Petition — McMasters v. Chase

Supreme Court brief1978

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| Supreme Court, U.S.”

| FILED

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IN THE | MIPUA@ DANA

Supreme Court of the United States

OcToBER TERM, 1978

"78-438

Ro.tanpD McMasters, J Ack SMITH, JR., WAYNE TURNER,

ARLYN WADHOLM AND RussEL PEDERSON, Petitioners,

BEULAH CHASE, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Tomas M. BEYER

17 Second Avenue West

Dickinson, North Dakota 58601

Attorney for Petitioners

Press or Bygon S. ADAMS PRINTING, INC., WASHINGTON, D. C.

“In CLERK

TABLE OF CONTENTS

Page

os satons: trodes cere TE Pe 1

cpbicinacir aserapmmpan te Ne DT Rar R ete AR 2

Questions Parsenrep .............0......000-.-,,. 2

NOUN SUI eos ccs eek ccc Oe 3

ye an ee CT NO an ie ORR Wee UTD 4

Reasons ror Grantine THE WRIT ................... 6

poe ge op Be Te LOE AE MN er 37

APPENDICES:

Aprenpix A—Opinion of the United States Court of

Appeals for the Fighth Cirenit ................ la

Arrenpix B—Opinion of the United States District

Court for the District of North Dakota ........ l4a

Arpenpix C—Opinion of the United States District

Court for the District of North Dakota ......... 23a

Aprpenpix D—Memorandum from the Solicitor of the

United States Department of the Interior to the

Commissioner of the Bureau of Indian Affairs,

ee 29a

Arpennix E—Memorandum from the Solicitor of the

United States Department of the Interior to the

Commissioner of the Bureau of Indian Affairs,

MM eee los ol ek 3la

Appenpix F—Memorandum from the Solicitor of the

United States Department of the Interior to the

Commissioner of the Bureau cf Indian Affairs,

June 16, 1945

Aprennix G—Opinion of the United States District

Court for the District of Columbia, City of Tacoma

v. Andrus ..... SASSER Pe CO OI ea 35a

TABLE OF AUTHORITIES | Table of Authorities Continued iil

CasEs: Page Page

; | King v. Smith, 392 U.S. 309 fn en, SO ee 23

Adickes v. S. H. Kress and Co., 398 U.S. 144 (1970) .. 26 er, Wells wg pg ‘yd F

Anderson v. Pacific Coast S.S. Co., 225 U.S. 189 (1912) 25 | mee ve ony Cax Commission of Arizona, 411 ne

wey A « ap «=ADS ‘ ; 3 j *—. Fle ea <Not

Biue v. Craig, 309 F'29 830 (4th Ore Gara 5g 3 Mescalera Apache Tribe v. Hickel, 439 F.2d 956 (10th

Board of Commissioners of Pawnee County, Oklahoma | pees “aa ra de ge ‘Same Eh ee get (1973) .~

OF once: 189 F-2d 248 (10th Cir. 1943) .. 21 | Moe v. Confederated Salish and Kootenai Tribes, 495

Board of Commissioners y. Seber, 318 U.S. 705 U.S. 463 (1976) ’ 36

(1943) i Ee ces a oe ae “a | Monell v. Department of Social Services of the City

Bomar v. Keyes, 162 F.2d 136 (2d Cir. oat SOS 31 of New York, 98 S. Ct. 9018 (1978 99

Brown vy. Brown, 368 F.2d 992 (9th Cir. SA 30 Monroe v. Pape 365 US 167 a allel 36 33

ria Seed ied diidh yy, Re aes Perez v. Campbell, 402 U.S. 637 (1971) 11.10.1111) 3a

jtizens to Preserve Overton Park v. Volpe, 401 U.S. ‘a Public Affairs Associates Inc. v. Rickover, 369 US

NE awe 6 natn vibls te ) Ss Ass 8, Inc. v. » 369 US.

City of New Town, North Dakota v. United States, 454 Puyaihis fete Ine. ¥ ‘Department ‘of Game of State =

( ) cues é 2 ate

Si ha ig| e ee mm | of Washington, 97 S. Ct. 2616 (1977) ...... 7n.1

City of Sault Ste. Marie v. Andrus, No. 77-1388 (D.D.C. ‘ Rosebud Sioux Trihe y Kneip, 430 U.S. 584 (1977) || 7n.1

Sc ee ini Se eR in aren | Suudinen « He gg A a ee a Dias

tas ~~ : Sz S Vv. ne, 506 F.2d 530 (10th Cir. 1974) .... 30

( are 978) v. Andrus, on a ve o 16 7 Santa Rosa Band of Indians vy. Kings County, 532 F.2d

Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 (1942) "36 | (1971) Fe ae ee gs ae

DeCoteau v. District County Court, 420 U.S. 425 (1975) 7n.1 ae papel hy et kd SS en RAEN eRe Fe Ree es. s -

Federal Power Commission v. Transcontinental Gas Moric ae ie Pia A10 as ng (Qa Gir 25

Pipe Line Corp., 423 U.S. 326 (1976) ............ 9 | 1963) aes Vv. inompson, 319 F. (2d Cir. 96

Florida Avocado and Lime Growers, Ine. v. Paul, 373 alege Ee Gee” te? Hr pL We ee at SSE eA :

hig ak nes, OTS eA lames 3 36 : Women Strike For Peace v. Hickel, 420 F.2d 597 (D.C. 2

Fourco Glass Co. v. Transmirra Products Corp., 353 Wood = Strickland 490 T's 308 (1975) Oe SR AE Ras =

1 Lc cotall Moxy MEE Tn Te = 25 ] ia se rege biel nha, agai) MELE ETE ROE

Gearheart v. Federal Reserve Bank of Cleveland, 516 a Pray whey a Public Welfare, 93

F.2d 353 (6th Cir. 1975), cert. denied, 423 U.S. 937 | dia a aah whl id naig eee ate

iecaiongs, RE Ee OE EAE AR ee 29 TENE

Gomez v. Florida State Employment Service, 417 F.2d Statutes anv ConstrrutionaL Provisions:

‘ ad sig? 2s ev! peas a a it; ee ; 31 United States Constitution, Art. We eco a: 34

iad 98 8° Ct. 1235 a Wei \et of June 27, 1866, §3, 14 Stat. 74................ 26

Greenwood v. Peacock, 384 U.S. 808 je | ee 30 Indian Reorganization Act of J 18, 1934, 48 Stat.

Hackin v. Lockwood, 361 F.2d 499 (9th Cir. 1966) || 33 984,25 U.S.C. 461 co aa

Hagans v. Lavine, 415 U.S, 528 (1974) ...........0 23 whe,

Hague v. C.1.0., 307 U.S. 496 (1939) igsinereciy ty 26 Oklahoma Indian Welfare Act of June 26, 1936, 49

Hill York Corp. v. American International Franchises, Stat. 1967, 25 U.S.C. § 501 et sac; EE eT ee 21

Ine., 448 F.2d 680 (5th Cir. 1971) ee ee et a ee 11 49 St: t. 1542 os

Hines v. Davidowitz, 312 U.S. 52 (1941) 0007000 36 $4iag-, 7 Smoot, tat, 188, 25 UR. ™

Jones v. Bombeck, 375 F.2d 737 (3d Cir. 1967) ...... > <a: CMO ip cen lt a giritt a cate ete Te na te eee

iv Table of Authorities Continued

Page

ConGrEssionaL REFERENCES:

Cong. Globe, 42d Cong., Ist Sess., 390, 475 (1871) .. .27, 28

Cong. Globe, 42d Cong., 1st Sess., App. 165, 216, 182

REOUED | 06 550s due voryye Woe ada oes ee 27, 29

78 Cong. Rec. 9268-9269, 11123, 11134, 11726, 11727,

11728, 11730, 11738 (1934) .................. passim

H.R. Rep. No. 1804, 73d Cong., 2d Sess. (1934) ...... 17

» H.R. Rep. No. 2048, 74th Cong., 2d Sess. (1936) ..... 22

IfL.R. Rep. No. 562, 75th Cong., Ist Sess. (1967) ..... 20n.4

Hearings Before the Committee on Indian Affairs, U.S.

Senate, 73d Cong., 2d Sess. (ROE ocak poe 17

Hearings Before the House Committee on Indian Af-

fairs, 73d Cong., 2d Sess. ROMO) cinkea tees 19

MISCELLANEOUS: :

Note, Federal Jurisdiction Over Challenges to State

Welfare Claims, 72 Col. L. Rev. 1408 (1972) .... 26

oP Rh st 6 onal neNan Tl ned aehdlnal

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No.

Rotanp McMastrrs, J Ack SMITH, JR., WAYNE ‘TURNER,

ARLYN WADHOLM AND RussEL PEDERSON, Petitioners,

BEULAH Cuasr, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Roland MeMasters, Jack Smith, Jr., Wayne Turner,

Arlyn Wadholm and Russel Pederson petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Kighth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Kighth Circuit ( Appendix A, infra) is reported

at 573 F.2d 1011. The initial decision of the United

States District Court for the District of North Dakota,

denying Plaintiff’s Motion for Preliminary Injunce-

tion, is reported at 405 F. Supp. 1297, and is set out

in Appendix B, infra. The subsequent decision of the

District Court, a dismissal on the merits, from which

appeal was taken, is unpublished, and is set out at

Appendix C, infra.

JURISDICTION

The judgment of the United States Court of Appeals

for the Kighth Circuit, entered April 5, 1978, affirmed

on other grounds the order denying relief entered by

the United States District Court for the District of

North Dakota on February 14, 1977. The United States

Court of Appeals for the Eighth Cireuit denied peti-

tioners’ motion for a rehearing on May 15, 1978. On

June 1, 1978, enforcement of the judgment was stayed

until July 1, 1978, to allow the petition for certiorari

to be filed with this Court. On July 10, 1978, the stay

of mandate was extended for an additional sixty days,

and thereafter, upon filing of the petition for writ of

certiorari, until final disposition of the matter by this

Court.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

I. Whether the court below utilized the proper scope

of review in examining agency action.

II. Whether the United States can accept fee title to

land from an Indian, so that the land can be held in

trust status by the United States under 25 U.S.C. § 465,

for the sole purpose of avoidance by the Indian of the

payment of state and local taxes.

III. Whether a cause of action based solely on an

alleged deprivation of a federal statutory right is

within the scope of 42 U.S.C. § 1983.

ACA CRE ENS CRS DRL Ee ee,

IV. Whether a pre-emption analysis can be applied

where there is no state or loca] regulation or other

affirmative conduct conflicting with the federal statute

or policy at issue in this ease.

STATUTES INVOLVED

The statutes at issue in the present case are section 5

of the Indian Reorganization Act of J une 18, 1934, 48

Stat. 984, 25 U.S.C. § 461 et seq., and 42 U.S.C. § 1983.

Section 5 reads as follows:

The Secretary of the Interior is hereby author-

ized, in his discretion, to acquire, through pur-

chase, relinquishment, gift, exchange, or assign-

ment, any interest in lands, water rights, or sur-

face rights to lands, within or without existing

reservations, including trust or otherwise re-

stricted allotments, whether the allottee be living

or deceased, for the purpose of providing land for

Indians.

For the acquisition of such lands. interests in

lands, water rights, and surface rights, and for

expenses incident to such acquisition, there is au-

thorized to be appropriated, out of any funds in

the Treasury not otherwise appropriated, a sum

not to exceed $2,000,000 in any one fiscal vear:

Provided, That no part of such funds shall be used

to acquire additional land outside of the exterior

boundaries of Navajo Indian Reservation for the

Navajo Indians in Arizona, nor in New Mexico,

in the event that legislation to define the exterior

boundaries of the Navajo Indian Reservation in

New Mexico, and for other purposes, or similar

legislation, becomes law.

The unexpended balances of any appropriations

made pursuant to this section shall remain avail-

able until expended.

Title to any lands or riglits acquired pursuant

to sotto 461, 462, 463, 464, 465, 466-470, 471-473,

474, 475, 476-478, and 479 of this title shall be

taken in the name of the United States in trust for

the Indian tribe or individual! Indian for which

the land is aequired, and such lands or rights shall

be exempt from State and local taxation.

The text of 42 U.S.C. § 1983 is as follows:

Kivery person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be sub-

jected, any citizen of the United States or other

person within the jurisdiction thereof to the dep-

rivation of any rights, privileges, or Immunities

secured by the Constitution and laws, shall be li-

able to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.

STATEMENT

The City of New Town, North Dakota, is a munici-

pality organized under the laws of North Dakota and

is located within the boundaries of the Fort Berthold

Reservation. On August 9, 1974, respondent Beulah

Chase, an enrolled member of the Three Affiliated

Tribes, and her husband, John, purchased a lot of land

within the city limits from the City of New Town. A

warranty deed to the land was issued to respondent by

the City on August 23, 1974. The purchase price was

$1102, including $702 in payment of special assessment

charges for construction of water and sewer lines, and

a water treatment plant.

On June 2%, 1975, respondent conveyed title to the

lot to the United States in trust for herself. Accept-

ance of the conveyance, pursuant to 25 U.S.C. § 465,

was approved on October 14, 1975, by the Area Direc-

a ORI. St en ennen-4 etree

i EE AN AN as ft IR A a ih si Nea

SNS 2 dae ad Rerwreaw

tor, Aberdeen Area Office, Bureau of Indian Affairs,

United States Department of the Interior.

After the conveyance in trust, respondent applied

to the City Council for connection of the lot to City

water and sewer lines. On September 29, 1975, respond-

ent was informed that the water and sewer connection

would not be made while the lot was held in trust

status.

On October 10, 1975, respondent filed suit in the

United States District ¢ ‘ourt for the District of North

Dakota, against the mayor and councilmen of New

Town, individually and in their official capacities, as-

serting a cause of action under 42 U.S.C. § 1983 and

§ 1985(3), and seeking declaratory, injunctive, and

monetary relief.

Respondent’s Motion for a Temporary Restraining

Order was denied on October 14, 1975. Her Motion to

Reconsider the Denial of the Motion for a Temporary

Restraining Order, filed October 28, 1975, was denied

on November 17, 1975. Respondent’s Motion for a Pre-

liminary Injunction was denied on December 20, 1975.

On February 14, 1977, respondent’s Motion for a

Permanent Injunction was denied, the court holding

that respondent had not shown either racial discrimi-

nation on the part of petitioners, or interference

through their actions with a constitutionally protected

right. The District Judge issued a letter on March 8,

1977, clarifying his previous order to indicate that the

claims for declaratory relief and damages were like-

wise dismissed.

An appeal to the United States Court of Appeals for

the Eighth Circuit was filed on March 16, 1977. The

Eighth Circuit issued its decision on April 5, 1978,

iit ieieieieieceeial A.

holding that the acceptance in trust of the lot was

proper under 25 U.S.C. § 465; respondent had a cause

of action for damages under 42 U.S.C. § 1983: the

City’s withholding of water and sewer service was in-

valid under the Supremacy Clause of the United

States Constitution as an interference with a federal

right conferred on respondent by 25 U.S.C. § 465; and,

finaily, petitioners were not liable in damages to re-

spondent because of their qualified immunity.

The federal questions were first raised in the district

court by Plaintiff’s Complaint, filed October 10, 1975,

and Defendants’ Answer, filed November 10, 1975.

Those same questions formed the substance of respond-

ent’s appeal to the Eighth Cireuit, filed March 16, 1977.

The statutes involved, 25 U.S.C. § 465 and 42 U.S.C.

§ 1983, have been at issue throughout these proceed-

ings, and both courts below have interpreted them in

making their determinations.

REASONS FOR GRANTING THE WRIT

_I. The Eighth Cireuit decision below holds that local

municipalities must provide certain municipal services

to trust lands acquired pursuant to 25 U.S.C. § 465, and

that such trust lands may not be taxed or regulated in

any manner by state and local governmental units.

This latter holding was primarily based on Santa Rosa Band

of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1976), cert.

denicd, 429 U.S. 1088 (1977). App. A at 10a. Apart from the

fact that the eonelusions drawn in Santa Rosa concerning juris-

diction were without foundation, it should be observed that Santa

Rosa involved attempted land use regulation of trust land within

a reservation. The original boundaries of the Fort Berthold Reser-

vation, upon which respondent held her trust land, were found to

have not been disestablished in City of New Town, North Dakota

v. United States, 454 F.2d 121 (8th Cir. 1972). The New Town

ee ee

Both holdings may have a devastating impact upon

states and local units of sovernment. If municipal

services must be provided to § 465 trust lands, those

same services may have to be provided to all trust land

regardless of whether such land is acquired pursuant

to § 465. Additionally, these services will be provided

to those over whom the state or municipality can exer-

cise neither regulatory nor taxing control.

In addition, the lower court has upheld agency ac-

tion in this case without allowing the administrative

record for such action to be scrutinized. This valida-

tion of agency action is in derogation of the principles

established by this Court for judicial review. In finding

that the agency acted properly in acquiring land for

the respondent under § 465, the court held that an

individual Indian could convert fee land into trust

status to avoid the payment of taxes, Such an acquisi-

tion is clearly unauthorized, as is discerned from a

reading of the legislative history and contemporaneous

administrative interpretations of § 465. This interpre-

tation both conflicts with that of the United States

District Court for the District of Columbia, and ex-

pands the class of intended beneficiaries of the statute

beyond that designated by Congress.

decision, however, relied upon case law which is presently without

foree, After that case was decided, this Court decided Rosebud

Stour Tribe y. Kneip, 430 U.S. 584 (1977), and DeCoteau vy.

District County Court, 420 U.S. 425 (1975). The Rosebud and

DeCoteau decisions now provide the framework in which reserva-

tion boundary questions must be analyzed, and those boundary

decisions predating these cases, including City of New Town,

should be reexamined. See Puyallup Tribe Ine. y. Department of

(ame of State of Washington, 97 S. Ct. 2616, 2621, n. 11 (1977)

(validity of reservation boundary decision antedating DeCotcau

and Rosebud questioned),

The jurisdictional scope of § 465 is an issue of na-

tional importance. Both the City of Tacoma, Washing-

ton, and the City of Sault Ste. Marie, Michigan, have

been compelled to file suit against the Secretary of the

Interior in United States District Court for the Dis-

trict of Columbia for a judicial resolution of this

problem. City of Tacoma v. Andrus, No. 77-1423 (D.

D.C., complaint filed Aug. 17, 1977) ; City of Sault Ste.

Maric y. Andrus, No. 77-1388 (D.D.C., complaint filed

Aug. 9, 1977). Apart from the jurisdictions presently

litigating the scope of § 465, there are many govern-

mental subdivisions similarly situated. That this issue

is one of national concern is evinced by the National

Association of Counties’ American County Platform

Statement on Indian Affairs and Resolution on Indian

Affairs which were adopted July 11, 1978. Despite the

adverse consequences to states and their local units of

Government from the acquisition of § 465 trust lands,

the federal officials who have the authority to remedy

the situation have recently proposed regulations which

would serve to give the Secretary unlimited authority

to aequire land under the statute. 43 Fed. Reg. 32,311

(1978). Until this issue is resolved, states, cities, and

counties will be left in a chaotie state of jurisdictional

uncertainty.

The court below has also apparently broadened the

parameters of § 1983 by finding that any Indian claim

stemming from the federal ‘‘guardian-ward”’ relation-

ship is one of coastitutional dimension for the purposes

of that statute. Once found to be a claim actionable

under § 1983, the court employed a pre-emption an-

alysis, which was unwarranted by the facts of the case,

to avoid having to analyze the ease in an equal pro-

tection context.

This Court should grant certiorari to properly apply

the law to the facts of this ease, and, thus, negate the

wide-ranging, adverse consequences to states and their

local governmental subdivisions.

II. <A basie defect in the opinion of the court below

is the standard of review employed. In essence, the

Eighth Circuit conducted a de novo review of the pro-

priety of the acceptance in trust under § 465 of re-

spondent’s tract. Petitioners’ position, however, is that

de novo review was inappropriate in this ease, and,

even assuming that the Eighth Cireuit properly ap-

proached the construction of § 465, the court’s appli-

cation of its own statutory standard should have been

limited to consideration of the facts involved in the

acceptance in trust as revealed by the administrative

record alone. However, since the administrative rec-

ord was not before the court, it was precluded from

reaching a decision on the merits and was required in-

stead to remand the case to the district court for recon-

sideration of the case in light of the cireuit court deci-

sion as applied to the administrative record.

Although this case was not specifically brought un-

der the Administrative Procedure Act, 5 U.S.C. §551

et seq., it does involve examination of action by a fed-

eral agency, and thus, the judicial standards which

have developed for review of agency action are equally

applicable in the present context. Most relevant to this

case is this Court’s discussion of the scope of appellate

review in Federal Power Commission v. Transconti-

nental Gas Pipe Line Corp., 423 U.S. 326 (1976),

where it was stated that

ordinarily review of administrative decisions is to

be confined to ‘‘consideration of the decision of

the agency ... and of the evidence on which it is

hased.’’? United States v. Carlo Bianchi & Co., 373

U.S. 709, 714-715, 83. S. Ct. 1409, 1413, 10 L.Ed.2d

652 (1963). “[T]he foeal point for judicial review

should be the administrative record already in ex-

istence, not some new reeord made initially in the

reviewing court.’ Camp v. Pitts, 411 U.S, 138, 142,

93S. Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). If the

decision of the ageney ‘‘is not sustainable in the

administrative record made, then the... decision

must be vacated and the matter remanded... for

further consideration.’’ Id. at 143, 93S. Ct. at 144.

Id. at 331. In fact, petitioners’ position that de novo

review is inappropriate except in very limited cireum-

stances is by now a well-settled principle that has fre-

quently been reiterated by this Court. L.g., Camp Vv.

Pitts, 411 U.S. 138 (1973) ; Citizens to Preserve Over-

ton Park vy. Volpe, 401 U.S. 402 (1971).

The court below, however, seems to have ignored

the explicit dictates of case law, and, in its decision,

eonducted a de novo review of the acceptance in trust.’

In so doing, the court also ignored a more general

principle not limited to cases involving examination

of agency action; that is, that inadequacy of the record

in the district court requires remand for proper dis-

2The Court of Appeals did indirectly address the issue of the

proper scope of review. App. A at 4a, n. 3. However, as revealed

by its citation to Mescalero Apache Tribe v. Hickel, 432 F.2d 956

(10th Cir. 1970), cert. denied, 401 U.S. 981 (1971), the court's

statement related only to the necessity of exhaustion of adminis-

trative remedies, an issue wholly distinet from the requirement

that judicial review of administrative action be limited to the

administrative record. While exhaustion was coneededly not re-

quired in the present ease, the faetors which lead to that conclusion

have little bearing on the appropriate scope of judicial review.

Mescalero Apache Tribe v. Hickel, supra, thus provides no support

for the court’s implied assumption that it could properly conduct

de novo review of the acceptance in trust in the present ease.

position of the case, since the Court of Appeals ‘‘must

not be understood as even intimating that [it] ean

engage in the fact-finding process at the Appellate

level.’? Hill York Corp. v. American International

Franchises, Inc., 448 F.2d 680, 691 (5th Cir. 1971).

See also, Public Affairs Associates, Inc. v. Rickover,

369 U.S. 111, 113-114 (1962) ; Women Strike for Peace

v. Hickel, 420 F.2d 597, 603-604 (D.C. Cir. 1969).

The appropriate course of action would thus have

been to remand the case to the district court for con-

sideration of tie administrative record in light of the

Eighth Cireuit’s opinion. The district court, if neces-

sary, could then have required joinder of the appro-

priate agency officials, pursuant to Rule 19(a) of the

Federal Rules of Civil Procedure and 5 U.S.C. § 702.

The Eighth Cireuit’s failure to remand makes its dis-

position of the case procedurally defective, and thus

heightens the propriety of review by this Court of the

decision below.

III. The court below held that under 25 U.S.C. § 465

the Secretary of the Interior is authorized to accept in

trust land already held in fee by an individual Indian.

In reaching this conclusion, the court stated that a

contrary interpretation was not required either by

the language of the statute or its legislative history,

yet the court in fact did no more than a cursory analy-

sis of the legislative history and statutory language,

and relied on only one case, Board of Commissioners

v. Seber, 318 U.S. 705 (1943), which involved con-

struction of a statute crucially different from § 465.

There is no indication in the Eighth Circuit opinion

that the court examined the legislative history relevant

to the § 465 land acquisition provision. If the court

had made such an analysis, it could only have con-

cluded that acceptance in trust of land already held in

fee by the intended trust beneficiary is outside the

intended scope of § 465.

The relevant legislative history is replete with state-

ments indicating that the purpose of § 465 was to

alleviate the dire economic situation of landless Indians

by acquiring new land for their benefit. For example,

Representative Hastings commented on the provision

in the original Senate bill’® as follows:

Title III is entitled ‘Indian lands’’, and without

analyzing it in detail, it authorizes an appropria-

tion of $2,000,000 annually with which to buy

additional lands for the use and benefit of mem-

bers of the respective chartered communities. I

have indicated, and I repeat now, that I am in

sympathy with the purchase of additional lands

for indigent, landless, and homeless Indians. Con-

gress has appropriated money on a number of

occasions to purchase lands for the landless In-

dians in California. There is no reason why this

policy should not be enlarged and extended to

other Indian Tribes...

Let me repeat that I favor any adequate appro-

priation to buy lands for the support of landless

and homeless Indians, whether they are improv}-

dently dispossessed of their lands or whether they

were born since the lands were allotted, and there-

fore not enrolled... .

78 Cong. Ree. 9268-9269 (1934).

Hastings, a critic of the self-government provisions

of the bill, later reiterated his support and under-

standing of the land acquisition provision:

3The land acquisition provision, eventually enacted as Section

5, remained essentially unchanged through various revisions of

the bill.

oer.

I emphasized then that I had no objection to ad-

ditional appropriations to purchase land for the

old and poor and landless Indians, if bought for

their benefit in the nature of Indian subsistence

homesteads without the self-government features.

78 Cong. Ree. 11738 (1934).

That Congress’ concern was with providing new

lands for landless Indians is reinforced by numerous

references by the House sponsor of the bill to the

increasing numbers of impoverished landless Indians:

In 1887 there were less than 5000 landless Indians.

Today there are more than 100,000. ...

As the Indian estate has dwindled, Indian poverty

and pauperism have increased alarmingly. It is

estimated that there are now more than 100,000

landless Indians, a number which will inevitably

and rapidly increase as long as the present system

operates to deprive them of land and home. These

landless Indians, in Nebraska, in the Dakotas,

Minnesota, Michigan, Wisconsin, California, Ne-

vada, and many other States, constitute a tragic

problem in destitution and an acute problem of

social relief which neither the Federal Govern-

ment nor the States are adequately dealing with.

78 Cong. Ree. 11726, 11728 (Rep. Howard) (1934).

Senator Wheeler, the bill’s other sponsor, echoed

this concern:

But what has happened is that the Government

has been in a position where it could sell these

lands. Now the Government seeks to stop that,

because of the fact that these poor, unfortunate

Indians are being found landless. The Govern-

ment has taken the lands and sold them to white

people, and then the Indians have been absolutely

at the mercy of the white people, have been pov-

erty stricken.

78 Cong. Rec. 11134 (1934).

In addition to overlooking these expressions of Con-

gressional intent, the court below further misconstrued

§ 465 in its consideration of that provision in the

context of the entire statute. That is, the court regarded

§ 465 as part of a new federal policy, embodied in the

Indian Reorganization Act, to prevent further alien-

ation of Indian lands caused by the allotment system

previously in force. App. A. at . The Court is in-

deed correct in its statement that land consolidation

was one purpose of the Indian Reorganization Act.

However, the court fails to recognize that that purpose

was to be implemented through sections 1-4 of the Act,

and that section 5 was directed to a distinct, although

related, purpose: acquiring land holdings for landless

Indians.

The legislative history quite clearly reflects this

duality of purpose. In floor debate on the biil, Senator

Wheeler characterized its purposes as follows:

First, to stop the alienation, through action by the

Government or the Indians, of such lands, belong-

ing to ward Indians, as are needed for the present

and future support of the Indians. .

The second purpose is to provide by the acquisi-

tion, through purchase, of land for Indians now

landless who are anxious and fitted to make a liv-

ing on such land. The Commissioner of Indian Af-

fairs and the Bureau of Indian Affairs have found

that there are many Indians who have no lands

whatsoever, and are unable to make a living. Con-

sequently, the Government is constantly compelled

to furnish money to these Indians. It is thought by

Die ai nanotech ate ae

the Government that it would be much cheaper in

the long run and would make better citizens of

them if we could put them on small tracts of land

where they could make their own living.

78 Cong. Ree. 11123 (1934).

Representative Howard was even more emphatic

when he outlined the major thrust of the bill before

the House. After summarizing the purposes of sections

1-4, Howard continued:

Section 5: The sections mentioned are designed to

prevent further loss of Indian land. But prevention

is not enough. The Indians now landless must be

provided for. This section undertakes to do this

gradually through an annual appropriation for the

purchase of land.

78 Cong. Ree. 11727 (1934).

Later in the same series of remarks, Representative

Howard reiterated that the intended effect of section

9 would be to promote the economic welfare of land-

less Indians, and reduce Government expenditures on

their behalf, through acquisition by the Secretary of the

Interior of new lands for their benefit.

The preceding sections [Secs. 1-4] are safeguards

to prevent further loss and wastage of Indian

lands. But we must go further and actually re-

store some of the lost lands to the Indians. Sec-

tion 5 sets up a land acquisition program to pro-

vide land for Indians who have no land or insuffi-

cient land, and who can use land beneficially ....

I have already said that there are more than

100,000 landless Indians in America today ... This

program would permit the purchase of land for

many bands and groups of landless Indians and

would permit progress toward the consolidation

of badly checkerboarded Indian reservations .. .

[I]t is moreover an investment that will many

times repay itself by taking Indians off the relief

and ration rolls.

78 Cong. Ree. 11730 (1934).

This distinet duality of purpose has recently been

recognized by the District Court for the District of

Columbia in City of Tacoma v. Andrus, No. T7-1423,

(D.D.C. Jan. 20, 1978) (Gesell, J.), App. G. The court

there stated that acceptance in trust of land already

held in fee by an individual competent Indian “would

make a mockery of a statute obviously designed to aug-

ment, not merely transform, title to land available to

Indians.’’ App. G at . The court further re-

jected an argument that such a taking is valid because

it ecomports with the Congressional purpose of pre-

venting further alienation of Indian land, noting that

[t]hat purpose, however, was addressed in Sec-

tions 1-4 of the Act, not Section 5 under whose au-

thority the Secretary purports to operate. Sections

1-4 deal with the alienation problem by prohibiting

transfers and allotments of Indian land, extend-

ing indefinitely the trust status of all restricted

lands, and returning certain ‘“‘surplus’”’ lands to

tribal sovereignty. 25 U.S.C. §§ 461, 462, 463, 464

(1970). Seetion 5 was adopted for a different, al-

heit complemer tary purpose.

App. G at

The final louse Committee Report on the bill con-

tains a concise summary of the thrust of each provi-

sion, and characterizes § 465 as follows:

Section 5 authorizes the Seeretary of the Interior

to purchase or otherwise aequire land for landless

Indians.

The title to land thus aequired will remain in the

United States. The Secretary may permit the use

ohana.

and occupancy of this newly acquired land by

landless Indiaus; he may loan them the money for

improvements and cultivation, but the continued

occupancy of this land will depend on its beneficial

use by the Indian occupant and his heirs.

H.R. Rep. No. 1804, 73d Cong., 2d Sess. 7 (1934).

The reiteration in the Report of the statutory lan-

guage, coupled with the condition that ‘‘beneficial use’’

of the land so acquired is a prerequisite to its continued

occupancy by the Indian beneficiaries, indicate that

§ 465 was regarded as a type of self-help measure de-

signed to benefit landless Indians who were seen as

unintentional victims of the federal allotment policy.

The various committee hearings on the bill reflect

this interpretation. In his testimony before the Senate

Committee, Commissioner Collier, the primary Admin-

istration spokesman for the bill, consistently noted the

distinct purposes embodied in the bill’s land provisions.

For example, Collier stated that

[t]his bill takes its origin from the absolute neces-

sity of in some way correcting the trend of the

allotment, stopping the loss of the remaining In-

dian lands, making it possible to bring the remain-

ing land into usable blocks, so that they can be

effectively and economically operated. That is the

purpose of this bill. Jn addition, the bill recognizes

that if the Indians want to make a living on the

land, they should be entitled to that land. It pro-

vides that land may be bought for them by the

Government. It authorizes the appropriation of

$2,000,000 a year to buy land back for those In-

dians. (Emphasis added.)

Hearings Before the Committee on Indian Affairs, U.S.

Senate, Part I, 73d Cong., 2d Sess. 31 (1934).

Later, commenting on the evils of the allotment pol-

icy, Collier emphasized that ‘‘through the workings of

the allotment system a very great number of Indians

have been rendered entirely landless.’’ Senate Hear-

ings, supra at 59 (Part IL). This exchange followed:

The Chairman: How do you propose to get land?

(Comm. Collier: That is the second feature. But I

want to make clear that before we can hope to

start in on any large scheme of acquiring new land

we have got to get a system of holding the land

that is different from this system... If we can see

some sensible way of handling the allotted lands,

then the thing to do is to proceed and buy land

conservatively for the landless Indians who want

to live on the land. The bill authorizes an expendi-

ture of 2 million a year on the purchases of land.

That is not the only string we have to our bow,

but it is the most important string.

Id.

Collier later reiterated the dual purposes embodied

in Title III, stating that it endeavors

first of all, to provide a means of correcting the

unpracticable features of the allotment system, and

of doing it with a minimum of dislocation and with-

out disturbance of vested rights. And then it adds

on a land-acquisition program at the rate of

$2,000,000 a year.

Senate Hearings, supra at 61.

A similar understanding of the effect of section 5 is

apparent in the House hearings on the bill. The fol-

lowing exchange between a member of the House Com-

mittee, Representative Peavey, and a Tribal represent-

ative typifies that understanding:

Mr. Peavey: I would have to ask the chief with

regard to the objection just stated. As I under-

hens onde 0ST

stand it, he feels that the landless Indians, being

in a larger number within the Tribe than those

who now own land and property, would therefore

outvote them, the land-owning members. I would

like to ask him if he knows of the provision in the

bill under which it is proposed to reinvest these

landless Indians with land by Government pur-

chase, and if that does not meet his objection.

Mr. Saluskin: In reply to that question, I would

say this, that if the Government was to buy land

for this landless Indian that has already sold his

own allotment, what assurance has the Govern-

ment’ got that this Indian is going to make use of

that land after it is purchased for him ?

The Chairman: Does he have objection to the Gov-

ernment buying lands for the landless Indians ?

Mr. Saluskin: I have no objections to the Govern-

ment buying this land for the landless Indians, but

IT do not want him coming into what I am holding

and try to take away from me just in order to ac-

commodate the landless Indians.

Hearings Before the House Committee on Indian Af-

fairs, Part VI, 73d Cong., 2d Sess. 235 (1934).

The court below dismissed the import of this legisla-

tive history, seemingly without any in-depth examina-

tion, by stating that:

[ W Jhile the Senate Report does refer to ‘‘land-

less Indians’’, the Supreme Court has refused to

read such remarks in the legislative history of a

similar statute, which also granted tax-exempt

status to Indian land, as limiting the benefits of

the statute to landless Indians. Board of Commis-

stoners v. Seber, 318 U.S. 705, 710 (1943).

App. A at . However, the court’s reliance on

Seber is misplaced because the statute involved in that

case, 49 Stat. 1542, as amended, 50 Stat. 188, 25 U.S.C.

§ 412a, is crucially dissimilar in purpose and content

from the statute at issue in the present case.*

The Court in Seber concluded that the tax exemption

granted by the statute did not apply only to lands pur-

chased for landless Indians. The Court reached this

conclusion through consideration of the legislative his-

tory, statutory language and purpose, contemporary

administrative interpretations, and subsequent Con-

gressional history. Board of Commissioners v. Seber,

supra at 710-711. It appears that the sole support for

the argument that the statutory tax exemption ex-

tended only to lands bought for landless Indians was a

single remark made in floor debate by the bill’s spon-

sor. Board of Commissioners v. Seber, supra at 710,

n. 7. However, the language, administrative interpre-

tation and subsequent legislative history of the statute

supported the contrary conclusion that the statute was

intended to grant a blanket tax immunity to all Indian

land within its definition, that is, all homestead lands

purchased out of trust funds and subject to restric-

tions against alienation or encumbrance. Board of

Commissioners Vv. Seber, supra at 711, n. 8-10.

The Seber case is thus easily distinguishable from

the present case, where the clear wording of the sta-

tute,” its legislative history, and contemporaneous ad-

‘For example, the most obvious distinct in between the two sta-

tutes is that §412a does not provide a mechanism for acquisition

of land, but merely extends tax-exempt status to Indian homestead

lands which were purchased with trust or restricted funds and were

held subject to restrictions against alienation or encumbrance. See

H.R. Rep. No. 562, 75th Cong., Ist Sess. (1937).

5’ The crucial language of 25 U.S.C. § 465—acquisition ‘‘for the

purpose of providing land for Indians’’—is absent from 25 U.S.C.

§ 412a.

ministrative interpretation,’ all support the conclusion

that § 465 was intended solely to create a mechanism

for providing lands for landless Indians. Reliance on

Seber thus provides no support for the conclusion

reached by the court below in the present case.

In support of its conclusion, the court below cites

Board of Commissioners of Pawnee County, Oklaho-

ma v. United States, 139 F.2d 248 (10th Cir. 1943).

Like Seber, supra, the statute involved in that case

is distinguishable from § 465, and the holding in Paw-

nee County is thus inapposite to the present case.

The statute at issue in Pawnee County was the

Oklahoma Indian Welfare Act of June 26, 1936, 49

Stat. 1967, 25 U.S.C. § 501 et seg. A challenge was made

to the validity of a taking in trust under that statute,

the plaintiffs asserting that the Secretary of the In-

terior had exceeded his statutory authority by accept-

ing land in trust for the sole purpose of placing tax

immunity on the land. The Tenth Circuit held the

Secretary’s action valid because ‘‘both the purpose

and result [of the taking] are within the legislative

design.’’ Board of Commissioners of Pawnee County,

Oklahoma v. United States, supra at 252.

Significantly, the Oklahoma Act, although it mirrors

the language of § 465 in other respects, does not con-

tain the qualifying clause ‘‘providing land for In-

dians’’, an indication that its purposes are indeed dif-

°The contemporaneous administrative interpretation of § 465

was that it would neither be consistent with the purpose of § 465—

specifically, ‘‘providing land for Indians’’—nor within the author-

ity conferred by the Act for the Secretary of the Interior to accept

in trust land already owned in fee by an individual Indian. See

Memoranda from the Solicitor of the United States Department

of the Interior to the Commissioner of the Bureau of Indian Affairs

(Dee. 18, 1934; April 14, 1935; June 16, 1945), Apps. D, E, F.

ferent than those underlying § 465. Although the court

did not expressly articulate those statutory purposes

in Pawnee County, the House Committee Report on

the Act indicates that the purpose behind section 1

was the acquisition of good quality farm lands, a

purpose necessarily narrower than that behind 25

U.S.C. § 465. See H.R. Rep. No. 2048, 74th Cong. 2d

Sess. 3 (1936). The acceptance in trust in Pawnee

County thus easily falls within the scope of the Okla-

homa Act because the statutory test—acquisition of

land suitable for agriculture—was met. Board of Com-

missioners of Pawnee County, Oklahoma Vv. Umted

States, supra at 252. The Report further indicates that

only sections 3-5 of the Oklahoma Act, providing for

tribal organization, were viewed as mirroring parallel

provisions of the Indian Reorganization Act. H.R.

Rep. No. 2048, supra at 3. By implication, therefore,

section 1 was not viewed as an identical application

of the terms of § 465, the land acquisition provision

in the Indian Reorganization Act, to the Oklahoma

Indians.

The scope of statutory authority of the Oklahoma

Act, as defined by legislative intent, is thus distinct

from the purpose and scope of § 465. The court in

Pawnee County was therefore correct in holding the

Secretary’s actions valid, because they were within

the scope of authority granted him and comported

with the legislative intent behind the statute. Clearly

this holding cannot be extended to the present case,

however, because the purpose of § 465—providing land

for landless Indians—is not served by accepting land

in trust solely to place a tax exemption on the land.

The court in Pawnee County further stated that the

fact that the Secretary’s initial motivation for the

ws pragies in trust was an improper one was irrele-

nia to eypinrn i of the validity of his actions

bere e eventual result of the taking was consistent

th the statutory purpose, that is, acquisition of land ~

suitable for agricultural use. Board of Commissione

of Pawnee County, Oklahoma v. United Siates. su =

at 252. This reasoning is likewise inapplicable to the

present case because the result of the acceptance in

trust falls outside the stat pal

land for Indians. atutory purpose of providing

IV. The Eighth Circuit held that respondent’s alle-

gation of a denial of rights conferred by § 465 stated

a cause of action under 42 U.S.C. § 1983. A A a

ma Petitioners contend, however, that the ith se

te! erred in finding respondent’s claim actionable

, er § 1983 because, first, that section creates a cause

of action only for deprivations of constitutional rights;

and, second, even if statutory rights are considered

— the purview of § 1983, that section covers only

lose federal statutes enacted to enforce rights s d

by the Fourteenth Amendment. igs

This Court itself has recognized tha

of the scope of § 1983 is ear hea be; pmon

occasions has reserved decision on it. See Hagans v

rota 415 U.S. 528, 533, n. 5 (1974) ; King v. Smith,

U.S. 309, 312, n. 3 (1968). Similarly, there is a

disagreement among the lower federal courts on the

Pee Compare Wynn v. Indiana State Department of

ublic Welfare, 316 F. Supp. 324 (N.D. Ind 1970)

with Blue v. Craig, 505 F.2d 830 (4th Cir. 1974),

Originally enacted as section 1 of the Civil Rights

Act of April 20, 1871, 17 Stat. 133, the predecessor of

42 U.S.C. § 1983 provided as follows:

That any person who under color of law, statute,

ordinance, regulation, custom, or usage, of any

State, shall subject, or cause to be subjected, any

person within the jurisdiction of the United States

to the deprivation of any rights, privileges, or

immunities secured by the Constitution of the

United States, shall, any such law, statute, ordi-

nance, regulation, custom, or usage of the State

to the contrary notwithstanding, be liable to the

party injured in any action at law, suit in equity,

or other proper proceeding for redress; such pro-

ceeding to be prosecuted in the several district or

circuit courts of the United States, with and sub-

ject to the same rights of appeal, review upon

error, and other remedies provided in like cases

in such courts, under the provisions of the act of

the ninth of April, eighteen hundred and sixty-

six, entitled ‘An Act to protect all persons in the

United States in their Civil rights, and to furnish

the means of their vindication’; and the other

remedial laws of the United States which are in

their nature applicable in such cases. (Emphasis

added. )

In 1874, the statute was included as § 1979 in the Re-

vised Statutes, and appeared there in a form identical

to the present § 1983.

For purposes of this case, the most significant dif-

ference between the original and revised versions of

what is now § 1983 is the addition of the phrase ‘‘and

laws’? to § 1979 in the Revised Statutes. Petitioners

contend that this addition, accomplished through re-

vision alone and not pursuant to a clear expression

of Congressional intent to alter the meaning of the

statute, should not be accorded controlling weight to

aad

alter the substance of the original Act by including

causes of action based solely on denial of federal sta-

tutory rights. Instead, the text of the original act

must be recognized as controlling, and, therefore,

§ 1983 should be interpreted to create a cause of action

only for constitutional, not statutory, rights.

Petitioners’ position is supported by Wynn v. In-

diana State Department of Welfare, supra, in which

the court concluded that

[t]he intention of Congress in enacting the Civil

Rights Act of 1871 must be determined from the

language of the original statute, its legislative

history and subsequent judicial interpretations.

(Emphasis in original.)

Id. at 328. Consonant with this interpretation, the

court in Wynn held that an alleged deprivation of

rights secured by the Social Security Act, due to an

inconsistent state statute, was not actionable under

§ 1983.

The court’s conclusion in Wynn is well-supported

by numerous judicial statements reiterating the general

principle of statutory construction that no inference

of a substantive change is accorded changes in lan-

guage resulting from statutory revision, unless Con-

gressional intent to accomplish such change is clearly

expressed. See Anderson v. Pacific Coast S.S. Co., 225

U.S. 189, 199 (1912) (‘‘. . . it will not be inferred that

Congress, in revising and consolidating the laws, in-

tended to change their effect unless such intention is

clearly expressed.’’) ; United States v. Ryder, 110 U.S.

729, 740 (1884) ; United States v. Thompson, 319 F.2d

665, 669 (2d Cir. 1963) ; cf. Fourco Glass Co. v. Trans-

mirra Products Corp., 353 U.S. 222, 227 (1957).

Clearly such a major change in meaning to § 1983

should not be attributed to an addition to the statutory

language that was not even commented upon by the

_draftsmen of the revision, and did not follow from any

express Congressional directive to effect a substantive

change. See Note, Federal Jurisdiction over Challenges

to State Welfare Claims, 72 Col. L. Rev. 1408, 1418

(1972). The lack of commentary by the revisers is made

more significant by the fact that the statute authoriz-

ing the Revision required the draftsmen to ‘‘suggest to

Congress such contradictions, ormissions, and imper-

fections as may appear in the original text, with the

mode in which they have reconciled, supplied, and

amended the same.” Act of June 27, 1866, § 3, 14 Stat.

74. Further, this Court in dicta has indicated its own

belief that the 1874 Revision accomplished no signifi-

cant substantive change in the original 1871 Act. See

Adickes v. S. H. Kress and Co., 398 U.S. 144, 203, n. 15

(1970); Monroe v. Pape, 365 U.S. 167, 212-213, n. 18

(1961) (opinion of Frankfurter, J.); cf. Hague Vv.

C.1.0., 307 U.S. 496, 510 (1939).

Examination of the legislative history itself confirms

the proposition that the enacting Congress interpreted

the predecessor to § 1983 as a mechanism for federal

enforcement of constitutionally protected rights, or

more specifically, those rights conferred by the Four-

teenth Amendment and, in particular, the equal pro-

tection clause. The legislative history is replete with

references to the general purpose of the bill, which both

proponents and opponents agreed was to enforce con-

stitutionally guaranteed rights. For example, Repre-

sentative Williams stated:

Mr. Speaker, this bill that meets with the united

opposition of these degenerate sons of the old Dem-

<a US ae

ocratic fathers provides—what? Only for -

forcement of the three great rights of the er led

tion of Independence .... For it I ean cheerfully

vote, or for the enactment of any law which shail

secure to every American citizen the equal pro-

tection of the law and the enforcement of every

constitutional privilege by appropriate legislation.

Cong. Globe, 42d Cong., 1st Sess., App., at 165 (1871)

(hereinafter ‘‘Globe App.”). Representative Dawes

echoed the same theme:

The rights, privileges, and immunities of the

American citizen, secured to him under the Con-

stitution of the United States, are the subject mat-

ter of this bill... . The purpose of this bill is, if

possible, and if necessary, to render the American

citizen more safe in the enjoyment of those rights

privileges, and immunities. .

Cong. Globe, 42d Cong., 1st Sess., at 475 (1871) (here-

inafter ‘‘Globe’’). Senator Thurman, an opponent of

the bill, nevertheless concurred in its supporters’ inter-

pretation:

[The bill] authorizes any person who is deprived

of any right, privilege, or immunity secured to him

by the Constitution of the United States, to bring

an action against the wrong-doer in the Federal

courts .... I am certainly not in favor of denying

to any man who is deprived unlawfully of his right,

his privilege, or his immunity, under the Constitu-

a of the Resor yer that redress to which

y man 1s entitled whose rights are violated;

but I do think that it is a tectl impolitic oe

sion, that in effect may transfer the hearing of all

such causes into the Federal courts.

Globe App. at 216.

In addition, one focus of the legislative debate was

the source of Congress’ constitutional power to enact

the bill, and it was in that context that the correlation

between the Fourteenth Amendment and the bill was

recognized ; that is, the bill’s supporters contended that

section 5 of the Fourteenth Amendment conferred au-

thority on Congress to enact § 1983 as appropriate leg-

islation to enforce the provisions of the Amendment. In

this regard, Representative Elliot stated:

I shall not reiterate the argument already so ex-

haustively applied, as derived from the fourteenth

amendment, which this bill is declaredly designed

to enforce. I would only call attention to section

five of that article, which declares:

“The Congress shall have power to enforce

by appropriate legislation the provisions of

this article.’’

Is not this bill ‘‘appropriate legislation’? I ap-

prehend, Mr. Speaker, that it is obnoxious to the

Democratic party chiefly because it is ‘‘appropri-

ate’, and strikes at the homicidal proclivities

which have become chronic among the active allies

of that party ....

Globe at 390. Representative Mecur viewed the issue in

a similar light:

... the last clause of the amendment provides that

no State shall ‘‘deny to any person within its ju-

risdiction the equal protection of the laws.” How

is that to be enforced?

* * *

You will observe, Mr. Speaker, the great object to

be accomplished, the great end to be reached, is

“protection” ....

ee.

How then is this constitutional requirement to be

enforced? The fifth section of the fourteenth

amendment answers the question... .

There is the power, and the bill now under con-

sideration contains the ‘“‘appropriate legislation.”’

Globe App. at 182.

The legislative history thus makes abundantly clear

that Congress intended the predecessor to § 1983 to

serve as a means of redress of constitutionally pro-

tected rights. Its use in enforcing purely statutory

rights seems not to have been within the contempla-

tion of Congress, and it would therefore be contrary to

Congressional intent to expand the scope of § 1983, as

the court below did, to include purely statutorily-based

claims.

Explicit discussion of the definitional scope of

§ 1983 in this regard is noticeably absent from the case

law, but the omission can best be attributed to the fact

that virtually all suits brought under §1983 present

allegations of strictly constitutional, not statutory, dep-

rivations. It is significant, however, that this Court

has given indications that § 1983 is limited to consti-

tutional claims. E.g., Wood v. Strickland, 420 U.S. 308,

326 (1975) (‘*...§ 1983 was not intended to be a vehicle

for federal-court corrections of errors... which do not

rise to the level of violations of specific constitutional

guarantees.’’); cf. Monell v. Department of Social

Services of the City of New York, 988. Ct. 2018 (1978).

See also Monell v. Department of Social Services of the

City of New York, supra at 2049, n. 1 (Rehnquist, J.,

dissenting). In addition, various federal courts have

similarly indicated that only constitutional rights are

actionable under § 1983. Gearheart v. Federal Reserve

Bank of Cleveland, 516 F.2d 353, 354 (6th Cir. 1975),

cert. denied, 423 U.S. 937 (1975) (‘‘A necessary ele-

ment of a civil rights claim pursuant to 42 U.S.C.

§§ 1983 and 1985 is the violation ef a constitutional

right.’’) ; Jones v. Bombeck, 375 F.2d 737, 738 (3d Cir.

1967) (‘‘To state a cause of action under the Civil

Rights Act, it is necessary that there be an allegation

that plaintiff was denied or that there was a conspir-

acy to deny him a constitutional right, privilege or im-

munity.”); Brown v. Brown, 368 F.2d 992, 993 (9th

Cir. 1966) (‘‘The Federal Civil Rights Act creates a

cause of action to remedy deprivations of Constitu-

tional rights ....’’).

In support of the opposite conclusion, the court be-

low relied principally on dicta in Greenwood v. Pea-

cock, 384 U.S. 808, 829-830 (1966), together with vari-

ous lower court cases recognizing a statutorily-based

cause of action under § 1983. App. A at 7a. All those

eases are fundamentally unpersuasive, however, be-

cause they involved either constitutional rights codi-

fied in statutory form, or the use of flawed reasoning

by the courts themselves.

Reliance by the Eighth Circuit on Greenwood was

particularly inappropriate because the significant state-

ment regarding § 1983 was no more than one of a series

of suggestions by the Court of alternative remedies

available to the petitioners in that case. As was recog-

nized by the court in Wynn v. Indiana Department of

Public Welfare, supra at 331, that statement “must be

interpreted with great reservation,’’ and can in no way

be regarded as affirmative recognition of the Eighth

Circuit’s conclusion by this Court.

The other cases relied on by the court below are sim-

ilarly unpersuasive. The court in Sanders v. Conine,

506 F.2d 530 (10th Cir. 1974), found a § 1983 cause of

action for deprivation of rights under 18 U.S.C. § 3182

a statute effectuating the specific provisions regard-

ing extradition contained in Art. IV, §2 of the Con-

stitution. The direct constitutional derivation of the

claim in that case is thus readily apparent. Further

both Blue v. Craig, 505 F.2d 830 (4th Cir. 1974) and

Gomez v. Florida State Employment Service, 417 F.2d

569 (5th Cir. 1969), merely cite the language of § 1983

and rely on the dicta in Greenwood to support finding

a cause of action for statutorily derived rights. Both

Blue and Gomez thus suffer from the same infirmities

as the opinion of the court below. The remaining case

Bomar v. Keyes, 162 F.2d 136 (2d Cir. 1947) should

likewise not be accorded great weight, since its reason-

ing and conclusion are questionable, given that the

court assumed, without analysis, both that § 1983

created a cause for action for statutory rights, and

conferred jurisdiction over the claim as well.

Since § 1983 as originally enacted was intended by

Congress to create a federal cause of action only for

constitutional claims, respondent’s claim in the present

case clearly was not actionable under § 1983. Her equal

protection claim, based on alleged racial discrimina-

tion, was rejected by the district court below, App. B

at 18a, and recognized as without merits by the Eighth

Circuit itself. App. A at 12a. Respondent’s only claim

on appeal was that her rights under § 465 had been

denied by petitioners, and thus no claim of constitu-

tional deprivation was at issue.

However, in a rather obfuscated attempt to inject

constitutional overtones into respondent’s claim, the

Kighth Circuit stated that

[hJere a federal right was conferred upon a tribal

Indian and the challenged local action allegedly in-

terfered with that right, and, therefore, with the

relationship between the federal government and

a tribal Indian. Thus, the constitutional dimension

of the claim is particularly evident. Congress has

the plenary and exclusive power to deal with In-

dian tribes, Bryan v. Itasca County, supra at 376,

n. 2, a power derived from federal responsibility

for treaty-making, U.S. Const. art. 1, §8, el. 3

[sic], and from the commerce clause, U.S. Const.

art. 2, § 2, el. 2 [sic].

App. A at 8a. Assuming that the court belew was

implying that the federal ‘‘guardian-ward”’ relation-

ship with Indians is itself of constitutional propor-

tions, it is difficult to understand how that transforms

respondent’s statutory claim into a constitutional one,

since, as the court itself recognized, App. A at 8a,

Congress’ assumption of the guardian role was volun-

tary, and not one imposed upon the federal govern-

ment, nor conferred on individual Indians, by the Con-

stitution itself. Therefore, respondent could in no way

be said to be asserting a constitutional claim cognizable

under § 1983.

Another implication to be drawn from the Eighth

Circuit decision is that the Supretnacy Clause provides

the ‘constitutional dimension’’ necessary to state a

claim under § 1983, since the essence of respondent’s

claim was that state action interfered with a federal

right and thus was invalid under the Supremacy

Clause. This argument was similarly reserved for fu-

ture decision by this Court in Hagans v. Lavine, supra.

The Second Circuit has aptly addressed, and re-

jected, a similar argument in the context of the juris-

dictional counterpart to § 1983, 28 U.S.C. § 1348(3).

Andrews v. Maher, 525 F.2d 113 (2d Cir. 1975). The

court in Andrews stated:

The Supremacy Clause does not secure rights to

individuals; it states a fundamental st~ucturai

principle of federalism. While that clause is the

reason why a state law that conflicts with a fed-

eral statute is invalid, it is the federal statute that

confers whatever rights the individual is seeking

to vindicate.

Td. at 119. Clearly, then, respondent’s claim cannot be

converted, through ‘‘verbal legerdemain’’, Jd., into a

claim of constitutional dimension by invocation of the

Supremacy Clause. Accord, Gonzalez v. Young, 560

F.2d 160 (3d Cir. 1977), cert. granted, 98 S. Ct. 1232

(1978).

Finally, even if deprivation of statutory rights is

considered to constitute a cause of action under § 1983,

that interpretation must be limited to rights created by

only those statutes directed toward enforcing rights

secured by the Fourteenth Amendment. See Hackin

v. Lockwood, 361 F.2d 499, 500 (9th Cir. 1966) (‘‘The

purpose of [§ 1983] is to enforce the Fourteenth

Amendment to the Constitution.’’); Wynn v. Indiana

State Department of Public Welfare, supra, and cases

cited therein.

This Court has clearly, if implicitly, recognized the

intimate correlation between § 1983 and the Fourteenth

Amendment, and Congress’ intention that § 1983 fune-

tion as the enforcement mechanism for deprivations of

rights secured by the Fourteenth Amendment. See

Monroe v. Pape, 365 U.S. 167 (1961); cf. Monell v.

Department of Social Services of the City of New

York, supra. Indeed, as the initial premise of its ex-

haustive examination of the legislative history of

§ 1983 in Monroe, the Court stated that § 1983

was one of the means whereby Congress exercised

the power vested in it by $5 of the Fourteenth

Amendment to enforce the provisions of that

Amendment .... Its purpose is plain from the

title of the legislation, ‘‘ An Act to enforce the Pro-

visions of the Fourteenth Amendment to the Con-

stitution of the United States, and for other Pur-

poses.”

Monroe v. Pape, supra at 171. The Court then con-

cluded that the petitioner’s allegations in that case were

within the scope of § 1983, since the guarantee against

unreasonable searches and seizures had been incorpo-

rated and made applicable to the states through the due

process clause of the Fourteenth Amendment. Jd.

As was recognized by the district court in the present

case, App. B at 18a, even under this alternate in-

terpretation of § 1983 respondent would likewise be

barred from asserting her claim under § 1983, because

the basis of her claim, § 465, is not a statute directed

toward protection of Fourteenth Amendment rights.

V. The court below found that respondent’s claim

that she had been denied rights under 25 U.S.C. § 465

presented a cause of action under 42 U.S.C. § 1983.

App. A at 8a. The court then proceeded to deter-

mine whether petitioners’ conduct was precluded by

the Supremacy Clause, U. S. Const. art. VI, el. 2,

because it impaired respondent’s enjoyment of the

beneficial use of her trust land. App. A at lla. How-

ever, a pre-emption analysis was clearly inappropriate

in relation to the facts of this case.

The issue to be examined in this case was simply

whether petitioners could deny respondent access to

certain municipal services while providing such serv-

ices to residents of fee land within its jurisdiction. An

examination of this issue in an equal protection con-

text was required. The lower court, however, recog-

nizing the district court’s finding that there was a

rational basis for the classification, App. B at 22a, and

that such classification was not racially motivated,

App. A at 18a, chose to analyze the denial of services

in a pre-emption framework. Under this framework,

‘*state and local law may be applied to reservation

Indians and their property unless (1) it frustrates or

interferes with tribal self-government, or (2) it im-

pairs a right granted or reserved by federal law... .”’

App. A at 9a. Petitioners were found to have im-

paired a right guaranteed respondent under federal

law, and this impairment or interference was said to

be ‘‘preeluded by the Supremacy Clause.’’ App. A

at lla.

The respondent had received her trust land and was

free from paying taxes for such land. Petitioners, in

an attempt to protect the interests of the City of New

Town, refused to connect the City’s water and sewer

lines to the home of respondent. It was this denial of

services which is said by the lower court to be pre-

empted by federal law. Neither in the field of Indian

law, nor in other pre-emption cases, has the pre-emp-

tion doctrine been utilized in an analogous factual

setting. In fact, this Court has consistently employed

a pre-emption analysis only where the validity of a

state statute or regulation was at issue. Jones v. Rath

Packing Co., 430 U.S. 519 (1977) (validity of Cali-

fornia statute and regulation pertaining to labeling by

weight of packaged foods); Perez v. Campbell, 402

U.S. 637 (1971) (whether section of Arizona Motor

Vehicle Safety Responsibility Act was invalid under

Supremacy Clause as conflicting with § 17 of the Bank-

ruptey Act, 11 U.S.C. § 35); Florida Lime and Avoca-

do Growers, Inc. v. Paul, 373 U.S. 132 (1962) (whether

California Agricultural Code regulating. transporta-

tion or sale of avocados was pre-empted by federal

marketing orders issued pursuant to the Agricultural

Adjustment Act); Cloverleaf Butter Co. v. Patterson,

315 U.S. 148 (1942) (validity of Alabama statute regu-

lating commerce in renovated butter) ; Hines v. Davido-

witz, 312 U.S. 52 (1941) (validity of Pennsylvania

Alien Registration Act). Even in the field of Indian

law, a pre-emption analysis has been used only where

affirmative conduct by the State, derived from state

statutory enactments, had allegedly interfered with

tribal self-government, or rights granted or reserved

pursuant to federal law. £.g., Mescalero Apache Tribe

v. Jones, 411 U.S. 145, 148 (1973). These cases, which

include those cited by the court below, App. A at 9a,

all involved a pre-emption analysis as applied to affirm-

ative assertions of state authority. Moe v. Confede-

rated Salish and Kootenai Tribes, 425 U.S. 463 (1976)

(imposition of state personal property tax, vendor

license fee, and cigarette sales tax) ; Mescalero Apache

Tribe v. Jones, supra (imposition of state use and

gross receipts taxes on off-reservation tribal ski re-

sort); McClanahan v. State Tax Commission of Ari-

zona, 411 U.S. 164 (1973) (imposition of state tax on

personal income exclusively derived from reservation

sources).

It is state and local regulation or other affirmative

conduct, through which the state and local govern-

ments attempt to assert their jurisdiction in an area

regulated by federal law, which is pre-empted. Here,

petitioners have merely drawn the line between those

who are to receive municipal services and those who

should not. Thus, a pre-emption analysis was unwar-

ranted.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

THOMAS M. BEYER

17 Second Avenue West

| Dickinson, North Dakota 58601

September, 1978

Appendix

APPENDIX A

OPINION

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH DISTRICT

No. 77-1317

Breuiau Cuassz, Appellant,

Rotanp McMasters, Jack Situ, Jr., WAYNE TURNER,

Artyn WapuHoim and Russet Pepverson, Appellees.

Appeal from the United States District Court for the

District of North Dakota

Submitted: November 16, 1977

Filed: April 5, 1978

Before Heaney, Wesster® and Hentey, Circuit Judges.

Heaney, Circuit Judge.

Beulah Chase is an enrolled member of the Three Affili-

ated Indian Tribes which occupy the Fort Berthold Reser-

vation in North Dakota. She brought this action for de-

claratory, injunctive and monetary relief pursuant to 42

U.S.C. § 1983 and § 1985(3) against the mayor and coun-

cilmen of New Town, North Dakota, individually and in

their official capacities. She alleged that their refusal to

allow her to connect her home to city sewer and water

lines violated her right to equal protection of the laws and

deprived her of a statutory right to have her land, which

* Wituiam H. Wesster, Circuit Judge, participated in the oral

argument and bench conference but did not participate in the

preparation of this opinion.

was held in trust for her by the United States, exempt from

local taxes. The Indian Organization Act of 1934, also

known as the Wheeler-Howard Act, 25 U.S.C. § 461 et seq.

(1970), authorizes the Secretary of the Interior to acquire

land for Indians. Under 25 U.S.C. § 465, title to such lands

is taken by the United States in trust for the Indian or

Indian tribe, and the land is exempt from state and local

taxation.’

The District Court initially dismissed the § 1985(3)

claim and denied preliminary injunctive relief. Chase v.

McMasters, 405 F.Supp. 1297 (D N.D. 1975). It subse-

quently denied relief on the § 1983 claim after it considered

exhibits, depositions and stipulations of fact. Chase ap-

peals from the latter judgment.

BACKGROUND

New Town is within the Fort Berthold Reservation. The

City of New Town, North Dakota v. United States, 454

1 Section 465 reads as follows:

The Secretary of the Interior is hereby authorized in his

discretion, to acquire through purchase, relinquieshment, gift,

exchange, or assignment, any interest in lands, water rights,

or surface rights to lands, within or without existing reserva-

tions, including trust or otherwise restricted allotments whether

the allottee be living or deceased, for the purpose of providing

land for Indians.

a * e *

Title to any lands or rights acquired pursuant to this Act

[25 U.S.C. §§ 461-463, 464, 465, 466-470, 471-473, 474, 475,

476-478, 479] shall be taken in the name of the United States

in trust for the Indian tribe or individual Indian for which

the land is acquired, and such lands or rights shall be exempt

from State and local taxation.

25 U.S.C. § 465 (1970).

The Three Affiliated Tribes voted to have the Indian Reorgani-

zation Act apply to them, see 25 U.S.C. § 478, and have adopted 4

Constitution and By-Laws under § 476 of the Act.

—— ida aint Tia

i LS

F.2d 121 (8th Cir. 1972). Chase and her husband, John,

purchased a parcel of land located within the city limits

from New Town in 1974. Approximately a year late, the

Chases conveyed title to the lot to the United States in

trust for Beulah Chase. The acquisition, made pursuant to

§ 465, was approved by the Department of the Interior,

Bureau of Indian Affairs. Shortly thereafter, the Chases

applied to the city council for connection to city sewer and

water lines which ran across the front of their lot. Seven

hundred and two dollars ($702.00) of the $1,102.00 pur-

chase price of the lot was payment of special assessment

charges for construction of the water and sewer lines and

a water treatment plant, and the Chases were willing to

pay the routine connection fee and subsequent service

charges. The city council, aware of the land’s trust status,

delayed action on the request until it could obtain legal

advice as to whether it was required to provide sewer and

water services to a lot held in trust by the United States

for an individual. The chief of police, following what he

believed to be the mayor’s instructions, informed John

Chase that New Town would not allow the water hookup

as long as the lot was in trust status, and Beulah Chase

filed suit.

In an unpublished opinion, the District Court held that

Chase failed to present a prima facie case of racial bias

and had not been denied any constitutional rights by New

Town’s actions. It held that the action was reasonable and

justified because New Town would not be able to assess

Chase’s land in order to collect delinquent sewer service

charges as it is able to assess other lands. See N.D. CENT.

CODE § 40-34-05 (1960).

MOOTNESS

Chase’s claim for injunction relief became moot when

she sold the property in question. She did not, however,

abandon her claim for damages.’ A viable claim for dam-

ages insures the existence of a live controversy appro-

priate for judicial resolution—at least to the extent of

determining whether a claim is stated and a damage rem-

edy is available. See Powell v. McCormack, 395 U.S. 486,

495-500 (1969): 13 C. Wright, A. Miller and E. Cooper,

Freperat Practice anp Procepure § 3533 at 272-273 (1972).

Thus, this ease can be distinguished from Ashcroft v.

Mattis, 431 U.S. 171 (1977), which held that no live con-

{roversy was present because the plaintiff had previously

abandoned his claim by not appealing the decision that the

defendants were immune from liability in damages.

CONSTRUCTION OF 25 v.s.c. § 465

New Town argues that §465 does not authorize the

Secretary of the Interior to accept conveyance of title to

land already owned in fee by an individual Indian. We

disagree.’ Although the term ‘‘acquisition” and the stated

purpose of ‘‘providing land for Indians’’ could indicate

that the Secretary was only authorized to make a net addi-

tion to existing Indian land holdings by providing lands

for landless Indians, such an interpretation is not required

by the statutory language or the Act’s legislative history.

While the Senate Report does refer to ‘‘landless Indians,’’

2The complaint states a viable claim for damages under the

liberal pleading provisions of Fed.R.Civ.P. 8. Chase requested dam-

ages for the diminished value of her land; inability to receive, or

difficulty in receiving, a federal housing loan; and for being de-

prived of water and sewer service while living on her land in a

mobile home.

* Although the Department of the Interior is not a party and

New Town did not pursue administrative remedies, we do not

hesitate to decide this issue, Its resolution is necessary to deter-

mination of the defendants’ liability, the facts are not in dispute,

and the issue is one of statutory construction which does not re-

quire administrative expertise or involve exercise of administrative

discretion. See Mescalero Apache Tribe v. Hickel, 432 F.2d 956,

958 (10th Cir. 1970), cert. denied, 401 U.S, 981 (1971).

io ll So

PR, Bee a oe eS

tle Supreme Court has refused to read such remarks in

the legislative history of a similar statute, which also

granted tax-exempt status to Indian land, as limiting the

benefits of the statute to landless Indians. Board of

Comm'rs v. Seber, 318 U.S. 705, 710 (1943). A narrow

construction of the term ‘‘acquire’’ and the phrase ‘‘pro-

viding land for Indians’’ runs counter to the principle

that ambiguous statutes passed for the benefit of Indian

tribes are to be interpreted in a light most favorable to

Indians. Bryan v. Itasca County, 426 U.S. 373, 392 (1976),

quoting Alaska Pacific Fisheries v. United States, 248 U.S.

78, 89 (1918).

The purpose of the Indian Reorganization Act of 1934

was ‘‘to rehabilitate the Indian’s economic life and to give

him a chance to develop the initiative destroyed by a cen-

tury of oppression and paternalism.” Mescalero Apache

Tribe v. Jones, 411 U.S. 145, 152 (1973), quoting H. R.

Rep. No. 1804, 73rd Cong. 2d Sess., 1 (1934). The Act re-

flected a new federal policy of halting the loss of Indian

lands which had occurred under statutes that allotted

tribal lands to individual Indians and disposed of ‘‘sur-

plus’’ lands under settlement laws. Jd. at 151. The Act not

only authorized the Secretary to acquire land for Indians,

25 U.S.C. § 465, but continued the trust status of restricted

lands indefinitely, 25 U.S.C. § 462, restored unallotted

‘‘surplus’’ lands to tribal sovereignty, 25 U.S.C. § 463,

and made voluntary exchanges and transfers of land to

tribes exempt from the prohibition against transfers of

restricted Indian land. 25 U.S.C. § 464. Because many In-

dians who were unable to manage their allotted lands had

sold them or had them sold at a tax sale, see 78 Cona. Rec.

11726 (1934) (remarks of Rep. Howard), immunity from

property taxes was an important means of halting further

loss of Indian land. See generally U. S. Depr. or rue In-

TERIOR, FepERAL Inp1an Law 857 (1958). Thus, even if, as

the defendants contend, the Secretary did take Chase’s

desire to be relieved from the obligation of paying prop-

erty taxes into account in making his decision, he would

not necessarily have exceeded his delegated authority. See

Board of Comm'rs of Pawnee County, Okla. v. United

States, 139 F.2d 248, 252 (10th Cir. 1943).

The Secretary may purchase land for an individual In-

dian and hold title to it in trust for him. There is no pro-

hibition against accomplishing the same result indirectly

by conveyance of land already owned by an Indian to the

United States in trust. Section 465 lists gifts among the

means by which the Secretary may acquire land, and it was

amended to authorize acquisition of land in trust for in-

dividual Indians as well as for tribes. See 78 Cone. Rec.

11126 (1934). Congress did not limit the Secretary’s dis-

cretion to select land for acquisition. The land acquired

may be located within or without a reservation, and there

is no indication that it would not be located within mu-

nicipal boundaries. Indeed, in legislation passed in 1937,

Congress provided that Indian homestead lands located

within villages, town or city boundaries would be tax ex-

empt. See 25 U.S.C. § 412(a).

We conclude that § 465 authorizes the type of acquisi-

tion the Secretary made here. The defendants argue, how-

ever, that the Secretary abused his discretion in this par-

ticular case. Since the Secretary’s action was not directly

challenged, we do not have the benefit of a record of agency

proceedings and do not know what factors the Secretary

took into account in exercising his discretion. Suffice it to

say, however, that the defendants have not demonstrated

improper agency action. Given the purposes of the Act,

the mere fact that Chase was motivated by a desire to

avoid paying taxes does not indicate that the Secretary

abused his discretion by acceptance of the conveyance.*

‘The Bureau of Indian Affairs’ guidelines on placing title to

land acquired by an individual Indian in trust with the United

States do not set forth specific objective criteria and are not pub-

lished in the Code of Federal Regulations. However, the Bureau’s

a ere

Sr ceed at AR nent Gedusn sed ASS Lame

‘ani

— ee

See Board of Comm’rs of Pa

mM wnee Count .

States, supra. unty, Okla. v. United

STATEMENT OF A CLAIM UNDER 42 v.s.c. § 1983

Chase claims that New Town’s action deprived her of

her right to the beneficial use of property exempt from

taxation under § 465. The District Court held that she did

not state a cause of action under 42 U.S.C. § 1983 by alleg-

ing a violation of § 465 because § 1983 only creates a nae

of action for redress of violations of rights secured b

the Fourteenth Amendment to the United States Consti-

tution or a federal statute enacted to enforce the Four-

teenth Amendment. Chase v. McMaster

erred in so holding. fers, supra at 1300. It

Section 1983 creates a cause of action ‘‘n

violations of rights conferred by federal erase po

laws, but for violations of other federal constitutional

and statutory rights as well.’’ Greenwood v. Peacock, 384

U.S. 868, 829-830 (1966). See, e.g., Sanders v. Conine, 506

F.2d 530 (10th Cir. 1974) (extradition, 18 U.S.C. 63189

(1970)) ; Blue v. Craig, 505 F.2d 830 (4th Cir. 1974) (So-

cial Security Act, 12 U.S.C. § 1396(A) (1970)); Gomez v

Florida State Employment Service, 417 F.2d 569 (5th Cir.

1969) (Wagner-Peyser Act, 29 U.S.C. § 49 et seq. ( 1970);

Bomar v. Keyes, 162 F.2d 136 (2d Cir.), cert. denied 332

U.S. 825 (1947) (Judiciary Act, 28 U.S.C. § 411 (1940))

See also the discussion in Lynch v. Household Finance

Corp., 405 US. 538, 543 n.7 (1972). While subsequent cases

have made it clear that a § 1983 action does not exist for

current policy appears to be consistent with our holding. W

ed - 6 sige! authority, the Bureau’s policy is to pa tad

sara ms ians who acquire land to convey title to the land to the

United States in trust for them, unless the trust status of the land

is being abused. 54 IAM 2.2.1F, Release 54-4, June 27, 1960, as

modifi igai ,

oath, by Commissioner’s memorandum of August 3, 1960 (4346-

every violation of a federal statute,’ we think it clear that

the violation here, based as it is upon the ‘‘unique legal

relationship between the Federal Government and tribal

Indians,’’ Morton v. Mancari, 417 U.S. 535, 550 (1974), does

state a cause of action under § 1983. Here a federal right

was conferred upon a tribal Indian and the challenged

local action allegedly interfered with that right and,

therefore, with the relationship between the federal gov-

ernment and a tribal Indian. Thus, the constitutional di-

mension of the claim is particularly evident. Congress has

the plenary and exclusive power to deal with Indian tribes,

Bryan v. Itasca County, supra at 376 n. 2, a power derived

from federal responsibility for treaty making, U.S. Const.

art. 1, § 8, el. 3, and from the commerce clause, U.S. Const.

art. 2, §2, el. 2. McClanahan v. Arizona Tax Comm’n, 411

U.S. 164, 172 n.7 (1973). The federal government assumed

a ‘‘guardian-ward’’ relationship with the tribal Indians,

Morton v. Mancari, supra at 551, and has the power to

fulfill its trust obligations by protecting the Indians and

their property from state interference. Bryan v. Itasca

County, supra, quoting Board of Comm’rs v. Seber, 318

U.S. 705, 715 (1943). Thus, the federal forum is appro-

priate for a claim of state or local interference with a

right conferred on tribal Indians by federal law.

We hold, therefore, that Chase’s claim that she was de-

nied rights under 25 U.S.C. § 465 states a claim under 42

U.S.C. § 1983. We look now to the merits of her claim.

* Not every civil right is a right derived or secured by the Con-

stitution or laws of the United States for purposes of § 1983. In

Scheelhaase v. Woodbury Central Community Sch. Dist., 488 F.2d

237 (8th Cir.), cert. denied, 417 U.S. 969 (1974), this Court held

that when federal due process protections were provided, failure

to renew a nontenured teacher’s contract for reasons of competency

and not for an impermissible constitutional reason such as race, or

for assertion of constitutionally protected rights, did not state a

elaim under 42 U.S.C, § 1983.

a ae ES

When state or local actions affecting Indian land are

challenged, specific treaties and federal statutes must be

examined in the light of the particular actions. Moe v.

Salish € Kootenai Tribes, 425 U.S. 463, 481, n.17 (1976);

Mescalero Apache Tribe v. Jones, supra at 148; Cass

County v. United States, No. 77-1523, slip op at 9 (8th

Cir. February 14, 1978). Section 465 expressly states that

title to land acquired under its provisions will be held in

trust by the United States for the Indian or Indian tribe,

and that the land will be exempt from taxation. Accord-

ingly, any attempt by New Town to tax Chase’s land

would, of course, be precluded by the Supremacy Clause.

U.S. Const. art. VI, cl. 2. New Town did not attempt to

tax the land; it simply refused to connect the land to city

water and sewer lines as long as it was held by the United

States in trust and was exempt from local property taxes.

Outside the special area of taxation,* state and local law

may be applied to reservation Indians and their property

unless (1) it frustrates or interferes with tribal self-gov-

ernment, or (2) it impairs a right granted or reserved by

federal law. Moe v. Salish & Kootenai Tribes, supra at 483;

Mescalero Apache Tribe v. Jones, supra at 148; Organized

Village of Kate v. Egan, 369 U.S. 60, 75 (1962). We hold

that New Town’s action is precluded by the Supremacy

Clause because it impaired Chase’s right under § 465 to

enjoy the beneficial use of land held in trust for her with-

out the obligation to pay local taxes and thereby inter-

* In recent decisions, the Supreme Court has invalidated attempts

by states and localities to tax Indians and their property, utilizing

a general preemption doctrine. See, e.g., Bryan v. Itasca County,

426 U.S. 373 (1976); Moe v. Salish & Kootenai Tribes, 425 U.S.

463 (1976); McClanahan v. Arizona State Tax Comm’n, 411 U.S.

164 (1973). The doctrine of Indian sovereignty is a ‘‘back drop’’

for this doctrine, McClanahan v. Arizona State Tax Comm "Nn, Supra

at 172, and it is supported by the extensive federal legislative and

aoa regulation of Indian tribes and reservations. Id. at

l2a

IMMUNITY FROM DAMAGES

Local executive or administrative officials are accorded

a qualified, good faith immunity from liability in damages

under 42 U.S.C. § 1983. See Wood v. Strickland, 420 U.S.

308, 322 (1975); Williams v. Anderson, 562 F.2d 1081,

1101 (8th Cir. 1977); Curry v. Gillette, 461 F.2d 1003,

1005 (6th Cir.), cert. denied, 409 U.S. 1042 (1972); Ober-

helman v. Schultze, 371 F.Supp. 1089, 1090 (D. Minn),

aff’d mem., 505 F.2d 736 (8th Cir. 1974). Accordingly, the

defendants herein are liable only if (1) they knew, or

reasonably should have known, that their actions violated

Chase’s clearly established constitutional rights or (2)

they took the action with malicious or impermissible mo-

tives of causing a deprivation of constitutional rights or

other injury to Chase. Wood v. Strickland, supra at 322;

Williams v. Anderson, supra at 1101.

The right to transfer privately owned lands to the

United States in trust has not been previously judicially

determined. The guidelines of the Bureau of Indian Affairs

are unpublished and its policies are somewhat ambiguous.

Thus, we cannot say that the defendants knew or reason-

ably should have known that their action violated the

Supremacy Clause. Moreover, the record does not disclose

councilmen were primarily concerned over the tax-exempt status of

Chase’s land rather than her status as an enrolled tribal Indian,

While it is true that the impact of their decision would fall dis-

proportionately upon Indians if applied to all lots that the United

States holds in trust for individuals, this fact alone does not suffice

to show a prima facie case of racial discrimination when the motive

for the action is not racial discrimination. See Arlington Heights

v. Metropolitan Housing Corp., 429 U.S. 252 (1977); Confed.

Bands & Tribes, Etc. v. State of Wash., 552 F.2d 1332, 1334-1335

(9th Cir. 1977), appeal filed, 46 U.S.L.W. 3228 (October 4, 1977).

Because the record demonstrates that New Town’s action was

aimed at preserving its fiscal integrity and it was apparently

willing to serve Chase if she paid local taxes, its conduct did not

violate her right to equal protection of the laws.

13a

any malicious, racially discriminatory or otherwise im-

permissible motives behind the city council’s action. The

council members cannot be held liable tor failure to pre-

dict judicial resolution of the question and are entitled

to immunity with respect to Chase’s claims.

In conclusion, we have held that Chase stated a cause

of action under § 1983 and that New Town’s actions were

precluded by the Supremacy Clause. We have further held,

however, that the appellees are immune from liability for

damages. In light of our decision with respect to the ap-

pellees’ immunity from damages, we do not feel that it is

necessary to reach the question of whether a declaratory

judgment should issue.

Accordingly, we affirm the District Court’s denial of re-

lief to Chase for the reasons stated herein.

A true copy.

Attest:

Cierk, U. S. Court or Appgats, Excutn Crrovrr.

l4a

APPENDIX B

OPINION

Bevuan Cuasez, Plaintiff,

Rotanp McMasrers et al., Defendants.

No. A4-75-71

UNITED STATES DISTRICT COURT,

D. NORTH DAKOTA,

NORTHWESTERN DIVISION.

Dee. 20, 1975.

Memorandum and Order

VanSicxie, District Judge.

This is an action, laid under civil rights theories, for an

order of this Court mandating the city government of New

Town, North Dakota, to tie sewer and water into an urban

lot held by the United States in trust under Title 25 United

States Code § 465. The matter is presented on verified

pleadings and affidavits on a motion for preliminary in-

junction.

The motion for preliminary injunction is denied.

Plaintiff is an enrolled Indian of the Three Affiliated

Tribes. New Town is a federally sponsored city, laid out

within the Fort Berthold Indian Reservation, to replace

Spanish and Van Hook, which were inundated by the Gar-

rison Reservoir.

Plaintiff and her husband, after retiring from their em-

ployment in California, moved back to New Town. Plain-

tiff has bought from the City of New Town Lot 16, Block

3, Highland Village Addition. This lot is serviceable by

city water and sewer, and in fact $702.00 of the $1,302.00

15a

paid for the lot included special assessments for water

mains, sewer mains, and other municipal improvements.

Plaintiff undertook to finance construction of her home

through the Fort Berthold Housing Authority, which lo-

cally administered Housing and Urban Development

(HUD) Loans. As a preliminary step, on June 23, 1975,

Plaintiff transferred her lot to the United States to be held

as Indian trust land pursuant to 25 United States Code

§ 465. She acted under the assumption that HUD required

such a transfer in trust as a condition precedent for the

construction of an Indian Mutual Help Unit. HUD has

denied by letter (in affidavit attachments) that it imposes

any such requirement. However, it does require that a

cooperation agreement be executed between the munici-

pality and the local agent of HUD before HUD will au-

thorize the placement of any units on trust or fee land

within a municipality. The purpose of the cooperation

agreement is to assure that Indian Mutual Help Units are

provided municipal services; and the quid pro is a guar-

antee of payment-in-lieu-of-taxes by HUD.

There is no showing of a good faith effort of HUD or

its agent to negotiate such a cooperation agreement. Ra-

tionally, HUD, as the unit seeking the privilege, would

seem to be the party who should initiate the negotiation.

Plaintiff moved a house trailer onto the lot in May of

1975. She anticipates, when the loan is approved, building

a home on the lot. Meantime, if she wishes to live in the

mobile home, she must do so without water or sewer. Plain-

tiff is receiving retirement income, and has professed her

willingness to pay for all connection charges of both water

and sewer and for the subsequent service charges that flow

therefrom.

In the meantime, the City of New Town, cognizant of

the trust status of the land, and of the fact it cannot levy

special assessments on trust land or recover delinquent

service charges from trust land by assessments collectible

16a

in the nature of taxes, as it can in the case of fee land (see

N.D.C.C. §§ 40-24-01, 40-25-01, 40-34-05, and 40-22-01(1),

has refused to extend the services until this matter is re-

solved.

Plaintiff seeks a declaratory judgment that she is en-

titled to water and sewer service, preliminary and perma-

nent injunctions restraining Defendants from preventing

her from connection to water and sewer systems, and dam-

ages. Jurisdiction is alleged under 28 U.S.C. § 1343 and

§ 1331 for causes of action stated under 42 U.S.C. § 1983

and § 1985(3). A declaratory judgment is sought under 28

U.S.C. § 2201.

Plaintiff’s complaint sets forth three different theories

of recovery. Their validity or invalidity bears directly on

whether a preliminary injunction should be issued.’

Plaintiff’s first two theories of recovery are apparently

laid under 42 U.S.C. § 1983 (1974), which reads:

‘‘Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

1T realize that the federal rules have effectively abolished the

‘‘theory of the pleadings doctrine.’’ See Wright & Miller, Federal

Practice and Procedure: Civil § 1219 (1969). Accordingly, I should

not dismiss a complaint for failure to state a claim merely because

it does not set forth the precise ‘‘legal theory’’ which would entitle

the petitioner to relief. The complaint will stand if I can discover

a legal theory which would entitle the petitioner to relief on the

facts alleged.

However, where the question is the propriety of the issuance of

a preliminary injunction; where the complaint has alleged three

alternative legal theories justifying recovery; and where I can

perceive no other theories justifying relief on any of the federal

claims the petitioner might have, in deciding whether to grant a

preliminary injunction, I am limited to examining the validity of

the legal theories presented in the complaint.

17a

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured

in an action at law, suit in equity or other proper pro-

ceeding for redress.’’

To determine whether Plaintiff has alleged a cause of

action under § 1983, the following principles apply:

‘‘The basie requirements of a § 1983 complaint are:

(1) that complained conduct was under color of state

law, and (2) that such conduct subjected plaintiff to

a deprivation of rights, privileges or immunities se-

cured by the Federal Constitution and laws.”’

Wilkerson v. City of Coralville, 478 F.2d 709, 710 (8th

Cir. 1973). With respect to the second requirement of a

§ 1983 complaint, the Plaintiff ‘‘must allege facts showing

that the defendants acted to deprive [her] of the rights,

privileges, and immunities secured by the Fourteenth

Amendment of the Constitution. [Emphasis added.]’’

Spears v. Robinson, 431 F.2d 1089, 1091 (8th Cir. 1970),

affirming Spears v. Mount Etna Morris, 313 F.Supp. 52

(W.D.Mo.1969).

The Defendants—a city mayor and city councilmen—are

acting under color of state law. Thus, the first requirement

to state a cause of action under § 1983 is present in each

of Plaintiff’s first two theories of recovery. The second

requirement, though present in the first theory, is not

present in the second theory.

Plaintiff’s first theory of recovery alleges a denial of

equal protection in that the Defendants ‘‘have singled out

the Plaintiff solely on the basis of race and have so clas-

sified her on her basis of race as to a denial of services so

provided by the City of New Town, North Dakota.’’ Al-

though Plaintiff thereby alleges that she has been denied

access to the city’s water and sewer systems because she

18a

is an Indian, this allegation was abandoned by Plaintiff’s

counsel at the hearing on the motion for a preliminary in-

junction. Plaintiff conceded that the sole reason the city

officials have denied access to her is the fact that her land

is now in ‘‘trust status.’’ There is no outstanding conten-

tion by the Plaintiff that the city officials have indiviously

discriminated against her simply because she is an Indian.

Thus, the violation of equal protection alleged under § 1983

in Plaintiff’s first theory of recovery is that the city offi-

cials have refused to give her water and sewer service

because her land is now in ‘‘trust status.”

Plaintiff’s second theory of recovery, also apparently

laid under § 1983, alleges a deprivation of ‘‘her right to

hold land in trust status and to the benefits that are de-

rived from such status.’’ I do not read 25 U.S.C. § 465 as

creating a ‘‘federal right’’ in favor of individual Indians

to have the United States government hold their land in

trust for them. The statute cited clearly says that any

acquisition shall be in the discretion of the Secretary of

the Interior.

Even if I did find such a right to exist, its denial would

not be actionable under § 1983, since it is not a right se-

cured by the Fourteenth Amendment or by a federal sta-

tute passed by the Congress under the authority thereof.

Hence, Plaintiff’s second theory of recovery does not state

a cause of action under § 1983.

Plaintiff’s third theory of recovery is apparently laid

under 42 U.S.C. § 1985(3). Title 42 U.S.C. § 1985(3) (1974),

as it pertains to this lawsuit, reads as follows:

‘‘If two or more persons in any State or Territory

conspire ... for the purpose of depriving, either di-

rectly or indirectly, any person or class of persons of

the equal protection of the laws, or of equal privileges

and immunities under the laws ... [and] if one or

more persons engaged therein do, or cause to be done,

any act in furtherance of the object of such conspir-

19a

acy, whereof another is injured in his person or prop-

erty, or deprived of having and exercising any right

or privilege of a citizen of the United States, the party

so injured or deprived may have an action for the

recovery of daniages, occasioned by such injury or

deprivation, against any one or more of the conspira-

tors.’’

‘“‘The language requiring intent to deprive of equal

protection, or equal privileges and immunities, means that

there must be some racial, or perhaps otherwise class-

based, invidiously discriminatory animus behind the con-

spirators’ action.’’ Griffin v. Breckenridge, 403 U.S. 88,

102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 1971). See also

Means v. Wilson, 522 F.2d 833, 839 41 (8th Cir. 1975).

Plaintiff’s third theory of recovery alleges a conspiracy

of the Defendants to ‘‘deprive the Plaintiff of her right to

equal treatment under the law to water and sewer benefits

provided by the city of New Town, North Dakota, and

mandated under the Equal Protection Clause under the

Fourteenth Amendment to the Constitution.’’ Plaintiff

fails to state a cause of action under § 1985(3), however,

because she does not allege, or claim, any ‘‘invidiously dis-

criminatory animus”’ behind the actions of the Defendants.

Griffin v. Breckenridge, supra, 403 U.S. at 102, 91 S.Ct. at

1798. There is no outstanding contention by the Plaintiff

that the Defendants have invidiously discriminated against

her simply because she is an Indian. Plaintiff contends she

is being discriminated against because the land is in ‘‘trust

status.’’ I do not think this constitutes the ‘‘racial, or per-

haps otherwise class-based, invidiously discriminatory ani-

mus’’ required to state a cause of action under § 1985(3).

Griffin v. Breckenridge, supra, 403 U.S. at 102, 91 S.Ct.

at 1798.

Consequently, considering Plaintiff’s three different

theories of recovery, I find that she has stated a cause of

action only under the first: i.e., that the Defendants are

20a

denying Plaintiff equal protection by refusing to give her

water and sewer service because she occupies land which

is in ‘‘trust status.’’

The question now is under what standard of review to

evaluate the Defendants’ alleged denial to Plaintiff of her

right to equal protection. The classification allegedly made

by the city officials (those who occupy land in ‘‘trust sta-

tus’’) is not racial, and access to municipal water or sewer

service has not yet been denominated a ‘‘fundamental

right.’’ I conclude that the Defendants’ alleged discrimina-

tory rejection of Plaintiff’s application for water and

sewer service must be evaluated under the traditional ‘‘ra-

tional basis’’ analysis rather than the stricter ‘‘compelling

state interest’’ analysis. See Davis v. Weir, 497 F.2d 139,

144 (5th Cir. 1974). ‘‘{T]he Fourteenth Amendment does

not deny to States [or municipalities] the power to treat

different classes of persons in different ways.... A clas-

sification ‘must be reasonable, not arbitrary, and must rest

upon some ground of difference having a fair and sub-

stantial relation to the object of the legislation, so that

all persons similarly circumstanced shall be treated

alike.’ ’? Reed v. Reed, 404 U.S. 71, 75-76, 92 8.Ct. 251,

254, 30 L.Ed.2d 225 (1971). So the alleged unconstitutional

classification (those who occupy land in ‘‘trust status’’)

must be sustained ‘‘if the classification itself is rationally

related to a legitimate governmental interest.” United

States Department of Agriculture v. Moreno, 413 US.

528, 533, 93 S.Ct. 2821, 2825, 37 L.Ed.2d 782 (1973).?

2 Presently, I do not see this case as involving a problem of

‘*‘underinelusiveness.’’ I’or example, if the city has not extended its

alleged policy (of refusing water and sewer service to cecupiers of

‘‘trust’’ land) to oceupiers of ‘‘non-trust’’ land which is tax-

exempt, there could conceivably be a problem of ‘‘underinelusive-

ness’’; that is, there could be persons ‘‘similarly cireumstanced”’

as the Plaintiff who are not being treated as she is. Oceupiers of

‘‘non-trust’’ tax-exempt land would be ‘‘similarly cireumstanced’’

as the Plaintiff unless their land was:

21a

The standard of review is pertinent because I must de-

cide whether to grant Plaintiff’s motion for a preliminary

injunction. A party seeking a preliminary injunction

‘‘must demonstrate ... that irreparable damage will follow

without the grant of equitable relief and . . . a reasonable

probability that the party ... would ultimately prevail.’

Wocten v. First National Bank of St. Paul, Minnesota,

490 F.2d 1275, 1276 (8th Cir. 1974).

. may establish just and equitable rates and

charges to be paid for the use of [a sewage disposal

system| by a person ... whose premises are served

thereby. If the established service charge is not paid

when due, ... such sum may be assessed against the

premises served and collected and returned in the same

manner as other county and municipal taxes are as-

sessed, certified, collected, and returned.’’

It is certainly a legitimate governmental interest for a

city to be concerned with the collection of sewer service

charges. However, a city does not have the option of as-

sessing delinquent sewer service charges against ‘‘trust’’

land, since such land is exempt from local taxation. 25

U.S.C. § 465. The Plaintiff’s promise to pay sewer service

charges, however honestly made, is not equivalent to the

extraordinary remedies which would be available to the

city to collect delinquent service charges as a tax assess-

ment. See N.D.C.C. §§ 40-24-01 and 40-25-01 (1968). In this

light, is the Defendants’ refusal to connect Plaintiff to the

sewer system ‘‘rationally related’”’ to the legitimate gov-

ernmental interest of the city in connecting sewer service

charges?

1. Vulnerable to special assessments (as opposed to general

property taxes).

2. Covered by some kind of ‘‘payment-in-lieu-of-taxes’’ agree-

ment, or

3. Somehow otherwise distinguishable from ‘‘trust’’ land.

22a

In addition, N.D.C.C. § 40-22-01(1) (1968) provides that

any municipality may defray, by special assessments, the

expense of the ‘‘construction of a water supply system,

or a sewerage system, or both, or any part thereof, or any

improvement thereto or extension or replacement there-

It is certainly a legitimate governmental interest to

provide and maintain municipal water and sewer systems;

and to do this it is necessary that there be adequate fi-

nancing available. In North Dakota one means of insuring

adequate financing is the cities’ ability to levy special as-

sessments. However, again, land which is in ‘‘trust status’’

is ‘‘exempt from State and local taxation.’’ 25 U.S.C. § 465

(1963). Is discriminating against those who occupy land

in ‘‘trust status’’ that is exempt from assessments of main-

tenance charges rationally related to the legitimate gov-

ernmental interest of providing and maintaining municipal

water and sewer systems?

Without finally answering the questions I have posed, I

fee] that Plaintiff has not demonstrated ‘‘a reasonable

probability that [she] . .. would ultimately prevail.’’

Wooten v. First National Bank of St. Pad, Minnesota,

supra, 490 F.2d at 1276. Consequently, the request for a

preliminary injunction is denied.

23a

—

APPENDIX C

Unpublished Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

NORTHWESTERN DIVISION

A4-75-71

Filed February 14, 1977

Memorandum and Order

Bevutan Cuase, Plaintiff,

vs.

Rotanp McMasters, Jack Sir, Jr., Wayne Turner,

Artyn Wapuo.m, and Russri Peperson, Defendants.

This matter has been fully discussed in the Order Deny-

ing a Motion for Temporary Injunction which was entered

December 20, 1975. That Memorandum and Order is re-

ported in 405 F.Supp. 1297.

While that discussion is fully adopted as though set out

in full herein, the matter is presented for final injunction

in a slightly changed posture, which, the better to under-

stand, requires a short review of the facts.

Beulah Chase is an enrolled Indian of the Three Affili-

ater Tribes.’ Her husband is not an enrolled Indian.

*The Three Affiliated Tribes are the Mandan, the Arikara, and

the Hidatsa, or Gros Ventres of the Upper Missouri. All three tribes

were organized into agricultural communities, and were horribly

decimated by smallpox, which was brought up to them on the

American Fur Company steamboat ‘‘Saint Peter.’’ She came into

the Fert Clark-Fort Union area of the Missouri in June of 1837.

Thereafter, cholera in 1851 and another bout with smallpox in

1856, reduced their numbers so low that the Three Tribes banded

together around Fort Union and Fort Berthold (Like-a-Fishhook

Village) until they were located at the Fort Berthold Reservation

established in that area. Robinson, History of North Dakota, p. 97.

24a

In 1956 water and sewer were put across the front of

Lot 16, Block 3 of Highland Village Addition to Newton,

North Dakota.’

Lot 16, Block 3 of Highland Village Addition to Newtown

went to the City for $335.00 on November 16, 1965. It was

resold by the City to Beulah Chase on August 23, 1974, for

$1,102.00, that being $702.00 of improvement specials and

$400.00 for the lot. On June 23, 1975, Beulah Chase con-

veyed the lot to the United States in trust for herself under

28 United States Code § 465 (48 Statutes 984). The acqui-

sition was approved October 14, 1975.

Beulah Chase originally explained the transfer in trust

as a condition precedent to getting a Housing and Urban

Development improvement loan through the Fort Berthold

Housing Authority.®

In fact there was no such requirement.‘

In a deposition taken after the preliminary injunction

hearing, Beulah Chase stated that the transfer to United

States trust status was for the purpose of evading the

The Mandans are the famous ‘‘ Welsh Indians.’’ Frontier gossip

had them descended from a purported Welsh settlement established

in 1170. See Bernard DeVoto, Journals of Lewis and Clark, foot-

note 12, p. 42.

*Newton is the principal city and reservation headquarters of

Fort Berthold Indian Reservation. With the development of the

Garrison Reservoir, Van Hook, Eldowoods, and Sanish were inun-

dated, relocated about three miles east of the Sanish townsite, and

renamed ‘‘Newton.’’ Its 1976 population was 1428. The Indian

population of the Fort Berthold Reservation is 3226.

3 See averment No. 33 of Plaintiff’s complaint.

* See Plaintiff’s Exhibit No. 1.

* Deposition of Beulah Chase, January 31, 1976, p. 14, line 17.

25a

general realty tax.’ This was confirmed in the deposition of

John Chase.°

Again, in fact, the expressed policy of the Bureau of

Indian Affairs is against this very type of transfer. In a

letter issued by the Bureau on May 19, 1974 (one year

before the Beulah Chase transfer in trust), the Director of

the Office of Trust Responsibilities stated:

‘‘The Bureau and the Department, since shortly after

the passage of the Act of June 18, 1924 (48 Statutes

984), have taken the position of not permitting convey-

ance of land owned in fee by an Indian to the United

States in trust for the owner thereof to avoid the pay-

ment of taxes.’’’

After executing the conveyance in trust, Beulah Chase

applied to the City authorities for a water hookup. They,

however, had been alerted by an unidentified person’s

sending them a copy of the conveyance.*

The matter came up at the next council meeting, a special

meeting called to discuss extension of water and sewer to

another tract. At that time the council member had heard

rumors of a threat by irate property owners to sue the City

if it accepted private lots which could not be reached on

the tax rolls. The council decided to delay action on the

request of Mrs. Chase until it couid get an opinion from its

attorney.” This decision was reaffirmed at a special meet-

ing on September 29, also called to consider other tracts."

* Deposition of John Chase, February 14, 1976, p. 9, line 17

through 25.

’ Plaintiff’s Exhibit No, 2, letter of May 17, 1974, filed with

deposition of Mary Rolf.

* Deposition of Roland MeMasters, January 5, 1976, p. 8, line 18.

RP _ of City Council, September 25, 1976, Plaintiff’s Ex-

ibit K.

. be + eae of City Council, September 29, 1975, Plaintiff’s Ex-

ibit L.

26a

Plaintiff commenced her action eleven days later, October

10, 1975, and at that point the City Council took no further

action, waiting to see the outcome of the lawsuit.”

The situation presented to the City Council was unique

in that it was the first time an individual lot, held in trust

by the United States had asked for a tie-in to the City

utlilties.’”

The City had extended utility service and police and fire

protection to an Indian housing project outside the city

under a contract arrangement.”

Also, it had collected from the Indian Agency for exten-

sion of water and sewer to the Indian Agency buildings

and its housing area within the city under a contract ar-

rangement."

Applying again the reasoning as to the temporary in-

junction; there remain only two new problems to discuss :

I. Has the Plaintiff demonstrated invidious diserimi-

natory animus, or has she established that she was

being discriminated against simply because she was

Indian?

The evidence to this point was, at the time of the prelim-

inary injunction hearing, simply that the city had refused

to allow her to connect her lot to the city utilities. And at

the conclusion of that hearing, the dialogue which appears

at p. 12, line 15 through p. 24, line 1, and at p. 36, line 13

through p. 37, line 20, of the transcript of hearing on pre-

liminary injunction, clearly reflected the fact that nothing

1! 1eposition of MeMasters, supra, p. 16, line 19.

12 |eposition of McMasters, supra, p. 12, line 17.

13 Plaintiff’s Exhibit J.

14 Attachment of Defendants’ response to Plaintiff’s factual sub-

mission, Item 51 of Clerk’s file.

27a

more was coming out on the issues of bias. Plaintiff’s coun-

sel asserts that ‘‘the Court well knows that the Plaintiff's

attorney did not concede this point.’’ (That Mrs. Chase

had not been invidiously discriminated against as a matter

of racial bias.) The only plausible response is that there

is a time to remain silent and a time to speak. Ecclesiastes

3-7. Counsel was asked to put in further evidence and

elected not to.

Turning back to the motion for permanent injunction, the

only evidence of racial bias appears in the testimony of

Beulah Chase. At the time of the purchase of the lot, Mrs.

Chase and her husband met with the entire City Council.”

At that time Mr. Chase carried the conversational load

for himself and his wife.’®

I find that the evidence is not sufficient to establish a

prima facie case of bias. When I consider the history of the

transaction as outlined above, and the depositions of the

members of the City Council, the claims of invidiously

discriminatory action taken because of racial bias, is wholly

disproved.

II. Is the refusal to tie utilities on to a single lot, which

the owner has placed beyond the reach of the taxing

authority for the avowed purpose of evading gen-

eral taxes, an interference with a constitutionally

protected right?

Again the answer is no. The problem of special assess-

ments and utilities was covered in the memorandum dealing

with the motion for preliminary injunction. But the same

logic applies now that the Plaintiff has moved her claim

over to the proposition that she has a constitutionally pro-

_-—

** Deposition of Beulah Chase taken January 31, 1976, p. 4, line

21 through p. 6, line 25.

** Deposition of Beulah Chase taken January 31, 1976, p. 7, line

9 through p. 7, line 22.

28a

tected right to evade her fair share of general property

taxes.

Nor is the remedy of the city unreasonable. Plaintiff paid

$1,102.00 for a city lot with utilities available. She got just

that. If she builds now, the police and fire burden increases

and the administrative overhead continues. Yet she claims

that in contradistinetion to all other residents of the city,

she should get these services free. [Even if it were disposed

so to do, what authority or right would the United States

have to impose this burden on the other residents of the

community 7]

Plaintiff appears to ground this lawsuit on Davis v. Weir,

497 F.2d 139 (1974). But the eases are not analogous. In

Davis, supra, the tenant, Davis, was paying his current

water bill and his rent, out of which the landlord had to pay

the general taxes. But since the landlord would not pay a

water bill in arrears, Weir, the City of Waterworks Mana-

ger, shut off the services to Davis.

But in this case, the Chases, by their own admission, put

the Jot in trust for the express purpose of evading local

general taxes.

I find that the Plaintiff has failed to establish conduct

arising out of racial bias, or inordinately discriminatory

conduct by the city officials of the City of Newtown against

Beulah Chase.

Therefore,

Ir Is Orveren, that this action is dismissed on its merits,

and that the Defendants receive their costs and disburse-

ments herein.

This Memorandum shall serve as Findings, Conclusions

and Order pursuant to Rule 52(a) Fed.R.Civ.P.

Dated this 12 day of February, 1977.

By Tue Court:

/s/ Bruce M. Van Sickie

Bruce M. Van Sickie, Judge

United States District Court

29a

APPENDIX D

12-18-34

MEMORANDUM FOR THE CoMMISSIONER OF INDIAN AFFAIRS:

The attached letter is returned to you for further consid-

eration. The letter in effect holds that an Indian owning

taxable land may convey such land to the United States to

be held in trust for the individual Indian. Obviously this is

a matter which will affect large numbers of Indians other

than the particular applicant referred to in the attached

communication.

Authority for such a transaction is to be found, if at all,

only in section 5 of the act of June 18, 1934, which provides:

‘‘The Secretary of the Interior is hereby authorized

in his diseretion, to acquire through purchase, relin-

quishment, gift, exchange, or assignment, any interest

in lands, water rights or surface rights to lands, within

or without existing reservations, including trust or

otherwise restricted allotments whether the allottee be

living or deceased, for the purpose of providing land

for Indians.’’

e * * +

Title to any lands or rights acquired pursuant to this

action shall be taken in the name of the United States

in trust for the Indian tribe or individual Indian for

which the land is acquired, and such lands or rights

shall be exempt from State and local taxation.”’

It is questionable, from a strictly legal point of view,

whether such a transaction as that referred to falls within

the declared purpose ‘‘of providing land for Indians.”

Aside from the narrow question of legality, it is believed

that a matter of this sort should receive further considera-

tion as to the policy involved than has apparently been given

to the attached communication. Is it the intention of the

30a

Indian Office to eliminate taxation on all Indian lands now

taxable? If not, by what criterion does the Indian Office

propose to determine when an Indian owner of taxable land

may avoid taxation through a transfer of the land to the

United States Government followed by the receipt of a

trust patent?

It may be noted that the last paragraph of the attached

communication embodies an erroneous interpretation of

section 4 of the act of June 18, 1934. The quoted comment is

inconsistent with the opinion of the Solicitor dated Novem-

ber 7, 1934 holding that devices other than heirs at law

under wills of restricted Indians covering lands within the

scope of the Wheeler-Howard Act must be members of the

tribe having jurisdiction over the lands in question.

The foregoing refers to your letter dated November 27,

addressed to the Superintendent of the Fort Totten Indian

Agency. There is also returned your letter of October 29,

addressed to the Superintendent of the Fort Berthold In-

dian Agency, suggesting in a somewhat similar case that

land patented in fee to Byron H. Wilde, may be conveyed

to the United States in trust for the patentee’s wife, under

section 5 of the Wheeler-Howard Act. The considerations

of policy referred to above apply with equal force to this

case.

Solicitor.

3la

APPENDIX E

Taxable Property—Assignment to U.S. in Trust

April 4, 1935.

Memorandum for the Comissioner

of Indian Affairs.

I am entirely in agreement with the opinion expressed in

your memorandum of April 2, 1935, that it would be within

the letter and spirit of the Act of June 18, 1934 (48 Stat.

984), to accept from an Indian owner taxable property title

to the same ‘‘with the understanding that it will be held

in trust and assigned to her and her heirs for so long as they

may care to occupy and use same’’ wherever there is a

reasonable probability that such acquisition will serve the

purpose of land consolidation.

It does not seem to us, however, that the letter prepared

for Superintendent Gray conforms to this statement of

policy. Another, that letter suggests that the Indian appli-

cant is to receive a trust patent or restricted legal title to

the land which she now owns. In other words, there would

be simply an imposition of restrictions upon land now

owned by an Indian, without effectuating any other change

in the tenure by which the land is held. It was to this latter

procedure that my memorandum of December 18, 1934, to

which your memorandum of April 2, 1935, is an answer, was

specifically directed.

As suggested in my earlier memorandum, I doubt it can

be fairly said that we are providing land for Indians, within

the meaning of Section 5 of the Act of June 18, 1935, when

we take legal title to Indian owned land and issue to the

original Indian owner a restricted title to the same land.

This legal question does not arise if it is the intention of

the Indian Office to acquire title in these cases in trust for

a given Indian tribe and to issue to the original Indian

owner an assignment conveying exclusive rights of use and

occupancy. In this case I think it could fairly be said that

the land was acquired for the benefit of the tribe concerned.

32a

If the assignee or her legal heirs or devisees should at any

time cease to use and occupy the land, it would revert to

the tribe for reassignment to other members of the tribe.

(Landless) Indians would thus be benefited by this trans-

action, and although the extent of benefit is small this is

immaterial since no actual outlay for compensation is in-

volved in the transaction. The question of whether assign-

ments should be controlled by the Secretary of the Interior

directly, or by the tribe itself, or by the Secretary until the

adoption of a tribal constitution, and thereafter by the

tribe, in accordance with such constitution, 1s primarily a

question of policy for the Indian Office to determine. What-

ever instrument of assignment may be used for the con-

templated transaction should contain specific provisions on

this matter as well as on rights of leasing, transfer and

inheritance.

If I am correct in my understanding of the plan contem-

plated by your memorandum of April 2, 1935, I would

suggest that the attached letter for Superintendent Gray

be revised so as to state clearly the nature of the interest

which the assignee of the land will receive. The last para-

graph of the letter assumes that the present owner will re-

ceive an allotment rather than an assignment, and should,

therefore, be deleted.

Solicitor.

33a

APPENDIX F

OFFICE OF THE SOLICITOR

WASHINGTON 25, p. c.

June 16, 1945

MEMORANDUM for the Commissioner of Indian Affairs:

Reference is made to the memorandum of March 31 con-

cerning the proposed conveyance of 86 acres of land in

Lake County, Montana, from Alphone Clairmont, Guardian

for Victor Leonard Clairmont, a minor, to the United States

in trust for Victor Leonard Clairmont an unallotted Flat-

head Indian. Your reference number is Ten. & Acq. 3958-45,

An examination of the abstract reveals that in 1920, pur-

suant to Secretarial order, patent in fee for the land in

question was issued to Victor Clairmont, Flathead allottee

No. 945 (abstract p. 2). On January 28, 1927, the patentee

died intestate and Victor Leonard Clairmont, the Guard-

ian’s ward, was determined to be the sole surviving heir of

the deceased (abstract p. 35). On the basis of the record

presented, it is assumed in the absence of a showing to the

contrary, that prior to the approval of the Secretary’s

order for the issuance of patent in fee, all the necessary re-

quirements concerning application for fee patent had been

complied with.

The authority relied on to effect the proposed transfer is

section 5 of the Indian Reorganization Act of June 18, 1934

(48 Stat. 984, 25 U. S. C. sec. 465) which authorizes the

acquisition of land through purchase, relinquishment, gift,

exchange or assignment ‘‘for the purpose of providing land

for Indians.’’ As previously indicated, however, title to the

property in question is now vested in the Indian minor,

Victor Leonard Clairmont (abstract p. 35). The Solicitor

in discussing a similar situation held that the proposed con-

veyance would not be ‘‘providing land for Indians”’ within

the meaning of section 5 of the 1934 act. Solicitor’s memo-

randum of April 4, 1935 to the Commissioner of Indian

34a

Affairs. A review of the file discloses that the main pur-

pose of the transfer is to place the property in a trust

status to avoid the payment of taxes.

It has been the Department’s policy in such cases not to

permit Indians to transfer lands now taxable to the Gov-

ernment. Letter of May 3, 1935 to the Superintendent of the

Fort Totten Agency approved by the Department on May

7, 1935. See also Department’s letter of March 2, 1943 to

the Superintendent of the Five Tribes Agency. Conse-

quently, there would seem to be no authority under section

5 of the 1934 act to effect the proposed transfer. The Solici-

tor has held, however, that there is authority under the act

to acquire title in trust for an Indian tribe and to issue to

the original Indian owner an assignment conveying exclu-

sive rights of use and occupancy. Solicitor’s memorandum

of April 4 supra. See also letter of May 3, 1935 supra. If the

parties in interest desire to convey the property to the

Flathead tribe, the procedure set forth in the letter of May

3, 1935 should be strictly followed.

The deed, abstract and related papers are returned.

/s/ W. H. Fianery,

For the Solicitor,

Assistant Solicitor.

35a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Cirvy or Taco ; inti

,0MA, WASHINGTON, ET AL., Plaintiffs,

‘ _ ‘

Ceci, D. Anprus, eT au., Defendants.

Filed January 20, 1978

Memorandum Opinion and Order

A recently adopted, ill-considered, and unf

tice of the Department of the Interior pois Saag parse

for this lawsuit. The Department, acting through the Bu-

reau of Indian Affairs (BIA), has begun to accept title to

isolated tracts of land scattered throughout the City of

Tacoma, Washington, and owned prior to transfer in fee

simple by the Puyallup Tribe of Indians (the ‘Tribe’’) or

any of its members. Havings accepted title, the United

States then holds the land in trust for the beneficial use of

the Tribe or the individual Indian. Once title rests with the

United States, the ‘‘beneficial’’ owners renounce the civil

tax, and criminal jurisdiction of the state and its subdivi-

sions by refusing to pay taxes, ignoring zoning, health, and

safety codes, and openly violating state and local prohibi-

tions of cigarette, liquor, and fireworks sales.

Tacoma encompasses a heavily industrializ

area, 99% of whose residents are arash Pane

the Department ’s practice has generated not only consid-

erable public hostility but this legal action against the BIA

and the Department of the Interior as well. Plaintiffs are

- the City and Port of Tacoma, four residents, two adjacent

municipalities, and the county encompassing all of them.

They seek, inter alia, a declaration that decendants’ accept-

ance of land in trust for Puyallup Indians exceeds statu-

tory authority, an injunction prohibiting future acceptance

36a

of fee-patented, privately owned land in trust for the Tribe

or any of its members, as well as declarations that the

original Puyallup reservation has been disestablished and

that any lands already taken in trust are subject to all

general state and local regulations and taxes.

Plaintiffs sought a temporary restraining order, which

was rendered moot by defendants’ agreement. to abstain

from the practice in question pending the Court’s resolu-

tion of the merits.’ After intervening as a pr.rty defendant,

the Tribe then filed a motion to dismiss the complaint under

Rule 12b(6) of the Federal Rules of Civil Procedure. De-

fendants filed a similar motion. Opposition and replies

were thereafter submitted, oral argument was heard, and

the Court invited post-argument submission of additional

authorities. The motions are now ready for adjudication.

Plaintiffs’ principal claims withstand dismissal. The first

relates to the Secretary’s authority to accept land in trust

for the Tribe or any, of its members. As authority for the

challenged practice, defendants * cite section 5 of the Indian

Reorganization Act of 1934, 25 U.S.C. § 465 (1970). That

statute, in relevant part, provides:

The Secretary of the Interior is hereby authorized,

in his diseretion, to acquire through purchase, relin-

quishment, gift, exchange, or assignment, any interest

in lands, water rights or surface rights to lands, within

'By Consent Deerce entered on August 18, 1977, defendants

agreed not to accept title to any land held by a Puyallup Indian

or the Tribe pending resolution of plaintiffs’ motion for prelimi-

nary injunction. The parties subsequently agreed to forego pre-

liminary relief and seek final resolution of the case, and the Con-

sent Deeree continued by agrement. Since the Court does not now

resolve the substantive issues in the ease, the Consent Decree

continues in effect.

2Both the original defendants and the Tribe are hereinafter

collectively referred to as ‘‘defendants.’’

37a

or without existing reservations, including trust or

otherwise restricted allotments whether the allottee be

living or deceased, for the purpose of providing land

for Indians.

Title to any lands or rights acquired pursuant to

[this Act] shall be taken in the name of the United

States in trust for the Indian tribe or individual In-

dian for which the land is acquired, and such lands or

rights shall be exempt from State and local taxation.

Defendants claim that these provisions vindicate their

practice, and that in any event plaintiffs lack standing even

to contest the issue.

To establish standing, each plaintiff must establish, first

that the action complained of has caused ‘injury in fact”?

and, second, that the interest sought to be protected is

‘arguably within the zone of interests to be protected or

regulated by the statute or constitutional guarantee in

question.’’ Association of Data Processing Service Oraani-

zations, Inc. v. Camp, 397 U.S. 150, 152-53 (1970). Plain-

tiffs City of Tacoma and County of Pierce meet these re-

quirements. Their claims of tax losses and frustration of

police powers are sufficient to establish ‘‘injury in fact.’’

With regard to the ‘‘zone’’ test, the government’s assump-

tion of title to land within their jurisdiction has profound,

if as yet uncertain, effect on the power of these plaintiffs

over the land and those on it. The statute itself denied

plaintiffs the power to tax the land. Thus there is no ques-

tion that these governmental entities have interests that

are ‘‘regulated’’ by section 5 of the Act.*

b Tax Analysts and Advoeates v. Blumenthal, No, 75-1304 (D.C.

Cir. June 15, 1977), although it contains broad dicta, does not

require a contrary result. In that case a domestic oil producer was

denied standing to challenge the tax treatment of foreign oil pro-

ducer on the grounds that his competitive interests were not among

those protected or regulated by the Revenue Ruling in question.

38a

The remaining plaintiffs have no standing to question the

Seeretary’s authority. The Port of Tacoma, Town of Mil-

ton, and City of Fife have all failed to establish ‘‘injury in

fact.’’ Neither the complaint nor any supporting affidavit

allege that any land has been taken within these areas nor

do they suggest any other injury that may have been suf-

fered. The individual plaintiffs fail the second test, for it

cannot be said that the statute operates to protect or regu-

late their interests. Plaintiffs suggest that a broader test

should apply: that because the statute has a foreseeable

impact on their interests, they should be deemed to have

satisfied the ‘‘zone’’ test. Alternatively, they argue that the

test should be relaxed because they are suffering a harm

that was not contemplated at the time the Act was passed.

Although not without legal support, see Cotovsky-Kaplan

Physical Therapy Association v. United States, 507 F.2d

1363, 1366-67 (7th Cir. 1975) (Stevens, J.); American So-

ciety of Travel Agents, Inc. v. Blumenthal, No. 75-1782, slip

op. at 19-21 (D.C. Cir. Sept. 15, 1977) (Bazelon, C.J., dis-

senting) (citing cases); K. Davis, Administrative Law of

the Seventies § 22.02-11 (1976), a recent decision of the

United States Court of Appeals for the District of Colum-

bia Circuit has expressly rejected both, adhering strictly

to the requirements that the interests sought to be vindi-

cated must be among those arguably either protected or

regulated by the statute in question. Tax Analysts and

Advocates v. Blumenthal, No. 75-1304, slip op. at 25-26

(D.C. Cir. June 15, 1977). Under Tax Analysts, only the

City of Tacoma and the County of Pierce have standing to

question the Secretary’s authority.

In this case, the interests of the city and the county are not com-

petitive, but rather, jurisdictional, and as such were sought to be

regulated in the statute in question. See also Southern Mutual Help

Ass’n, Ine. v. Califano, No. 76-1748, slip op. at 12 (D.C. Cir. Dee.

23, 1977).

39a

Turning to the merits of the attack on the Secretary’s

authority, it is obvious from the language of section 5 that

it authorizes the Secretary to accept land in trust not only

for Indian tribes but for individual Indians as well.’ The

Secretary’s power, however, is not unlimited. The statute

itself permits acquisition only ‘‘for the purpose of provid-

ing land for Indians.’’ The legislative history is replete

with statements to the effect that section 5 was meant only

‘‘[t]o meet the needs of landless Indians and of Indian

individuals and tribes whose land holdings are insufficient

for self-support.’’? S. Rep. No. 1080, 73d Cong., 2d Sess. 2

(1934). Accord, H.R. Rep, No. 1804, 73d Cong., 2d Sess. 6

(1934); 78 Cong. Rec. 9269 (Rep. Hastings), 11123 (Sen.

Wheeler), 11727, 11720 (Rep. Howard) (1934). Acceptance

of trust land for any other purpose is unauthorized.

* This is most clearly demonstrated by a comparison of the bills

as reported out of the respective committees and the bill as even-

tually adopted, Originally the last paragraph of section 5 pro-

vided :

Title to any lands or rights aequired pursuant to this Act

shall be taken in the name of the United States in trust for

the Indian tribe for which the land is acquired... .

II.R. Rep. No. 1804, 73d Cong., 2d Sess. 3 (1934). A Senate amend-

ment to the bill made on June 12, 1934, inserted the words ‘‘or

individual Indians’’ after the words ‘‘Indian tribe.’’ This amend-

ment was initially resisted by the House, but the Senate version

was adopted in conference. Any doubt as to the purpose and mean-

ing of this amendment is dispelled by examination of the remarks

immediately prior to passage :

So far as [ am concerned, I want the bill amended, if that

he possible, so as to provide that the money shall be available

not only to buy lands for additions to Indian reservations

but to buy lands for individual Indians. There is no chance

to place them on reservations, They are living along the creeks

in tepees and tents. I want the money available to buy lands

not only in my state for individual Indians but in other states

where Indian lands have been allotted.

78 Cong. Rec. 11125 (1934) (Sen. Thomas).

40a

One can easily imagine circumstances in which a taking

would be in excess of authority. For example, were the Sec-

retary to accept title from an individual competent Indian,

simply to hold the same land in trust for him, the statutory

authority would appear to have been abused, for in no

sense could the Secretary be said to be providing land. To

hold that an Indian may become landless or nearly so, and

thus eligible for beneficial use of trust land, simply by

transferring absolute title to the United States would make

a mockery of a statute obviously designed to augment, not

merely transform, title to land available to Indians.’

One can just as easily imagine cirtumstances in which

a taking would be completely authorized. The legality of the

‘>This appears to have been the opinion of the Department, at

least in the period immediately following passage of the Act. See

Memoranda from the Solicitor of the Department of the Interior

to the Commissioner of the Bureau of Indian Affairs (Dec. 18,

1934; Apr. 4, 1935). Defendants now deny that even the hypo-

thetieal taking described above would be illegal. One of the pur-

poses of the 1934 Act, it is argued, was to end the progressive

alienation of Indian land that had resulted from coercion and the

operation of state tax and inheritance laws. Placing fee simple land

in trust status saves it from possible alienation, and thus aecords

with the spirit of the Act, It is true that preventing further

alienation was one purpose of the Act. F.g., S. Rep. No. 1080,

73d Cong., 2d Sess. 1 (1934). That purpose, however, was addressed

in sections 1-4 of the Act, not section 5 under whose authority the

Scerctary purports to operate. Sections 1-4 deal with the alienation

problem by prohibiting transfers and allotments of Indian land,

extending indefinitely the trust status of all restricted lands, and

returning certain ‘‘surplus’’ lands to tribal sovereignty, 25 U.S.C.

§§ 461, 462, 463, 464 (1970). Section 5 was adopted for a different,

albeit complementary purpose. As the bill’s House sponsor ex-

plained, sections 1-4 ‘‘are designed to prevent further loss of

Indian land. But prevention is not enough, The Indians now land-

less must be provided for. [Section 5] undertakes to do this

gradually through an annual appropriation for the purchase of

land.’’ 78 Cong. Rec. 11727 (1934) (Rep. Howard). Thus the

hypothetical instance deseribed above would violate both the letter

and the spirit of section 5 and would thus be unauthorized.

4la

taking depends upon, among other things, who the grantor

is, his relation, if any, to the grantee, and the grantee’s

needs and landholdings. None of this information is before

the Court, and to interpret the statute through a series of

hypotheticals would be to engage in the typical advisory

ruling prohibited by Muskrat v. United States, 219 U.S. 346

(1911). At the same time, dismissal is inappropriate, since

it cannot be said that those plaintiffs with standing ‘‘ would

be entitled to no relief under any state of facts which could

be proved.’’ 2A Moore’s Federal Practice § 12.08 at 2271-74

& n.6 (1968) (citing cases).

After this lawsuit was filed, the Secretary announced the

following change in the Department’s Puyallup land ac-

quisition practice :

Until final regulations are adopted, the Department

is going to insist that any land which is proposed to be

taken in trust for the Puyallup Tribe or Puyallup In-

dians be a part of a tribal land consolidation plan or

that it be for some other clearly defined purpose which

will benefit the entire tribe.

Letter from Cecil D. Andrus to Senator Henry M. Jackson

(Oct. 14, 1977). This development is long overdue. It does

not, however, require dismissal of plaintiffs’ challenge to

the Secretary’s authority, as defendants suggest. Plaintiffs

seek not only an injunction against future takings but also

a declaration as to the legality of the acquisitions already

completed. Furthermore, the letter is too vaguely worded to

determine whether it precludes future unauthorized tak-

ings. As noted, the standard is not whether a taking ‘‘will

benefit the entire tribe,’’ but rather whether it provides

land for Indians or tribes in need.

Plaintiffs’ second principal claim is that the lands taken

in trust for Indians or the Tribe are subject to certain

unspecified state and local regulations and taxes. This

claim too is not susceptible to adjudication at this time. In

42a

the first place it is contingent upon the Secretary’s author-

ity, for if the transfers have been illegal then the land in

question is not properly in trust status. In the second place,

even if the land is properly held in trust, the exact degree

of freedom from local control provided by trust status is a

matter than can be decided only in the context of specific

tracts, laws, and violations. See Santa Rosa Band of In-

dians v. Kings County, 532 F.2d 655, 669 (9th Cir. 1975),

cert. denied, 429 U.S. 1038 (1977). Resolution requires an

understanding of the facts as well as the law, and therefore

dismissal of the claim at this time is inappropriate. Moore’s

Federal Practice, supra.

The parties have briefed and argued the question of the

continued existence of the original Puyallup reservation.

All agree, however, that the question is a collateral one that,

depending on the Court’s resolution of other questions, may

never need to be decided. Obviously, then, any decision at

this time would be purely advisory.

The complaint also lists subsidiary claims that the pro-

cedures followed in taking the land in question denied plain-

tiffs due process of law; that such takings contravened

§ 102(2)(ce) of the National Environmental Policy Act, 42

U.S.C. § 43832 (Supp. V 1975); and that section 5 of the

Indian Reorganization Act is an unconstitutional delegation

of legislative power without adequate standards. By all

appearances, these claims have been abandoned. In any

event, they are completely without merit and thus are dis-

missed.

’rom the outset of this lawsuit the Court has expressed

its doubt that the case could be fully resolved in a jurisdic-

tion so far removed from the land around which the dispute

‘The Court finds it unnecessary to determine finally the various

plaintiffs’ standing to raise this claim, although it appears that at

least the City of Tacoma and County of Pierce do have standing,

for the reasons outlined above.

43a

centers. Transfer has thus far been abstained from becau

of the parties’ representations that no active federal ae

18 presently sitting in Tacoma. As the litigation piihaaiihs

however, and as the issues are narrowed, it appears eve

more clearly that further proceedings in this Court ma ny

Inappropriate. The outstanding questions are close] ti a

to the individual tracts of land. Especially with ze to

the issue of tax and regulatory jurisdiction, the beneficial

owners of the land would seem to be indispensable parti

within the meaning of Rule 19(b) of the Federal Rule a

Civil Procedures. Therefore, and for the reasons ne

above, the Court hereby ORDERS: ae

(1) Plaintiffs’ claims of deni

al of due process, violati

9 the National Environmental Policy Act, and deakeltins

ional delegation of legislative power are dismissed;

(2) In all gary

vn z all other respects the Gotions to dismiss are de-

(3) Plaintiffs Port of Tacoma, Tow i

. n of Milton, City of

Fife, Fred R. Remeto, Mary Jean Remeto, Frank M. Wil.

liams, and Edith K. Willi neal ‘ é:

Piagesiw illiams are dismissed without preju-

(4) Inasmuch as the Court now confronts questions in-

volving detailed factual considerations and affecting rights

of persons not presently before the Court, all parties are

directed to show cause in writing on or before February

6, 1978, why the case should not be tra

Peay el es et

District of Washington. ee ne:

So Orperep.

/s/ Geruarp A. GesELi

United S istri

January 20, 1978, tates District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.