Opposition Brief — Ducheneaux v. Secretary of the Interior

re Supreme Court, U.S,

» FILED

MAY 20 1988

No. 87-1732

Jn the Supreme Court of the Gni a

OCTOBER TERM, 1987

MARIE DUCHENEAUX, PETITIONER

Vv.

SECRETARY OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

MEMORANDUM FOR THE FEDERAL RESPONDENT

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

SPANIOL, JR

TABLE OF AUTHORITIES

Cases:

Akers v. Morton, 499 F.2d 44 (9th Cir. 1974), cert.

Be Sy > | re

Bailess v. Paukune, 344 U.S. 171 (1952) ..............

Blanset v. Cardin, 256 U.S. 319 (1921) ................

Block v. North Dakota, 461 U.S. 273 (1983) ............ 3,

Conroy v. Conroy, 575 F.2d 175 (8th Cir. 1978) .........

Cultee v. United States, 713 F.2d 1455 (9th Cir. 1983),

cert. denied, 466 U.S. 950 (1984) ...................

Estate of Mary Ursula Rock Wellknown, 78 Interior Dec.

i ie tn eae er RE RO 2 er er a

Florida v. United States Dep’t of the Interior, 768 F.2d

1248 (11th Cir. 1985), cert. denied, 475 U.S. 1011

a nace antlek ea rth eS Han nea Ut eee aes a

Kann v. Shevin, 416 U.S. 331 (1974)... wc ccs

Morton v. Mancari, 417 U.S. 535 (1974) ...............

Regents of the University of California v. Bakke, 438

a Se ae aie yd ae Xp’ ete

Tooahnippah v. Hickel, 397 U.S. 598 (1970) ........... 4,

United States v. Mottaz, 476 U.S. 834 (1986) ...........

Statutes and regulation:

Adminisirative Procedure Act, 5 U.S.C. (& Supp. IV)

RR ete Sete oy ae Gee nex So ee seek

ey I Eg, wb kde adeeb iv heh od

Ee Sem Be es a ne

General Allotment Act of 1887, 25 U.S.C. (& Supp. IV)

NS arate le oe ee tS ne gS ce AS

Indian Reorganization Act of 1934, 25 U.S.C. (& Supp.

co LE Pa eet ai ealate re armel oe rae oe wheres

ee eee Vu sabe whee b eas

ey iy sc hee ue Wawa dae tee Oawaan exc

Quiet Title Act:

I iota sf al 4 hig we ks ek RRO

(I)

Page

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Wa

No Ww & WwW

II

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Regulation — Continued: Page

43 C.F.R

gO PP 2

rt. 4:

Section 4.27) 0.52 eee 7

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-1732

MARIE DUCHENEAUX, PETITIONER

v.

SECRETARY OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

MEMORANDUM FOR THE FEDERAL RESPONDENT

IN OPPOSITION

Petitioner contends that the court of appeals erred in

holding that sovereign immunity barred her suit seeking to

overturn the will of her estranged Indian spouse and in

holding, in the alternative, that the will should not be

overturned on the merits.

1. Petitioner, a non-Indian, is the widow of Douglas

Leonard Ducheneaux, an enrolled member of the

Cheyenne River Indian Tribe. During their marriage, peti-

tioner and her husband acquired several tracts of property

on the Cheyenne River Indian Reservation in Dewey

County, South Dakota. Trust patents were issued to peti-

tioner’s husband under the General Allotment Act of

1887, 25 U.S.C. (& Supp. IV) 331 ef seqg.' Pet. App. 2a-3a,

' An Indian can receive a fee patent after 25 years, but the trust

status of restricted lands can instead be continued indefinitely. See In-

dian Reorganization Act of 1934, 25 U.S.C. (& Supp. IV) 461 ef seg.

(1)

tN

l4a-!5a & n.1. The United States held legal title to the

land, in trust for Mr. Ducheneaux. See 25 U.S.C. 465.

Petitioner and her husband separated in 1971 and re-

mained separated when Mr. Ducheneaux died on April 11,

1980. Mr. Ducheneaux began divorce proceedings in 1971,

but the proceedings were never completed. Both the state

court hearing the divorce proceeding and a federal court in

which petitioner initiated an action in 1972 held that they

had no jurisdiction to divide the trust property. Pet. App.

3a, 1Sa-l6a. In his will dated January 24, 1980, Mr.

Ducheneaux left his entire estate to his brother’s children,

expressly disinheriting petitioner (/d. at 16a-17a n.3). The

will was probated by the Bureau of Indian Affairs within

the United States Department of the Interior, and an order

approving the will and issuing a decree of distribution (id.

at 28a-37a) was filed pursuant to 43 C.F.R. Pt. 1.? Peti-

tioner filed objections to the will, alleging that she was en-

titled to half of the land acquired during the marriage

under a theory that the Secretary of the _ Interior

(Secretary) held the land in constructive trust for her.?

> Under tribal law, petitioner received an elective share of Mr.

Ducheneaux’s personal property amounting to $16,267.13. Under its

bylaws incorporating 25 U.S.C. 464, the Cheyenne River Indian

Reservation cannot approve devises of restricted land to individuals

who are not heirs at law of the testator or members of the Tribe. See

Cultee v. United States, 713 F.2d 1455 (9th Cir. 1983), cert. denied,

466 U.S. 950 (1984).

* At the time of petitioner’s death, South Dakota had no mandatory

widow’s share statute, and a husband could therefore disinherit his

wife of property to which he held sole title. (Later in 1980 the South

Dakota Legislature passed an elective share statute, S.D. Codified

Laws Ann. ch. 30-5A (1984).) In addition, South Dakota is not a com-

munity property state. Under South Dakota law tn effect at the time in

question, therefore, even if the land had been held by Mr.

Ducheneaux in fee simple rather than by the United States in trust tor

Mr. Ducheneaux, petitioner would not have been entitled to any of the

property.

Petitioner appealed unsuccessfully to the Interior Board

of Indian Appeals (IBIA) (Pet. App. 38a-47a). She then

filed suit in the United States District Court for the

District of South Dakota. The government argued that the

Quiet Title Act (QTA), 28 U.S.C. 2409a, shows that Con-

gress intended to preserve the United States’ sovereign im-

munity from suit by third parties challenging the United

States’ title to land held in trust for Indians, and that

therefore the district court had no jurisdiction under the

QTA or any other statute. Without addressing this argu-

ment directly, the court held that “[jJurisdiction is con-

ferred upon the Court by 5 U.S.C. § 706” (Pet. App. 13a).

Because the court regarded petitioner as seeking only “a

property interest which is rightfully hers” (/d. at 24a), it

directed the Secretary to issue a deed to petitioner for a

one-half interest in the decedent’s real property as well as

an accounting of all rents and profits (/d. at 27a).

2. The court of appeals reversed (Pet. App. la-12a).

Citing United States v. Mottaz, 476 U.S. 834, 842-843

(1986), and Block v. North Dakota, 461 U.S. 273, 286

(1983), the court reasoned that the QTA by its own terms

fails to waive the United States’ sovereign immunity for

actions challenging the United States’ legal title to Indian

trust lands, and_that the district court could not exercise

jurisdiction, as it did, under the Administrative Procedure

Act (APA), 5 U.S.C. (& Supp. IV) 551 ef seq., because the

QTA is the only avenue available for claimants to chal-

lenge the government’s title to real property. Because there

is no cause of action under the APA “if any other statute

that grants consent to suit expressly or impliedly forbids

the relief which is sought” (5 U.S.C. (Supp. IV) 702(2)),

the court of appeals concluded that the district court was

without jurisdiction under the APA and 28 U.S.C. 1331.

Pet. App. 4a-9a.

4

The court of appeals also held that, even if the jurisdic-

tional issue had not been dispositive, the district court’s

judgment still would have to be reversed because the court

lacked the authority to override the terms of the decedent’s

valid will. The court cited this Court’s decisions in Blanset

v. Cardin, 256 U.S. 319, 326 (1921), and Tooahnippah v.

Hickel, 397 U.S. 598, 608-610 (1970). Pet. App. 9a-10a.

3. Petitioner contends that the court of appeals erred

in holding that her suit was barred by sovereign immunity

and in holding that the district court was without authority

to override the express terms of Mr. Ducheneaux’s will.

The decision of the court of appeals, however, is correct

and does not conflict with any decision of this Court or

another court of appeals. Accordingly, review by this

Court is not warranted.

a. Petitioner states without explanation (Pet. 6) that

the QTA is inapplicable to this case, presumably because

of the erroneous belief that petitioner’s equitable claim to

the trust property is sufficient to divest the United States

of its legal title to the trust property. This ignores the well-

settled law that the United States has not waived its

sovereign immunity to suit when, as in this case, the

United States holds legal title to trust or restricted land.

The QTA provides that the United States may be named

as a party defendant in a “civil action * * * to adjudicate a

disputed title to real property in which the United States

claims an interest” (28 U.S.C. 2409a(a)). The QTA,

however, expressly does not apply to “trust or restricted

Indian lands” (ibid.). This exception, the Court has recent-

ly observed, “operates * * * to retain the United States’

immunity from suit by third parties challenging the United

States’ title to land held in trust for Indians” (United States

v. Mottaz, 476 U.S. at 842; see id. at 843 & n.6).

In Block v. North Dakota, 461 U.S. at 286 (footnote

omitted), the Court held that “Congress intended the QTA

to provide the exclusive means by which adverse claimants

could challenge the United States’ title to real property.”

The Court accordingly rejected the contention that a party

could contest the United States’ title to real property sim-

ply by bringing an action against the responsible federal

officer, either under the APA or pursuant to other

authority (see id. at 280-286 & n.22).4

The trust and restricted lands exception to the QTA’s

waiver Of sovereign immunity reflects the government’s

continuing responsibility for such lands. “By forbidding

actions to quiet title when the land in question is reserved

or trust Indian land, Congress sought to prohibit third

parties from interfering with the responsibility of the

United States to hold lands in trust for Indian tribes.”

Florida v. United States Dep’t of the Interior, 768 F.2d

1248, 1254 (11th Cir. 1985), cert. denied, 475 U.S. 1011

(1986); see Block v. North Dakota, 461 U.S. at 285. If the

approach urged by petitioner were adopted, however, any

claimant could seek title in probate proceedings, cir-

cumventing the QTA and rendering “the Indian lands ex-

ception to the QTA * * * nugatory” (ibid.).

Petitioner cites several cases (Pet. 7) in an attempt to

demonstrate the inapplicability of the QTA’s exception for

Suits involving claims to Indian trust lands. The cases,

however, offer no support for her argument. In Conroy v.

Conroy, 575 F.2d 175 (8th Cir. 1978), a divorce action be-

tween two members of the same Indian tribe, a tribal court

* With respect to the APA, the Court observed in Block v. North

Dakota that the last sentence of 5 U.S.C. (Supp. IV) 702 states that it

confers no authority to grant relief “if any other statute that grants

consent to suit expressly or impliedly forbids the relief which is

sought.” The Court concluded that the QTA is an “other statute”

within the meaning of this sentence, because the QTA “forbids the

relief” sought if the conditions it imposes on Congress’s consent to suit

are not satisfied (see 461 U.S. at 286 n.22).

6

divided the trust property between the two spouses. As the

court of appeals here stated in distinguishing its own prior

decision (Pet. App. 8a), the critical difference between the

two cases is that in Conroy “the Tribal Court’s partition of

the trust property between two Indians did not divest the

United States of its legal title to the property as trustee,

but merely substituted different Indian beneficiaries.”

Petitioner, in citing Bailess v. Paukune, 344 U.S. 171

(1952), misapprehends the import of that decision. In that

case, an Indian devised trust property to his non-Indian

spouse. Bailess merely acknowledged that land so devised

loses its character as trust property, and “there remains

only a ministerial act for the trustee to perform, namely

the issuance of a fee patent to the cestui” (id. at 173).

Here, by contrast, the property in question remains trust

property, with legal title vested in the United States, and

the decedent has not devised the property to petitioner. In

such circumstances, there is no applicable waiver of

sovereign immunity to support an action seeking to re-

quire the United States to divest itself of legal title and give

the property to petitioner.

b. As the court of appeals also correctly held, even if

the district court had had a proper basis of jurisdiction its

order could not stand. A court is without authority to

> Petitioner (Pet. 7), citing Regents of the University of California

\. Bakke, 438 U.S. 265 (1978), and Kahn v. Shevin, 416 U.S. 351

(1974), assails this distinction as “rank discrimination.” But in Bakke,

448 U.S. at 304 n.42, the prevailing opinion specifically distinguished

Morton \. Mancarit, 417 U.S. 535 (1974), in which the Court has

upheld legislation that singled out Indians for “particular and special

treatment.” Similarly inapposite is Aghn, in which the Court upheld

the validity of a Florida statute that granted a property tax exemption

to widows but denied it to widowers. The present case does not involve

any distinction between widows and widowers: if the decedent had

been an Indian woman and the surviving disinherited spouse a non-

Indian male, the result would have been the same.

override an Indian’s valid will. In Blanset v. Cardin, 256

U.S. 319, 326-327 (1921), the Court recognized the right of

Indians to dispose of their property “free from restrictions

on the part of the State as to the portions to be conveyed

or as to the objects of the testator’s bounty, provided such

wills are in accordance with the regulations and meet the

approval of the Secretary of the Interior.” In Tooahnip-

pah v. Hickel, 397 U.S. 598, 608-610 (1970), the Court

further recognized the limited authority of the Secretary

when probating Indian wills, noting that the Secretary

himself lacks “the power to revoke or rewrite a will that

reflects a rational testamentary scheme with a provision

for a relative who befriended the testator and omission of

one who did not, simply because of a subjective feeling

that the disposition of the estate was not ‘just and

equitable.’” The district court’s order in this case,

however, is based on nothing more than subjective feelings

about what is just and equitable. As the court of appeals

properly held, such an order is improper on the merits

Petitioner asserts (Pet. 6) that the Secretary improper!

failed to modify the decedent’s inventory of property to

reflect petitioner’s claim of entitlement to part of the trust

property under a resulting-trust theory. Although 43

C.F.R. 4.273(a) provides for elimination of property from

a decedent’s inventory when “it is found that property has

been improperly included,” such claims arise, as the [BIA

opinion in this case pointed out (Pet. App. 45a n.4), when

“trust property titled to the decedent should have been

titled to another, or * * * trust property titled to another

should have been titled to the decedent.” That, however,

was not the essence of petitioner’s claim before the agenc)

or in the courts below.

Petitioner quotes (Pet. 5) part of a brief submitted by

the Solicitor of the Department of the Interior in response

to an IBIA order in this case (Pet. App. 40a) on the issue

a

of whether resulting purchase money trusts in Indian trust

property could be recognized (Solicitor’s Office Brief,

Dkt. Nos. IBIA 83-53 and 84-4). The IBIA, after consider-

ing the Solicitor’s views, agreed that, while resulting pur-

chase money trusts in Indian trust land could “be recog-

nized under appropriate circumstances” (Pet. App. 43a),

such circumstances did not include a claim by a non-

Indian (id. at 47a). The Solicitor had aiso stated that,

although an administrative law judge has the authority

under Department of the Interior regulations to modify a

decedent’s estate inventory if sufficient evidence is

presented to show improper inclusion of certain assets,

“such authority may not extend to curing defects which are

based on a resulting trust theory” (Solicitor’s Brief 5).

Finally, the Solicitor specifically rejected the view adopted

by the district court in this case that spousal contributions

during marriage could form the basis for a claim under a

resulting-trust theory.

Under applicable regulations, the Secretary was without

authority to modify the decedent’s inventory of property

and to override the express terms of the will of the dece-

dent. Petitioner cites Akers v. Morton, 499 F.2d 44 (9th

Cir. 1974), cert. denied, 423 U.S. 831 (1975), in an attempt

to show that the mere fact of asserting a claim in the dece-

dent’s trust property was sufficient to require the Secretary

to modify the decedent’s inventory of property (Pet. 7-8).

In this case, however, the administrative law judge found

no evidence to support petitioner’s claim that she owned

an interest in the trust property (Pet. App. 31a).

Moreover, in Akers, an Indian husband had disinherited

his Indian wife. There, the trust property had been ac-

quired completely with the wife’s funds although title was

taken solely in the husband’s name. Despite this fact, the

wife had not asserted in the probate proceedings that the

land had improperly been included in the decedent’s inven-

Laer |

9

tory of property. After an unsuccessful administrative

challenge, the wife sued the Secretary of the Interior. The

court of appeals, relying on Tooahnippah, rejected the

widow’s claim, noting that “[t]he Secretary may dispprove

a will only if it is technically deficient or if it is irrational”

(499 F.2d at 46-47). Akers thus supports the ruling of the

court of appeals in this case.°®

The court of appeals correctly held that petitioner’s suit

was barred by the QTA and that, even without the juris-

dictional bar, the Secretary had no authority to override

the express testamentary wishes of the decedent.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

CHARLES FRIED

Solicitor General

MAY 1988

® Furthermore, even if a non-Indian spouse inherits an interest in

trust property, particularly an interest held jointly with Indian heirs,

the property interest held by the non-Indian is very limited. Thus,

“{hje cannot, as a practical matter, manage, use, or lease the land ex-

cept with the consent and agreement of all his Indian co-owners. His

own interest, although free of the trust, is virtually unsaleable unless

the trust is lifted as to all of his Indian co-owners upon their request.”

Estate of Mary Ursula Rock Wellknown, 78 Interior Dec. 179, 184 n.4

(1971).

U.S. GOVERNMENT PRINTING OFFICE: 1988—202-037/60450