Opposition Brief — Navajo Nation v. Hopi Tribe

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No. 95-199 ape % I. 3.

In The SEP 1 1995

Suprene Court of the nited Strtes oer"

October Term, 1995

THE NAVAJO NATION,

Petitioner

VS.

THE HOPI TRIBE and THE UNITED STATES OF AMERICA.

Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

THE HOPI TRIBE

TIM ATKESON

Counse! of Record

JONATHAN BOONIN

ARNOLD & PORTER

Attorneys for Respondent

The Hopi Tribe

Suite 4000

1700 Lincoln Street

Denver, Colorado 80203

(303) 863-1000

726)

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QUESTION PRESENTED

Whether the Ninth Circuit Court of Appeals correctly

determined that the Navajo-Hopi Settlement Act, 25 U.S.C.

§ 640d et seq., allows for an award of prejudgment interest against

the Navajo Nation in a suit brought by the Hopi Tribe pursuant to

that statute to collect rental payments for Navajo use of Hopi

lands.

. ‘

TABLE OF CONTENTS j

Page ‘

‘

;

Question Presented ....ccccccccccccsseccccvceseeces i :

po tk Were ii |

Table OF CHBIORS 2. ccc ccccrcccccccccecssecccceees iii

Statutory Provisions Involved ...........0seseeeeee: ]

StatemeantOl the Case ..ccccscccccccesccccvcsescsss 5

Reasons for Denying the Writ ...........0eeeeeeeees 7

I. The Narrow Issue Raised by Petitioner Is of

Exceptionally Limited Applicability and Fails to

Raise an Important Question of Federal Law. .... 8

A. The Doctrine of Tribal Sovereign Immunity )

from Suit Is Not in Dispute and Is Not an Issue |

GR. ciccccesctunaceeesbectepesceseuen 8 |

B. The Settlement Act Applies Exclusively to )

Particular Disputes Between Two Indian '

THOU, cccccstaccciceutseuusseeabases 10

C. The Nation Only Challenges a Particular |

Application of an Acknowledged Legal

SURNENEE,. cc vcucvicvenseeveawssueeuess 10

II. The Ninth Circuit’s Decision Below Does Not

Conflict with, and in Fact Adopts and Applies,

Governing Precedent from the Supreme Court,

Other Circuits and Its Own Circuit. ............ 11

iii

Contents

Page

Ill. The Decision of the Ninth Circuit Is Correct. .... 13

A. The Settlement Act Waives the Nation’s

Immunity from the Recovery of Prejudgment

i “os ee eek aah eedbeseseeerece 13

B. The Ninth Circuit’s Interpretation Is

Consistent with Other Provisions of the

. ccuerecereneeresecece 15

C. The Ninth Circuit’s Decision Is Correct on a

Number of Alternative Grounds. .......... 16

he AE eee ee ee ee ee ee 18

TABLE OF CITATIONS

Cases Cited:

Evans v. McKay, 869 F.2d 1341 (9th Cir. 1989) ......... 12

Franchise Tax Board v. United States Postal Service, 467

ED cacccadecessbvssereerecsevcocoe 15

General Motors Corp. v. Devex Corp., 461 U.S. 648 (1983)

tees cect ese pecebeoereeesees 13

Missouri v. Jenkins, 491 U.S. 274 (1989) ........200056: 17

Partington v. Broyhill Furniture Industries, Inc., 999 F.2d

269 (Tela Cig. 1993) 2. ccccccccccccccccccccccsccee 13

Contents

Page

Pegues v. Mississippi State Employment Service, 899 F.2d

1449 (Sth Cis. 1990) ..cccccccccccccccccccccccces 17

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ..... 12

Texas v. New Mexico, 482 U.S. 124(1987) ............ 17

Statute Cited:

Navajo-Hopi Settlement Act, 25 U.S.C. § 640d, et seq.

CPN boacunecaden We bets i0ds cdnbeteesbin evens passim

Rules Cited:

Supreme Comet Ree BG) «cc cvccvcccvcssscsssesesss 7

Supreme/Court Rule 10.1(a) .......ccccccccccccccces 13

Supreme Court Rule 10.1(C) .. wc ccccvccccccccceseces 7,8, 13

Other Authority Cited:

Robert L. Stern et al., Supreme Court Practice § 4.6 (7th

Ol, Te vd 6esdoeeneeneseedls chusstarereeous 12

)

No. 95-199

In The

Supreme Court of the United States

October Term, 1995

THE NAVAJO NATION,

Petitioner,

vs.

THE HOPI TRIBE and THE UNITED STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

THE HOPI TRIBE

The Hopi Tribe (“Tribe” or “Respondent”) respectfully

requests that this Court deny the petition for writ of certiorari

seeking review of the Ninth Circuit’s opinion in this case.

STATUTORY PROVISIONS INVOLVED

§ 640d-15. Payment of fair rental value for

use of lands subsequent to date of partition

(a) The Navajo Tribe shall pay to the Hopi

Tribe the fair rental value as determined by

the Secretary for all uses by Navajo

individuals of any lands partitioned to the

Hopi Tribe pursuant to sections 640d-7 and

640d-2 or 640d-3 of this title subsequent to

the date of the partition thereof.

25 U.S.C. § 640d-15(a) (1988).

§ 640d-17. Actions for accounting, fair

value of grazing, and claims for damages to

land

(a) Authorization to commence and

defend actions in District Court

Either tribe, acting through the

chairman of its tribal council, for and

on behalf of the tribe, including all

villages, clans, and _ individual

members thereof, is hereby authorized

to commence or defend in the District

Court an action or actions against the

other tribe for the following purposes

if such action or actions are not settled

pursuant to section 640d-2 or 640d-3

of this title:

(1) for an accounting of all sums

collected by either tribe since the 17th

day of September 1957 as trader

license fees or commissions, lease

proceeds, or other similar charges for

the doing of business or the use of

lands within the joint use area, and

judgment for one-half of all sums so

ne. 8

collected, and not paid to the other

tribe, together with interest at the rate

of 6 per centum per annum

compounded annually;

(2) for the determination and

recovery of the fair value of the

grazing and agricultural use by either

tribe and its individual members since

the 28th day of September 1962 of the

undivided one-half interest of the

other tribe in the lands within the joint

use area, together with interest at the

rate of 6 per centum per annum

compounded annually, notwith-

standing the fact that the tribes are

tenants in common of such lands; and

(3) for the adjudication of any

claims that either tribe may have

against the other for damages to the

land to which title was quieted as

aforesaid by the United States District

Court for the District of Arizona in

such tribes, share and share alike,

subject to the trust title of the United

States, without interest, notwith-

standing the fact that such tribes are

tenants in common of such lands:

Provided, That the United States may

be joined as a party to such an action

and, in such case, the provisions of

sections 1346(a)(2) and 1505 of Title

28 shall not be applicable to such

action.

supplementary actions to insure quict

enjoyment _

Either tribe may institute such

further original, ancillary, or

supplementary actions against the

other tribe as may be necessary or

desirable to insure the quiet and

peaceful enjoyment of the reservation

lands of the tribes by the tribes and the

members thereof, and to fully

accomplish all objects and purposes of

this subchapter. Such actions may be

commenced in the District Court by

either tribe against the other, acting

through the chairman of its tribal

council, for and on behalf of the tribe,

including all villages, clans, and

individual members thereof.

(ec) Remedies

All applicable provisional and final

remedies and special proceedings

provided for by the Federal Rules of

Civil Procedure and all other remedies

and processes available for the

enforcement and collection of

judgments in the district courts of the

United States may be used in the

enforcement and collection of

judgments obtained pursuant to the

provisions of this subchapter.

25 U.S.C. § 640d-17(a),(c),(e) (1988).

STATEMENT OF THE CASE

Between April 18, 1979 and October 31, 1984, individual

members of the Navajo Nation (“Nation” or “Petitioner’)

occupied more than 900,000 acres of the Hopi Reservation on

land known as the Hopi Partitioned Lands (“HPL”), using it for

homesite, farming, and grazing purposes. This occupation, which

continues today and is without the consent of the Tribe, prevents

the Tribe from using and enjoying its own land.

Pending the relocation of these Navajo individuals,

Congress provided in the Navajo-Hopi Settlement Act

(“Settlement Act”) that:

The Navajo [Nation] shall pay to the Hopi

Tribe the fair rental value as determined by

the Secretary [of the Interior] for all use by

Navajo individuals of any lands partitioned to

the Hopi Tribe pursuant to sections 640d-7

and 640d-2 or 640d-3 of this title subsequent

to the date of the partition thereof.

25 U.S.C. § 640d-15(a) (1988).

Pursuant to this section, the Department of the Interior

(“Department”) calculated the “fair rental value” owed by the

Nation to the Tribe for use of the HPL between April 18, 1979 and

October 31, 1984. The Department determined that the Nation

owed the Tribe $1,186,190.77 for grazing, $586,803.60 for

homesite, and $191,671.14 for farmsite use during that period.

The Nation appealed these rental determinations within the

Department to the Secretary of the Interior (“Secretary”). The

Secretary affirmed, with minor modifications, the homesite and

farmsite rental awards. The Secretary, however, refused to

TT Le ere

consider the Nation’s appeal of the grazing rental award, finding

that it had failed to file a timely notice of appeal as required by

Department regulation.

In separate proceedings, the Nation filed actions in the

United States District Court seeking review of: (1) the

Secretary’s affirmation of the homesite and farmsite rental

awards, and (2) the Secretary’s refusal to consider its appeal of

the grazing rental award. Simultaneously, the Tribe filed an

action in the district court seeking to enforce these rental awards.

The Tribe had previously brought an action seeking declaratory

relief that it could recover prejudgment interest on any rental

awards. This latter action was consolidated by the district court

with the actions seeking review and/or enforcement of the 1979-

84 rental determinations.

On July 6, 1992, the district court entered orders: (1)

affirming the homesite rental award; (2) affirming the grazing

rental award based on the Nation’s failure to file timely its

administrative appeal (Pet. App. 53); and (3) remanding the

farmsite rental award back to the Secretary to analyze further

certain issues. The district court also ruled that the Nation’s

sovereign immunity prevented the Tribe from recovering

prejudgment interest on the rental awards (Pet. App. 62).

The Nation filed separate appeals with the Ninth Circuit

challenging: (1) the district court’s affirmation of the

Department’s homesite rental determination, and (2) the district

court’s affirmation of the Secretary’s refusal to consider the

Nation’s challenge of the grazing rental determination.' The

Tribe cross-appealed, challenging the district court’s holding that

1. Because the district court remanded the farmsite rental award to the

Department for further review, that component of the rental award was not

appealed to the Ninth Circuit.

a rte aoe

Laie. REARS pe ee toners

the Nation’s sovereign immunity precluded an award of

prejudgment interest as a component of the rental awards.

The Ninth Circuit Court of Appeals, in a consolidated

opinion: (1) affirmed the homesite rental determination (Pet.

App. 21-22); (2) reversed the district court’s decision that the

Nation’s appeal of the grazing rental determination was time

barred (Pet. App. 29-30); and (3) reversed the district court’s

denial of prejudgment interest on the rental awards (Pet. App.

37).

In its petition, the Nation challenges only one of the issues

decided by the Ninth Circuit: the narrow question of whether the

court correctly allowed the Tribe to recover prejudgment interest

as acomponent of the rental awards.

REASONS FOR DENYING THE WRIT

The Court should deny the petition because it fails to present

any “special and important reasons” for granting the writ of

certiorari as required by Sup. Ct. R. 10.1, and because the Ninth

Circuit’s decision below was plainly correct.

First, the narrow issue raised in the petition is of

exceptionally limited applicability. The question presented is not,

as petitioner implies, an issue of importance to all Indian Tribes

(Pet. 11). Instead, the issue raised involves a case-specific

interpretation of the Settlement Act — a statute that by its own

terms applies only to particular land disputes between these two

Indian Tribes. As a case of such limited impact, the petition fails

to raise an important question of federal law. Sup. Ct. R. 10.i(c).

Second, contrary to petitioner’s assertions (Pet. 11-18), the

Ninth Circuit’s opinion below does not represent a departure

from, or conflict with, any precedent from this Court, from its

own circuit, or from any other circuit. In fact, in its decision the

Ninth Circuit consistently cites, relies upon, and applies the very

precedents that it is alleged to have consciously disregarded (Pet.

App. 30-37). The Ninth Circuit’s decision, then, does not raise a

conflict with any applicable law. Sup. Ct. R. 10.1(c).

Finally, the Court should deny the petition because the Ninth

Circuit’s decision below is correct. After carefully examining the

relevant provisions of the Settiement Act and its legislative

history, the Ninth Circuit correctly concluded that the Settlement

Act waived the Nation’s immunity from the payment of interest

in this case. Moreover, as set forth below, even if the Settlement

Act did not waive the Nation’s immunity from interest, the Ninth

Circuit’s opinion would have to be upheld on other grounds.

THE NARROW ISSUE RAISED BY PETITIONER IS

OF EXCEPTIONALLY LIMITED APPLICABILITY

AND FAILS TO RAISE AN IMPORTANT QUESTION OF

FEDERAL LAW.

Instead of raising an issue of importance to all Indian Tribes

(Pet. 11), the petitioner is forced to concede that the question it

presents is quite “narrow” (Pet. 5,7, 11). The question presented

by the petitioner, in fact, is so narrow, case-specific and of limited

impact that it fails to raise an important question of federal law.

Sup. Ct. R. 10.1(c).

A. The Doctrine of Tribal Sovereign Immunity from Suit Is

Not in Dispute and Is Not an Issue Here.

In arguing that certiorari should be granted, the petitioner

devotes much of its brief to defending the proposition that, absent

an express waiver of its sovereign immunity, it cannot be sued

(Pet. 11-18). This basic and unassailable principle of tribal

sovereignty is not, however, at issue here.

In reaching its decision, the Ninth Circuit had to engage ina

two-part analysis of the Settlement Act. First, it had to determine

whether the Settlement Act waived the Nation’s sovereign

immunity from this suit. Second, the Ninth Circuit had to decide

whether the Settlement Act also contained an additional waiver of

the Nation’s immunity authorizing the award of prejudgment

interest. In its opinion, the Ninth Circuit found that the Settlement

Act contained the additional waiver (Pet. App. 33).

Despite all of its argument about general waivers of

sovereign immunity, the Nation has not challenged the first part

of the Ninth Circuit’s analysis. Indeed, it cannot.” This renders

meaningless a great deal of the Nation’s petition (Pet. 11-16),

where it repeatedly asserts that its immunity from suit must be

expressly and unequivocally waived. This is not and never has

been an issue.

Instead, the only issue before the Court (Pet. i) is the

Nation’s challenge to the second part of the Ninth Circuit’s

analysis: its finding that the Settlement Act also includes an

2. Ina provision of the Settlement Act that the Nation did not cite to the

Court, Congress waived the Nation's immunity from this suit:

Either tribe may institute such further original,

ancillary, or supplementary actions against the other

tribe as may be necessary .. . to fully accomplish all

objects and purposes of this subchapter [including an

action under 25 U.S.C. § 640d-15(a) to collect “fair

rental value”). Such actions may be commenced in the

District Court by either tribe against the other. . . .

25 U.S.C. § 640d-17(c) (1988).

additional waiver of the Nation’s immunity authorizing an award

of prejudgment interest on the rental awards.

B. The Settlement Act Applies Exclusively to Particular

Disputes Between Two Indian Tribes.

The petition thus presents a very narrow question of

statutory interpretation. Moreover, the statute the Nation asks the

Court to construe is one of exceedingly limited applicability. As

set forth in the petition and in the Ninth Circuit’s decision below

(Pet. 5-7, Pet. App. 4-6), the Settlement Act is a specific

Congressional response to a unique, longstanding land dispute

between the Nation and the Tribe. The Settlement Act does not

apply to any Indian Tribe not having an interest in the disputed

land.’ Furthermore, the Settlement Act does not apply to all

disputes that may arise between the Nation and the Tribe. It is

limited to those disputes involving the 1882 and 1934

Reservations. It is thus a statute of exceptionally limited

applicability and is not, as the petition implies (Pet. 11), one of

interest to other Indian Tribes.

As a result, any proclamation by the Court in this case

regarding the proper interpretation of the Settlement Act would

have no effect beyond the limited number of cases brought

between the Nation and the Tribe pursuant to the Settlement Act.

For this reason alone, the petition fails to raise an important

question of federal law.

C. The Nation Only Challenges a Particular Application of

an Acknowledged Legal Standard.

Moreover, as set forth in Part II below, in interpreting the

3. Besides the Nation and the Tribe, only the San Juan Southern Paiute

Tribe (“Paiutes”) might conceivably be affected by interpretations of the

Settlement Act. The Paiutes, however, have never been a party to this particular

case.

Settlement Act, the Ninth Circuit applied all of the relevant

precedents from this Court, from its own circuit and from all other

circuits. The Nation does not dispute this (Pet. 12, 15). Instead,

the Nation argues that the Ninth Circuit misapplied the governing

law in this particular case when it interpreted the Settlement Act

as authorizing the award of prejudgment interest on the rental

awards (Pet. i, 13).

This is a crucial distinction, as it further demonstrates the

narrowness of the petitioner’s claim. The Nation does not accuse

the Ninth Circuit of creating a new legal standard. Instead, it

merely claims that in this particular case, the Ninth Circuit

misapplied the legal standard that the Nation itself agrees should

govern. Because the Nation can only challenge a particular

application of an agreed-upon legal standard in this case — as

opposed to the creation of a new legal standard — the Nation has

raised a very narrow issue. As such, the Nation has failed to

present an important question of federal law.

Il.

THE NINTH CIRCUIT’S DECISION BELOW DOES

NOT CONFLICT WITH, AND IN FACT ADOPTS AND

APPLIES, GOVERNING PRECEDENT FROM THE

SUPREME COURT, OTHER CIRCUITS AND ITS OWN

CIRCUIT.

The Nation concedes that the Ninth Circuit’s decision fails to

raise a conflict with any decision from another circuit court of

appeals.* Instead, the Nation argues that the Ninth Circuit’s

4. Moreover, the chances of there ever being such an inter-circuit

conflict are highly remote. All actions between the Nation and the Tribe

brought pursuant to the Settlement Act are to be filed exclusively in the United

States District Court in Arizona. See 25 U.S.C. § 640d(b) (defining “District

Court” as used throughout the Settlement Act to be the “United States District

(Cont'd)

decision conflicts with applicable decisions of this Court and

with decisions from its own circuit (Pet. 11-18). In particular, the

Nation asserts (Pet. 14) that the Ninth Circuit's decision conflicts

with this Court’s opinion in Santa Clara Pueblo v. Martinez, 436

U.S. 49 (1978) and with the Ninth Circuit's decision in Evans v.

McKay, 869 F.2d 1341 (9th Cir. 1989). This simply is not the

case.’

Instead of creating a conflict with these decisions, the Ninth

Circuit actually cites, adopts and applies these governing

precedents in arriving at its decision. For example, in holding that

the Tribe could recover prejudgment interest from the Nation in

this case, the Ninth Circuit explained:

We read the Settlement Act to include a

waiver of any tribal interest immunity in

terms sufficiently unequivocal to pass muster

even under the strict interpretive standard set

forth in Santa Clara Pueblo and McKay.

(Pet. App. 31 n.7).

The Ninth Circuit did not defy the law or announce a new

interpretation of it. Instead, it merely applied the governing law

(Cont'd)

Court for the District of Arizona”). It is thus highly unlikely that a court outside

the Ninth Circuit would ever have the opportunity to interpret this provision of

the Settlement Act. Without such a ruling, of course, an inter-circuit conflict

would be impossible.

5. Even if the Ninth Circuit's decision did conflict with a decision of

another panel from its own circuit, this would not justify granting the petition.

See Robert L. Stern et al., Supreme Court Practice § 4.6 (7th ed. 1993)

(“Ordinarily, a conflict between decisions rendered by different panels of the

same court of appeals is not a sufficient basis for granting a writ of certiorari.”).

to interpret the relevant provisions of the Settlement Act. As such,

the Ninth Circuit’s decision does not create a conflict with this

Court's decisions, with the decisions of other circuits, or with

decisions from its own circuit. Sup. Ct. R. 10.1(a),(c).

il.

THE DECISION OF THE NINTH CIRCUIT IS

CORRECT.

Finally, the Court should deny the petition because the Ninth

Circuit's decision below is correct. The Ninth Circuit correctly

found that the Settlement Act has waived the Nation’s immunity

from the recovery of prejudgment interest in this case. Moreover,

even if the Settlement Act did not waive the Nation’s immunity

from interest, the Ninth Circuit’s decision would have to be

upheld on other grounds.

A. The Settlement Act Waives the Nation’s Immunity from

the Recovery of Prejudgment Interest.

In the Settlement Act, Congress waived the Nation’s

immunity from this suit. 25 U.S.C. § 640d-17(c). In waiving the

Nation’s immunity, Congress also made clear that the Tribe

would be entitled to the full range of remedies available —

including the award of prejudgment interest.®

The Settlement Act provides that:

All applicable provisional and final remedies

6. The Ninth Circuit recognized that prejudgment interest “has become a

familiar remedy widely recognized by federal courts as a means to make a

plaintiff whole against a dilatory defendant.” (Pet. App. 33) (citing General

Motors Corp. v. Devex Corp., 461 U.S. 648, 655 (1983) and Partington v.

Broyhill Furniture Industries, Inc., 999 F.2d 269, 274 (7th Cir. 1993)).

and special proceedings provided for by the

Federal Rules of Civil Procedure and all other

remedies and processes available for the

enforcement and collection of judgments in

the district courts of the United States may be

used in the enforcement and collection of

judgments obtained pursuant to the

provisions of this subchapter.

25 U.S.C. § 640d-17(e) (1988).

Read in context with the other provisions of the Settlement

Act, the Ninth Circuit concluded that “Congress unequivocally

waived any tribal immunity from prejudgment interest” (Pet.

App. 32).

The Ninth Circuit explained:

(Pet. App

This blanket authorization of “all remedies

available” in federal district courts

necessitates some inquiry into what damages

and costs are currently recoverable there. But

in requiring this wide-ranging inquiry, the

statutory language does not ipso facto render

the congressional waiver of tribal interest

immunity therein equivocal. Rather than

compile an exhaustive list of currently

available remedies and add a clause

authorizing additional remedies upon their

introduction in federal court, section 640d-

17(e) reasonably relies on a more general

formulation that accomplishes the same

result with equal clarity and far greater

efficiency.

. 33) (emphasis added).

In light of the need to examine the “underlying

Congressional policy” of the Settlement Act (Pet. App. 36 (citing

Franchise Tax Board v. United States Postal Service, 467 U.S.

512, 521 (1984)), and this Court’s admonition to avoid a “crabbed

construction” of waivers of immunity (Pet. App. 36 (citing

Franchise Tax Board), the Ninth Circuit’s interpretation of the

Settlement Act is correct.

B. The Ninth Circuit’s Interpretation Is Consistent with

Other Provisions of the Settlement Act.

The Ninth Circuit’s decision does not, as claimed by the

Nation, render the Settlement Act “internally inconsistent” (Pet.

18-21). The Nation focuses on the fact that the payment of

interest is required in certain provisions of the Settlement Act, but

is not expressly required in § 640d-15(a). Based on this, the

Nation argues that this evinces a congressional intent not to allow

for interest on the grazing rental award.

As the Ninth Circuit recognized, the Nation’s argument fails

to take the whole statute into account. In certain sections of the

Settlement Act, Congress expressly required the payment of

interest. See 25 U.S.C. § 640d-17(a)(1); 25 U.S.C. § 640d-

17(a)(2). In those provisions, Congress mandated the award of

interest because at the time it enacted the Settlement Act, it knew

there would be an award, that the award was past due, and that the

award would be a liquidated, determinable sum. Congress also

knew that it would be easy to determine what amounts were owed

for each particular year (Pet. App. 35).

In other sections of the Settlement Act, Congress expressly

disallowed the recovery of interest. In § 640d-17(a)(3), for

instance, Congress allowed either tribe to recover for any damage

inflicted to the land by the other tribe. Congress disallowed the

recovery of interest on any such award because even though it

knew that damage had occurred, it also knew that precise proof as

to when particular damage occurred and as to how much damage

existed at any given time was uncertain (Pet. App. 35).

The Ninth Circuit recognized that 25 U.S.C. § 640d-15(a),

the relevant provision in this case, lies somewhere in between. It

neither requires nor proscribes an award of interest (Pet. App.

35). Because Congress neither specified nor prohibited

prejudgment interest in this section, the Ninth Circuit correctly

held that a court has discretion to award it:

While section 640d-15(a) does not address

interest awards, section 640d-17(e) explicitly

expresses Congress’ intention that, in the

event of litigation to enforce or collect a

judgment under the Settlement Act, federal

courts shall have at their disposal the full

panoply of remedies and processes available

therein, including prejudgment interest.

(Pet. App. 35-36).

Contrary to the Nation’s position, this reading of the

Settlement Act is entirely appropriate and does not render the

mention of interest in various subparts of § 640d-17(a)

“superfluous” (Pet. 20). In certain sections of the Settlement Act,

the award of interest is required. In certain sections of the

Settlement Act, the award of interest is prohibited. In this case,

where the award of interest is neither required nor prohibited, it is

within the Court’s discretion to award it.

C. The Ninth Circuit’s Decision Is Correct on a Number of

Alternative Grounds.

Finally, even if the Settlement Act did not waive the Nation’s

immunity from interest in this case, the Ninth Circuit’s decision

would still be correct.

First, there may be no need for an additional waiver of the

Nation’s immunity as to the payment of interest. See Missouri v.

Jenkins, 491 U.S. 274, 281 n.3 (1989) (noting that special rule

requiring an additional waiver of immunity as to interest applies

“only where the United States’ liability for interest is at issue”);

see also Pegues v. Mississippi State Employment Service, 899

F.2d 1449, 1454 (Sth Cir. 1990) (holding, in light of Jenkins, that

when Congress waives a state’s immunity to suit, it “does not

limit the tools with which courts could fashion relief. . . . The

award of prejudgment interest is one of those tools”). Hence, the

unequivocal waiver of the Nation’s immunity from suit in 25

U.S.C. § 640d-17(c) may be sufficient to waive the Nation’s

immunity from paying prejudgment interest on the rental awards.

Moreover, no additional waiver of immunity as to the

payment of interest is required in a case, like this one, where the

litigants are equal sovereigns. See Texas v. New Mexico, 482 U.S.

124, 132 n.8 (1987) (allowing award of post-judgment interest in

an action between two states, without requiring additional waiver

as to the payment of interest). The Ninth Circuit’s decision is thus

justifiable on a variety of grounds.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,