bay Mills Indian Community, 134 S. Ct. at 2034-2035 (noting the applicability of state law to individuals, including tribal officials, in a variety of contexts).

Conclusion

For the foregoing reasons, once they have been properly served with subpoenas, the motions to quash the depositions of George Green and Jessie Little Doe Baird are DENIED.

SO ORDERED.