Opposition Brief — Crow Tribe of Indians v. Campbell Farming Corp.

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No. 94-1281 ‘oo mesgessneennwes

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Supreme Court of the United Britis’

. OFFICE OF -

OctoberTerm, 1994 «

CROW TRIBE OF INDIANS,

Petitioner,

VS.

CAMPBELL FARMING CORPORATION; ROBERT EARL

HOLDING; SINCLAIR OIL CORPORATION, d/b/a SUNLIGHT

RANCH COMPANY; SUN VALLEY COMPANY and KMH

RANCH COMPANY,

Respondents.

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

Appeals for the Ninth Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

CAMPBELL FARMING CORPORATION

LAURENCE R. MARTIN

Counsel of Record

MICHAEL K. RAPKOCH

FELT, MARTIN, FRAZIER

& NELSON P.C.

Attorneys for Respondent

Campbell farming Corporation

313 HartAlbin Building

P.O. Bo: 2558

Billings, Montana 59103

(406) 243-7646

6406

(800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21

Services, inc.

QUESTIONS PRESENTED

1. Did the Court of Appeals for the Ninth Circuit properly

find, pursuant to decisions of this Court, that Congress did not

grant to the Crow Tribe a right of action to enforce Section 2 of the

Crow Allotment Act?

2. Did the Ninth Circuit affirm the District Court’s dismissal

on grounds which were supported by the record?

3. Do adequate and independent bases exist for the Ninth

Circuit’s decision since the Tribe has no standing to pursue its

claims, and those claims are barred by the statute of limitations?

LIST OF PARTIES

All parties to the proceeding below were identified in the

Petition For Writ of Certiorari filed herein at pages ii and iii.

None of the corporate parties identified have any parent

companies, subsidiaries (except wholly-owned subsidiaries), or

affiliates that have issued shares of stock to the public that are not

named parties herein.

iii

TABLE OF CONTENTS

Page

ee eek ce snedbaaceenieeseceene i

EEE er ee re ii

ee csi chests Hevsteussevetes ili

ER ae ae v

ied ec hen cbs seeee sae chee 1

RIED on. ccc cc cw ccccnccenece 1

Constitutional and Statutory ProvisionsInvolved ...... 1

TN ee cite eee haeseetaceboese 1

Reasons for Denyingthe Writ .................0000- 7

I. The Circuit Court properly applied the decisions of

this Court in holding that the Tribe had no right of

eg) re 7

A. The Tribe could not establish either that it was

part of the class for whose especial benefit

Section 2 was enacted: ...............45. 7

B. The remedial structure of Section 2 indicates

the Tribe has noright ofaction. ........... 9

II. The legislative history behind Section 2 establishes

that the individual allottees alone are empowered

under Section 2 to bring an action. ............. 12

Contents

A. The legislative history demonstrates that the

allottees were to assume responsibility

for protecting their property rights. ........

B. Cases cited by the Tribe are immaterial since

Congress, not the court below, drew the

distinction between the Crow Tribe and

SS s-aeickpro ies we cadueutauaseds

. The Tribe had ample opportunity to address the

issue of whether it enjoyed a private right of action

under Section 2 in the lowercourts. ............

. The Ninth Circuit’s decision comports with

previous decisions from this Court, and the Tribe’s

petition fails to identify a question which needs to be

I. 500 Ce cebacensbaccdacnsse

The Tribe’s allegations of a conflict between the

Ninth Circuit decision and decisions of other

Circuit Courtsisanillusion. .................

. Adequate and independent bases support the

decision of the Circuit Court since the Tribe lacks

standing and its claims are barred by the applicable

CE hn bo 6 aoe nsec cncdetetess

A. The Tribe was without constitutional standing

and therefore the federal courts lack

jurisdiction to heartheclaim. ............

Page

Contents

Page

B. The Tribe’s claim is barred by _ the

applicable statute of limitations. .......... 26

Ne Pe ON ES er er ae 28

TABLE OF CITATIONS

Cases Cited:

Allen v. Wright, 468 U.S. 737 (1984), reh’g denied, 468

AAs IE code davk seks 06s cheaSokexdenns 24, 25

American Telephone & Telegraph Co. v. M/V Cape Fear,

ik ee ee 21,22

Arizona v. California, 460 U.S. 605 (1983) ............ 15

Atlantic Coast Line Railroad Co. v. State of Florida, 295

CE 6 Sind sch wel Rei dbedanse Okie 0d cnes 11

Barnett v. Bailey, 956 F.2d 1036 (11th Cir. 1992) ....... 18

Brendale v. Confederated Tribes and Bands of Yakima

Indian Nation, 492 U.S. 408 (1989) ............... 4,5,19

California v. Sierra Club, 451 U.S.287(1981) ......... 11,16

Campbell v. Commissioner of Internal Revenue, 943 F.2d

ey HED 5 00nd hoc ccc ccdssccedesscses 17

Cannon v. University of Chicago, 441 U.S.677(1979) ... 8,16

Contents

Page

Comtronics, Inc. v. Puerto Rico Telephone Co., 553 F.2d

po I er ere ae eee 22

Cort v. Ash, 422 U.S. 66(1975) ........... 6,7, 8, 18, 19,21, 23

County of Yakina v. Confederated Tribes and Bands of the

Yakima Nation, 502 U.S. __, 112 S. Ct. 683 (1992) .6,9, 19,26

Davis v. Passman, 442 U.S.228 (1979) .............4.. 10, 23

Dillon v. Antler Land Co., 507 F.2d 940 (9th Cir. 1974),

cart. GomledD41 U.S. FA CISTS) cc ccccccccccssces 5,26

Dimond v. District of Columbia, 792 F.2d 179 (D.C. Cir.

EE i boca eee Ba Wean es eC r renee abeus 18

Duro v. Reina,495 U.S.676(1990) .............0008- 19

Ewell v. Daggs 108 U.S. 143 (1883) ................. 11

Fairview Towiship, York County, Com. of Pa. v. U.S.

Environmental Protection Agency, 773 F.2d 517 (3rd

5 RS Sr per Tere Perr ee ee 17

Flast v. Cohen392 U.S. 83 (1968) .......cccccccceess 23

Franklin v. Gvinnett County Public Schools, 503 U.S. __,

RE EE fb es vc ed ipadsaveewadesses 10

FW/PBS, Inc. \ City of Dallas, 493 U.S.215 (1990) ..... 24

vii

Contents

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91

SEE cinkGhkadaeneeedbnubasteds che aévmesk sax

Helvering v. Gowran, 302 U.S. 238 (1937), reh’g denied,

a a ee

TEVOTE, TPF ROOD <a hoccccceseccscvesecs

Inmates of Supple County Jail v. Rufo, 12 F.3d 286 (1st Cir.

1993), on remand, 844 F. Supp. 31 (D. Mass. 1994) ...

Jackson v. Kimel, 992 F.2d 1318 (4th Cir. 1993) ........

’ Jaffke v. Dunham, 352 U.S.280 (1957) ............45.

Karahalios v. National Federation of Fed. Employees, 489

aE Nat Cc eeducheueun basses ie «

Lujan v. Defenders of Wildlife, 504 U.S.__, 112 S. Ct. 2130

a es io ae eee

McCarthy v. Kemper Life Insurance Companies, 924 F.2d

eee ne tebe We aeubs kbs

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724

SN ad Kee S Bh Ca bag ds dA da Ree REOKWAeKe

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) .....

Montana v. United States, 450 U.S. 544(1981) .........

Page

vili

Contents

Page

National Railroad Passenger.Corp. v. National Ass’n of

Railroad Passengers, 414 U.S. 458 (1974) .......... 12,22

Northwest Airlines, Inc. v. Transport Workers Union of

America, AFL-CIO, 451 U.S.77(1981) ............ 12

O’ Shea v. Littleton, 414 U.S. 488 (1974) .............. 25

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

van nats 5 ORO O ae ewe ee ee ee 9

Park’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189

Cn i 6-5.50vbo ack beens eas wae ee aan 12

Puyallup Tribe v. Department of Game of Washington, 433

Wis URED fiiaswckbaeeineressaweeeseees 16, 26

Railway Labor Executives Association v. Staten Island R.R.

Corp., 792 F.2d 7 (2nd Cir. 1986), cert. denied, 479 U.S.

PEENTD sikiaradectweeniestssaeraverbiews’ 17

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ..... 16

Schalk v. Gallemore, 906 F.2d 491 (10th Cir. 1990) ..... 17

SIDCO Products Marketing, Inc. v. Gulf Oil Corp., 858

F.2d 1095 (Sth Cir. 1988), reh’g denied, __ F.2d __

CHRD nk kbs koopa deb oes 4 CRE eee 17

Simon v. Eastern Kentucky Welfare Rights Organization,

re rer rT re rir 24

Contents

Solem v. Bartlett, 465 U.S. 463 (1984) .............2..

South Carolina v. Catawba Indian Tribe, 476 U.S. 498

SE Ctbdcern ceed eaeub dk daiaaa ies ee a enaes

Sterling Suffolk Racecourse Ltd. Partnership v. Burrillville

Racing Ass’n., Inc., 989 F.2d 1266 (1st Cir. 1993), cert.

denied, ___ U.S. __, 114S. Ct.634(1993) ...........

Suydam v. Reed Stenhouse of Washington, Inc., 820 F.2d

I ee EPP EP Eee T Ee

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

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

ES ee ee ee et ee

United States v. Anderson County, Tennessee, 761 F.2d

1169 (6th Cir. 1985), cert. denied, 474 U.S. 919 (1985)

oseeeoeeeweeeeeeeeeeeeeweeeeeeeeeeveeeveeeeeeeeeeeee

United States v. New York Telephone Co., 434 U.S. 159

SP rey Perr ress ee Ter eer Tt rf ere

United States v. Nordic Village, Inc.,503 U.S.30(1992) .

Universities Research Ass'n, Inc. v. Coutu, 450 U.S. 754

CD visd de tucukeetembnedeeCbkes genes en ees

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464

CT AS 6a G 00S SEGA SER AUAIS oOaER EAC 8 64 00

Page

Contents

Page

Warth v. Seldin, 422 U.S.490 (1975) .............245. 24

Whitley v. Albers, 475 U.S.312 (1986) ............... 18

Statutes Cited:

Crow Allotment Act, 41 Stat. 751(1920) .............. passim

Crow Allotment Act, 54 Stat. 252 (1940) .............. 3

Dawes Act of 1887, 24 Stat. 388, as amended, 25 U.S.C.

Ob Fee re errr 1,2, 6, 9, 13, 16, 20, 27

PSE ach wank oa sauna bein aeer wats 6, 26

44s ns en eae haa eeuds ac eaabbuceus 6, 26

Indian General Allotment Act, Ch. 119, 24 Stat. 388

fo SEE e Pee Tees oor eee rT oTe er rE 2

Indian Reorganization Act of 1934, 25 U.S.C.§ 461 .... 4,5,9

eo eS ee reer rs eee ere 17

Mont. Code Ann. §§ 70-19-401,402(1991) ........... 5

Other Authorities Cited:

59 Cong. Rec. H.5999 (April 22, 1920) ............... 15

S. Rep. No. 219, 66th Cong., Ist Sess.5(1919) ......... 14

——————

Contents

Page

W. Canby, American Indian Law 2d, 19-22 (1 ee 19

F. Cohen, Handbook of Federal Indian Law, 130-132

ONNEEY ad Ribaanchs CN Ue re ie oak 19

TO THE HONORABLE SUPREME COURT:

The Respondent, Campbell Farming Corporation,

respectfully requests that this Court deny the Petition for Writ of

Certiorari submitted by Petitioner, Crow Tribe of Indians.

OPINIONS BELOW

Respondent adopts the citations to the opinions below

contained in the Petition. The opinions below are reproduced in

the Appendix to the Crow Tribe’s Petition For A Writ Of

Certiorari and all references to said opinions in this Brief In

Opposition correspond to the appendix pages contained in the

Petition.

STATEMENT OF JURISDICTION

Respondent Campbell Farming Corporation accepts and

adopts the Statement of Jurisdiction of the Petitioner.

CONSTITUTIONALAND STATUTORY

PROVISIONS INVOLVED

The relevant statutory provision, Section 2 of the 1920 Crow

Allotment Act, 41 Stat. 751, is reproduced at pages 2-3 of the

Crow Tribe’s Petition For A Writ Of Certiorari.

STATEMENT OF THE CASE

This action concerns Section 2 of the Crow Allotment Act,

41 Stat. 751 (1920), which is one of several reservation specific

allotment acts enacted in furtherance of the policies underlying

the Dawes Act of 1887, 24 Stat. 388, as amended, 25 U.S.C.

§ 331, et seq.

The history of the Crow Reservation began on May 7, 1868,

with the Second Treaty of Fort Laramie. The Reservation

encompasses some 2.3 million acres, mostly grazing land,

although portions are usable for dryland or irrigated farming.

The Crow Tribe is and has always been a stranger to the title to

said lands. The lands set aside in the Treaty of Fort Laramie were

for the “use” of the Crow Tribe, but title remained in the United

States. See Article I, Treaty of Fort Laramie. Allotment of

reservation lands was first prescribed in Article VI of the Treaty

which provides in part:

If any individual belonging to said tribes of

Indians, or legally incorporated with them,

being the head of a family, shall desire to

commence farming, he shall have the

privilege to select, in the presence and with

the assistance of the agent then in charge, a

tract of land within said reservation, not

exceeding three hundred and twenty acres...

Any other person over eighteen years of age,

not being the head of a family, may in like

manner select. . . for purposes of cultivation,

a quantity of land not exceeding eighty

acres...

The policy of allotment continued with the passage of the Dawes

Act, more commonly known as the Indian General Allotment Act

(GAA). Under the GAA, lands were to be allotted to individual

Indians but the United States would hold legai title for 25 years

after which a fee patent would issue to the allottee or his heirs.

Ch. 119, 24 Stat. 388 (1887).

The Crow Allotment Act was passed into law in 1920. Under

the CAA, lands within the Reservation were to be allotted to

individual Crow Indians as follows:

[O}ne hundred and sixty acres to the heirs of

every enrolled member, entitled to allotment,

who died unallotted after December 31, 1905,

and before the passage of this Act; next, one

hundred and sixty acres to every allotted

member living at the date of the passage of

this Act, who may then be the head of a family

and has not received allotment as such head of

a family; and thereafter to prorate the

remaining unallotted allottable lands and

allot them so that every enrolled member

living on the date of the passage of this Act

and entitled to allotment shall receive in the

aggregate an equal share of the allottable

tribal lands for his total allotment of land of

the Crow Tribe.

Section 2 of the CAA contains restrictions on the

conveyance of allotted parcels by the allottees. Specifically, the

provision prohibits conveyances from the allottee to any non-

Indian who already owns at least six hundred and forty acres of

agricultural, or one thousand two hundred and eighty acres of

grazing, land within the Reservation, or to any person who would,

as a consequence of the conveyance, own more than one thousand

two hundred and eighty acres of agricultural land, or one

thousand one hundred and twenty acres of grazing land, within

the Reservation.' Section 2 limits the power of the Secretary of

the Interior to approve conveyances which would violate the

acreage limitations. Section 2 also declares void any such

conveyance, and imposes criminal liability on any grantee

1. As originally enacted, Section 2 prohibited approval of any

conveyance exceeding the acreage limitations — even to another Tribal

member. Congress amended the provision in 1940 to allow purchases of any

size by Indians in order to facilitate consolidation of family ownership. See 54

Stat. 252 (1940).

involved in such a transaction. Although Section 2 prohibits

conveyances by Indians which exceed the acreage limitations,

nothing contained therein prohibits ownership beyond those

limitations.

Today some 650,000 acres are held by non-Indians, mostly

farmers or ranchers, many of whom work lands which have been

in their families for years. At present, the Crow Reservation is

characterized by a “checkerboard” of ownership similar to that of

most western reservations which were subject to the allotment

policy. The distribution of ownership in 1980 was described by

this Court in Montana v. United States, 450 U.S. 544, 548 (1981):

... roughly 52 percent of the reservation is

allotted to members of the Tribe and held by

the United States in trust for them, 17 percent

is held in trust for the Tribe itself, and

approximately 28 percent is held in fee by

non-Indians. The State of Montana owns in

fee simple 2 percent of the reservation, the

United States less than 1 percent.

The Tribe is nowhere mentioned in Section 2, nor was the

Tribe an intended beneficiary of the salutary effects of this

provision since it, along with every tribe covered by the Dawes

Act and its progeny, was to pass out of existence once the goals of

the allotment policy were achieved. The congressional purpose

behind the allotment policy was the assimilation of individual

Indians into general society and the elimination of Indian tribes.

Although congressional policy changed with the passage of

the Indian Reorganization Act of 1934, the provisions of that

statute were to have no force or effect over lands previously

allotted pursuant to the Dawes Act and its reservation specific

offspring. 25 U.S.C. § 461; See also Brendale v. Confederated

Yakima Nation, 492 U.S. 408, 432 (1989). Consequently, the

allotment of lands which followed passage of the Crow Allotment

Act was a fait accompli which would not be reversed even with

the new direction in Indian policy evidenced by the

Reorganization Act.

In 1991, the Crow Tribe, an entity which would no longer

exist had the goals of the allotment policy been achieved, asserted

its alleged rights under Section 2.2 The Tribe contends that

Section 2 actually limits the amount of land a non-Indian may

own within the Reservation. The landowners disagree with this

interpretation of the statute, and instead assert that Section 2

merely prohibits conveyances by the original allottees to non-

Indians in excess of the acreage limitations. Although the Tribe

has attempted throughout the litigation to avoid discussion of the

remedies to be fashioned in the event it succeeds, it is apparent

that the Tribe has pursued this case in hopes the Courts will quiet

title in the Tribe even though the allotted lands were never owned

by the Tribe, but were instead granted to individual Crow

Indians.?

The District Court dismissed the Tribe’s claims on grounds it

2. Both the Tribe and the Government have been aware of Section 2

since passage of the Crow Allotment Act, yet neither brought suit under the

provision for over 70 years, until the Tribe initiated this action. In the

meantime, non-Indian landowners have labored to improve and increase the:

value of their properties and could be dispossessed without compensation

should the Tribe prevail in this case.

3. Claims by individual allottees under Section 2 have been held subject

to Montana’s five year statute of limitations. Dillon v. Antler Land Co., 507

F.2d 940 (9th Cir. 1974), cert. denied, 941 U.S. 992 (1975). The Dillon Court

found that the GAA subjected lands which had been patented in fee to state law.

It was in part on the basis of Dillon that the District Court concluded that the

Crow Tribe's Section 2 claims were untimely under Mont. Code Ann. §§ 70-

19-401, 402 (1991).

could not satisfy the constitutional requirements for standing.

The District Court found that the Tribe could not establish that it

suffered an injury from the alleged violations of Section 2, which

provision was directed at transactions between allottees and

potential purchasers. Vague and speculative claims that the

presence of large landholders hurt the Tribe, or that the public

policy behind Section 2 was to prevent accumulation of large

landholdings, fell short, the District concluded, of proving the

type of concrete injury that is a prerequisite to standing. (App.

29).

The District Court also concluded that the Tribe’s claims

against Campbell Farming Corporation were barred by the statute

of limitations. Pursuant to 25 U.S.C. §§ 347 and 349, Montana’s

five year statute was to govern Section 2 claims since Congress

subjected all allotted lands, once patented, to the authority of

state law pursuant to those provisions of the Dawes Act. App. 22.

The District Court found additional support for its conclusion in

this Court’s 1992 decision, County of Yakima v. Confederated

Tribes and Bands of the Yakima Nation, 502 U.S.__, 112 S.Ct.

683 (1992). The District Court read Yakima to have drawn a

distinction between state in rem versus in personam jurisdiction,

and concluded that state law governs cases in rem “whether the

individual allottee or the Tribe brings the lawsuit.” (App. 23).

Following that line of reasoning, the District Court held that the

Montana statute of limitations barred all claims not brought

within the five year limitations period.

The United States Court of Appeals for the Ninth Circuit

affirmed on grounds the Tribe had no right of action under

Section 2. In a unanimous opinion authored by Judge Canby, the

Circuit Court held that under rules promulgated by this Court for

determining whether Congress intended a party to have a right of

action to enforce a statute, the Tribe could not prosecute this suit.

Citing Cort v. Ash, 422 U.S. 66, 78 (1975), the Circuit Court

concluded that the language and remedial structure of Section 2

indicated “that Congress did not intend to vest the Tribe with a

cause of action. ..”. (App. 9). The Circuit Court also reviewed the

legislative history of Section 2 and found further support for the

conclusion that the Tribe had no right of action. (App. 10). The

Tribe’s petition for rehearing was denied without comment.

REASONS FOR DENYING THE WRIT

I. THE CIRCUIT COURT PROPERLY APPLIED THE

DECISIONS OF THIS COURT IN HOLDING THAT THE

TRIBE HAD NO RIGHT OF ACTION UNDER SECTION 2.

A. The Tribe Could Not Establish Either That It Was Part Of

The Class For Whose Especial Benefit Section 2 Was Enacted.

In Cort v. Ash, supra, 422 U.S. at 78, this Court set out a four

part test for determining whether Congress intended a plaintiff to

enjoy a private right of action to enforce a statute:

First, is the plaintiff “one of the class for

whose especial benefit the statute was

enacted” .. . that is, does the statute create a

federal right in favor of the plaintiff? Second,

is there any indication of legislative intent,

explicit or implicit, either to create such a

remedy or to deny one? ... Third, is it

consistent with the underlying purposes of

the legislative scheme to imply such a remedy

for the plaintiff? . .. And finally, is the cause

of action one traditionally relegated to state

law, in an area basically the concern of the

States, so that it would be inappropriate to

infer a cause of action based solely on federal

law? (citations omitted).

In concluding that the Crow Tribe had no right of action, the

Ninth Circuit reviewed Section 2 under the first and second

prongs of the Cort test.‘

The Circuit Court began its analysis of the Cort factors by

examining the language of Section 2. The Circuit Court observed

that one important indication that Congress did not intend to

afford the Tribe a right of action is that the Tribe is not among the

“actors mentioned in Section 2.” (App. 6). While the Tribe’s

omission “is not conclusive... ,” (App. 6), this Court has noted

that a critical fact in determining whether Congress intended that

a given plaintiff enjoy a right of action is “language [which] . . .

explicitly confers a right directly on a class of persons that

include[s] the plaintiff in the case.” Universities Research

Association, 450 U.S. at 771-772 (quoting Cannon v. University

of Chicago, 441 U.S. 677, 690 n.13 (1979)).

As the Circuit Court noted, only Indians in their individual

Capacities are referred to in Section 2. The Tribe is not mentioned

nor is there even a general reference to “Indians.” (App. 6). The

statute benefits individual allottees who happen to be Tribal

members, but bestows no rights upon the Tribe, which entity was

to cease to exist once the goal of assimilation was reached. In

addition, the Tribe was a stranger to the title on the allotted lands

so had no interest in the conveyances between allottees and

potential purchasers with which Section 2 is concerned.

4. Although the Tribe takes exception to the Circuit Court’s failure to

consider the third query, i.e., whether a tribal cause of action would be

consistent with the legislative scheme, See Petition, p.17, this Court has held

that when plaintiff is not among the class especially benefited by the statute,

and the legislative history provides no indication the plaintiff enjoys a right,

“the remaining two Cort factors cannot by themselves be a basis for implying a

right of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 580 (1979)

(Brennan, J. concurring), accord Universities Research Ass'n, Inc. v. Coutu,

450 U.S. 754, 770, n.21 (1981).

Congress did not and could not have intended that the Tribe have

a right of action under the circumstances. The Circuit Court was

correct in holding: “The use of such specific terms in the statute

Suggests that the statute was enacted for the benefit of a group of

individuals, each of whom is a member of the Tribe, and not for

the benefit of ‘the Tribe.’ ” (App. 6).5

B. The Remedial Structure Of Section 2 Indicates The Tribe

Has No Right Of Action.

The second basis for the Circuit Court’s finding that the

Tribe had no right of action to enforce Section 2 was the narrow

and specific remedial structure of the provision. Section 2

provides three mechanisms for preventing sales in violation of

the acreage limitations: 1) the Secretary of the Interior was to

refuse to approve conveyances which violated the acreage

limitations; 2) any purchaser who bought land in excess of the

limitations was liable for a misdemeanor; 3) the allottee could

bring a civil action to have the conveyance declared void. Neither

5. It is important to understand that Congress could not have intended

that the Tribe have a right of action since “The objectives of allotment were

simple and clear-cut: to extinguish tribal sovereignty, erase reservation

boundaries, and force assimilation of Indians into the society at large.” County

of Yakima v. Yakima Nation, 502 U.S. at __, 112 S.Ct. at 686 (citing Jn re Heff,

197 U.S. 488 (1905)). The Tribe was to pass out of existence pursuant to both

the Dawes Act and the Crow Allotment Act, and would not have existed to act

as a plaintiff had congressional goals been achieved.

Congressional policy changed in 1934 with passage of the Indian

Reorganization Act. However, Section 2 must be interpreted in light of the

policy’s extant at its passage, not in regards to subsequent congressional

actions. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 196 (1978).

Moreover, as to the lands here at issue, which were previously allotted parcels,

“Congress made no attempt to undo the dramatic effects of the allotment years

on the ownership of former Indian lands.” County of Yakima, 502 U.S. at __,

112 S.Ct. at 686.

the prohibition on approval of excess conveyances by the

Secretary, nor the power to prosecute the misdemeanor charges,

were functions intended by Congress to be carried out by the

Tribe. (App. 6). Consequently, the Circuit Court concluded that

if the Tribe had any toehold in the statute it must be to sue to

“void” transactions in violation of Section 2. But, as the Circuit

Court recognized, the remedial structure of Section 2 indicates

that the Tribe, a stranger to title, has no such right. The Tribe was

not party to the transactions, did not own the transferred land, and

even if a successful claim were brought it would be the allottee,

not the Tribe, who would benefit since lands upon which title was

held void would be restored to the allottee.

The Tribe takes issue with the Circuit Court’s conclusion

that the lone remedy available under Section 2 is an action to void

any unlawfully transferred title.° However, the authorities cited

by the Tribe actually support the Circuit Court’s conclusion that

6. The Tribe’s contention that the remedies issue is complex, Petition,

p.16, is at odds with the unambiguous language of Section 2. Moreover, the

Tribe’s citation to Franklin v. Gwinnett County Public Schools, 503 U.S. __,

112 S. Ct. 1028 (1992), for the proposition that courts can freely fashion

remedies is utterly misplaced. In Franklin, this Court reached several

conclusions which are inconsistent with the Tribe’s contentions. First, the

Tribe seeks to establish its power to sue by setting the remedies horse before

the cart of Congressional intent. As the Franklin Court declared, “the question

of whether a litigant has a “cause of action” is analytically distinct and prior to

the question of what relief, if any, a litigant may be entitled to receive.” 503

U.S. at __, 112 S. Ct. at 1034 (quoting Davis v. Passman, 442 U.S. 228. 239

(1979)). The Tribe’s suggestion that the remedies under Section 2 are open to

discussion is not germane to the question of whether Congress intended it to

have a right of action under Section 2. Further Gwinnett involved the party

harmed and on whose behalf the action was filed. In this case the Tribe, which

is not a beneficiary of Section 2, seeks the right to bring an action. Lastly, in

Gwinnett the Court had the power to fashion an appropriate remedy because

the statute at issue was “silent on the question of remedies...” Jd. Section 2,

on the other hand, unambiguously declares that the allottee may sue to void

title. Gwinnett is of no relevance to the instant case.

the remedy afforded by Section 2 rests exclusively in the allottee.

In Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), the Court

considered whether a merger contract obtained pursuant to

defective proxies was per se void under Section 29(6) of the

Securities Exchange Act. The Court held that the guilty party is

prohibited from enforcing the contract against an unwilling

innocent party, and in this sense the contract is void, but the

innocent party may nevertheless enforce the contract if he

concludes to do so would be in his best interest. 396 U.S. at 388.

In this latter sense the Court drew the conclusion that void could

mean voidable.’

As for this case, the aHottee who conveys property in

violation of Section 2 enjoys the same option since he may

conclude that a suit to void title is contrary to his best interests.

However, it is the allottee who is empowered to make the

decision, not a third party stranger, such as the Tribe. Section 2

affords the individual a choice, but does not grant to the Tribe a

right to make the choice for the allottee.®

An additional difficulty with the Tribe’s reasoning is that

Section 2 unambiguously restricts the right of action to the

7. Other cases relied upon by the Tribe are equally supportive of the

Ninth Circuit’s decision. In Ewell v. Daggs, 108 U.S. 143 (1883), the Court left

it to the victimized party whether to seek to void a contract which violated a

Texas usury statute. Similarly, in Atlantic Coast Line Railroad Co. v. State of

Florida, 295 U.S. 301 (1935), those who paid charges levied under a voidable

Interstate Commerce Commission order were able tc claim the sums paid as an

equitable remedy. But in each case, the party involved in the transaction was

afforded the right to seek the remedy.

8. The Tribe tacitly acknowledges that the Circuit Court was correct in

holding that the Tribe has no cause if the only remedy for a violation of Section

2 is to void the title. The Tribe’s argument that “void” does not necessarily

mean the transaction is a nullity indicates that the Tribe is aware that a void title

would revest the lands in the allottee, hence no benefit would run to the Tribe.

allottee. California v. Sierra Club, 451 U.S. 287, 297 (1981)

(“The federal judiciary will not engraft a remedy on a statute, no

matter how salutary, that Congress did not intend to provide); See

also National Railroad Passenger Corp. v. National Ass’n of

Railroad Passengers, 414 U.S. 453, 458 (1974) (“when

legislature expressly provides a particular remedy or remedies,

courts should not expand the coverage of the statute to subsume

other remedies.”). The question of whether a statute confers a

right of action on a particular plaintiff is a matter of statutory

construction. Northwest Airlines, Inc. v. Transport Workers

Union of America, AFL-CIO, 451 U.S. 77 (1981). Statutory

interpretation begins “with the language employed by Congress

and the assumption that the ordinary meaning of that language

accurately expresses the legislative purpose.” Metropolitan Life

Ins. Co. v. Massachusetts, 471 U.S. 724, 740 (1985) (citing

Park'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194

(1985)). The language of Section 2 leaves no room for debate as

to Congress’ intent; the remedy is solely in favor of the individual

allottee. The Tribe has no right of action under Section 2 and the

petition for a writ of certiorari is properly denied.

II. THE LEGISLATIVE HISTORY BEHIND SECTION 2

ESTABLISHES THAT THE INDIVIDUAL ALLOTTEES

ALONE ARE EMPOWERED UNDER SECTION 2 TO

BRING ANACTION.

A. The Legislative History Demonstrates That The Allottees

Were To Assume Responsibility For Protecting Their

Property Rights.

The Tribe, in an effort to confuse the issues concerning

whom Congress intended would have a cause of action under

Section 2, contends that the Ninth Circuit erred by ignoring this

Court’s precedents concerning “tribes” versus “tribal members.”

The Tribe contends that if Section 2 was designed to protect

individual allottees, who would be members of the Crow Tribe,

then it, like any government, should have a right to bring a cause

to protect its citizens.

The Tribe ignores the fact that it was Congress which drew

the distinction between allottees and the Tribe in enacting both

the Crow Tribe Allotment Act and the Dawes Act, for it was

indisputably the goal of the allotment acts to terminate Indian

tribes and assimilate members into general society. The process

of assimilation was designed to create in the individual allottees

both an appreciation for their rights as property owners and an

understanding that they alone were responsible for protecting

those interests. The Circuit Court was attuned to Congressional

intent in observing “Even under the Tribe’s interpretation, the Act

was drafted to make individual Indians more independent and to

encourage them to become reliant on their own individual parcels

of land.” (App. 9). In view of Congressional goals in effect at the

time the CAA was enacted into law, the Circuit Court was surely

correct in reaching the conclusion that “it is reasonable to assume

that Congress expected individual Indians to bring their claims in

their own behalf, rather than expect the Tribe to protect their

right.” (App. 21).

The legislative history bears out the Circuit Court’s

conclusions. As «1 general summary of the legislative goals

underpinning the allotment acts this Court has observed:

The policy of the Acts was the eventual

assimilation of the Indian population . . . and

the “gradual extinction of Indian reservations

and Indian titles.” Draper v. United States,

164 U.S. 240, 246, 41 L. Ed 419, 17S. Ct.

107. The Secretary of the Interior and the

Commissioner of Indian Affairs repeatedly

emphasized that the allotment policy was

designed to eventually eliminate tribal

relations ... And_ throughout the

congressional debates on the subject of

allotment, it was assumed that the

“civilization” of the Indian population was to

be accomplished, in part, by the dissolution of

tribal relations...

Montana v. United States, 450 U.S. at 559, n.9.?

The legislative history of the Crow Allotment Act

establishes that the communal system which had characterized

tribal life, and in the midst of which tribal government would

have functioned, was to be “abandoned as speedily as possible.”

S. Rep. No. 219, 66th Cong., Ist Sess. 5 (1919). The purpose of

the Crow Allotment Act — assimilation of Indians and extinction

of the Tribe — could only be accomplished if the allottees

assumed responsibility for protecting their own rights:

The bill provides that those who are

competent shall be placed upon their own

resources and be given all their property and

all the rights and privileges of citizenship

under proper safeguards. It also provides for

those not yet fully competent, and that these

may as rapidly as possible be made

9. The Montana Court further noted: “It defies common sense to suppose

that Congress would intend that non-Indians purchasing allotted lands would

become subject to tribal jurisdiction when an avowed purpose of the allotment

policy was the ultimate destruction of tribal government.” It defies common

sense also to expect that Congress intended a right of action in the Tribe to

protect the interest of individual allottees, when those allottees were to be

assumed into the general population, subjected to state law, and the tribes were

to cease to exist.

independent of the guardianship exercised

over them by the United States Government,

and be given that individual responsibility

which is the ultimate achievement aimed at in

the proper settlement of what is known as the

Indian problem. (emphasis added)

59 Cong. Rec. H5999 (April 22, 1920) (Comments of

Congressman Riddick).

It is wholly disingenuous for the Tribe to contend that the

Circuit Court drew some rigid distinction between the Crow

Tribe and its members; that distinction was drawn 75 years ago by

Congress in enacting the Crow Allotment Act. Congress sought

to put an end to the Crow Tribe and to create in each individual

allottee a sense of responsibility for protecting his property rights

the same as any other citizen in the United States.

B. Cases Cited By The Tribe Are Immaterial Since Congress,

Not The Court Below, Drew The Distinction Between The

Crow Tribe And The Aliottees.

The Tribe’s reliance on Arizona v. California, 460 U.S. 605

(1983), for the proposition that Tribal participation is encouraged

in lawsuits which affect their rights begs the question of whether

10. Indeed, in footnote 12 of its brief, the Tribe abandons any pretense

that it is seeking to protect the rights of the inividual allottees in bringing suit.

As the Tribe notes, the individual allottees’ sole interest in determining

whether to sell the property is to maximize the price. As a result, the individual

allottees may have no desire to sue to enforce Section 2. That, of course, is

precisely the point. Section 2 leaves it up to the individual aliottee to determine

whether his interests are best protected by bringing an action. The Tribe would

superimpose its will on all allottees by bringing an action for their so-called

benefit, taking title to the land itself, and freezing out the very individuals

whom the Tribe contends it wishes to protect.

Congress intended the Tribe to have a right of action under

Section 2. As this Court has so often explained, the issue is not

whether the decision will have an effect on the plaintiff,

California v. Sierra Club, 451 U.S. 287, 294 (1981) (citing

Cannon v. University of Chicago, 441 U.S. 677, 690-693, n.13

(1979)), but rather did Congress intend plaintiff to have a cause of

action to enforce the statute? Transamerica Mortgage Advisors,

Inc. v. Lewis, 444 U.S. 11, 15-16 (1979). While the Tribe may

assert some abstract interest in the effect of Section 2, the

language and structure of the statute, especially when considered

in connection with the goal of tribal extinguishment, are an

insuperable barrier to establishing that Congress intended the

Tribe to enjoy aright of action.

As for Puyallup Tribe v. Department of Game of Washington,

433 U.S. 165 (1975), several observations are in order. While the

Tribe in Puyallup had a direct interest in enforcing the treaty

rights at issue, here the Crow Tribe asserts claims which concern

lands to which it was never titleholder and which were transferred

to manifold separate individuals. In addition, the Crow Tribe now

acknowledges that it seeks relief which may be contrary to the

best interests of the allottees."' Finally, the Tribe cannot have a

corporate interest to protect when the very provision it seeks to

enforce is contained in a statute designed to extinguish the Tribe.

The Tribe’s contention that decisions of this Court suggest

that tribes have broad responsibility for protecting their

members, while perhaps true in the abstract, flies in the face of

express congressional policy under the Dawes Act and Crow

Allciment Act. The Tribe’s belief that it occupies the same

position as, to use the Tribe’s example, the City of Los Angeles,

whose citizens might be the beneficiaries of an earthquake relief

11. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), illustrates that

rights under a statute are limited when Tribal interests conflict with those of

members. Such a conflict is now acknowledged by the Tribe. Petition, 18 n.12.

bill which the city should itself be allowed to enforce, is meritless

because, while earthquake relief may have some benefit to the

City as well as its residents, the Crow Allotment Act was

specifically designed to destroy the communal relations amongst

Indians and tribes and to assimilate tribal members into the

general body politic. The Circuit Court rightly found that the

Tribe has no right of action under Section 2, and the petition fora

writ of certiorari should be denied.”

Ill. THE TRIBE HAD AMPLE OPPORTUNITY TO

ADDRESS THE ISSUE OF WHETHER IT ENJOYED A

PRIVATE RIGHT OF ACTION UNDER SECTION 2 IN

THE LOWER COURTS. —

Every Circuit Court in the country has recognized the rule

that an appellate court may affirm on any ground finding support

in the record. See, e.g., Inmates of Supple County Jail v. Rufo, 12

F.3d 286 (1st Cir. 1993), on remand, 844 F. Supp. 31 (D. Mass.

1994); Railway Labor Executives Association v. Staten Island

R.R. Corp., 792 F.2d 7 (2nd Cir. 1986), cert. denied, 479 U.S.

1054 (1987); Fairview Township, York County, Com. of Pa. v.

U.S. Environmental Protection Agency, 773 F.2d 517 (3rd Cir.

1985); Jackson v. Kimel, 992 F.2d 1318 (4th Cir. 1993); SIDCO

Products Marketing, Inc. v. Gulf Oil Corp., 858 F.2d 1095 (Sth

Cir. 1988), reh’g denied, _ F.2d __ (1988); United States v.

Anderson County, Tennessee, 761 F.2d 1169 (6th Cir. 1985), cert.

denied, 474U.S.919 (1985); McCarthy v. Kemper Life Insurance

Companies, 924 F.2d 683 (7th Cir. 1991); Campbell v.

Commissioner of Internal Revenue, 943 F.2d 815 (8th Cir. 1991);

Suydam v. Reed Stenhouse of Washington, Inc., 820 F.2d 1506,

1508 (9th Cir. 1987); Schalk v. Gallemore, 906 F.2d 491 (10th Cir.

12. The Tribe’s contention that 28 U.S.C. § 1362 affords ita private right

of action is inapposite. Section 1362 is merely a jurisdictional statute and does

not create a right of action in the Tribe. United States v. Nordic Village, Inc.,

503 U.S. 30 (1992).

1990); Barnett v. Bailey, 956 F.2d 1036 (11th Cir. 1992); Dimond

v. District of Columbia, 792 F.2d 179 (D.C. Cir. 1986). This

Court has recognized the rule on various occasions. See, e.g.,

Whitley v. Albers, 475 U.S. 312, 326 (1986) (citing United States

v. New York Telephone Co., 434 U.S. 159, 166 n.8 (1977)); Jaffke

v. Dunham, 352 U.S. 280, 281 (1957); Helvering v. Gowran, 302

U.S. 238, 245 (1937), reh’g denied, 302 U.S. 781 (1938). The

Tribe contends that it was given no opportunity to address the

question of whether Congress intended it to enjoy a right of action

under Section 2. If, however, the record discloses that the issue

was addressed in the lower courts, the Tribe’s “fairness” issue is

exposed as ared herring.

The Tribe fails to explain that in the nearly 450 pages of

briefing presented to the District Court numerous pages included

discussions of Cort v. Ash and similar tests, and addressed

specifically the question of whether the Tribe was intended to

have a private right of action under the statute. The matter was

also briefed in detail before the Ninth Circuit, with each of the

parties specifically citing the Cort test and discussing its

implications. And, although the Tribe contends that the matter

was not raised at the hearing before the Circuit Court, the

transcript of the argument establishes that the issue was discussed

in detail.’’ In addition, the Tribe had an opportunity to reargue the

issue in its petition for rehearing. Therefore, the contention that

the Tribe was denied an opportunity to fairly address the issue

upon which the Circuit Court rendered its decision flatiy

misconstrues the record.

As noted above, the Circuit Court was free to affirm the

13. All briefs that were presented to the District and Circuit Court have

been lodged with this Court. Oral arguments before the Ninth Circuit are not

stenographically recorded so defendants secured a copy of the tape of the

argument, and lodged the transcript with the Court.

District Court on any ground supported by the record. The Tribe

argued the applicability of Cort v. Ash test and responded to the

arguments made by defendants. The Ninth Circuit worked no

unfairness on the Tribe in deciding the case on the basis of Cort v.

Ash and in holding that Congress did not intend to create a right of

action in the Tribe.

IV. THE NINTH CIRCUIT’S DECISION COMPORTS

WITH PREVIOUS DECISIONS FROM THIS COURT,

AND THE TRIBE’S PETITION FAILS TO IDENTIFY A

QUESTION WHICH NEEDS TO BE SETTLED BY THIS

COURT.

This Court has repeatedly declared that the purpose behind

the Dawes Act and the allotment policy was the “elimination of

tribal institutions, sale of tribal lands, and assimilation of Indians

as individuals into the dominant culture.” Duro v. Reina, 495

U.S. 676, 691 (1990); County of Yakima, 502 U.S. at__, 112 S.Ct.

at 686; Brendale v. Confederated Tribes and Bands of Yakima

Indian Nation, 492 U.S. 408, 423 (1989); Solem v. Bartlett, 465

U.S. 463, 468 (1984). Leading commentators, too, have

recognized that the goal of the allotment acts was both the

assimilation of Indians and the extinction of reservations, with

the individual allottees assuming the rights and obligations of

citizens. F. Cohen, Handbook Of Federal Indian Law, 130-132

(1982 Ed.); W. Canby, American Indian Law 2d, 19-22 (1988).

Given the complementary goals of tribal extinction and

assimilation, the Ninth Circuit properly concluded that the

burden of enforcing any civil remedy provided for under Section

2 fell on the individual allottees. Since allottees were to be

absorbed into society and would no longer be members of the

Tribe, it would be incongruous for Congress to intend that the

Tribe enjoy a right of action to protect the interests of the

allottees.

Consequently, the Circuit Court’s determination that

individual Indian allottees alone have a right of action to enforce

Section 2 is consistent with this Court’s prior rulings concerning

the policy of allotment. Both because the Dawes Act and Crow

Allotment Act were targeted towards destruction of the tribes,

and because allottees were to assume responsibility for

protecting their own interests in the land, when considered in

concert with Section 2’s silence as to any right of action enjoyed

by the Tribe, the Ninth Circuit’s holding that the Crow Tribe has

no right of action to enforce Section 2 is correct. The petition for

a writ of certiorari should be denied.

Moreover, the issues presented by this case are of no national

importance and need not be resolved by this Court. Section 2 of

the Crow Tribe Allotment Act is unique to the Crow Reservation,

hence the construction of the provision will have no effect on any

other Indian tribe, nor be of any general importance to Indian

jurisprudence. The Ninth Circuit decision was correct, and no

injustice has been worked upon the Tribe since under the clear

provisions of Section 2 the Tribe has no right of action. The

Circuit Court’s decision dovetails exactly with the decisions of

this Court concerning the allotment acts. There are no grounds

upon which to grant the petition.

V. THE TRIBE’S ALLEGATIONS OF A CONFLICT

BETWEEN THE NINTH CIRCUIT DECISION AND

DECISIONS OF OTHER CIRCUIT COURTS IS AN

ILLUSION.

Although it is somewhat difficult to pinpoint the conflict

between the Circuits upon which the Tribe rests its petition, the

Tribe seems to suggest that other Circuit Courts have chosen not

to search for specific evidence Congress intended to create a right

of action in a given entity. (Petition, p. 20). The Tribe contends

that in conducting such an inquiry the Court below acted as a

maverick. According to the Tribe, “this aspect of the Court of

Appeals’ decision is unique and conflicts with the analytical

approach to the cause of action issue and the decisions of other

federal appellate courts.” (Petition p. 20).

In reality, the decision of the Court below is exactly

consistent with the approach taken in the very decisions upon

which the Tribe relies. For example, in American Telephone &

Telegraph Co. v. M/V Cape Fear, 967 F.2d 864, 870 (3rd Cir.

1992), the Third Circuit, relying on the rules enunciated by this

Court, held that the existence of a private right of action must be

found “in the substantive provisions of the statute.” 967 F.2d at

869. Said the American Telephone & Telegraph Court, “The

primary source of a private right of action is the text of a statute.”

967 F.2d at 866. The Ninth Circuit’s conclusion that the omission

of the Tribe from Section 2 is indicative of Congress’ intentions is

thus in accord with the reasoning of American Telephone &

Telegraph Court.

In addition, the American Telephone and Telegraph Court

read Cort v. Ash to require:

... that in the absence of an explicit right of

action, one may be implied only if there is

either a “clearly articulated federal right in

the plaintiff’ or a “pervasive legislative

scheme governing the relationship between

the plaintiff class and the defendant class ina

particular regard.”

967 F.2d at 870 (quoting Cort v. Ash, 422 U.S. at 82). The

American Telephone & Telegraph Court, while noting that

Statutes rarely identify their beneficiaries, concluded that

although plaintiffs may have been beneficiaries of the Submarine

Cable Act of 1888, they could not establish the requisite “clearly

articulated” right to bring an action. Jd. This, of course, is

_ precisely the conclusion reached by the Circuit Court in this case.

The alleged conflict between the analytical framework adopted

by the Court below and that pursued by the Third Circuit in

American Telephone & Telegraph is nonexistent.

The American Telephone & Telegraph decision is the only

case cited by the Tribe which might in any way suggest a conflict

between the circuits,‘ although the Tribe contends that the Ninth

Circuit should have observed that Section 2 was designed to

benefit Tribal members and therefore the Tribe should have been

given aright to enforce the provision for its members. Aside from

the previously discussed incongruity in the Tribe’s position that it

should be allowed to sue to “protect” the rights of allottees by

14. The Tribe's reliance on Comtronics, Inc. v. Puerto Rico Telephone

Co., 553 F.2d 701 (1st Cir. 1977), is not only misplaced but misconstrues the

holding in that case. Rather than holding that the plaintiff in that case had an

implied right of action, the Court actually concluded that although Comtronics

was “within the class of intended beneficiaries” of the relevant section of the

Communications Act of 1934, 553 F.2d at 705, still the plaintiff had no implied

right to seek damages because of “a clear legislative intent to preclude such a

remedy.” Jd. Moreover, the Comtronics Court was expressly in agreement with

the view that in determining congressional intent to create a private right of

action the ancient principle of expressio unius est exclusio alterius applied, and

that courts would not expand statutory remedies beyond the coverage

expressed in the statute. 533 F.2d at 707 (citing National Railroad Passenger

Corp. v. National Ass'n of Railroad Passengers, 414 U.S. 458, 470-71 (1974)).

The Ninth Circuit applied the same rule in concluding that, based on the

remedy afforded by the statute, the Tribe had no implied right of action.

So, too, in Sterling Suffolk Racecourse Ltd. Partnership v. Burrillville

Racing Ass’n, Inc., 989 F.2d 1266, 1268 (1st Cir. 1993), cert. denied, __ U.S.

—,» 114 S.Ct. 634 (1993), the Court, citing Karahalios v. National Fed’n of

Fed. Employees, 489 U.S. 527, 532-33 (1989), stated that the “central focus

must be on Congressional intent.” Although the Court in Sterling Suffolk

concluded that plaintiff was within the class which would especially benefit

from the statute, the statute at issue “explicitly” identified the parties who

could bring a claim and plaintiff was not among them. 989 F.2d at 970. In this

case, Section 2 also specifically identifies those who may bring a claim and the

Tribe is not one of them.

taking title and dispossessing them, the Tribe fails to explain how

this constitutes a conflict between the Circuits. In reality, every

Circuit Court applies Cort v. Ash to require that a private right of

action must be found in the substantive provisions of the statute.

As this Court has made clear “the question is the nature of the

legislative intent in forming a specific statute, and Cort set out the

criteria through which this intent could be discerned.” Davis v.

Passman, 442 U.S. 228, 241 (1979). In this case, the Circuit

Court applied precisely the proper test and followed the

analytical framework laid down by this Court and adhered to by

all the Circuits. There is no conflict between the decision of the

Ninth Circuit and those rendered by other circuit courts and

therefore no basis to grant the petition.

VI. ADEQUATE AND INDEPENDENT BASES SUPPORT

THE DECISION OF THE CIRCUIT COURT SINCE THE

TRIBE LACKS STANDING AND ITS CLAIMS ARE

BARRED BY THE APPLICABLE STATUTE OF

LIMITATIONS.

A. The Tribe Was Without Constitutional Standing And

Therefore The Federal Courts Lack Jurisdiction To Hear The

Claim.

In recent times, this Court has developed the doctrine of

standing to insure that federal courts address only those matters

“historically viewed as capable of judicial resolution,” and

involving actual “cases and controversies”. Flast v. Cohen, 392

U.S. 83, 101 (1968). To satisfy the requirements for Article III

standing, this Court has long insisted that plaintiffs meet three

criteria. First, plaintiff must personally demonstrate “an ‘injury

in fact’ which is concrete and particularized.” Lujan v. Defenders

of Wildlife, 504 U.S. __, 112 S.Ct. 2130, __ (1992); Valley Forge

Christian College v. Americans United For Separation Of

Church And State, Inc., 454 U.S. 464, 472 (1982) (citing

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99

(1979)). That injury must “fairly . . . be traced” to the defendant’s

putatively illegal conduct, Simon v. Eastern Kentucky Welfare

Rights Organization, 426 U.S. 26, 41 (1976), and lastly, the

injury must be “likely to be redressed by a favorable decision.”

Id. at 38. Although these minimum requirements are admittedly

“not susceptible to precise definition,” Allen v. Wright, 468 U.S.

737, 751 (1984), reh’g denied, 468 U.S. 1250 (1984), the Tribe

was obliged to demonstrate that it suffered an injury which is

“distinct and palpable.” Warth v. Seldin, 422 U.S. 490, 501

(1975); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990).

As has been emphasized throughout the litigation, the Tribe

was to pass out of existence pursuant to the Crow Allotment Act,

was a Stranger to the title to the allotted parcels at issue in this

lawsuit, and is nowhere mentioned in Section 2. The mere fact

that the Tribe asserts an injury, especially an injury that is as

amorphous and imprecise as that herein alleged, will not satisfy

the first prong of the standing test.'*

The District Court recognized the weakness in the Tribe’s

position as follows:

The Tribe’s allegation that “[t]he acreage

limitations under Section 2 were designed to

prevent iarge landowners from controlling

and dominating the farming and agricultural

economy on the Crow Reservation by

acquiring vast amounts of land” it is not a

15. Even before this Court, the Tribe is unable to demonstrate any

injury-in-fact sustained by it, but instead relies on the vague claim that large

land holdings affect Tribal members who remain on the Reservation and earn a

livelihood from the land. The District Court correctly held that such a claim is

far too speculative (App. 29). The Tribe cannot forge the first link in the

standing chain: an injury-in-fact.

personal allegation of “actual or threatened

injury.” Itis at best a generalized allegation of

the purposes behind § 2.

The Tribe’s allegation that “[t]he Defendants’

violation of Section 2 of the Crow Allotment

Act harms the Tribe and that it violates the

public policy behind Section 2 which was to

prevent one person, corporation or company

from accumulating large landholdings. . .” is

not an allegation of a “concrete and

immediate” injury to the Crow Tribe. It is a

generalized assertion of policy

considerations behind § 2 and the speculative

inference of the effects of landowners owning

large amounts of land.

(App. 29).

As this Court has repeatedly noted, abstract and conjectural

injuries are not sufficient to satisfy the threshold requirements of

Article III standing. O’Shea v. Littleton, 414 U.S. 488, 494

(1974). The District Court properly characterized the Tribe’s

allegations as speculative. Therefore, since the Tribe cannot

satisfy Article III standing requirements, the Circuit Court

decision should be upheld and the petition for a writ of certiorari

denied."®

16. The Tribe’s contention that it could sue to vindicate the rights of

individual allottees is forbidden on prudential standing grounds. Allen v.

Wright, 468 U.S. at 751. As this Court noted in Allen, suits to enforce the rights

of others fall within the “general prohibition on a litigant raising another

person’s legal rights.” /d.

B. The Tribe’s Claim Is Barred By The Applicable Statute Of

Limitations.

For over twenty years, non-Indian landowners inside the

Crow Reservation have relied on a Ninth Circuit decision, Dillon

v. Antler Land Co., supra, 507 F.2d 940, for the rule that Section 2

claims must be brought within the five-year statute of limitations

provided by Montana law. As the Ninth Circuit Court of Appeals

explained in affirming the District Court’s conclusion in Dillon:

This appeal raises troublesome questions, but

that Montana law governs with respect to

Appellant’s property rights herein is not one

of them. 25 U.S.C. § 349, relied on by the

District Court in holding that Appellant’s first

claim is barred by the Montana Statutes of

Limitation could scarcely be more explicit in

this respect.

507 F.2d 942.

The Montana statute of limitations applies to the lands here

at issue because Congress expressly provided that land patented

in fee or sold by supervised sale would be governed by state law.

See 25 U.S.C. §§ 347 and 349; County of Yakima, 502 U.S. _,

112 S.Ct. 683. The Tribe flatly admits that its right, if any, to

bring a claim is as “the representative of its members.” (App.

21)."’ The Tribe, which claims the power to bring this action to

17. The Tribe’s reliance on Puyallup Tribe v. Washington Game Dept.,

433 U.S. 165 (1977), wherein the Tribe sought to protect not only its own rights

but that of individual members, establishes that the Tribe, which by its own

admission is seeking to enforce rights enjoyed by individual members of the

Tribe, should therefore be subject to the same defenses as the individual

allottees.

(aaa

vindicate the rights of individual allottees, is barred by that same

statute of limitations.

That the Montana statute of limitations should operate to bar

the Tribe’s claims as well as those of individual allottees is

illustrated by this Court’s decision in South Carolina v. Catawba

Indian Tribe, 476 U.S. 498, 507 (1986). In Catawba, the Tribe’s

constitution had been terminated and Tribal members were made

| subject to state law. 476 U.S. at 505. Federal trust protections for

the Catawba Tribe were discontinued and individual Tribal

members were no longer afforded the special protections of

federal Indian law. The Catawba Tribe nonetheless sued to

recover a sizeable tract of land, but this Court concluded that such

claims were governed by the state limitations period.'®

Like the Tribe in this case, the Catawbas contended that

while claims made by individual Tribal members might be

subject to the state limitations period, the Tribe itself was not

subject to state law under the terms of the Catawba Act. This

Court reversed an appeals Court decision which adopted the

Tribe’s reasoning and noted “It would be most incongruous to

preserve special protections for a Tribe whose constitution has

been revoked while withdrawing protection for individual

members of that Tribe.” 476 U.S. at 507. The Court concluded:

“Without special federal protection for the Tribe, the state statute

of limitations should apply to its claims in this case.” 470 U.S. at

507.

In precisely the same manner the Dawes Act and the Crow

Allotment Act altered the relationship between the Crow Tribe

18. The Court did not reach the issue of whether the limitations statute

actually barred the claims, instead remanding the case to the Circuit Court

which was “in a better position to evaluate such an issue of state law.” 476 U.S.

at 511.

and the national government. The Crow Tribe was to cease to

exist, its members were to be assimilated into society at large, and

federal trust protection was to end, with state law to become the

governing law in allotment cases. The Montana statute of

limitations properly bars the claims brought by the Crow Tribe.’

CONCLUSION

The Circuit Court rcached the appropriate conclusion in

determining that Congress did not intend that the Tribe enjoy a

right of action to enforce Section 2. Given the full airing of the

issues in the Courts below, the Crow Tribe’s petition for a writ of

certiorari should be denied.

Respectfully submitted,

LAURENCE R. MARTIN

Counsel of Record

MICHAEL K. RAPKOCH

FELT, MARTIN, FRAZIER

& NELSON, P.C.

Attorneys for Respondent

Campbell Farming Corporation

19. Campbell Farming Corporation offered an uncontroverted affidavit

at the District Court which established that, with the exception of one small

parcel purchased from a non-Indian, there had been no conveyances of allotted

land in the five years preceding the filing of the complaint.

OPPOSITION

BRIEF

No. 94-1281 Supreme Court, Y

bIiLED

In The MAR 4 1995

Supreme Court of the United S CE OF THE cupg

o— =

October Term, 1994

CROW TRIBE OF INDIANS,

Petitioner,

VS.

CAMPBELL FARMING CORPORATICN; ROBERT EARL

HOLDING; SINCLAIR OIL CORPORATION d/b/a

SUNLIGHT RANCH COMPANY; SUN VALLEY COMPANY

and KMH RANCH COMPANY,

Respondents.

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

of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

ROBERT EARL HOLDING; SINCLAIR OIL

CORPORATION D/B/A SUNLIGHT RANCH

COMPANY; SUN VALLEY COMPANY; KMMH

RANCH COMPANY AND ALL INTERVENORS

MICHAEL E. WEBSTER

Counsel of Record

GEORGE C. DALTHORP

NEIL G. WESTESEN

CROWLEY, HAUGHEY, HANSON,

TOOLE & DIETRICH

P.O. Box 2529

Billings, Montana 59103-2529

(406) 252-3441

Attorneys for Respondents Robert

Earl Holding; Sinclair Oil Corporation

d/b/a Sunlight Ranch Company; Sun

Valley Company; KMH Ranch Company;

and all Defendant Intervenors

BEST AVAILABLE'COPY |

(Continued)

GEORGE M. PAULSON, JR.

550 East South Temple

P.O. Box 30825

Salt Lake City, Utah 84130-0825

HUGH SWEENEY

HUGH SWEENEY, P.C.

2722 Third Avenue North, Suite 200

P.O. Box 2175

Billings, Montana 59103

JON E. DOAK

MATOVICH ADDY & KELLER, P.C.

2812 First Avenue North, Suite 225

Billings, Montana 59101

Attorneys for Respondents Robert Earl

Holding; Sinclair Oil Corporation d/b/a

Sunlight Ranch Company; Sun Valley

Company and KMH Ranch Company

QUESTIONS PRESENTED FOR REVIEW

1. Did the Ninth Circuit Court of Appeals properly affirm

dismissal of the Crow Tribe’s complaint when the grounds for that

dismissal were fully supported by the record?

2. Is the Ninth Circuit’s decision that Congress did not vest

the Crow Tribe with a private right of action to enforce Section 2 of

the Crow Allotment Act of 1920 consistent with the decisions of

this Court?

PARTIES TO THE PROCEEDING BELOW AND

RULE 29.1 STATEMENT

All parties to the proceeding below were identified at pages ii

and iii of the Petition for Writ of Certiorari filed herein.

None of the corporate parties to the proceeding have any

parent companies, subsidiaries (except wholly-owned

subsidiaries) or affiliates that have issued shares of stock to the

public that are not named parties herein.

tii

TABLE OF CONTENTS

Questions Presented forReview ....................

Parties to the Proceedings Below and Rule 29.1 Statement ..

Be cs, ECE ek Maat He INE:

SE, 6 tt: kcnsetivassuedee een

IEE VS Rdtaiawinn ox a buvackncacnoeae eae

sis es Ce wie eee ur

Reasons for Denyingthe Writ ......................

I. The record fully supports the Ninth Circuit’s

a Oe Oe ere er ae

II. The Ninth Circuit had to address whether the Crow

Tribe possessed a private right of action under

IE nics ok oh oa bcmec con bee ec,

III. In its analysis of Section 2, the Ninth Circuit

correctly differentiated between the Tribe and

MI, 5.65 bed ds deendchxkekvac.

A. The Tribe Is Not Mentioned InSection2. ...

B. The Remedy Provisions Exclude The Tribe. .

C. The Ninth Circuit’s Consideration Of

Legislative History Was No Detour. .......

Contents

D. The Ninth Circuit’s Distinction Between The

Tribe And Individual Indians Is Consistent

With Applicable Law. ............0.e00-

E. The Puyallup Decision Does Not Support The

TROP CAME. ccc cccccncsssscesese

IV. 28 U.S.C. § 1362 is a jurisdictional statute only.

V. The Ninth Circuit applied well established law in

determining that the Tribe has no implied private

right of action to enforce Section2. ............

eo Tr eee

TABLE OF CITATIONS

Cases Cited:

Americen Telephone & Telegraph Co. v. M/V Cape Fear,

GGT PAG GG4 eRe, IGS) oc ccccccnstccccscces:

Apodaco v. Silvas, 19 F.3d 1015 (Sth Cir. 1994) .........

Atlantic Coast Line R. Co. v. State of Florida, 295 U.S. 301

t. PPPrrrrrrrrrryT Tr rrr rr Try TT

Blatchford v. Native Village of Noatak, 501 U.S. 775, 111

S. Ct. 2578, 115 L. Ed. 2d 689(1991) ..............

Page

Contents

Page

Citizens Band of Potawatomi Indian Tribe of Oklahoma v.

Collier, 17 F.3d 1292 (10th Cir. 1994) .............. 17

Cort v. Ash, 422 U.S.66(1975) ............... 7, 11,23, 25, 26

Crow Tibe of Indians v. Campbel! Farming Corp., 828 F.

Supp. 1468 (D. Mont. 1992) ..................0. 1,6,9, 10

Crow Tibe of Indians v. Campbell Farming Corp., 31 F.3d

PES 5 o6ind 5 0h bake ndnd Kekenees 1,7,8, 12,15

Dillon v. Antler Land Company, 341 F. Supp. 734 (D. Mont.

1972,) aff’d, 5 07 F.2d 940 (9th Cir. 1974), cert.

eA 4,25

Duro v. Reina, 495 U.S.676(1990) ...............05. 10, 16

Ewell v. Daggs, 108 U.S. 143 (1883) .......... er eeee 14

Fisher v. Rule, 248 U.S.314 (1919) ....... Paar et 1

Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.2d

PEE sb be kundavdnds dascddcernecaces 18

Blatchford v. Native Village of Noatak, 501 U.S. 775, 111

oS. C2, 25 7G, BIDE. BG. SOGRP (IGG) once cccccccces 22

Contents

Page

Helvering v. Gowran, 302 U.S. 238 (1937) ............ 8

Jaffke v. Dunham, 352 U.S. 280 (1957) ............46. 8

James v. Watt, 716 F.2d 71 (1st Cir. 1983), cert. denied, 467

REPEC Te ee eer rere ry 18

Karahalios v. National Federation of Federal Employees,

Se NE 6.0 600 6A dae b4nn a phe wee oneness 14,24

Linda R.S. v. Richard D., 410 U.S.614 (1973) .......... 11

Middlesex County Sewerage Authority v. Sea Clammers,

re ree ere eee 14, 25

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) ..... 14

Moe v. Confederated Salish & Koorenai Tribes, 425 U.S.

NE Tr eee aT ery ae 20

Montana v. United States, 450 U.S. 544(1981) ......... 9

National Railroad Passenger Corporation v. National

Association of Railroad Passengers, 414 U.S. 453

GE 606s onsen dsdeenneseedskese bh0den eee bres 8

New York Tax Dept. v. Milhelm Attea & Bros. Inc., 512 U.S.

cei ED 65.605: 04544044s0 0000005 20

Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649

CE cidnek bndaskeddacnenudaeneaeeeeuaerenen 10, 16

vii

Contents

Page

Northern Plains Resource Council v. Lujan, 874 F.2d 661

RE si ea ne dcvo adds sicaeuiwasanakaes 11

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

SNESCARS ERI OSEIN deeds edb adadewsndedeawss 25

Poafpybitty v. Skelly Oil Company, 390 U.S. 365 (1968)

+60 ee REAER ON Oke EON nS OOM ba ep ereesas 18,25

Puyallup Tribe v. Washington Game Department, 433 U.S.

RE dbbackins eaubukowedss kWuebawseenes 19, 20, 21

Raypath Inc. v. City of Anchorage, 544 F.2d 1019 (9th Cir.

SE, 43 040 enh 0804 0a ha waepeed sod rks sawed nds 11,12

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ..... 18

Sterling Suffolk Racecourse Ltd. Partnership v.

Barrellville Racing Ass’n Inc., 982 F.2d 1266 (1st Cir.

SE Seen de whdeee hc buetawuheaesl cone Woe da 23

Suter v. Artist M, 503 U.S. 347, 118 L. Ed. 2d 1(1992) ... 16

Thompson v. Thompson, 484 U.S. 174(1988) ...... 15, 16,24, 26

Touche Ross & Co. v. Redington, 442 U.S. 560(1979) ... 15

United States v. Dann, 873 F.2d 1189 (9th Cir. 1989), cert.

denied, Dann v. United States, 493 U.S. 890 (1989) ... 18

United States v. James, 980 F.2d 1314 (9th Cir. 1992) .... 21

viii

Contents

Page

United States v. Nordic Village, Inc., 503 U.S. 30, 112 S.

Ct. 1011, 117 L. Ed. 2d 181(1992) ...........-0eee 22

United States v. Washington, 969 F.2d 752 (9th Cir. 1992),

cert. denied, _U.S. __, 113 S. Ct. 1945, 123 L. Ed. 2d

eer r er err errr rrr 8

Universities Research Association v. Coutu, 450 U.S. 754

bee eer rrr rr errr ry Sr or 25

Washington v. Yakima Indian Nation, 439 U.S. 463 (1979)

PO em re EO Tr rer es ey ere 7

Statutes Cited:

Crow Allotment Act of 1920, 41 Stat. 751 (1920):

es 6 ical ck 0 oe Keke eed ae we ere ae 4

UEP Ee PTE TUT CPOE TT CTT eC ee passim

Crow Allotment Act, 54 Stat. 252 (1940) .............. 4

General Allotment Act of 1887, ch. 119, 24 Stat. 388 (1887)

Ce oe hae ae he eae eee we ees 3,6

Indian Non-Intercourse Act, 25 U.S.C.§177 .......... 17,18

yO Pad 2: i erry rere ee sere 17

y Lik To be PP eererrrererrrer Tort ry tere. 21,22

Contents

Page

Rule Cited:

supreme CoumrtRmie 10.1 2... cece ccs cccccccccccces 2

Other Authorities Cited:

Comments of Representative Riddick, 59 CONG. REC.

SUPP OG EUID occ k ae cccccescactcscccecues 10

Comments of Senator Walsh, S. REP. No. 219, 66 Cong. Ist

I TED fg ccs scbccausecccscuacnces 10

H.J.R. REP. NO. 2040 (Sept. 12, 1966) ............... 22

Second Treaty of Fort Laramie, Article VI, 15 Stat. 649

rsa a aah ve ea 3 6 os 6 a de 3

WRIGHT & MILLER, FEDERAL PRACTICE AND

PROCEDURE, §SS7T9(19TS) once ccccccccccccece 22

INTRODUCTION

The Crow Tribe of Indians brought this action against

various non-Indian parties who own land within the Crow Indian

Reservation, alleging that these landowners had violated Section

2 of the Crow Allotment Act of 1920, 41 Stat. 751 (1920), simply

by virtue of the number of acres of land they owned within the

Reservation. The nature of the Tribe’s complaint was aptly

summarized by the district court:

In a nutshell, the Tribe asserts that § 2 requires

this Court to declare void the defendants’ title

to land in excess of that allowed by § 2, and

convey it to the Crow Tribe, a stranger to that

title, without consideration for how long the

defendants have held title and when and by

whom the land was originally conveyed, nor

for the improvements thereon (i.e., homes,

buildings, fencing, etc.). Moreover, rather

than compensating the present title holders,

the Tribe, on the basis of its alleged

entitlement under § 2, seeks compensation

from the defendants as they leave the property

they assumed for years they legally owned.

Crow Tribe of Indians v. Campbell Farming Corp., 828 F. Supp.

1468, 1470 (D. Mont. 1992). Pet. App. B, 12.

Both the district court, 828 F. Supp. 1468, and the Ninth

Circuit, 31 F.3d 768, held that the Crow Tribe’s complaint should

be dismissed, with the Ninth Circuit’s holding resting on the fact

that the Crow Tribe is not an especial beneficiary of Section 2 of

the Crow Allotment Act of 1920 and not vested by Congress with

any private right of action to enforce Section 2. Crow Tribe of

Indians v. Campbell Farming Corp.,31 F.3d 768 (9th Cir. 1994).

The Tribe’s Petition to this Court first attempts to call into

question the propriety of the Ninth Circuit’s review of the private

right of action issue, and then attempts to create confusion

concerning the correctness of the Ninth Circuit’s analysis.

Supreme Court Rule 10.1 counsels that issuance of a writ of

certiorari is “not a matter of right, but of judicial discretion.” This

case presents no reason to exercise that discretion. Section 2 of

the 1920 Crow Allotment Act is unique to the Crow Reservation,

and thus this case presents no issues of national importance. The

reasoning employed by the Ninth Circuit in this case is in

harmony, not conflict, with decisions of other courts of appeal.

_ The Ninth Circuit’s holding does not conflict with any decision of

a state court of last resort. Finally, the Ninth Circuit’s holding in

no way represents a departure from the acceptable and usual

course of judicial proceedings. Quite to the contrary, it is

apparent that the record provides ample support for the Ninth

Circuit’s conclusion that the Crow Tribe has no private right of

action to enforce Section 2. The Ninth Circuit’s analysis is also

consistent with the directives of this Court for determining

whether a particular plaintiff is vested with a private right of

action under a statute that does not specifically identify the

plaintiff as a party intended to enforce the statute. There simply is

no reason for this Court to review this case.

STATEMENT OF THE CASE

On March 4, 1991, the Crow Tribe of Indians (“Tribe”)

commenced this lawsuit against Campbell Farming Corporation,

Robert Earl Holding, Sinclair Oil Corporation, d/b/a Sunlight

Ranch Company, Sun Valley Company and KMH Ranch

Company. The Tribe’s complaint alleged that each of these

named defendants owns or controls lands located within the

Crow Indian Reservation (“Reservation”) in excess of the

acreazes described in Section 2. The Tribe requested that these

named defendants be divested of all land owned by them in

excess of the acreages described in Section 2. While the

complaint does not identify in whom title to this land should vest,

in subsequently filed briefs the Tribe argued that title to the land

should vest in the Tribe.’ The Tribe’s complaint also requested

that the defendants be enjoined from further violations of Section

2; that the Tribe be awarded damages for the named defendants’

use, Occupancy and enjoyment of such land; and that the Tribe

recover trespass damages and attorney’s fees. Fearing that a

ruling in favor of the Tribe would put in jeopardy title to most of

the land on the Reservation owned by non-Indians, 162

additional farmers and ranchers owning fee land within the

Reservation sought and received permission from the district

court to intervene as defendants.”

The Crow Indian Reservation encompasses approximately

2.3 million acres of land in southeastern Montana. The

Reservation evidences a “checkerboard” pattern of land

ownership resulting from the allotment of Reservation lands to

individual Indians. The allotment of Crow lands was first

sanctioned by the Treaty which established the Reservation.

Second Treaty of Fort Laramie, Article VI, 15 Stat. 649 (1868). In

addition, the General Allotment Act of 1887, ch. 119, 24 Stat. 388

(1887), authorized the allotment of Reservation lands to

individual Crow Indians. On June 4, 1920, Congress enacted the

Crow Allotment Act of 1920 to further facilitate allotment of

Reservation lands. 41 Stat. 751 (1920).

1. See Crow Tribe’s “Memorandum in Opposition to Motions to

Dismiss” filed in the district court September 17, 1991, pp. 11, 12; Crow

Tribe’s “Supplemental Memorandum in Opposition to Motion to Dismiss”

filed January 28, 1992 in the district court, pp.. 2, 6; and Brief of Appellant

Tribe before the Ninth Circuit, p. 36. Copies of these briefs have been lodged

with the Court should any member of the Court wish to review them.

2. The originally-named defendants, together with the 162 additional

intervening farmers and ranchers, are collectively referred to herein as

“Landowners.”

Section 1 of the Crow Allotment Act of 1920 provided that

allotments made pursuant to the Act shall “vest title (to the lands

allotted) in the allottee.” Section 1 further provided that

individual allotments were to be evidenced by fee patents to

“competent” Indians, and by trust patents conveying full

possessory rights in the lands allotted, to minors and

“incompetent” Indians. Section 2 of the Act applies only to lands

allotted to individual Indians and thereafter transferred to non-

Indian ownership.’ Section 2 commands that the Secretary of the

Interior is not to approve any conveyance of land by any Crow

Indian to any person, company or corporation who owns at least

640 acres of agricultural land or 1280 acres of grazing land within

the Reservation. In addition, Section 2 provides that the Secretary

shall not approve the conveyance of land by any Crow Indian to

any person, company or corporation that already owns land

within the Reservation if, after the conveyance, the acquiring

party would own more than 1280 acres of agricultural land or

1920 acres of grazing land. Section 2 further provides that any

conveyance by an individual Indian, made directly or indirectly,

in violation of the above provisions “shall be void and the grantee

accepting the same shall be guilty of a misdemeanor and be

punished by a fine of not more than $5,000 or imprisonment not

more than six months or by both such fine and imprisonment.”

3. Section 2 applied to both Indian and non-Indian grantees until 1940

when it was amended to allow individual Indians to acquire lands directly

from other Indian owners without conceern for acreage limitations in order to

consolidate family holdings. See 54 Stat. 252 (1940). This 1940 Amendment

does not alter the fact that Section 2 applies only to acquisitions from

individual Indians.

4. Contrary to the Tribe's claims, Section 2 does not prohibit ownership

of land in excess of the quantirties set forth in the statute. Section 2 merely

restricts the amount of land which may be purchased directly or indirectly

from an Indian. See Dillon v. Antler Land Company, 341 F. Supp. 734, 740 (D.

Mont. 1972), aff’d, 507 F.2d 940 (9th Cir. 1974), cert. denied, 421 U.S. 992

(1975).

All of the Landowners filed motions to disiaiss the Tribe’s

complaint, advancing a variety of grounds supporting dismissal,

including, inter alia, that the complaint failed to state a valid

claim for relief and that the Tribe lacked standing to pursue the

asserted claims. In addition, Campbell Farming Corporation

argued that the Tribe’s claims were barred by Montana’s statutes

of limitation and by laches. Campbell Farming Corporation filed

an uncontested affidavit in support of its statute of limitations

defense, and this aspect of its motion was thereafter treated as a

motion for summary judgment.

Contrary to the Tribe’s assertions, the precise issue of

whether the Tribe could advance a private right of action under

Section 2 of the Crow Allotment Act of 1920 was raised in the

first brief filed by the Landowners in the district court, and in every

other district court brief and in their answer brief filed in the Ninth

Circuit.* Lengthy portions of the Landowners and the Tribe’s briefs

also examined the historical context and legislative history of the

1920 Crow Allotment Act, with special emphasis on the purpose and

intended beneficiaries of Section 2.°

5. The issue of whether the Crow Tribe had a private right of action to

enforce Section 2 was specifically discussed by the parties in the following

briefs at the pages noted. Copies of all these briefs have been lodged with the

Court should any member of the Court like to review them: District Court: (1)

Defendant Landowners’ Brief in Support of Motion to Dismiss, filed June 19,

1991 at pages 12-23; (2) Plaintiff Crow Tribe’s Memorandum in Opposition to

Motion to Dismiss, filed September 17, 199, at pages 58, 62-73; (3) Defendant

Landowners’ Reply Brief in Support of Motion to Dismiss, filed December 11,

1991, at pages 28-40, 51-57; (4) Crow Tribe’s Supplemental Memorandum in

Opposition to Defendants’ Motion to Dismiss, filed January 28, 1992, at pages

52-53; Ninth Circuit: (5) Crow Tribe’s Appellate Brief, filed December of

1992, at pages 28-30; (6) Joint Brief of Appellees, filed February 19, 1993, at

pages 7-11, 20-22;p (7) Crow Tribe's Reply Brief, filed March of 1993, at

pages 5-7, 20-21. There is no need to remand this case for further briefing on

this already thoroughly discussed issue.

6. The legislative history of Section 2, the 1920 Crow Allotment Act, and

(Cont'd)

Oral argument was held on these motions to dismiss, and on

July 15, 1992, such motions were granted by the district court.

Crow Tribe, 828 F. Supp. at 1468. Pet. App. B, 11. The district

court dismissed the Tribe’s complaint after concluding that the

Tribe had failed to satisfy any of the Article III constitutional

requirements for standing. In addition, the district court

determined that Campbell Farming Corporation was entitled to

summary judgment on its statute of limitations defense inasmuch

as federal law required application of Montana’s statute of

limitations.

The Tribe appealed this decision to the Ninth Circuit. There,

the Landowners again advanced the argument that the Tribe was

not an especial beneficiary of Section 2, and thus without any

implied private right of action to advance their claims. The Tribe

responded to this argument in its reply brief. The legislative

history and underlying purpose of Section 2 was again discussed

in great detail in all the briefs filed with the Ninth Circuit. See

supra, notes 5 and 6. At oral argument before the Court of

Appeals there was also discussion concerning the Tribe’s role

under Section 2, and the Tribe’s inability to pursue any action

under this provision of the Crow Allotment Act.’

(Cont’d)

the 1887 General Allotment Act were discussed by the parties in the following

briefs at the pages noted. Again, copies of these pleadings have been lodged

with the Court for its reference. District Court: (1) Defendant’s Brief in

Support of Motion to Dismiss, at pages 5, 20-22; (2) Tribe’s Memorandum in

Opposition to Motion to Dismiss, at pages 1-4, 23-47; (3) Defendants’ Reply

Brief in Support of Motion to Dismiss, at pages 30-39; (4) Tribe’s

Supplemental Memorandum in Opposition to Defendants’ Motion to Dismiss,

at pages 10-16; Ninth Circuit: (5) Tribe’s Appellate Brief, at pages 8-22; (6)

Joint Brief of Appellees, at pages 4-13; and (7) Crow Tribe’s Reply Brief, at

pages 13-19. Nothing would be gained by remanding this case for additional

briefing on this issue.

7. See Transcript of January 5, 1994 oral argument at pages 6, 7, 8,9, 18,

20 and 25. Acopy of this transcript has also been lodged with the Court should

any member of the Court wish to review it.

On July 20, 1994, the Ninth Circuit Court of Appeals, in a

unanimous decision authored by Judge William C. Canby, Jr.,

held that the Tribe has no private right of action to enforce Section

2. In reaching this conclusion, the Ninth Circuit determined both

that the Tribe was not an especial beneficiary of Section 2, and

that the legislative history of the Crow Allotment Act evidenced

no congressional intent to vest the Tribe with any private right of

action to enforce the provisions of Section 2.*The Ninth Circuit

affirmed the district court’s dismissal of the Tribe’s complaint,

and subsequently denied the Tribe’s petition for rehearing with

no judge dissenting.°

8. The Ninth Circuit reviewed this issue in accordance with the four part

test delineated in Cort v. Ash, 422 U.S. 66, 78 (1975). See Crow Tribe, 31 F.3d

at 769. These factors are: (1) Does the plaintiff belong to the class for whose

especial benefit the statute was passed?; (2) Does the legislative history

disclose any intent to create or deny the right?; (3) Is the plaintiff's

enforcement of the statute consistent with the statute’s purpose?; (4) Is the

cause of action one traditionally relegated to state law?

9. This Court has appropriately held that an appellee may defend its

judgment on any ground properly raised below whether or not that ground was

relied upon, rejected, or even considered by the lower courts. See Washington

v. Yakima Indian Nation, 439 U.S. 463, 476 (1979); Granfinanciera vy.

Nordberg, 492 U.S. 33, 38 (1989). In addition to the defenses of lack of

standing and lack of a private right of action, the Landowners also asserted that

the Tribe failed to join indispensable parties, the Tribe is not the real party in

interest, and that Section 2 is unconstitutionally vague as to what activity it

proscribes. Finally, Campbell Farming Corporation also demonstrated that the

Tribe’s claims were barred by Montana’s five year statute of limitations. Each

of these arguments is supported by the record and would justify affirmance of

the District Court and a denial of the Tribe’s petition.

REASONS FOR DENYING THE WRIT

THE RECORD FULLY SUPPORTS THE NINTH

CIRCUIT’S DISMISSAL.

It is a fundamental and well settled rule that a reviewing

court may affirm a lower court’s decision on any grounds

supported by the record, including grounds different from those

relied upon by the lower court. See e.g., Helvering v. Gowran, 302

U.S. 238, 245 (1937); Jaffke v. Dunham, 352 U.S. 280, 281

(1957); United States v. Washington, 969 F.2d 752, 755 (9th Cir.

1992), cert. denied, __ U.S. ___, 113 S. Ct. 1945, 123 L. Ed. 2d 651

(1993). The Tribe articulates its acceptance of this rule, as it must,

but then asserts that the private right of action issue was

“unilaterally” reached by the Ninth Circuit without providing the

Tribe a “full, fair and meaningful opportunity to be heard.” (Pet.

9, 10). In addition to the extensive discussion of the private right

of action issue, the standing argument was thoroughly reviewed

by all parties. As noted by the Ninth Circuit, the issues of standing

and private right of action are simiiar in that both are primarily

concerned with the identity of the party bring the suit. Crow

Tribe, 31 F.3d at 769. (Pet. App. A, 3); see also, National Railroad

Passenger Corporation v. National Association of Railroad

Passengers, 414 U.S. 453, 455, 456 (1974). The Tribe’s

characterization of both the Ninth Circuit’s review of this issue

and the Tribe’s opportunity throughout this litigation to present

arguments thereon is simply inaccurate and nothing more than an

attempt to evoke sympathy where none is warranted.

As notes 5 and 6 indicate, both the Landowners and the Tribe

devoted significant portions of their briefs to the specific issue of

whether the Tribe could properly assert a private right of action

— eS

under Section 2 of the Crow Allotment Act of 1920.’ The

Landowners, at both the district court and the Ninth Circuit,

extensively argued that the Tribe could assert no claims based on

Section 2, since that section comprised part of an allotment act

and was in no way intended to especially benefit the Tribe. In

support of this argument, the Landowners quoted to both courts

the following portion of this Court’s decision in Montana vy.

United States, 450 U.S. 544 (1981), which considered the Crow

Allotment Act of 1920:

The policy of the [allotment] Acts was the

eventual assimilation of the Indian

population and the “gradual extinction of

Indian reservations and Indian titles.” The

Secretary of the Interior and _ the

Commissioner of Indian Affairs repeatedly

emphasized that this allotment policy was

designed to eventually eliminate tribal

relations. And throughout the congressional

debates on the subject of allotment, it was

assumed that the “civilization” of the Indian

10. As further evidence that the private right of action issue was well

developed on the record, Landowners direct this Court’s attention to Note 18 of

the district court decision, see Crow Tribe, 828 F. Supp. at 1475, Pet,. App. B.,

26:

Although the Tribe may vigorously protest, prior to the

Indian Reorganization Act, Congress did not

conclusively express an interest in preserving tribal

sovereignty. The legislative background indicates that

§ 2 was never intended as a cause of action after fee

patented land was properly sold the first time. I

therefore expect defendants are correct in asserting that

the Tribe has no cause of action under § 2. I expect

defendants would prevail on their motion to dismiss for

failure to state a claim for the same reason. It is simply

unnecessary, however, to address those issues in detail

since the two threshold issues dealt with in this

Memorandum are dispositive.

population was to be accomplished, in part,

by the dissolution of tribal relations.

* * *

There is simply no suggestion in this

legislative history that Congress intended

that the non-Indians who would settle upon

alienated lands would be subject to tribal

regulatory authority. Indeed, throughout the

congressional debates, allotment of Indian

land was consistently equated with the

dissolution of tribal affairs and jurisdiction. It

defies common sense to suppose that

Congress would intend that non-Indians

purchasing allotted lands would become

subject to tribal jurisdiction when an avowed

purpose of the allotment policy was the

ultimate destruction of tribal government.

(Citations omitted). Jd. at 559, n. 9. See also, Duro v. Reina, 495

U.S. 676, 691 (1990); Northern Cheyenne Tribe v. Hollowbreast,

425 U.S. 649, 650 n. 1 (1976).

Against this historic backdrop, the Landowners developed

the legislative history behind Section 2. This legislative history

shows that Congress did not intend to especially benefit the Tribe

or to vest the Tribe with any rights to bring an action to enforce

Section 2. See, e.g., Comments of Senator Walsh, S. REP. No.

219, 66 Cong. Ist Sess. (Sept. 23, 1919) (quoted in Joint Brief of

the Appellees before the Ninth Circuit, pp. 8, 9); Comments of

Representative Riddick, 59 CONG. REC. 5999 (April 22, 1920)

(quoted in Joint Brief of the Appellees before the Ninth Circuit, p.

9).

In addition to this discussion, the Landowners specifically

cited Cort v. Ash, 422 U.S. 66 (1975), and relied upon its four part

test to further establish that the Tribe has no private right of action

to enforce Section 2. The Tribe also cited repeatedly to Cort in

arguing that the Tribe did possess a right of action under Section

2. The Tribe was given a full, fair and meaningful opportunity to

present arguments on this issue, and the basis of the Ninth

Circuit’s decision is fully supported by the record.

Il.

THE NINTH CIRCUIT HAD TO ADDRESS

WHETHER THE CROW TRIBE POSSESSED A

PRIVATE RIGHT OF ACTION UNDER SECTION 2.

The Tribe disputes the propriety of the Ninth Circuit’s

inquiry into whether the Tribe possessed a private right of action

under Section 2. However, before a court can consider the merits

of a particular plaintiff’s complaint, or the propriety of the relief

requested, it must be established that the plaintiff is entitled to

invoke the judicial process. Linda R. S. v. Richard D., 410 U.S.

614, 616 (1973).

In considering the Tribe’s ability to advance the claims

asserted in its complaint, it is critical to note that at no relevant

time did the Tribe possess any legal entitlement or propriety

interest in any of the lands subject to Section 2. Authority from

this and other courts confirms that third party strangers to title

cannot present a valid cause of action questioning land titles in

which they have no interest. See Fisher v. Rule, 248 U.S. 314

(1919); Northern Plains Resource Council v. Lujan; 874 F.2d 661

(9th Cir. 1989). As the Ninth Circuit noted in Raypath Inc. v. City

of Anchorage, 544 F.2d 1019, 1021 (9th Cir. 1976).

[T]he validity of a deed or patent from the

federal government may not be questioned in

a suit brought by a third party against the

grantee or patentee, e.g. St. Louis Smelting

and Refining Co. v. Kemp, 104 U.S. 636, 647,

26 L. Ed. 875 (1882); VanWyk v. Knevals, 106

U.S. 360, 369, 1 S. Ct. 336, 27 L. Ed. 201

(1882). Simply stated, a plaintiff in such a

case has no cause of action.

Here, too, the Tribe, as a third party stranger to title, cannot bring

its claims before the courts because it has no legal property

interest in the-lands subject to Section 2. Recognizing that the

Tribe lacked any interest in the lands involved in their complaint,

the Ninth Circuit was required to consider whether Section 2 of

the Crow Allotment Act of 1920 provided a separate and

independent statutory basis for a private right of action in the

Tribe. The Ninth Circuit appropriately conducted that inquiry and

appropriately determined that the Tribe had no such basis for

bringing its claims.

Il.

IN ITS ANALYSIS OF SECTION 2, THE NINTH

CIRCUIT CORRECTLY DIFFERENTIATED BETWEEN

THE TRIBE AND INDIVIDUAL INDIANS.

A. The Tribe Is Not Mentivned In Section 2.

The Ninth Circuit, in considering whether the Tribe

possessed a valid private cause of action under Section 2, began

its analysis by carefully reviewing the specific language of the

statute to determine if the Tribe was included within the class

intended to be especially benefited by the law. Crow Tribe, 31

F.3d at 770. (Pet. App. A, 5, 6). In so doing, the Ninth Circuit

correctly observed that there is no reference whatsoever to the

“Tribe” within the whole of Section 2. Rather, the Court

observed, Section 2 refers to individual Indians in their

“individual capacities”, to the Secretary of the Interior, and to

purchasers of land. As Judge Canby’s opinion states,

“Conspicuously absent is any reference to the Tribe or even a

vague reference to Indians that might create room for argument.”

Id. (Pet. App. A, 6).

B. The Remedy Provisions Exclude The Tribe.

In addition to carefully considering the specific language

employed by Congress in Section 2, the Ninth Circuit also looked

at the statutory remedies contemplated by the statute to determine

whether those remedies disclose that the Tribe, while not

mentioned in the statute, was nevertheless intended to possess

some private right to enforce Section 2. Again, the Ninth Circuit’s

review evidenced that the three remedy provisions contained

within Section 2 were directed toward individual Indians and the

United States, but not the Tribe. Jd. (Pet. App. A, 7).

At pages 15-17 of its Petition, the Tribe asserts that because

the statutory remedy for Section 2 violations might be interpreted

to make violative conveyances merely “voidable” and not

necessarily “void”, the Tribe should be given an opportunity to

advance an “equitable” remedy which might bring the Tribe

within the scope of those parties covered by the statute. The

Tribe’s argument appears to be that if void could mean voidable,

and if the Tribe could convince a court that it ought to receive the

alleged excess lands, then the Tribe should have the right to

pursue its own action. Surely, Congress did not envision that such

a bootstrapping approach could establish a private right of action.

By hypothetically fitting oneself within the ambit of some self-

created equitable remedy, one does not become an especial

beneficiary of a statute. Further, it is clear that the Tribe’s

argument in this regard is contrary to settled law that provides

that when a statute sets forth a specific remedy, courts must be

especially reluctant to provide other remedies in “the absence of

strong indicia of contrary Congressional intent.” Middlesex

County Sewerage Authority v. Sea Clammers, 453 U.S. 1, 15

(1981); Karahalios v. National Federation of Federal

Employees, 489 U.S. 527, 533 (1989).

The authorities cited by the Tribe for the notion that “void”

may mean “voidable” add nothing to the Tribes’s position. In

Ewell v. Daggs, 108 U. S. 143 (1883) this Court held that a

contract could be voided by a party to the contract under a Texas

usury statute. In Atlantic Coast Line R. Co. v. State of Florida,

295 U.S. 301 (1935), the Court noted that charges levied under a

void or voidable order of the Interstate Commerce Commission

could be claimed as an equitable remedy by those who had paid

the charges. Finally, in Mills v. Electric Auto-Lite Co., 396 U.S.

375 (1970), the Court concluded that an innocent party to an

improper merger could elect to set aside the merger.

Significantly, in each of these cases, the party empowered to void

an agreement, challenge a rate, or defeat a merger was directly

involved in the underlying transaction, and thus possessed their

own right of action. The Tribe’s analysis of “void” or “voidable”,

at the remedy stage, begs the question of whether the Tribe has the

necessary right of action to commence the suit. The fact that an

individual Indian grantor may have the election of treating a

conveyance completed in violation of Section 2 as void or

voidable does not give rise to a private right of action in the Tribe.

C. The Ninth Circuit’s Consideration of Legislative History

Was No Detour.

In addition to reviewing the statutory language and remedy

aspects of Section 2, the Ninth Circuit also specifically

considered the legislative history of Section 2 in concluding that

Congress intended “only individual Indians to have a right of

action.” Crow Tribe, 31 F.3d at 771, Pet. App. A, 7. In reaching

this inescapable conclusion, the Ninth Circuit noted the

Congressional policies in place at the time the Crow Allotment

Act was passed and that the Act was intended to further the policy

of assimilation by making “individual Indians more

independent.” As such, the Ninth Circuit correctly concluded that

the policy considerations behind allotment would be wholly

inconsistent with the notion that Congress intended to provide the

Tribe with a private right of action to enforce Section 2. Id. Pet.

App. A, 9.

The Tribe also asserts that the Ninth Circuit erred and “took a

detour” in looking for evidence of Congressional intent to vest

the Tribe with a private right of action. This inquiry by the Ninth

Circuit involved neither a “detour” nor any error in legal analysis,

but rather was in complete accord with the holdings of this Court

relative to determining whether a particular plaintiff possesses an

implied right of action. In fact, it is now clear that in “determining

whether to infer a private cause of action from a federal statute,

our focal point is Congress’ intent in enacting the statute.”

Thompson v. Thompson, 484 U.S. 174, 179 ( 1988). This intent on

the part of Congress is the “essential predicate for implication of a

private remedy.” Jd.

The Tribe's rationale for objecting to any inquiry into

legislative intent is certainly understandable since that inquiry

leaves no doubt but that Congress did not intend to place the

enforcement of Section 2 in the hands of the Tribe. The Tribe has

never, in the district court, circuit court, or this Court, pointed toa

single bit of legislative history that would indicate that Section 2

was enacted for the especial benefit of the Tribe, much less that

Congress intended to provide the Tribe with an implied private

right of action to enforce this section. See Touche Ross & Co. v,

Redington, 442 U.S. 560, 571 (1979). It is the Tribe’s burden to

provide this evidence, and the Tribe has consistently failed to

carry that burden. See Suter v. Artist M, 503 U.S. 347, 118 L. Ed.

2d 1, 16(1992).

This Court has instructed that legislative intent may be

inferred from the language and context of the statute, as well as

from its legislative history. See Thompson v. Thompson, 484 U.S.

at 180. It was, in fact, these very things that the Ninth Circuit

considered in its review of the Tribe’s attempt to assert a private

rigat of action in this case. In addition this Court has instructed

that the intent to supply a private right of action is to be

determined at the time of Congressional passage of the Act under

review, and not at some later date, Jd. Here, all of the indicia of

legislative intent in existence at the time of passage of the Crow

Allotment Act of 1920 reinforces the Ninth Circuit’s

determination that the Tribe has no implied right of action to

enforce Section 2.

In the face of the Ninth Circuit’s thoughtful analysis and

compelling reasoning, the Tribe nevertheless asserts that the

court committed error, and that the court should have treated the

Tribe and individual Indians as one for purposes of the Tribe’s

complaint. The Tribe conveniently ignores, in advancing this

argument, that Section 2 is found within the Crow Allotment Act

of 1920. As noted, the 1920 Act was passed to implement the

policies behind the General Allotment Act, — the termination of

Tribes, the ending of tribal relations and the assimilation of

individual Indians into modern society. Duro v. Reina, 495 U.S.

676, 691 (1990); (“The 60 years preceding the [Indian

Reorganization] Act had witnessed a calculated policy favoring

elimination of tribal institutions, sale of tribal lands, and

assimilation of Indians as individuals into the dominant

culture.”); Northern Cheyenne Tribe v. Hollowbreast, 425 U.S.

649, 650 n.1 (1976) . These policies are wholly inconsistent with

any intent to provide the Tribe with a private right of action. As

the Ninth Circuit noted, the language and historical context of

Section 2 leave no doubt but that Section 2 was intended to

benefit individual Indians and not the Tribe. Quite simply, the

Crow Allotment Act of 1920 was passed with the ultimate

expectation by Congress that the Tribe would eventually

disappear, not with an expectation or intention that the Tribe

should be vested with special rights flowing from the Act. The

rights conferred on individual Indians through the allotment

process were intended to further the termination of tribal

relations and to place individual Indians in an independent status

free of tribal influence. The complained of distinction between

the Tribe and individual members was, therefore, a distinction

made by Congress nearly 75 years ago, and not one created by the

Ninth Circuit.

D. The Ninth Circuit’s Distinction Between The Tribe And

Individual Indians Is Consistent With Applicable Law.

The Tribe asserts that it would defy “common sense” to

conclude that a statute giving a private right of action to an

individual Indian would not also confer a similar right in the

Tribe. Yet, such distinctions between Tribes and individual

Indians are regularly and properly reached by the courts and

Congress. See, e.g., Apodaca v. Silvas, 19 F.3d 1015, 1017 (Sth

Cir. 1994) (finding individual Indian lacked private right of

action to sue under a provision of the Ysleta del Sur Pueblo and

Alabama and Coushatta Indian Tribes of Texas Restoration Act of

1987 — because the Act was intended to benefit the Tribe);

Citizens Band of Potawatomi Indian Tribe of Oklahoma y.

Collier, 17 F.3d 1292 (10th Cir. 1994) (finding Indian tribe had no

interest in lands located on another reservation which might be

allotted to members of plaintiff tribe); 25 U.S.C. § 357

(authorizing the condemnation of allotted lands only). It is also

well established that individual Indians have no private right of

action to enforce the Indian Non-Intercourse Act, 25 U.S.C.

§ 177, since that Act was designed only to protect tribal land

rights.'' James v. Watt, 716 F.2d 71, 72 (1st Cir. 1983), cert.

denied, 467 U.S. 1209 (1984); United States v. Dann, 873 F.2d

1189, 1195 (9th Cir. 1989), cert. denied, Dann v. United States,

493 U.S. 890 (1989); Golden Hill Paugussett Tribe of Indians v.

Weicker, 39 F.3d 51, 56 (2nd Cir. 1994). Just as courts have

properly distinguished between a tribe and an individual Indian

in concluding that only tribes possess a private cause of action to

enforce the Indian Non-Intercourse Act, so, too, did the Ninth

Circuit properly differentiate between individual Indians and the

Crow Tribe in concluding that only individual Indians possess a

private right of action to enforce Section 2.

Contrary to the Tribe’s inference, Santa Clara Pueblo v.

Martinez, 436 U.S. 49 (1978), Pet. 13, is applicable here and

_ provides a vivid illustration of how the inherent tension between

a tribe and its members can impact and limit their respective

rights under a statute. In Santa Clara, this Court observed that the

Indian Civil Rights Act expanded the rights of individual Indians

at the expense of certain tribal powers. Similarly, allotments

pursuant to the Crow Allotment Act of 1920 depleted the land

base of the Tribe. The recognized purpose of allotment acts was to

disempower tribes while empowering individual Indians “to take

their place as independent, qualified members of the modern

body politic.” Poafpybitty v. Skelly Oil Company, 390 U.S. 365,

369 (1968), quoting Board of County Commissioners v. Seber,

318 U.S. 705, 715 (1943). The tension between the interests of the

Tribe and individual Indians stemming from the Crow Allotment

Act of 1920 further explains why individual Indians may possess

a private right of action under Section 2 while the Tribe does not.

11. The Indian Non-Intercourse Act cannot be looked to by the Tribe

since the only lands subject to Section 2 are lands allotted to individual Indians

pursuant to the 1920 Crow Allotment Act.

E. The Puyallup Decision Does Not Support The Tribe’s

Argument.

Finally, Puyallup Tribe v. Washington Game Department,

433 U.S. 165 (1977), is inapposite to the Tribe’s position. In

Puyallup, the State of Washington, as plaintiff, sought to require

members of the Puyallup Tribe to obey state laws controlling

fishing for steelhead trout. The State’s complaint, which placed

in issue the treaty fishing rights of the Puyallup Tribe and its

members, did not name the Tribe as a defendant (presumably

because of the Tribe’s immunity from suit), and instead named a

number of individual Indian defendants, including three tribal

officials, as well as unidentified tribal members John Doe and

Jane Doe. In response to the State’s lawsuit, the Puyallup Tribe

did appear, both on behalf of its members and in its Capacity as a

sovereign. The situation presented in Puyallup is hardly akin to

the instant action.

Here, the Tribe commenced this action as the sole party

plaintiff. In addition, the Crow Tribe looks to an allotment act to

support its claims, rather than asserting treaty based defenses.

Further, the right of the Crow Tribe to independently pursue its

claims has been disputed by the Landowners from the very outset

of this case, while in Puyallup the Court noted that the record

showed no objection to the “Tribe’s representation of the

individual defendants.” 433 U.S. at 170, n. 8.

Another extremely significant difference involves the end

result sought to be achieved and the interests sought to be

protected in each case. In Puyallup, the Puyallup Tribe asserted

its treaty rights for fishing, rights that were utilized by or which

presumably inured to the benefit of all tribal members. Further,

the defenses advanced in Puyallup directly related to the

sovereign rights and powers of the Puyallup Tribe. Here, the

Crow Tribe has admitted that Section 2 “does not directly

implicate the Tribe’s governmental interests.” Pet. 13.’

Additionally, the relief sought by the Crow Tribe is personal to

the Tribe, in the form of monetary damages and title to land.

Moreover, the Tribe’s admission that some individual tribal

members will likely be directly harmed should the Tribe be

permitted to pursue its claims clearly distinguishes this case from

Puyallup. Pet 18,n. 12.°

In addition to these obvious and dramatic distinctions, this

Court’s analysis of the Puyallup Tribe’s sovereign immunity

defense provides yet another example of the differing treatment

accorded tribes and individual Indians. In Puyallup, this Court

noted that the Tribe was immune from suit, but that individual

members of the Puyallup Tribe were not.

[W jhether or not the Tribe itself may be sued

in a state court without its consent or that of

Congress, a suit to enjoin violation of state

law by individual tribal members is

permissible. The doctrine of sovereign

immunity which was applied in United States

12. The Tribe also cites to Moe v. Confederated Salish & Koorenai

Tribes, 425 U.S. 463 (1976). Again, Moe involved issues of tribal sovereignty

(Freedom from state taxation) and the effort by a tribe to protect the interests of

all tribal members (to be free from additional taxes). See New York Tax Dept. v.

Milhelm Attea & Bros. Inc.,512 U.S. __, 129 L. Ed. 2d 52, 64 (1994).

13. Even if one accepted the Tribe’s faulty premise that because Section

2 benefits individual Indians, the Tribe might also have a private right of action

under Section 2, the noted admission of antagonistic interests between the

Tribe and individual Indians would be fatal to the Tribe’s claims, based on the

Tribe’s own statement that “in the absence of any indication of an adversity of

interest between ... a tribe and its members, one would naturally and

ordinarily believe that a law enacted to benefit one also would be intended to

benefit the other.” Pet. 13.

v. United Fidelity and Guaranty Co., 309 U.S.

506, 84 L. Ed. 894, 60 S. Ct. 653, does not

immunize the individual members of the

Tribe.

Puyallup Tribe, 433 U.S. at 171-172. See also, United States v.

James, 980 F.2d 1314, 1319 (9th Cir. 1992).

It is clear that the Ninth Circuit correctly concluded that the

Crow Tribe cannot pursue its own action to enforce Section 2

simply because that Section benefits individual Indians who are

also members of the Tribe. To have concluded otherwise would

defy common sense, and would have required the Ninth Circuit to

ignore the intent of Congress expressed in the Crow Allotment

Act of 1920.

IV.

28 U.S.C. § 1362 IS A JURISDICTIONAL STATUTE

ONLY.

In its Petition (p. 19, 20), the Tribe argues that the Ninth

Circuit erred in not considering the “potentially dispositive”

impact of 28 U.S.C. § 1362. The Tribe asserts that this statute

supplies the Tribe with its missing private right of action by

permitting the Tribe to stand in the shoes of the United States and

enforce Section 2. The Tribe’s argument misapplies this

jurisdictional statute and improperly attempts to expand its

scope. Section 1362 provides:

The district court shall have original

jurisdiction of all civil actions, brought by

any Indian Tribe or band with a governing

body duly recognized by the Secretary of the

Interior, wherein the matter in controversy

arises under the Constitution, laws, or treaties

of the United States.

Section 1362 was enacted in 1966 for the sole purpose of

allowing Indian tribes to bring actions in federal court without

first satisfying the amount in controversy requirement then

existing under the federal question statute. See H.J.R. REP. NO.

2040 (Sept. 12, 1966), at 3146; WRIGHT & MILLER,

FEDERAL PRACTICE AND PROCEDURE, § 3579 (1973).

Section 1362 provides federal courts with jurisdiction over

certain federal Indian claims, but that is all it accomplishes.

United States v. Nordic Village, Inc., 503 U.S. 30, 112 S. Ct. 1011,

1017, 117 L. Ed. 2d 181, 190 (1992); Blatchford v. Native Village

of Noatak, 501 U.S. 775, 111 S. Ct. 2578, 115 L. Ed. 2d 689

(1991). As this Court has noted, “The fact that Congress grants

jurisdiction to hear a claim does not suffice to show Congress has

abrogated all defenses to that claim. The issues are wholly

distinct.” (emphasis supplied by Court), Nordic Village Inc., 503

U.S. at _, 117 L. Ed. 2d at 190, quoting from Blatchford, 501

U.S. at__, 115 L. Ed. 2d at 699.

Congress, in authorizing federal court jurisdiction over

tribal claims, did not, and indeed could not, waive the

Constitutional requirements which require that every plaintiff

validly possess its own cause of action. Thus, while Section 1362

would provide the Tribe access to federal court if the Tribe could

establish its own private right of action, Section 1362 is of no

assistance to the Tribe in this case.

THE NINTH CIRCUIT APPLIED WELL

ESTABLISHED LAW IN DETERMINING THAT THE

TRIBE HAS NO IMPLIED PRIVATE RIGHT OF

ACTION TO ENFORCE SECTION 2.

In attempting to persuade this Court that review of the N inth

Circuit’s opinion is appropriate, the Tribe asserts that the Ninth

Circuit’s analysis of the Cort v. Ash standards for a private right of

action is in conflict with the decisions of other circuits, and that

the conclusions reached by the Ninth Circuit herein are incorrect.

The Tribe is wrong on both points.

Initially, it must be noted that the Tribe fails to cite toa single

case which supports its assertion that the inquiry undertaken by

the Ninth Circuit was legally incorrect or in any way at odds with

established case law. The Tribe’s citations to Sterling Suffolk

Racecourse Ltd. Partnership v. Barrellville Racing Ass’n Inc.,

989 F.2d 1266 (lst Cir. 1993) and American Telephone &

Telegraph Co. v. M/V Cape Fear, 967 F.2d 864 (3rd Cir. 1992)

provide no support for the Tribe’s attack on the Ninth Circuit’s

reasoning nor do those cases evidence any conflict between the

circuits, since both employed the same analytical reasoning

employed herein by the Ninth Circuit. Both cases cited by the

Tribe required that there first be a determination of whether the

party advancing a particular claim is an “especial beneficiary” of

the relevant statute, with the inquiry then proceeding to a

determination of whether Congress intended to vest that plaintiff

with an implied right of action to enforce such statute. See

American Telephone & Telegraph Co., 967 F.2d at 866, 867;

Sterling Suffolk, 989 F.2d at 1268-1271. These cases describe

precisely the type of inquiry undertaken by the Ninth Circuit, and

that inquiry is fully consistent with the holdings of this Court.

See, e.g., California v. Sierra Club, 451 U.S. 287 (1981);

Thompson v. Thompson, 484 U.S. 174 (1988); and Karahalios v.

National Federation of Federal Employees, 489 U.S. 527 (1989).

Much of the Tribe’s argument concerning the Ninth Circuit’s

“especial beneficiary” analysis is built upon the Tribe’s faulty

premise that the Tribe and individual members must be viewed as

one for purposes of Section 2. As discussed at pages 12 through

21, this argument ignores the specific language employed in

Section 2, which carefully omits any reference to the Tribe, the

remedy provisions of the statute, and the fact that Section 2 was

part of an act that was intended to benefit individual Indians at the

expense of the Tribe. These factors alone establish that the Tribe

is not an especial beneficiary of Section 2, and thus without any

private right of action to enforce that section.

Additionally, a review of the Tribe’s Petition evidences a

continuing misunderstanding of the especial beneficiary

requirement. Throughout its Petition, the Tribe argues that it

would be “benefited” by enforcement of Section 2 (see, e.g., Pet.

13, 17), and that it has an interest in protecting tribal members and

the overall character of the Reservation (Pet. 16). Even if the

Tribe’s assertions were accepted as true, courts are not free to

“engraft a remedy ona statute. . . that Congress did not intend to

provide.” California v. Sierra Club, 451 U.S. 287, 297 (1981).

Furthermore, the possibility that the Tribe might derive some

indirect or ancillary benefit from enforcement of Section 2 does

not make the Tribe the especial beneficiary of this law. Moreover,

any incidental benefit which might arguably be derived from

enforcement of this law does not rise to the level that would

equate with a finding of obvious Congressional intent to vest the

Tribe with a private right of action to enforce Section 2. “The

question is not simply who would benefit from the Act, but

whether Congress intended to confer federal rights upon those

beneficiaries.” California v. Sierra club, 451 U.S. 287, 294

(1981).

Section 2 was, as noted by the Ninth Circuit, aimed at

individual Indians, the allotment process, and the federal

government’s oversight responsibilities relating thereto. The Act

provides specific directives to the Secretary of the Interior when

considering whether to approve a conveyance of land held in trust

for individual Indians. The fact that this statute is framed as a

directive to the Secretary of the Interior further supports the

conclusion that Congress did not intend this Section to create any

right of action in the Tribe. See Universities Research Association

v. Coutu, 450 U.S. 754, 772 (1981).

Furthermore, Section 2 provides specific punitive penalties,

including criminal penalties, for violations of Section 2. The

existence of criminal penalties as an integral part of the

enforcement mechanism is extremely instructive that Congress

did not intend for tribal enforcement, since Congress has never

viewed tribes to have any punitive powers over non-Indians.

Oliphant v. Suquamish Indian Tribe, 435 U.S. 19] (1978).

Thus, the entire structure, language, context and history

surrounding Section 2 demonstrated that Congress intended no

one other than the individual Indian owners and the United States

to have any special rights to enforce Section 2. See Dillon v.

Antler Land Company, 507 F.2d 940 (9th Cir. 1974), cert. denied,

421 U.S. 992 (1975); see also, Poafpybitty v. Skelly Oil Co., 390

U.S. 365 (1968). Additionally, inasmuch as Congress has

supplied within the statute “elaborate enforcement provisions it

cannot be assumed that Congress intended to authorize by

implication additional judicial remedies. . . .” Middlesex County

Sewerage Authority v. National Sea Clammers Association, 453

U.S. 1, 141981).

Finally, the Tribe asserts that the Ninth Circuit was required

to consider the third and forth Cort criteria before deciding

whether the Tribe was vested with a private right of action. It is

clear, however, that if the first two criteria set forth in Cort are not

satisfied, courts need not consider the remaining factors, because

the third and fourth factors are only relevant “if the first two

factors give indication of Congressional intent to create the

remedy.” California v. Sierra Club, 451 U.S. 287, 298 (1981). Put

another way, because the first two factors of Cort do not evidence

any Congressional intent to vest the Tribe with a private right of

action, the “essential predicate for implication of a private

remedy plainly does not exist.” Thompson v. Thompson, 484 U.S.

at 179.

CONCLUSION

For all the reasons stated above, the Crow Tribe’s petition for

a writ of certiorari should be denied.

Respectfully submitted,

MICHAEL E. WEBSTER

Counsel of Record

GEORGE C. DALTHORP

NEIL G. WESTESEN

CROWLEY, HAUGHEY,

HANSON, TOOLE & DIETRICH

P.O. Box 2529 |

Billings, Montana 59103-2529

406-252-3441

Attorneys for Robert Earl Holding;

Sinclair Oil Corporation, d/b/a

Sunlight Ranch Company; Sun Valley

Company; KMH Ranch Company;

and all Defendant Intervenors

GEORGE M. PAULSON, JR.

550 East South Temple

P.O. Box 30825 rh

Salt Lake City, Utah 84130-0825

HUGH SWEENEY

HUGH SWEENEY, Pe.

2722 Third Avenue North,

Suite200 !

P.O. Box,2175

Bligs,Montan 59103

JON E. DOAK

MATOVICH ADDY &

KELLER, P.C.

2812 First Avenue North,

Suite 225

Billings, Montana 59101

Attorneys for Respondents Robert

Earl Holding; Sinclair Oil

Corporation d/b/a Sunlight Ranch

Company; Sun Valley

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