Amicus Curiae Brief — Countyof Oneida v. Oneida Indian Nation of NY

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feo In the WLEXANDER L. STEVAS,

Supreme Court of the United'States.—

DcyoaEn Term, 1983.

THE COUNTY OF ONEIDA, NEW YORK, anp

"THE COUNTY OF MADISON, NEW YORK,

PETITIONERS, |

v.

THE ONEIDA INDIAN NATION OF NEW YORK STATE,

a/k/a THE ONEIDA NATION OF NEW YORK, a/k/a THE

ONEIDA INDIANS OF NEW YORK; THE GNEIDA

INDIAN NATION OF WISCONSIN, a/k/a THE ONEIDA

TRIBE OF INDIANS OF WISCONSIN, INC.; THE

ONEIDA OF THE THAMES BAND COUNCIL; anp

THE STATE OF NEW YORK,

RESPONDENTS.

Saat

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT.

Brief of Amici Curiae

-.. "Fhe County of Seneca, New York;

and the City of Rock Hill, The Town of Fort Mill and

‘the Counties of York and Lancaster, South Carolina

in Support of Counties of Oneida and Madison, New York.

James D. St. CLaR,

WittiaM F. Lee,

DONALD R, FREDERICO,

Davip MILLON,

HALE AND Dorr,

60 State Street, .

Boston, Massachusetts 02109. ¢

(617) 742-9100 ‘

JAMES L. QuaR.es, il,

HALE AND Dorr,

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Table of Contents.

Statement of Interest of Amici Curiae |

A. The County of Seneca, New York

B. The City of Rock Hill, Town of Fort Mill, and Coun-

ties of York and Lancaster, South Carolina 3

Summary of Argument 5

Argument 6

I. The Panel Majority Erred in Concluding that the Plain-

tiffs Could Assert a Cause of Action Under Federal

Common Law 6

A. No Federal Common Law Cause of Action Ever Ex-

isted and the Panel Majority Erred in Creating One 6

B. The Nonintercourse Act Preempts any Federal

Common Law Cause of Action 8

1. The Panel Majority Erroneously Applied the

Legal Standard Governing Federal Preemption of

State Law Rather than the Principles Governing

Federal Statutory Preemption of Federal Common

Law 9

2. The Trade and Intercourse Acts are Comprehen-

sive Statutes Which Preempt FederalCommon Law |!

(a) The 1790 Trade and Intercourse Act 12

(b) The 1793 Trade and Intercourse Act 13

(c) The 1796, 1799 and 1802 Trade and Inter-

course Acts 14

(d) The 1834 Trade and Intercourse Act 16

(e) Summary of the Various Versions of the

Trade and Intercourse Acts 17

II. The Panel Majority Erred in Holding that an Implied

Private Cause of Action Exists Under the Noninter-

course Act 18

A. The Panel Majority Inappropriately Inferred a Pri-

vate Cause of Action Because of its Dissatisfaction

with Executive Branch Enforcement of the Act 18

EE

il TABLE OF AUTHORITIES CITED.

B. The Panel Majority Misconstrued the Significance

of Transamerica Mortgage Advisors, Inc. v. Lewis 19

C. The Panel Majority Ignored the Historical Context

in Which the Nonintercourse Act Was Enacted 21

D. The Nonintercourse Act Was Not Enacted Primari-

ly for the Benefit of Inaian Tribes 22

III. Even if a Federal Common Law Claim or Implied

Private Right of Action Existed, Indian Land Claims Are

Subject to Analogous State Statutes of Limitation 26

IV. Subsequent Federal Ratification of an Indian Land

Transfer Need Not be “Plain and Unambiguous” 27

Conclusion 30

Table of Authorities Cited.

CasES.

Baker v. Carr, 369 U.S. 186 (1962) 19n

Berry Petoleum Co. v. Adams & Peck, 518 F.2d 402 (2d

Cir. 1975) 27n

Burks v. Lasker, 441 U.S. 471 (1979) 8, 25n

California v. Sierra Club, 451 U.S. 287 (1981) 24, 25

Catawba Indian Tribe v. South Carolina, No. 80-2050 (D.

S.C., filed October 28, 1980) 4n

Cayuga Indian Nation v. Cuomo, 565 F.Supp. 1297 (N.D.

N.Y. 1983) 3

Cayuga Indian Nation v. Cuomo, Civil Action No. 80-

CV-930, 80-CV-960 (N.D.N.Y. filed Oct. 29, 1980) 2

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) 21

Cort v. Ash, 422 U.S. 66 (1975) 23, 24

Federal Power Commission v. Tuscarora Indian Nation,

362 U.S. 99 (1960) 28

Holmberg v. Armbrecht, 327 U.S. 392 (1946) 26

Jaeger v. United States, 27 Ct.Cl. 278 (1892) 21

Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) 7

Johnson v. Railway Express Agency, Inc., 421 U.S. 454

(1975) 26

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) 29

Marsh v. Brooks, 49 U.S. (8 How.) 223 (1850) 7

Mashpee Tribe v. New Seabury Corp., 427 F.Supp. 899

(D. Mass. 1977) 25n

TABLE OF AUTHORITIES CITED.

Mashpee Tribe v. Watt, 542 F.Supp. 797 (D. Mass. 1982),

aff'd, 707 F.2d 23 (ist Cir.), cert. denied, 104 S.Ct.

555 (1983) 23

Milwaukee v. Illinois, 451 U.S. 304 (1981) 6,9, 10, 11, 17

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978) 10, 11

Mohegan Tribe v. Connecticut, 638 F.2d 612 (2d Cir.

1980), cert. denied, 452 U.S. 968 (1981) 22, 23

Narragansett Tribe of Indians v. Southern Rhode Island

Land Dev. Corp., 418 F.Supp. 798 (D. R.I. 1976) 25n

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) 26

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) 22

Oneida Indian Nation v. County of Oneida, 414 U.S. 661

(1974) 7

Oneida Indian Nation v. New York, 691 F.2d 1070 (2d Cir.

1982) 3

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) 29n

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) 23

Schaghticoke Tribe of Indians v. Kent School Corp., 423

F.Supp. 780 (D. Conn. 1976) 25n

Securities & Exchange Comm'n v. Penn. Cent. Co., 425

F.Supp. 593 (E.D. Pa. 1976) 27n

Securities Investor Protection Corp. v. Barbour, 421 U.S.

412 (1975) 24

Seneca Nation v. United States, 173 Ct. Cl. 912 (1965) 28

Seneca Nation of Indians v. Christy, 126 N.Y. 122 (1891),

writ of error dismissed, 162 U.S. 283 (1896) 28

Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S.

11 (1979) 5, 8n, 19 et seq.

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) —16n

United States v. National Gypsum Co., 141 F.2d 859 (2d

Cir. 1944) 29

United States v. Santa Fe P.R. Co., 314 U.S. 339 (1941) 27

United St.°cs v. Sioux Nation of Indians, 448 U.S. 371

(1980) 26

Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979) 26

Yankton Sioux Tribe v. United States, 272 U.S. 351

(1926) 26

STATUTES AND RULES.

eupeeme Court Rule 36.4 In

iV TABLE OF AUTHORITIES CITED.

18 U.S.C. § 610 23

25 U.S.C.

§ 177 passim

§ 180 14

28 U.S.C. § 2415 26n

Death on the High Seas Act 10

Federal Water Pollution Control Act Amendments of

1972 12

Indian Trade and Intercourse Acts passim

Investment Advisers Act of 1940 5, 8n, 19, 20, 25

Rivers and Harbors Appropriativs. Act of 1899 24

Securities Investor Protection Act vf 1970 24

MISCELLANEOUS.

Acts and Resolutions of the Congress, 2d Cong., Ist Sess.,

Library of Congress, Washington, D.C. 13

1 American State Papers: Indian Affairs (1834) 13, 14

Clinton & Hotopp, Judicial Enforcement of the Federal

Restraints on Alienation of indian Land: The Origins

of the Eastern Indian Land Claims, 31 Me. L. Rev. 17

(1979) 21

1 Messages and Papers of the Presidents (Richardson ed.

1896) 13

F. Prucha, American Indian Policy in the Formative Years:

The Indian Trade and Intercourse Acts, 1790-1834

(1962) 22

Report on Regulating the Indian Department, H.R. Rep.

No. 474, 23d Cong., Ist Sess., May 20, 1834 16n

Senate Doc. No. 72, Report from the Secretary of War,

20th Cong., 2d Sess., Feb. 10, 1829 16n

No. 83-1065.

In the

Supreme Court of the United States.

OcToser TERM, 1983.

THE COUNTY OF ONEIDA, NEW YORK. ano

THE COUNTY OF MADISON, NEW YORK.

PETITIONERS,

V.

THE ONEIDA INDIAN NATION OF NEW YORK STATE.

a/k/a THE ONEIDA NATION OF NEW YORK. a/k/a THE

ONEIDA INDIANS OF NEW YORK: THE ONEIDA

INDIAN NATION OF WISCONSIN, a/k/a THE ONEIDA

TRIBE OF INDIANS OF WISCONSIN, INC.: THE

ONEIDA OF THE THAMES BAND COUNCIL: ano

THE STATE OF NEW YORK.

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT.

Brief of Amici Curiae

The County of Seneca, New York;

and the City of Rock Hill, The Town of Fort Mill and

the Counties of York and Lancaster, South Carolina

in Support of Counties of Oneida and Madison, New York. '

Statement of Interest of Amici Curiae.

A. The County of Seneca, New York.

The County of Seneca is a named defendant in a defendant

class action commenced by the alleged Cayuga Indian Nation of

All parties have consented to the filing of this brief. Moreover. in accordance

with Sup. Ct. R. 36.4, for the purpose of filing this brief, the County of

Seneca, New York, is sponsored by its county attorney, John M. Sipos. The

County of York, South Carolina is sponsored by its attorney, Melvin B

McKeown, Jr. The County of Lancaster, South Carolina is sponsored by its

attorney , James H. Hodges. The Town of Fort Mill, South Carolina is sponsored

by its attorney, B. Bayles Mack. The City of Rock Hill, South Carolina is

sponsored by its attorney, C.W.F. Spencer, Jr

2

New York in the United States District Court for the Northern

District of New York.’ In that action, the plaintiffs assert a claim

to approximately 62,000 acres of land in Seneca and Cayuga

Counties in the State of New York. The plaintiffs also have

declared their intention to claim in an action not yet filed an

additional 3,000,000 acres of land, comprising a broad swath

extending across New York State from Lake Ontario to the

Pennsylvania border.

The land at issue in the pending Cayuga action is subdivided

into thousands of separate tracts, each with its own unique history.

These various tracts are individually owned by diverse entities,

including families, churches, charitable organizations, trusts,

manufacturers, public utilities, railroads, the State of New York,

local governments and even persons who claim to be members

of the plaintiff groups. The Cayuga plaintiffs themselves estimate

the number of persons asserting an interest in the land at issue

as exceeding 7,000 individuals and entities. All of the present

owners acquired their holdings in ignorance of the allegedly illegal

sales by the Cayugas to New York State which, like those at

issue in the pending case, occurred nearly two centuries ago.

The action commenced by the Cayugas is predicated upon

alleged violations of the same statutes involved in this action.

The Cayuga plaintiffs allege that “from time immemorial” they

owned and occupied the land at issue, and that their ownership

was confirmed by certain treaties with colonial officials and later

the United States. Closely parallel to this case, the essence of

the Cayuga complaint is the assertion that the Cayugas transferred

the land at issue to the State of New York in 1795 and 1807 by

two treaties and that the transfers effected by those treaties were

void for lack of approval or consent by the United States. The

Cayuga plaintiffs allege that such approval or consent was re-

quired by those provisions of the comprehensive Indian Trade

and Intercourse Acts regulating the transfer of Indian land and

commonly known as the Nonintercourse Act. The Cayuga plain-

tiffs further allege that the interest of every one of the persons

and entities who are members of the defendant class derives from

those transfers to the State of New York and, therefore, the

: Cayuga Indian Nation v. Cuomo, Civil Action No. 80-CV-930, 80-CV -960

(N.D.N.Y., filed October 29, 1980). The alleged Seneca-Cayuga Tribe of

Oklahoma has joined this action as plaintiff-intervenor. For convenience, both

groups will be referred to as the “plaintiffs.”

3

plaintiffs conclude, the titles and interests of these innocent land-

owners must similarly be void.

On April 26, 1982, the Cayuga defendants filed a motion to

dismiss the complaint. Those defendants argued, inter alia, that

no implied right of action exists under the Nonintercourse Act,

that the plaintiffs stated no claim under the federal common law,

that the plaintiffs’ claims were barred by the most closely analog-

Ous state statute of limitation, and that the plaintiffs’ claims were

not justiciable and presented solely political questions. All of

those arguments also are raised by the pending case. On May

26, 1983 the district court issued a Memorandum-Decision and

Order rejecting the defendants’ legal arguments and denying their

motion to dismiss. Cayuga Indian Nation v. Cuomo, 565 F.Supp.

1297 (N.D.N.Y. 1983). In so holding, the district court placed

great reliance on the decision of the United States Court of Appeals

for the Second Circuit in another case involving the Oneida In-

dians. Oneida Indian Nation v. New York, 691 F.2d 1070 (2d

Cir. 1982).’

Because some of the legal theories advanced and rejected in

that case are identical to those presented on this review, the

County of Seneca has an overwhelming interest in this case. If

this Court were to reverse the court of appeals on the issues of

whether the plaintiffs have a federal cause of action, whether any

such action is time-barred, or whether the plaintiffs’ claims pre-

sent nonjusticiable political questions, the Court's decision would

compel the Cayuga district court to reconsider and allow the

defendants’ motion to dismiss, thus freeing the thousands of acres

of land and the thousands of good faith owners of those lands of

the disruption and threat of pending and future Indian land claims.

B. The City of Rock Hill, Town of Fert Mill, and

Counties of York and Lancaster, Sowth Carolina.

The City of Rock Hill, Town of Fort Mill and Counties of

York and Lancaster, South Carolina have a similar, vita! interest

in the outcome of this litigation. These political sub-divisions of

the state of South Carolina, along with seventy-six individuals,

companies and other public entities, have been named as defend-

ants and representatives of an uncertified putative defendant class

One of the affirmative defenses as<<rted by the Cayuga defendants in their

subsequently filed answer is the defense of ratification, which also is one of

the issues presented to this Court for review.

4

in an action commenced in the United States District Court for

the District of South Carolina by the plaintiff Catawba Indian

Tribe, Inc., a non-profit organization operated by persons claim-

ing to be descendants of the Catawba Indians.* The plaintiff seeks

to be declared the owner of approximately 144,000 acres (225

square miles) of land lying at the northern border of South Carolina

in York and Lancaster Counties and encompassing the City of

Rock Hill and the Town of Fort Mill. The plaintiff claims that

the voluntary conveyance of this land in 1840 by the Catawba

Indians violated the same statutes involved in this action and, as

a result, seeks to dispossess more than 27,000 persons who cur-

rently assert an interest in the subject lands and to recover trespass

damages for 140 years.

In pressing its claim, the plaintiff relies exclusively upon its

right to assert a claim under those provisions of the Trade and

Intercourse Acts regulating the transfer of Indian land. Specifi-

cally, the plaintiff claims that an 1840 transfer of land by the

Catawba Indians to the State of South Carolina was void for lack

of federal approval or consent which it alleges was required by

these statutes. The plaintiff also alleges that because the interest

of all persons and entities named as members of the defendant

class derives from this transfer of land, all of these landowners’

titles and interests are similarly void.

The disposition of the present action thus will have a substantial

impact on the presently pending Catawba litigation. Should this

Court hold that the Indian Trade and Intercourse Acts do not

imply a private right of action, that the Oneidas’ claims are time

barred, or that the Oneidas’ claims present nonjusticiable political

questions, the pending Catawba litigation could be terminated

with finality. Similarly, because the Catawba defendants contend

that a 1959 federal statute implicitly ratified the challenged 1840

transaction, this Court’s pronouncement on the doctrine of ratifi-

‘Catawba Indian Tribe v. South Carolina, No. 80-2050 (D.S.C., filed

October 28, 1980). Upon commencement of this action, the defendants moved

to dismiss the claim, asserting that a 1959 federal statute referred to as the

“Catawba termination act,” 25 U.S.C. §§ 931-938 had profoundly altered the

status of the Catawba Indians and, as a matter of law, precluded their claim.

Treating the motion as a motion for summary judgment, the district court

allowed the defendants’ motion and dismissed the action. Two members of a

three judge panel of the Fourth Circuit Court of Appeals, over a strong dissent,

reversed the lower court's ruling; however, the full Fourth Circuit subsequently

granted the defendant's Petition for Rehearing /n Banc, and, on June 4, 1984

heard oral argument.

5

cation cou!d significantly influence the disposition of the Catawba

claim. Accordingly, the City of Rock Hill, Town of Fort Mill

and Counties of York and Lancaster, South Carolina join in this

brief amici curiae.

Summary of Argument.

The panel majority's conclusion that the plaintiffs had asserted

valid federal law claims premised on violations of the Noninter-

course Act rests upon several faulty assumptions. First, the panel

majority incorrectly concluded that the federal common law his-

torically has recognized a cause of action on behalf of Indian

tribes for possession of or damages relating to tribal land. The

decisions of this Court upon which the panel majority based its

conclusion do not support the existence of a federal common law

right which can be exercised by Indian tribes.

Moreover, by misplacing its focus on an inappropriate legal

standard, and by wrenching the statutes out of their ' istorical

context, the panel majority failed to recognize that the comprehen-

sive Indian Trade and Intercourse Acts have preempted any federal

common law which might have existed. Because congressional

intent to preempt federal common law need not be “clear and

manifest,” and because Congress, in enacting the Trade and In-

tercourse Acts, directly addressed the issues of remedies and

enforcement, thereby occupying the field of Indian commerce,

the panel majority erred in its failure to find that any federal

common law was preempted.

The panel majority similarly erred in holding that an implied

private cause of action on behalf of Indian tribes exists under the

Nonintercourse Act. The panel majority inappropriately allowed

its dissatisfaction with executive branch enforcement of the Act

to affect its judgment in finding that an implied private cause of

action exists. In addition, the panel majority misconstrued the

significance of this Court's analysis of the Investment Advisers

Act of 1940 in Transamerica Mortg. Advisors, Inc. v. Lewis,

444 U.S. 11 (1979), which negates rather than supports the exis-

tence of an implied cause of action. The panel majority also failed

to recognize that Congress enacted the Nonintercourse Act at a

time when Indian tribes did not have direct access to federal

courts. Finally, the panel majority disregarded the substantial evi-

6

dence that Congress’ ultimate goal in enacting the Trade and

Intercourse Acts was not the protection of Indian tribes but the

preservation of peace on the American frontier, and that Congress

delegated that responsibility to the executive, and not the judicial,

branch of the federal government.

Even assuming arguendo that the panel majority's reliance on

a federal cause of action were correct, however, it incorrectly

found that the plaintiffs’ claims were not barred by the applicable

statute of limitations. Because no federal statute of limitations

applies to Nonintercourse Act claims brought by Indian tribes,

the court should have applied the most closely analogous state

statute of limitations, which in this case would have barred the

plaintiffs’ claims. The panel majority's reliance instead on the

federal statute of limitations which applies to actions brought by

the United States finds no support in law or logic.

Finally, the panel majority erred in holding that federal ratifi-

cation of an Indian land transfer sufficient to remove a conveyance

from the Nonintercourse Act’s restraints on alienation must be

“plain and unambiguous.” Other courts have correctly held that

ratification could be inferred from the federal government's

knowledge of and acquiescence in the transaction.

Argument.

1. THE PANEL Masority ERRED IN CONCLUDING THAT THE

PLAINTIFFS COULD ASSERT A CAUSE OF ACTION UNDER

FEDERAL COMMON LAw.

The panel majority incorrectly concluded that the plaintiffs

could assert their claims under the federal common law. (App.

215a-19a). To reach this conclusion, the panel majority has

wrenched out of context portions of decisions of this Court,

exceeded the scope of any prior holding of this Court and created

a new cause of action almost two centuries after the alleged wrong

by applying legal principles contrary to those enunciated by this

Court in Milwaukee v. Illinois, 451 U.S. 304 (1981).

A. No Federal Common Law Cause of Action Ever Existed

and the Panel Majority Erred in Creating One.

As Judge Meskill recognized in his dissenting opinion, no court

ever has held that an Indian tribe could maintain a federal common

J

law cause of action for possession of or damages relating to tribal

land. (App. 250a) (“There never has been, and this Court should

not now create, a federal common law action.”) Nevertheless,

the panel majority finds support for the recognition of a new

federal common law cause of action in isolated dicta from three

of this Court’s decisions. None of these cases holds or requires

that federal common law recognize a cause of action for recovery

of tribal lands.

The first two cases upon which the panel majority relied are

Johnson v. M' Intosh, 21 U.S. (8 Wheat.) 543 (1823), and Marsh

v. Brooks, 49 U.S. (8 How.) 223 (1850). Both cases involved

claims brought by non-Indians. For example, Johnson v. M’ In-

tosh, supra, addressed the issue of whether the plaintiffs, non-In-

dians who claimed title to land pursuant to a tribal conveyance,

possessed title sufficient to defeat a claim by a person who had

been granted the same land by the United States. In an opinion

by Chief Justice Marshall, this Court held “that the plaintiffs do

not exhibit a title which can be sustained in the courts of the

United States.” /d. at 604-605. Far from recognizing a cause of

action on behalf of Indian tribes, this Court found that no cause

of action could be maintained by the claimed grantee of Indian

title.

Like Johnson v. M’Intosh, Marsh v. Brooks, supra, was an

action of ejectment brought by non-Indians against non-Indians.

The Court held that no title passed to the plaintiffs pursuant to

a patent from the United States where the United States had

previously granted a fee simple interest in the same land to Indian

half-breeds. In the dictum upon which the panel majority placed

primary reliance, the Court cited Johnson v. M’Intosh, supra,

for the proposition “[t}hat an action of ejectment could be main-

tained on an Indian right to occupancy and use.” /d. at 232. Not

only did this Court not hold that such a federal common law

action for possession existed, but it did not state who could

maintain any action which might exist. Because both Johnson

and Marsh were decided in the context of claims by non-Indians

asserting the existence of Indian title, neither case supports the

panel majority's holding that Indian tribes could maintain a pos-

sessory action on their own behalf.

Finally, the panel majority placed great reliance on this Court's

earlier decision in this case. Oneida Indian Nation v. County of

Oneida, 414 U.S. 661 (1974). All that this Court held in its 1974

decision was that the claims asserted by the plaintiffs raised issues

8

of federal law subject to the jurisdiction of federal courts. The

Court was not then asked to decide whether the plaintiffs had

stated a claim upon which relief could be granted. As this Court

held:

Enough has been said, we think, to indicate that the com-

plaint in this case asserts a present right to possession under

federal law. The claim may fail at a later stage for a variety

of reasons, but for jurisdictional purposes, this is not a case

where the underlying right or obligation arises only under

state law and federal law is merely alleged as a barrier to

its effectuation. .. .

Id. at 675 (emphasis added). Cf. Burks v. Lasker, 441 U.S. 471,

475-476 & n.5 (1979) (“The question whether a cause of action

exists is not a question of jurisdiction, and therefore may be

assumed without being decided.” )° This Court’s further statement

that “[t}ribal rights were nevertheless entitled to the protection

of federal law” did not elaborate on the manner in which, or the

governmental branch by whom, such tribal rights are to be pro-

tected. The panel majority's reliance on this statement ignores

the fact that, as will be demonstrated in greater detail below,

Congress has acted with respect to tribal rights, and that it has

established a comprehensive remedial scheme which excludes

both the federal common law and the implied statutory causes of

action which the panel majority has attempted to create.

B. The Nonintercourse Act Preempts any Federal

Common Law Cause of Action.

Even assuming that there ever existed a federal common law

cause of action, any federal common law cause of action was

preempted by Congress’ enactment of the Indian Trade and Inter-

‘In Burks v. Lasker, this Court assumed, as had several courts before it,

that an implied private right of action existed under § 206 of the Investment

Advisers Act of 1940. 441 U.S. at 473 n.2, 475-476 & n.5. Six months later

the Court held that no such implied private right of action existed. Transamerica

Mortg. Advisers, Inc. v. Lewis, 444 U.S. 11 (1979). Thus, just as this Court's

earlier decision in this case and other courts’ assumptions do not require a

finding of a right under federal common law, neither do they require a finding

of an implied private right of action.

Fe ER

9

course Acts.° the panel majority’s holding to the contrary not

only is predicated upon the wrong legal standard, but also disre-

gards the comprehensive and preclusive scope of the Trade and

Intercourse Acts.

1. The Panel Majority Erroneously Applied the Legal Standard

Governing Federal Preemption of State Law Rather than the

Principles Governing Federal Statutory Preemption of Feder-

al Common Law.

The panel majority held that the Trade and Intercourse Acts

did not preempt any federal common law cause of action because

the statutes “did not speak directly to the questions of the Indians’

ability to enforce their possessory rights by an action in eject-

ment.” (App. 218a.) The panel majority consequently .efused to

“imply a congressional intention to extinguish the Indians’

claimed common law remedy for vindicating their property rights

in the absence of plain and unambiguous evidence of such a

desire.” (App. 219a.)’ In so holding, the panel majority errone-

ously applied the strict standard governing federal preemption of

state law rather than the more liberal standard governing congres-

sional preemption of federal common law. As this Court held in

Milwaukee v. Illinois, supra:

[T]he appropriate analysis in determining if federal statutory

law governs a question previously the subject of federal

*The first Indian Trade and Intercourse Act was adopted on July 22, 1790,

and contained in § 4 a provision invalidating any sale of Indian lands unless

the sale was “made and duly executed at some public treaty, held under the

authority of the United States.” Act of July 22, 1790, c. 33, § 4, 1 Stat. 137,

138 (“1790 Act”). This section, which has been referred to as the Nonintercourse

Act, is presently codified at 25 U.S.C. § 177. The Indian Trade and Intercourse

Act was subsequently reenacted and sometimes modified. The various reenact-

ments of the provisions regulating the sale of Indian land are found at: Act of

March |, 1793, c. 19, § 8, 1 Stat. 329 (“1793 Act”); Act of May 19, 1796,

c. 30, § 12, 1 Stat. 469, 472 (“1796 Act”); Act of March 3, 1799, c. 46,

§ 12, 1 Stat. 743, 746 (“1799 Act”); Act of March 30, 1802, c. 13, § 12, 2

Stat. 139, 143 (“1802 Act”); Act of June 30, 1834, c. 161, § 12, 4 Stat. 729,

730 (“1834 Act”); Rev. Stat. § 2116; and, of course, 25 U.S.C. § 177

The panel majority’s reasoning that the preemption of federal common law

rights should be as “plain and unambiguous” as congressional extinguishment

of Indian land titles is unpersuasive. The extinguishment of title is a complete

and irrevocable abrogation of a tribal claim to land. The preemption of federal

common law by a federal statute providing a congressionally crafted remedial

scheme is not a complete extinguishment of remedies. Nor is it irrevocable,

since Congress is always free to supplement the remedies it has provided or

repeal the legislation and reinstate federal common law.

10

common law is not the same as that employed in deciding

if federal law preempts state law. In considering the latter

question “‘we start with the assumption that the historic

police powers of the States were not to be superseded by

the Federal Act unless that was the clear and manifest pur-

pose of Congress.’” . . . While we have not hesitated to

find pre-emption of state law, whether express or implied,

when Congress has so indicated, . . . or when enforcement

of state regulations would impair “federal superintendence

of the field,” . . . our analysis has included “due regard for

the presuppositions of our embracing Federal system, includ-

ing the principle of diffusion of power not as a matter of

doctrinaire localism but as a promoter of democracy.”. . .

Such concerns are not implicated in the same fashion when

the question is whether federal statutory or federal common

law governs, and accordingly the same sort of evidence of a

clear and manifest purpose is not required. Indeed, as noted,

in cases such as the present “we start with the assumption”

that it is for Congress, not federal courts, to articulate the

appropriate standards to be applied as a matter of federal law.

Id. at 316-317 (emphasis added) (citations omitted).

The panel majority’s reasoning that a federal common law

cause of action exists because the Trade and Intercourse Acts

“did not speak directly to the question of the Indians’ ability to

enforce their possessory rights by an action in ejectment” (App.

218a) also misconstrues this Court’s holding in Mobil Oil Corp.

v. Higginbotham, 436 U.S. 618 (1978). In that case, the plaintiffs

in a wrongful death action contended that federal common law

should supplement the Death on the High Seas Act by allowing

recovery for loss of society in addition to the pecuniary loss

allowed by the statute. This Court rejected that argument, holding:

We realize that, because Congress has never enacted a

comprehensive maritime code, admiralty courts have often

been called upon to supplement maritime statutes. The Death

on the High Seas Act, however, announces Congress’ con-

sidered judgment on such issues as the beneficiaries, the

limitations period, contributory negligence, survival, and

damages. .. . The Act does not address every issue of

wrongful death law, . . . but when it does speak directly to

a question, the courts are not free to “supplement” Congress’

answer so thoroughly that the Act becomes meaningless.

Id. at 625. Thus, this Court held that, where Congress has ad-

dressed generally the issue of remedies, courts are not free to

engraft additional remedies into the statutory scheme.

Application of the rationale of Higginbotham to the pending

case compels the conclusion that although Congress, in enacting

the Trade and Intercourse Acts, “did not speak directly” to the

particular remedy the plaintiffs now seek, its silence does not

create a judicial license to supplement the statute through the

common law. Instead, it is sufficient for preemption purposes

that in the Trade and Intercourse Acts Congress addressed the

issue of unauthorized conveyances of Indian land and provided

specific and comprehensive remedies for violations of the Acts.

The absence of an express preclusion of federal common law

rights or an express reference to tribal causes of action has no

bearing on the issue of preemption, and the panel majority erred

in holding otherwise.

2. The Trade and Intercourse Acts Are Comprehensive

Statutes Which Preempt Federal Common Law.

Although it conceded that “the 1793 Act both authorized the

intervention of the President and the federal government on behalf

of the Indians, and established criminal penalties for violations

of the Act,” the panel majority concluded without explanation,

that the “Trade and Intercourse Acts were not comprehensive

statutes.” (App. 218a). Accordingly, the panel majority reasoned,

“([nJone of these statutory provisions expressly subsumed the com-

mon law modes of relief,” id.; the Act did not preempt federal

common law; and the courts consequently are free to supplement

the statutory remedial scheme of the Trade and Intercourse Acts

under the guise of the federal common law.* This holding is

directly contrary to this Court’s holding in Milwaukee v. Illinois,

supra.

'n Milwaukee v. Illinois, this Court held that the federal com-

mon law cause of action for abatement of a nuisance caused by

*This characterization apparently is the result of the panel majority judging

the Trade and Intercourse Acts by present day standards. As Judge Meskill

quite correctly states, however, “it is the intent of the 2nd Congress which we

search for here, not the perceived views of a Congress elected many years

later.” (App. 253a-254a.) Although perhaps not comprehensive by today’s

standard, there can be little doubt that the Trade and Intercourse Acts, at the

time of their enactment, were among the most comprehensive of early congres-

sional enactments.

12

interstate water pollution was preempted by Congress’ enactment

of the Federal Water Pollution Control Act Amendments of 1972

(“FWPCA”). That statute regulated, inter alia, discharges of

pollutants into interstate waters. This Court based its holding of

federal preemption on the congressional intent that the Amend-

ments be comprehensive, the delegation by Congress of water

pollution standards to an administrative agency, and the establish-

ment of a forum to which an aggrieved party could appeal for

redress. All of these elements are present in the comprehensive

remedial scheme of the Trade and Intercourse Acts.

(a). The 1790 Trade and Intercourse Act.

The first Trade and Intercourse Act became law on July 22,

1790.° Although the 1790 Act contained only six substantive

sections, it established a broad regulatory scheme to govern con-

tact between the Indian and non-Indian populations. Section | of

the Act required any person wishing to trade with the Indians to

obtain a license for that purpose from the Superintendent of Indian

Affairs. As a condition of obtaining such a license, the trader

was required to post a bond “in the penal sum of one thousand

dollars, payable to the president of the United States.” In the

event that the trader violated any of the provisions of the Act or

rules and regulations promulgated thereunder, the Superintendent

was authorized to “put in suit such bonds as he may have taken,

immediately on the breach of any condition in said bond.” 1790

Act, § 2. In addition to regulating the activity of licensed traders,

the Act provided that any unlicensed traders found doing business

with Indian tribes would forfeit such merchandise as was in their

possession, one half the proceeds of which would go to the United

States, the other half to the benefit of the person initiating the

prosecution of the unlicensed trader. 1790 Act, § 3.

In stark contrast to the substantial penalties for violations of

the 1790 Act’s provisions regulating traders, § 4 (which was the

first version of the current Nonintercourse Act), established no

penalties for conveyances of land made without the consent of

the United States. Rather, section 4 simply declared that such

conveyances would be invalid. Congress’ failure to prescribe any

enforcement mechanism for a violation of this section was con-

sistent with the recommendations of Secretary of War Henry Knox

* Act of July 22, 1790, c. 33, 1 Stat. 137.

13

who, in his report of July 15, 1789, urged Congress to enact a

“declarative law” recognizing the right of the Indians to possess

their lands subject only to divestment by the United States. |

American State Papers: Indian Affairs 53-55 (1834). Section 4

thus was simply a declaratory act devoid of any judicially enforce-

able remedies.

(b). The 1793 Trade and Intercourse Act.

Because the 1790 Act contained no penalty or provision to

enforce the substantive provisions of the Nonintercourse Act.

President Washington urged Congress “that efficacious provision

should be made for inflicting adequate penalties upon all those

who, by violating [Indian] rights, shall infringe the treaties and

endanger the peace of the Union.” Third Annual Address of President

George Washington, in | Messages and Papers of the Presidents,

105 (Richardson ed. 1896). Thus, President Washington clearly

believed that the declaratory provision of the 1790 Act contained

no accompanying remedies, express or implied.

In response to the President's plea, on March |, 1793, Congress

enacted a new Trade and Intercourse Act'’ which, for the first time,

provided penalties for persons encroaching on Indian lands. As

originally introduced, the 1793 Act proposed that a fine of $4,000

and twelve months imprisonment be imposed upon those who vio-

lated the Act’s non-alienation provision. Acts and Resolutions of

the Congress, 2d Cong., Ist Sess., Library of Congress,

Washington, D.C. The Act subsequently was amended to make the

negotiation of the purchase of any interest in Indian land without

the approval of the United States a misdemeanor punishable by a

fine not exceeding $1,000 and up to twelve months in prison. 1793

Act, § 8. Section 12 of the Act provided for the prosecution of

actions to collect fines either by an informant’s suit or by the United

States.

“Act of March 1, 1793, c. 19, 1 Stat. 329. The 1793 Act was considerably

more detailed than the 1790 Act both in terms of its substantive coverage and its

enforcement provisions. For example, unlicensed traders, in addition to having

their merchandise subject to forfeiture, now were also subject to a fine of up to

$100 and imprisonment of up to thirty days. 1793 Act. § 3. In addition, the

purchase of horses from Indians by a trader without a special license obtained

from the Superintendent of Indian Affairs was forbidden upon pain of forfeiture

of his bond and the imposition of up to a $100 fine. Those who purchased a

horse with knowledge that it originally belonged to an Indian also were subject

to forfeiture of the value of the horse. 1793 Act, § 6

14

More importantly, the 1793 Act provided a means by which

persons encroaching on Indian land could be removed. Section

5 of that Act, which was the predecessor of 25 U.S.C. § 180,

authorized the President “to take such measures, as he may judge

necessary, to remove” persons settling on Indian lands. The 1793

Act thus provided a mechanism by which persons wrongfully

settling on tribal lands, as a result of an unauthorized conveyance

or otherwise, could be removed, and interposed the President

rather than the judiciary as the enforcer and asbiter of tribal land

claims.

(c). The 1796, 1799 and 1802 Trade and Intercourse Acis."'

Despite the strengthening of the Trade and Intercourse Act in

1793, on January 30, 1794, President Washington complained

that “[e]xperience demonstrates that the existing legal provisions

are entirely inadequate. .. .” | American State Papers: Indian

Affairs, supra, at 472. Thus, the issue of enforcement and re-

medies again surfaced in Congress’ enactment of the 1796 Act.

Section 5 of the 1796 Act"* bolstered the President's power to

remove non-Indians from Indian land by expressly authorizing

him to use military force. In addition, section 5 provided that

any person settling upon Indian land shall “forfeit all his right,

title and claim, if any he hath, of whatsoever nature or kind the

same shall or may be, to the lands aforesaid. . . .” Upon forfeiture

the “right, title or claim forfeited” vested in the United States

and did not revert to the original Indian owner. The availability

of this forfeiture remedy was short-lived; the forfeiture provision

was deleted from the 1802 Act. Even given its limited life, how-

ever, the enactment and repeal of this forfeiture provision is par-

made in violation of the 1793 Act, the subsequent versions of the Trade and

Intercourse Acts are involved in the land claims in which the amici are parties.

In the Catawba case, the transfer to the State of South Carolina is alleged to

violate the 1834 Act. In the Cayuga case, the 1793 and 1802 Acts are in issue.

Accordingly, the issue of whether the post-1793 versions of the Trade and

Intercourse Acts preempted the federal common law or implied a private right

of action is of profound importance to the amici.

‘Act of May 19, 1796, c. 30, | Stat. 469. In 1799, Congress reenacted a

virtually identical Act (Act of March 3, 1799, c. 46, | Stat. 743), and in 1802

it again reenacted the Act (Act of March 30, 1802, c. 13, 2 Stat. 139), making

a few changes in the remedial portions of the Act, discussed infra. No legislative

history exists to aid in construction of the 1802 Act.

Ps)

ticularly significant. Its existence demonstrated that Congress

considered precisely the type of remedy the plaintiffs now claim,

employed it for a time and ultimately rejected it.

The 1796, 1799 and 1802 Acts also developed a comprehensive

remedial scheme for handling private disputes between Indians

and non-Indians. Section 4 of each of these Acts required non-In-

dians to compensate Indians for property taken or destroyed by

them, in an amount equal to twice the value of such property.

That section further provided that, if such offender was unable

to pay a sum at least equal to the value of the property, the

balance would be paid out of the treasury of the United States,

subject to the Indians’ obligation not to seek private revenge or

satisfaction by force or violence.

If, on the other hand, an Indian left Indian country and stole

or destroyed the property of a non-Indian, section 14 of each of

these Acts provided an elaborate procedure for compensating the

victim of the Indian’s crime. The non-Indian was required to

apply to the Superintendent of Indian Affairs, or such other person

authorized by the President, “who, upon being furnished with

the necessary documents and proofs, shall, under the direction

or instruction of the President of the United States, make appli-

cation to the nation or tribe, to which such Indian or Indians shall

belong, for satisfaction.” If the tribe failed to make satisfaction

within a reasonable time, the superintendent or other authorized

person would make “return of his doings” to the President, and

forward to him the documents and proofs, allowing the President

to take such further steps to obtain satisfaction as were necessary

and proper.

{A}nd, in the mean time, in respect to the property so taken,

stolen or destroyed, the United States guarantee to the party

injured, an eventual indemnification: Provided always, that

if such injured party, his representative, attorney or agent,

shall, in any way, violate any of the provisions of this act,

by seeking, or attempting to obtain private satisfaction or

revenge, by crossing over the line, on any of the Indian

lands, he shall forfeit all claim upon the United States, for

such indemnification.

Section 14 of these Acts further provided that the President could

deduct such sums from the annual stipend which the United States

16

was bound to pay to the tribe to which the offending Indians

belonged. "*

Thus, Congress established an elaborate mechanism for resolv-

ing civil disputes between Indians and non-Indians, and the forum

for such dispute resolution was the executive rather than the

judicial branch of government. This detailed scheme for enforce-

ment and remedies belies the existence of other private remedies

created only by implication.

(d). 1834 Trade and Intercourse Act.

The present version of the Nonintercourse Act, passed in 1834,

revised but retained the comprehensive remedies of earlier ver-

sions of the Act.'* Section 10 of the 1834 Act authorized the

Superintendent of Indian Affairs and his agents to remove all

persons found illegally in Indian country, and authorized the

President to use military force to assist in their removal. Section

11 retained the President's authority “to take such measures, and

to employ such military force, as he may judge necessary to

remove” persons making settlements on Indian lands. Section

12, which restricted the alienation of Indian lands, also was

amended by expressly limiting the scope of the restraint to lands

belonging to “any Indian nation or tribe of Indians.” Congress

also deleted from the Act the language making the unauthorized

purchase of tribal land a misdemeanor, and removed the penalty

of imprisonment, but retained the $1,000 fine, for such unau-

thorized dealings. Together with this amendment, Congress added

section 27, which provided:

[t}hat all penalties which shall accrue under this act, shall

be sued for and recovered in an action of debt, in the name

of the United States, . . . the one half to the use of the in-

‘Section 15 of these Acts granted federal and territorial courts jrrisdiction

over “all crimes, offences and misdemeanors, against this act,” § 16 made it

lawful for the military to apprehend offenders found in Indian country, and

§ 17 provided that offenders could be apprehended and tried where found.

“Act of June 30, 1834, c. 161, 4 Stat. 729. The congressional reports

describing the 1834 Act are silent on the issue of remedies. Report on Regulating

the Indian Department, H. R. Rep. No. 474, 23d Cong., Ist Sess., May 20,

1834; Senate Doc. No. 72, Report from the Secretary of War, 20th Cong.,

2d Sess., February 10, 1829. Congress’ silence concerning the remedial intent

underlying the Nonintercourse Act is of little import, for “implying a private

right of action on the basis of congressional silence is a hazardous enterprise,

at best.” Touche Ross & Co. v. Redington, 442 U.S. 560, 571 (1979).

17

former, and the other half to the use of the United States,

except when the prosecution shall be first instituted on behalf

of the United States, in which case the whole shall be to

their use.

(Emphasis added.) Again, Congress not only addressed the types

of remedies needed to enforce the Act, but also established the

manner in which these remedies would be implemented.

(e). Summary of the Various Versions of the Trade

and Intercourse Acts.

The successive enactments of the Trade and Intercourse Act

clearly establish a comprehensive and exclusive remedial scheme

for regulating all forms of commerce with Indian tribes, both in

chattels and in land. The Acts provided criminal penalties for

violations, including fines and prison sentences, and some ver-

sions further mandated forfeiture by persons illegally occupying

Indian lands. The Acts empowered the Superintendent of Indian

Affairs to grant licenses and to apply to Indian tribes to make

recompense to non-Indians for stolen or destroyed property. The

President was empowered to take any necessary and proper action

to ensure that satisfaction was made in such circumstances, and

also was empowered, with the aid of the military, to remove

settlers from Indian lands. The Acts also established criminal

jurisdiction in federal and territorial courts to punish violations

of the Acts.

The only basis upon which the panel majority relied in support

of its contention that the Trade and Intercourse Acts “were not

comprehensive statutes” is their failure to provide a private right

of action to aggrieved Indian tribes. (App. 218a.) Congress’

failure to do so, however, does not detract from its clear intent

to occupy the field of Indian commerce. The absence of a private

civil remedy in the wake of an otherwise detailed and comprehen-

sive regulatory scheme evidences a clear intent by Congress that

such private remedies be excluded. As this Court held in Mil-

waukee v. Illinois, supra:

Our “commitment to the separation of powers is toc funda-

mental” to continue to rely on federal common law “by

judicially decreeing what accords with ‘common sense and

the public weal’” when Congress has addressed the problem.

Id. at 315.

18

By enacting and amending the Trade and Intercourse Acts,

Congress preempted the use of the federal common law to supple-

ment its thoroughly considered and carefully drawn remedial

scheme. The panel majority here erred when it ignored the manner

in which “Congress has addressed the problem” of unauthorized

alienation of Indian lands and, instead, judicially decreed that

which accorded with its sense of the proper outcome.

Il. THe PANEL Masority ERRED IN HOLDING THAT AN

IMPLIED PRIVATE CAUSE OF ACTION Exists UNDER THE

NONINTERCOURSE ACT.

Based upon the perceived intent of Congress in enacting the

Nonintercourse Act to protect the rights of Indian tribes to their

property, the panel majority incorrectly held that the plaintiffs

have an implied private right of action under the Nonintercourse

Act. (App. 219a-231a). The panel majority reached this conclu-

sion despite its concession that “the legislative history of the

Nonintercourse Acts . . . furnishes no clear expression on the

question of whether Congress intended to create a private right

of action for damages.” (App. 223a.) In so holding, the panel

majority ignored the “elemental canon of statutory construction

that where a statute expressly provides a particular remedy or

remedies, a court must be chary of reading others into it.” Trans-

america Mortgage Advisors, Inc. v. Lewis, supra, 444 U.S. at

19-20.

A. The Panel Majority Inappropriately Inferred a Private

Cause of Action Because of its Dissatisfaction with

Executive Branch Enforcement of the Act.

The apparent motivation for the panel majority's eagerness to

infer a private right of action is its dissatisfaction with the efforts

of the executive branch during the past two hundred years to

fulfill its enforcement responsibilities under the Act:

Private enforcement has also been favored because of the

federal government's poor performance of its statutory ob-

ligation to protect the Indians. The congressional directives

embodied in the Nonintercourse Acts frequently have been

disregarded by the executive branch. . . . Thus, by neces-

sity, Indian tribes t.ave been permitted to enforce the Acts.

—_s

he Oi AO ee nee he

A eT AL SA CR ta Oe

19

(App. 221a-222a) (footnotes and citation omitted). See also App.

230a (“A private right of action is necessary in view of the

virtually complete failure of other statutory remedies to provide

the Indians with any real protection.”’). In an analogous context,

this Court held in Milwaukee v. Illinois, supra:

Although a federal court may disagree with the regulatory

approach taken by the agency with responsibility for issuing

permits under the [FWPCA], such disagreement alone is no

basis for the creation of federal common law.

451 U.S. at 323. Neither is a court’s dissatisfaction with the

actions of a coordinate branch of government sufficient basis for

inferring a private right of action absent a clear manifestation of

congressional intent that such a cause of action be implied."

B. The Panel Majority Misconstrued the Significance of

Transamerica Mortgage Advisors, Inc. v. Lewis.

In finding that Congress intended the Nonintercourse Act to

include an implied right of action, the panel majority placed

heavy reliance on Transamerica Mortgage Advisors, Inc. v.

Lewis, 444 U.S. 11 (1979). In Transamerica, this Court held

that one section of the Investment Advisers Act of 1940 contained

an implied cause of action, but also found that another section

of the same Act did not. The panel majority relied on the wrong

portion of this Court’s holding in construing the Nonintercourse

Act.

Section 215 of the Investment Advisers Act declared “that

contracts whose formation or performance would violate the Act

‘shall be void ... as regards the rights of’ the violator and

knowing successors in interest.” Transamerica, supra at 16-17.

‘The panel majority's express dissatisfaction with executive enforcement

of the Act raises precisely the spectre of disregard for the commitment of an

issue to a coordinate political branch and of embarrassment from multifarious

pronouncements of various branches of federal government which render private

Indian land claims nonjusticiable political questions. See Baker v. Carr, 369

U.S. 186 (1962). The panel majority's inference of a private right of action

constitutes a usurpation of the power to regulate Indian affairs which Congress,

in the various Trade and Intercourse Acts, expressly delegated to the executive

branch. Rather than brief the political question issue in a separate section, the

amici curiae will rely on the discussion herein and the discussion of the issue

contained in the non-state petitioners’ brief.

20

Because section 215 was merely declaratory, and Congress had

not provided any administrative or judicial remedies to enforce

that portion of the statute, this Court found a congressional intent

“that the issue of voidness under its criteria may be litigated

somewhere.” /d. at 18. Relying exclusively on twentieth-century

authorities, as well as on the grant of equity jurisdiction contained

in section 214 of the Act, this Court held that Congress intended

to allow the private parties to bring actions for rescission, restitu-

tion and injunctive relief under section 215 of the 1940 statute.

Id. at 18-19.

In contrast, the Court refused to recognize an implied private

cause of action under section 206, which proscribed fraudulent

practices by investment advisers. In language that could almost

equally apply to the Nonintercourse Act, this Court held:

Congress expressly provided both judicial and administrative

means for enforcing compliance with § 206. First, under

§ 217, 15 U.S.C. § 80b-17, willful violations of the Act

are criminal offenses, punishable by fine or imprisonment,

or both. Second, § 209 authorizes the Commission to bring

civil actions in federal courts to enjoin compliance with the

Act, including, of course, § 206. Third, the Commission is

authorized by § 203 to impose various administrative sanc-

tions on persons who violate the Act, including § 206. In

view of these express provisions for enforcing the duties

imposed by § 206, it is highly improbable that “Congress

absentmindedly forgot to mention an intended private ac-

tion.”

Transamerica, supra at 20.

As with section 206 of the Investment Advisers Act, Congress,

in enacting the 1793 and subsequent versions of the Trade and

Intercourse Act, specifically provided various remedies to enforce

the non-alienation provision. These remedies included fines and

imprisonment as well as authority in the President to remove

trespassers from tribal land or to institute suit on behalf of Indian

tribes. Although the panel majority recognized that “[t}hese up-

graded remedies were designed to correct the perceived shortcom-

ings of the 1790 statute,” it failed to recognize the analogy to

section 206 of the Investment Advisers Act. Its failure to do so

resulted in a misplaced reliance on the first part of this Court's

holding in Transamerica and its failure to recognize that the

21

remaining portion of the Transamerica holding compels the con-

clusion that Congress did not “absentmindedly [forget] to mention

an intended private action.” /d. at 20.

C. The Panel Majority Ignored the Historical Context in

Which the Nonintercourse Act Was Enacted.

At the time the Trade and Intercourse Acts were enacted, Indian

tribes lacked capacity to maintain suit in federal courts. As Chief

Justice Marshall states in Cherokee Nation v. Georgia, 30 U.S.

(5 Pet.) 1, 18 (1831):

At the time the Constitution was framed, the idea of appeal-

ing to an American court of justice for an assertion of right

or a redress of wrong, had perhaps never entered the mind

of an Indian or his tribe. Their appeal was to the tomahawk,

or to the government. This was well understood by the

statesmen who framed the Constitution of the United States,

and might furnish some reason for omitting to enumerate

them among the parties who might sue in the courts of the

Union.

30 U.S. (5 Pet.) at 18. See also id. at 20 (Indian tribes “cannot

maintain an action in the courts of the United States”). Indeed.

as the very commentator cited by the panel majority explained:

[A] further consequence of the decision in Cherokee Nation

was that tribal claims regarding state interference with their

land could not be brought in federal court until the late 19th

century.

Clinton & Hotopp, Judicial Enforcement of the Federal Restraints

on Alienation of Indian Land: The Origins of the Eastern Indian

Land Claims, 31 Me. L. Rev. 17, 47 (1979). See also Jaeger v.

United States, 27 Ct. Cl. 278, 282, 285 (1892) (courts not open

to Indians absent speciai enabling legislation). Surely the same

principles that influenced the framers of the Constitution led the

drafters of the Trade and Intercourse Acts to conclude that Indian

tribes would not have resort to courts of law to enforce their

rights and, therefore, required other and different remedies.

The panel majority summarily dismissed this crucial point by

offering that the reasons that Indian tribes did not resort to courts

22

were “cultural, not legal.” (App. 224a, n.9.) Whatever the

reasons, even the panel majority must concede that at the time

the 1793 Act was passed, it was inconceivable to lawmaker and

Indian alike that the rights conferred by that Act would be enforced

by private civil litigation. It is the understanding of those formulat-

ing the statute, and not the reasons underlying that understanding,

which is dispositive.

D. The Nonintercourse Act Was Not Enacted Primarily for the

Benefit of Indian Tribes.

In addition to misconceiving the historical context in which

Congress acted, the panel majority also placed heavy reliance on

its conclusion that the Nonintercourse Act was enacted especially

for the benefit of Indian tribes. In fact, protection of tribal rights

was only a secondary concern of Congress. The primary purpose

of the Nonintercourse Act was the preservation of peace, and

protection of the Indians was only a means to this end. See

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978)

(purpose of 1790 Act “to prevent destructive retaliations by the

Indians”); Mohegan Tribe v. Connecticut, 638 F.2d 612, 622

(2d Cir. 1980), cert. denied, 452 U.S. 968 (1981) (“it is true

that peace along the frontier, and in particular the prevention of

encroachment by non-Indian settlers on Indian lands along the

frontiers, were primary objects of the Act’s land provisions”).

According to one leading authority:

The goal of American statesmen was the orderly advance

of the frontier. To maintain the desired order and tranquility

it was necessary to place restrictions on the contacts between

the Whites and the Indians. The intercourse acts were thus

restrictive and prohibitory in nature — aimed largely at

restraining the actions of the Whites and providing justice

to the Indians as the means of preventing hostility. —

F. Prucha, American Indian Policy in the Formative Years: The

Indian Trade and Intercourse Acts, 1790-1834, 3 (1962). Indeed,

an earlier decision by the same court of appeals that decided this

case recognized this preeminent policy of maintaining peace:

The evidence suggests that federal Indian policy was based

upon the need to prevent Indian uprisings. Accordingly, cer-

23

tain concessions were granted to the Indian tribes in order

to avoid the necessity for large-scale military intervention.

. . . The evidence rather convincingly demonstrates that

the nation’s early leaders were perhaps not so charitable

toward the Indians as we have come to view them, and... .

quite readily demonstrates that contemporary attitudes have

colored our views of the original motives behind American

Indian policy... .

Mohegan Tribe v. Connecticut, supra, 638 F.2d at 622. See also

Mashpee Tribe v. Watt, 542 F.Supp. 797, 803 (D. Mass. 1982),

aff d, 707 F.2d 23 (1st Cir.), cert. denied, 104 S.Ct. 555 (1983).

(“The major purpose of the Nonintercourse Act was to prevent

Indian uprisings and preserve the peace along the frontier.”)

Indeed, the title of the 1796 and subsequent Acts was “An Act

to regulate Trade and Intercourse with the Indian Tribes, and to

Preserve peace on the Frontiers.” (Emphasis added.)

Thus, at most, the Nonintercourse Act served the dual purpose

of protecting tribal rights to land as a means of achieving the

greater public purpose of preserving peace. Under such cir-

cumstances, this Court has directed that courts should be careful

not to infer a private cause of action which serves only one of

the dual purposes. See Santa Clara Pueblo v. Martinez, 436 U.S.

49, 64 (1978). In this critical respect, the Act is indistinguishable

from the criminal statute held not to imply a private right of

action in Cort v. Ash, 422 U.S. 66 (1975). That statute, 18

U.S.C. § 610, prohibited corporations from making “a contribu-

tion or expenditure in connection with any election at which

Presidential and Vice Presidential electors . . . are to be voted

for.” In holding that a stockholder in a corporation could not

maintain an action to enjoin the corporation from violating the

Statute by making campaign expenditures, this Court stated:

{T]he legislative history . . . demonstrates that the protection

of ordinary stockholders was at best a secondary concern.

Rather, the primary purpose of the .. . Act, . . . was to

assure that federal elections are “‘free from the power of

money” . . . to eliminate “‘the apparent hold on political

parties which business interests . . . seek and sometimes

obtain by reason of liberal campaign contributions.’ ”

24

422 U.S. at 81-82 (feotiote omitted). Thus, this Court found

that the plaintiff was not a member of a class for whose especial

benefit the legislation was enacted because the statute was directed

toward a greater public purpose. See also Securities Investor

Protection Corp. v. Barbour, 421 U.S. 412, 421 (1975) (although

“Congress’ primary purpose in enacting the [Securities Investor

Protection Act of 1970] . . . was, of course, the protection of

investors . . ., [i]t does not follow . . . that an implied right of

action by investors who deem themselves to be in need of the

Act’s protection, is either necessary to or indeed capable of fur-

thering that purpose”).

This Court again applied this principle in California v. Sierra

Club, 451 U.S. 287 (1981). In holding that private plaintiffs

could not bring suit to enforce the Rivers and Harbors Appropri-

ation Act of 1899, which established criminal penalties and em-

powered the Secretary of War to take action against illegal

obstructions in navigable waterways, the Court made it clear that

“(t]he question is not simply who would benefit from the Act,

but whether Congress intended to confer federal rights upon those

beneficiaries.” /d. at 294. The Court went on to say:

Neither the Court of Appeals nor respondents have identified

anything in the legislative history suggesting that § 10 was

created for the especial benefit of a particular class. On the

contrary, the legislative history supports the view that the

Act was designed to benefit the public at large by empow-

ering the Federal Government to exercise its authority over

interstate commerce with respect to obstructions on naviga-

ble rivers caused by bridges and similar structures.

Id. at 294-295.

Like the statutes construed in Cort and Sierra Club, the Nonin-

tercourse Act involved a greater public purpose than the protection

of Indian rights in land: the prevention of war through regulation

of the relations between Indians and white settlers. Certainly

Indians would incidentally benefit from the Act to the extent that

dealings unsupervised by the United States were deterred and

punished by the Act’s criminal penalties, and to the extent that

the executive branch of the government acted to proteci Indian

lands from encroachment and to resolve disputes between Indians

and non-Indians. But “{t]he question is not simply who would

25

benefit from the Act, but whether Congress intended to confer

federal rights upon those beneficiaries.” California v. Sierra

Club, supra, 451 U.S. 294. As this Court held in Transamerica

Mortg. Advisors, Inc. v. Lewis, supra:

Section 206 of the [Investment Advisers Act] concededly

was intended to protect the victims of the fraudulent practices

it prohibited. But the mere fact that the statute was designed

to protect advisers’ clients does not require the implication

of a private cause of action for damages on their behalf. . . .

The dispositive question remains whether Congress intended

to create any such remedy. Having answered that question

in the negative, our inquiry is at an end.

Id. at 24.

The Trade and Intercourse Acts delegated to the executive

branch the principal responsibility of vindicating tribal interests

and thereby preserving the peace. Through their design, the Pres-

ident was established as the principal intermediary between Indian

and non-Indian. It was Congress’ determination that the executive

branch was most capable of insulating each group from the vio-

lence of the other and, therefore the judiciary’s role was limited

to prosecutions of the criminal offenses the Acts established. The

panel majority's apparent dissatisfaction with the executive’s ful-

fillment of its responsibilities can afford no basis for disturbing

that congressional determination. Because an implied private right

of action finds no basis in congressional intent, the panel major-

ity’s decision should be reversed. **

The panel majority also cites certain lower court decisions which have assumed

the existence of a private right of action under the Nonintercourse Act. (App. 221a)

(citing Mashpee Tribe v. New Seabury Corp., 427 F.Supp. 899, 903 (D. Mass.

1977); Schaghticoke Tribe of Indians v. Kent School C orp., 423 F.Supp. 780, 784

(D. Conn. 1976), and Narragansett Tribe of Indians v. Southern Rhode Island

Land Dev. Corp., 418 F.Supp. 798, 805 n.3 (D.R.1. 1976)). However, the issue

of the existence of an implied right of action was not raised in any of these cases

and therefore these decisions provide no support for the panel majority's holding.

Compare Burks v. Lasker, supra with Transamerica Mortg. Advisors, Inc. v.

Lewis, supra.

26

Ill. Even if A FEDERAL COMMON LAW CLAIM OR IMPLIED PRIVATE

RIGHT OF ACTION EXISTED, INDIAN LAND CLAIMS ARE SUBJECT

TO ANALOGOUS STATE STATUTES OF LIMITATION.

No federal statute of limitation applies to private actions by Indian

tribes under the Nonintercourse Act.'’ Consequently, the most nearly

analogous statute of limitation of the forum state should be “bor-

rowed” and applied to the plaintiffs’ claims, if any such claims are

held to exist. Johnson v. Railway Express Agency, Inc., 421 U.S.

454, 462 (1975); Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946).

Cf. Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979) (borrowing

state boundary law to satisfy expectations of private landowners in

dispute with Indian tribe). The only basis for refusing to borrow

state statutes of limitation is “if their application would be inconsist-

ent with the underlying policies of the federal statute.” Occidental

Life Ins. Co. v. EEOC, 432 U.S. 355, 367 (1977).

In order to avoid this Court’s mandate to apply the most closely

analogous state statute of limitation, the panel majority cursorily

concluded that a time-bar on private actions would contravene the

policies of the Nonintercourse Act. Without analyzing the purposes

and remedial structure of the Trade and Intercourse Acts, the panel

majority simply declared that a limitation on private actions “would

permit a violation of the 1793 Act to go unremedied and thus would

be patently inconsistent with the Trade and Intercourse Acts.” (App.

232a.) The panel majority also offered its belief that “[i]t would be

anomalous to allow [the United States as] trustee to sue under more

favorable conditions that [sic] those afforded the tribes themselves.”

Id. (quoting Oneida Indian Nation v. New York, supra, 691 F.2d

at 1083-1084). Both assertions are invalid.

First, a time limitation on private actions does not mean that

violations will, in all cases, go unremedied. The United States, as

trustee, still may bring suit on behalf of allegedly wronged tribes

to enforce violations of congressional restrictions on alienation of

Indian lands. Wilson v. Omaha Indian Tribe, supra, 442 U.S. at

657 n.1. Moreover, if the United States fails to fulfill its “trust”

obligation with regard to tribal land, the tribe may aticmpt to seek

compensation from the federal government. See United States v.

Sioux Nation of Indians, 448 U.S. 371, 386 (1980); Yankton Sioux

Tribe v. United States, 272 U.S. 351, 359 (1926). Finally, all

statutes of limitation embody the determination that, at some point,

~The court of appeals recognized that the express language and extensive legis.

lative history of 28 U.S.C. § 2415 preclude its application to suits by tribes.

27

possible wrong-doing should no longer be remediable. The panel

majority made no attempt to explain why this fundamental principle

of repose should not apply to land claims that are nearly two centuries

old and, potentialiy, massively disruptive."

Second, there is no anomaly in allowing the guardian broader

powers than its ward in claims asserted under the Nonintercourse

Act. As is discussed in more detail above, Congress resolved the

delicate problem of relations with the Indian tribes by vesting primary

responsibility for the Indians with the executive branch of govern-

ment. The executive consequently was provided broad powers and

great discretion to determine whether and in what manner Indian

land claims should be resolved. It is entirely consistent with this

Statutory scheme for the United States to have broader remedial

powers than those reserved to the tribes and to be able to pursue

land claims when an Indian claimant could not.'’

Thus, arguments based on the notion that time-bars on private

actions are somehow logically inconsistent with the protections af-

forded by the Nonintercourse Act must fail. The usual rule governing

federal claims — recourse to the most closely analogous state statute

of limitation if no federal statute exists — applies to private actions,

if any exist, under the Nonintercourse Act. The panel majority erred

in holding otherwise.

IV. SUBSEQUENT FEDERAL RATIFICATION OF AN INDIAN LAND

TRANSFER NEED Not BE “PLAIN AND UNAMBIGUOUS.”

The panel majority also incorrectly held that subsequent federal

ratification of an Indian land transfer must be “plain and unambigu-

ous.” (App. 236a.) In so holding, the panel majority relied princi-

pally upon United States v. Santa Fe P.R. Co., 314 U.S. 339 (1941).

That decision, however, considered whether a federal statute had

the effect of extinguishing Indian rights in land which had never

been voluntarily conveyed by the Indian claimant. As such, Santa

Fe is not applicable to the question of whether the government has

retroactively recognized the validity of a previous voluntary tribal

“The Oneidas engaged in numerous efforts to obtain redress for their grievances

during the nineteenth and twentieth centuries, including several petitions to the

federal government. (App. 60a). There is, therefore, no excuse for the plaintiffs’

delay in bringing suit, assuming that a cause of action was available to them.

In an analogous context, private plaintiffs under the federal securities laws are

subject to borrowed state statutes of limitations while the Securities and Exchange

Commission is not. Compare Be — Petroleum Co. v. Adams & Peck, 518 F.2d

402, 406-409 (2d Cir. 1975), with Securities & Exchange Comm'n v. Penn. Cent

Co., 425 F.Supp. 593, 599 (E.D. Pa. 1976)

28

conveyance. Courts that have confronted that question have recog-

nized that the rationale behind a “plain and unambiguous” require-

ment is inapposite and, consequently, have held that subsequent

ratification can be inferred from actions of the federal government

indicating knowledge and approval of the conveyance in question.

For example, Seneca Nation of Indians v. Christy, 126 N.Y. 122

(1891), writ of error dismissed, 162 U.S. 283 (1896), involved a

sale of land by the Senecas, consummated at a treaty conducted

under the authority of New York State. A statute enacted by Congress

twenty years after the conveyance authorized deposit of the sale

proceeds in the United States treasury, to be kept in trust for the

Indians. The statute contained no express ratification of the treaty.

The New York Court of Appeals held that the transfer, otherwise

void under the Nonintercourse Act, was valid due to subsequent

federal ratification. This act of recognition was sufficient to validate

the sale, even though there was no express approval of the transfer

at the time of the conveyance or thereafter. /d. at 146-147.

Similarly, the court of claims has held that “explicit recognition

and implicit ratification” of a land transfer satisfies the federal con-

sent requirement of the Nonintercourse Act. Seneca Nation v. United

States, 173 Ct. Cl. 912, 915 (1965). In that case, New York State

had taken tribal land by eminent domain in 1858 or 1859, for which

the Senecas received monetary compensation without protest. A

federal statute enacted in 1927 included a proviso explicitly referring

to the lands previously acquired by the state through the condemna-

tion proceedings. Because this statement clearly indicated awareness

of the transfer, the court of claims inferred “subsequent acceptance

and confirmation.” /d. at 916.

The Nonintercourse Act seeks, in part, to protect Indian tribes

frem fraud or overreaching by subjecting all land transfers to federal

scrutiny. Armed with knowledge of a conveyance, the government,

as guardian, can undo the errors of its wards if necessary to avoid

injustice. See Federal Power Commission v. Tuscarora Indian Na-

tion, 362 U.S. 99, 119 (1960). Knowledge thus is the critical require-

ment. Once it is clear that the federal government is aware of a

particular transaction, its approval — even if only tacit — should

be inferred from its inaction. Indeed, no more would be expected

when the federal government consents to a conveyance at which it

is present through an authorized representative. See Federal Power

Commission v. Tuscarora Indian Nation, supra, 362 U.S. at 123

(congressional consent to taking of Indian land inferred from general

29

language of Federal Power Act); United States v. National Gypsum

Co., 141 F.2d 859 (2d Cir. 1944) (finding subsequent federal ap-

proval of tribal mineral leases from circumstantial evidence).

The panel majority's reliance upon decisions concerning extin-

guishment of tribal rights never previously conveyed by the Indian

claimant are inapposite. Although the federal government possesses

the power unilaterally to terminate tribal interests in land, Lone Wolf

v. Hitchcock, 187 U.S. 553 (1903), the federal government must

State its intention to do so with clarity.”” Absent such clarity, it is

not possible to determine whether the United States intended to

abrogate recognized or aboriginal rights of occupancy.

Subsequent approval of an executed transaction, however, need

only involve knowledge and passive acquiescence. In these cir-

cumstances, the United States is not terminating any existing tribal

right but, instead, merely is indicating its approval of a prior trans-

action by which the Indian claimants voluntarily conveyed away

their rights. The rationale applicable to unilateral declarations of

extinguishment has no bearing on subsequent ratification of volun-

tary Indian conveyances and therefore, ratification does not require

the “plain and unambiguous” statement indicated by the panel majority.

“ The Oneidas exaggerate the degree of explicitness that is required for the

extinguishment of tribal rights. Background circumstances and legislative his-

tory may supply the requisite clarity in the absence of explicit language. See

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) (statutes disestablishing

reservation need not expressly so state).

30

Conclusion.

For all of the above reasons, the decision of the Court of Appeals

should be reversed.

Respectfully submitted,

JAMES D. ST. CLAIR,

WILLIAM F. LEE,

DONALD R. FREDERICO,

DAVID MILLON,

HALE anp DORR,

60 State Street,

Boston, Massachusetts 02109.

(617) 742-9100

JAMES L. QUARLES, Ill,

HALE anp DORR,

1201 Pennsylvania Avenue, N.W.,

Washington, D.C. 20004.

(202) 393-0800

Attorneys for The County of Seneca, New

York, and the City of Rock Hill, the Town

of Fort Mill and the Counties of York and

Lancaster, South Carolina