# Petition — McMasters v. Chase > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1709%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 965 ## Text | mee eee | Supreme Court, U.S.” | FILED erp 1% NY 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. 4 “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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1709%3A1. Public record. Not legal advice.