Petition for Writ of Certiorari — Guam Economic Development Authority v. United States

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Bupremé Court, U.S.

(VD FILED

BO 818)N0V 10 5999

: QFFICE OF THE CifRK

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1999

No.

THE GOVERNMENT OF GUAM, ex rel.

THE GUAM ECONOMIC DEVELOPMENT AUTHORITY,

Petitioner,

THE UNITED STATES OF AMERICA, THE DEPARTMENT

OF DEFENSE, THE DEPARTMENT OF THE NAVY, THE

DEPARTMENT OF THE AIR FORCE, THE DEPARTMENT OF’

THE INTERIOR, THE UNITED STATES FISH AND

WILDLIFE SERVICE, and THE GENERAL SERVICES

ADMINISTRATION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

LOUIS F. CLAIBORNE ANDREW M. GAYLE

JOHN BRISCOE GAYLE & TEKER

Counsel of Record A Professional Corporation

MICHAEL K. PIGNATO 330 Hernan Cortez Avenue

WASHBURN, BRISCOE & Agana, Guam 96910-5018

McCARTHY Telephone: (671) 447-9891

A Professional Corporation Facsimile: (671) 472-2601

55 Francisco Street, Suite 600

San Francisco, California 94133

Telephone: (415) 421-3200

Facsimile: (415) 421-5044

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether Section 28(b) of the Guam Organic Act of

August 1, 1950, requires the transfer of control to the Government

of Guam of uplands, and tidelands, presently held by the United

States but no longer needed for military purposes.

2. Whether, assuming Guam prevails on the First Claim of

the Amended Complaint, Section l(a) of the Territorial

Submerged Lands Act of October 5, 1974, requires the transfer of

title to the adjacent submerged lands to Guam.

3. Whether, alternatively, assuming —_—unextinguished

aboriginal title still attaches to the sum of these lands, control and

possession of them must now be transferred to Guam.

TABLE OF CONTENTS

Page

RPUESTEOINS PRESENTED ...c.cscisssscsssocessssesssecsnsssoosseosscoec..-... i

cng cipal a EE 2

nk bs ge ED RS aE 2

STATUTES AND EXECUTIVE

I dc tnrcs chun siicuvinsncacadscaaeecicsioc vicki. 2

i ok get 2 ae ee ae 3

A. Factual and Statutory Background........................... 3

i , A ee ee 7

REASONS FOR GRANTING THE WRIT 00...--cccceecce-c----- 9

I. The Decision Below Conflicts with Long-Settled

Law Established by This Court ........c.ccccccccceceocee----.. 10

A. Direct Conflict with Carifio...cccccccccccccccceccccccc. 10

B. Conflict with “Plain Meaning Rule”...................... 14

C. Conflict with Precedents Governing Standing

To Assert an Aboriginal Title Claim...................... 21

D. Conflict with Precedents Allowing Assertion

Of Aboriginal Title against the United States........ 24

I]. The Errors Below Involve Matters

of Recurring Importance That Call

for Correction by this Court ........cccccccccccscscsesceseececeee., 25

A. Relevance of the Context to the

Cpa tg yg. EEE 25

B. Relevance of Rice v. Cayetano ooececccccccccccoeeeccc---... 28

Page

Re a INT its ic oir ickdesabucsudenteheassihbeuinina sicciienaimanaiaacas 29

FE NTI R EY dnttiniacigtcchanceriinaddicnaab aa iaaiseekutedeaien la

FOF TE Oi ik saneciishisrattgninidhtkiacdieaichilaadiaigitcdieedeniatas 3a

FREE RT Mis sass si cctbhis ihc picessandianicnetnamnaamatianaea ticki: tale

PET ED ciiisiaitiseisinasctrnindtinsstintmnakaane 23a

PO METI Pe vciicscsinisnidineecnichese stable eeceGadinalecamaaanebgaienaniael 27a

FORE TGIF <isissicestenscinsidcdjcdigllascciiedbintes neice: 57a

PE ANTE OE visiseinpihitihiidnitntanuindaiiabee somumekibiaaeemuubcae 58a

FEES MAPNGTE TE cinisvticnemnncinsecccanaandaad bhai 59a

POC IGT icviiciiccitinhtncdeaapianmmniokipadoiabade 60a

PE EE ihsk stn ia sceginsseipnscin eg aaaivaaectecsaneeodiaoaaharveadsaaan 62a

Fo ATE TIE UE ini ibirdpisbisitainiadesapilionigaedeabuiaiiianicanensael 63a

FUE PRINTED eaicacieseens nirsnionninsteriididedacshacasbocansanceideauiatec’ 66a

TABLE OF AUTHORITIES

CASES

Page(s)

Arizona v. California, 373 U.S. 546 (1963)

een cmmpnnal,, AGO UES. GOS (GG a ii cisssessiesisicssicsscssenssasesenccne 27

Board of County Comm'rs v. Seeber,

Pe ri Pe ici idicencs snacadtauicansce actardetscsgas ee 27

Boston Sand and Gravel Co. v. United States,

Fe hes hg i iesikttecicectendantininida ddiiin ait deren, 16

Bryan y. Itasca County,

Se SED, BAF Cassi cine ict tieataanstaataaadoabiaiian io, a4

California, ex rel. State Lands Comm'n v. United States,

RS7 UD 210 ea encsiicbannudomas i,a!

Carino v. Insular Government,

FR Ba 0 ee rickstadiccananaledcie tac oe ealabincieaticaas 10, 11

Carifio v. Insular Government of the Philippine Islands,

Fae Bek. Fe, SRR itunmmnenmmrarrenty tere home a i! passim

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) ............ 26

Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)... eens 14

Ciroete v.. Tam, 2A UE. GES CTU viiesscnsctsticsecctincssntssinintans 26

Choctaw Nation of Indians v. United States,

SEB UD re Care is ern danish nein, 15

Chouteau v. Malony, 57 U.S. (16 How.) 87 (1853) «0.0... 26

CASES

County of Oneida v. Oneida Indian Nation

(Oneida IT), 470 U.S. 226 (1985)... [S, £oe aa ar

Cramer vy. United States,

DOE COB. ZUG aad nccissitideithsssiastitenddpacbdadaaatsils eae

Ee VW. aaa, EEE UF Fe Cee inieicssatdssintteocciteneiiciendecehs 26

Ex Parte Crow Dog, 109 U.S. 556 (1883) .............cscceseeceeeeeeees 26

Federal Power Comm'n v. Tuscarora

Indian Nation, 362 U.S. 99 (1960) ...........c..ccccsssceseereeeeeeeess 27 |

Fisher v. District Court, 424 U.S. 382 (1976).......-sssssssssssseeeee 27 .

Government of Guam v. United States,

179 F.3d G36 (00s Cit. TOPO ivstdisicinintetieemicieiganaa 2 j

Green v. Bock Laundry Machine Co.,

490 U.S. SOG, SOD CII i vstnddsnshscththcetnstictensstiomactcceatannian 16

Griffin v. Oceanic Contractors, Inc., }

456 U.S. SG46, STE, FIs Cre teevintiacedbcstsiendectinciciaceti 14, 16

Gustafson vy. Alloyd Co., 513 U.S. 561 (1995) oo... eeeceeeteees 14

Heckman vy. United States, 224 U.S. 413 (1912)................. 22, 26

Indians of California, 102 Ct. Cl. 837 (1944)... eceeeeeeeees 22

Indians of California v. United States, 98 Ct. Cl. 583 (1942),

cert. dented, 319 U3. TER CII) sccisrcteecsteesabestncaeas 22

Johnson v. M’Intosh, 2) U.S. (8 Wheat.) 543 (1823)............... 26

Page(s)

CASES

Jones v. Meehan, 175 U.S. 1 (1899).................cseceeseeeees 15, 22, 26

Keeble v. United States, 412 U.S. 205 (1973)........cccccecceeeesereees 27

Kerr-McGee Corp. v. Navajo Tribe of Indians,

BFE SE: SI Ce isa trhtstotiadanteianscertentetenatisensninectantions 27

Lane v. Pueblo of Santa Rosa,

EB ia cciisicgsnchiich canktebibesitundendespenicntinnssiens Sy Ie

Leo Sheep Company v. United States,

ye re Sev eriiasiidsctctoccenenensiyeceseanaennienioninenisicabitin 14

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).......:::ccceceeeeeesees 22

McClanahan, v. Arizona Tax Comm‘n,

Be ile WT i iceniciesiensnccncontsgeeinninvnnmmesadepsncsniecnssnnaees 27

Menominee Tribe of Indians v. United States,

ee iia tctagsintcicsevinrvseniitionsedetenssenaviowserevens 15

Merrion v. Jicarilla Apache Tribe,

BS UF, Fe Ce tien vette ecnninsniesetescnenassavareninensanmaverinorseee’ 27

Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835)............... 26

Montana v. United States, 450 U.S. 544 (1981).........ccccseeeeees 27

Morris v. Hitchcock, 194 U.S. 384 (1904) ..........ceccesseeeeeeeceeeeees 26

Morton v. Mancari, 417 U.S. 535 (197A4)......ccccccccccceeecseeeeereees 27

Page(s)

CASES

Pbor anes V. Hake, AES US. UFO COTA) vccccntsrernccscccsaiossascacsnasssssnes 27

New Mexico v. Mescalero Apache Tribe,

AE Sis NC Lacan thadciessetchae ebkeniessncconlinateniaeasadsnsdaai 27

Oliphant v. Suquu ish Indian Tribe, 435 U.S. 191 (1978)....... 27

Oneida Indian Naiion v. County of Oneida

Oe rele HE GN pict ianbisincinnnasbiiisamiaraptiticbinnsnahinisinie Ate AF

Public Citizen v. United States Dep't of Justice,

ee SRG cee neg Ree On nt BPE RO SRY TP 16

Rice v. Cayetano,

U.S. Supreme Court Case No. 98-818................ 9, 15, 25, 28

Santa Clara Pueblo v. Martinez,

Re te Te hin tasks hssailadsesa hacpiiaenciladisinioiastens pattocd tudinal 27

Seminole Tribe of Florida v. Florida,

ee thisninttsdebinntacistcinciaancininibiasidasaechiabet 27

Seymour v. Superintendent,

BT Os OE a ticadsrrionsthincinstinieniiedetadeinaiitannncbinatiiasdean 27

Solem v. Bartlett, 465 U.S. 463 (1984).......0000cccccceeeseeceeeeeeesseee 15

South Carolina v. Catawba Indian Tribe, Inc.,

Cr gk eA ear ai nee Ol a i en Ra 15

South Dakota v. Yankton Sioux Tribe,

Ee WA See GP Aiidincinbittnrd hatinhtiecnaticaikineseice ea 27

Superintendent of Five Civilized Tribes v. Commissioner,

Pe SA Ge (1 a Reietieinincessnicn asivatecsh lansteseiieeaseiadbabiecniokadnan 22

Vil

Page(s)

CASES

Talton v. Mayes, 163 U.S. 376 (1896).........ssccssessesseeeeeeeeseees 26

Tee-Hit-Ton v. United States,

ae Fe Ca Ria tedstcniensthcnsicietolicccnstbitknnepicceceias 3, 12,24

The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867)...........- 22, 26

Thompson ex rel. Indians of California v. United States,

122 Ct. Cl. 348, cert. denied, 344 U.S. 856 (1952)............22

Turner v. United States, 248 U.S. 354 (1919)... ceceeeeseeeeeees 26

Turtle Mountain Band of Chippewa Indians v. United

Seats BD FF FSS GT. Fy icccetscrssctsecesnsncesnassnennnaccs 23

United States v. Alaska, 422 U.S. 184 (1975) ..........ccceessseeeeeeees 27

United States v. American Trucking Ass ‘ns,

BE ee ek Se icin iicintirientlieeinthntninintennictenni 16

United States v. Antelope, 430 U.S. 641 (1977).......::ccceseeeeeeees 27

United States v. Candelaria,

ce gk So Lh. econ * FY

United States v. Creek Nation,

Se ee iain isk ik ccinrnieetinattinnnneseanmnnsisnnnigiantenn 27

United States v. Dann (Dann II),

FOG E28 DD CO Cir, TGS) accssnssccerccnsneecssccrstessscncnsccnccsnnne 24

United States v. Dann, 470 U.S. 39 (1985) .......ceseceseesseeeeeeeeees 22

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

cert. denied, 493 U.S. 890 (1989)............::cccsssssesseeessteeseees 24

vill

Page(s)

CASES

United States, ex rel Hualapai Indians v. Santa Fe Pacific

Railroad Co., 314 U.S. 339 (1941). 15, 24, 25, 27

United States v. Forty-three Gallons of Whisky,

BS 57 BE Er ncscistin cpt aaigiatbaneinbtnccscraeenaanin 26

United States v. Kagama, 118 U.S. 375 (1886)..............::eeee 26

United States v. Mazurie, 419 U.S. 544 (1975).............cceeeeeeeees 27

United States v. McBratney, 104 U.S. 621 (1882)... 26

United States v. McGowan, 302 U.S. 535 (1938)................0000e 27

United States v. Mitchell, 463 U.S. 206 (1983).............cccceceeeeee 27

United States v. Nice, 241 U.S. 591 (1916)...........c ce eeeeeeeee 26

United States v. Pelican, 232 U.S. 442 (1914)... eee 26

United States v. Rickert, 188 U.S. 432 (1903)............ccccccceeeeeeee 26

United States v. Ron Pair Enterprises,

SOF SED. BF Le iibciciestilhecedivaedccltnadajabeans 16

United States v. Sandoval, 231 U.S. 28 (1913) .......cccccceeeeeeeees 26

United States v. Sioux Nation of Indians,

DEI. 29 ET eccnicsvctnidanicbtatiadndandainayites 27

United States v. U. S. Fidelity & Guaranty Co.,

SS FO a iiskdeniactcedicmanniiniin 27

United States v. Winans, 198 U.S. 371 (1905)........ cece eceeeeeeeee 26

Page(s)

CASES

| Ward v. Race Horse, 163 U.S. 504 (1896) .....ssscssssssesssesesseeesnes 26

Washington v. Fishing Vessel Ass'n,

MS TE RIE TD nase cxisicckccsessncvensitinssattsecciasesinnie 15, 23, 27

| Watt v. Alaska, 451 U.S. 259 (1961) ..ccsccssssscsccccccscoscsscscevessreess 14

White Mountain Apache Tribe v. Bracker,

Se Fe iit detcasaciarcerciassiaseiecrntntabtintiaicaliecen 27

Williams v. City of Chicago, 242 U.S. 434 (1917)....:ccceceeee 26

Wiltiamen ©. Tad, FESS. 277 CUT cseenccesssssstccesrssossasuapansaninn 27

Wilson v. Omaha Indian Tribe,

MES UT: BSS CUD a as cai chniiiaiasisonnivarsiasicenssevisenneinadecens 15, 27

Winters v. United States, 207 U.S. 564 (1908)....s++sssssssssessssee 26

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ......ceeeeees 26

| COURT RULES

Racha E31, VA.5 Ge TEED cicrecccssssiscitessntnnesnseresesseccenctaacesssncees 2

STATUTES

Cal. Batis FORT, CR. GAS eisssicssiscscccssscisssasancsnssisenrsinesnarisssnansioness 23

| Guam Land Acquisition Act of Aug. 2, 1946,

I BI eine astessn tacts tarnaiasdetarnicnnitasncsahtanticterierntpinntanes 3,6

STATUTES

Guam Land Transfer Act of Nov. 15, 1945,

I er ae 3, 6, 20

Guam Organic Act, 48 U.S.C. § 1421 ef seq.

Sections 5(e) and (n), 48 U.S.C. §§ 1421 b(e) and (n)......... 13

SIO ey Se Bi ins Th ITE hehcnnisdanttinsassntubraininianscans passim

LER SF OR F | 14) Sennen CNET INE H 3

Jurisdictional Statutes

BP rick TP BUNA 0 uiscscinssadanccenestctsbidncdasscnngacunsennntobaheiiaaaal 2

ee ie Ae Se sndatndcssstvaisnchacdéstspnsnieaeanadicdadicehahsaeo ae 2

oe UB. BO 4522, LSE, Za l, B Oe vate 2

iis Tintin cia thtciadia ke ccbsceaiininsacbiiaidniieiaiaie dua 23

Fenn dW PROUT scsiitacsncacsnnsacienssansecdcnaniasssasenababecnarmanaelanaaal 2

Philippines Organic Act of July 1, 1902,

Seer g Er Feo enrne Rr ron passim

Submerged Lands Act,

TD Sine Ne O isaissiccsiinininnenisssiacheesniniiaaianmmciagiadiil 17

Territorial Submerged Lands Act of 1974,

Be OE iiien SAU Oe UN ii niciscsncasciecabcusciessisnioadelsinaain 3, 6, 8,9

Act of May 18, 1928, ch. 624,

AS Deak. GR, 2a UB. SG isiissniticeniminicaee

se 9 icin A —

Page(s)

FOREIGN STATUTE

Laws of the Indies (Recopilacion de Leyes de

Los Reinos de las Indias) (1681) ................::ccc0eececeeeeeeees 4, 22

LEGISLATIVE MATERIALS

Hearings on H.R. 6547, before the House Committee on Naval

Affairs, 79th Cong., 2d Sess.

I Sade nckeaponsansscbsndesesseciessseceescecsences 5

PRESIDENTIAL ORDERS

Executive Order No. 108-A (December 23, 1898)..................2,5

Executive Order No. 10178 (October 30, 1950),

eee asscunkachasictessenrocecsesoess 3, 6, 16, 20

MISCELLANEOUS

1994 Guam Land Use Plan (“GLUP 94”’)......00... ee 3, 7,8

Carano, Paul and Sanchez, Pedro C., A Complete

History of Guam (Charles E. Tuttle Co. 1956)................. 3,4

Page(s)

MISCELLANEOUS

Cohen, Felix S., The Spanish Origin of Indian

Rights in the Law of the United States,

FE SRR Bick. BE e iets sed eects veneered pendnciiteteiies 22

Cohen, Felix S., Original Indian Title,

Se PN, FG 5 ae ET iaeihcacbevcccetsicssbscesttunsincatinbcnigsandgees Man

Coote, Robert K., U.S. Bureau of Land Management,

U.S. Dep’t of Interior, A Report on the Land-Use

Conditions and Land Problems on Guam (1950)....0.......000... 5

Cunningham, Lawrence J., Ancient Chamorro Society

CT tee Blew Freee, FRM, BIBL. isc ciiscindcsccsdsnéacesdaccscssncnas 4

Holmes-Laski Letters, Vol. | (Harv. Univ. Press 1953)............ 10

Holmes-Pollock Letters, Vol. 1 (Harv. Univ. Press 1941)........ 10

Laughlin, Jr., Stanley K., The Law of the

United States and Affiliated Jurisdictions

CAS SOUND. Te eicthnceenhcsiesnessearstnnindaniisiorieaiiomanniens 4

Olive y Garcia, F., The Mariana Islands, 1884-1887 (1887)

(trans. by M. Driver, pub. by MARC 1984) oe 4

Rogers, Robert M., Destiny's Landfall: A History of Guam

CUenty. OF Fives Pree USGS) eviinssssccsciscoxcecnccsancccnsecscorcesses 3,4

Souder, Paul B., “Guam: Land Tenure in a Fortress,”

in Land Tenure in the Pacific (Univ.

of South Pacific, Suva Fiji, 3d Ed. 1987) ........ eee eeeeeeee 4

Thompson, Laura S., Guam and Its People

CPvemabenh CNP. FD: TOIT icin sn cskiciicssetsncicsassobesdeincntuaceiad 4

Xiil

MISCELLANEOUS

U.S. Navy, “Report on Guam, 1899-1950”

CE, CU CD criditnsecth ibis ste Seadicnsccascavepsnontntnaionns

Wyttenbach-Santos, Richard H.J., An Historical

Overview of the Military’s Objectives on

Guam and in Micronesia (1994)........cccccccccccseeecccceeeeceeeeeeeees

Zamora, Frey Juan Pobre de, The Account of the Loss of the

Galleon San Felipe (1598-1603), 18 J. Pac. Hist.

UU COPIES, Ty ETON, TIED svc cnssessresihicdcssnccictadeerentuncsns

XIV

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1999

THE GOVERNMENT OF GUAM, ex rel.

THE GUAM ECONOMIC DEVELOPMENT AUTHORITY.

Petitioner,

THE UNITED STATES OF AMERICA, THE DEPARTMENT

OF DEFENSE, THE DEPARTMENT OF THE NAVY. THE

DEPARTMENT OF THE AIR FORCE, THE DEPARTMENT OF

THE INTERIOR, THE UNITED STATES FISH AND

WILDLIFE SERVICE, and THE GENERAL SERVICES

ADMINISTRATION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

The Government of Guam, on the relation of the Guam

Economic Development Authority, petitions the Court to grant a

writ of certiorari to review, vacate, and ultimately reverse, the

judgment entered by the United States Court of Appeals for the

Ninth Circuit in this cause on June 4, 1999.

OPINIONS BELOW

The judgment of the court of appeals sought to be reviewed

was entered on June 4, 1999, supported by an opinion published at

179 F.3d 630 and reprinted in the Appendix hereto. (App. B at

3a.) That judgment affirmed the decision of the District Court of

Guam entered on July 16, 1997 [E.R. 97],' which had rejected the

claims of the Government of Guam in a Memorandum Order

unreported and reprinted herein. (App. E at 27a.)

JURISDICTION

Several objections to the jurisdiction of the district court to

entertain the complaint were filed by the Federal parties [E.R. 10

and E.R. 19], but all were either overruled (App. E at 33a-38a), or

were effectively abandoned on appeal. The jurisdiction of the

district court rested, inter alia, on 28 U.S.C. §§ 1331, 1361, 2201

and 2409a. A judgment finally disposing of the entire case as to

all parties having been entered on October 22, 1997 (App. C at

22a), after denial of Plaintiffs timely Motion for Reconsideration

(see 28 U.S.C. § 2107, Fed. Rule of App. Proc. 4), the court of

appeals had jurisdiction under 28 U.S.C. § 1291 to entertain the

appeal initiated by notice filed October 24, 1997 [E.R. 139].

A timely petition for rehearing in the court of appeals was

filed on July 16, 1999 and an order amending the opinion but

denying rehearing was entered on August 12, 1999. (App. A at

la.) The present Petition for Certiorari is therefore timely under

this Court’s Rules 13.1 and 13.3. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254 (1).

STATUTES AND EXECUTIVE ORDERS INVOLVED

Because some of the statutes and Executive Orders involved

are relatively lengthy, they are set out in the Appendix hereto at

57a-68a. See Rule 14.1(f). Arranged in chronological order, the

relevant texts are: (1) Executive Order No. 108-A, December 23,

'“E_R.” refers to Excerpts of Record filed by the Appellant (Petitioner here) in

the court below, and “G.Exh” refers to the consecutively numbered exhibits, in

four volumes, submitted by Guam in the district court (NR. 45-1, 46-1, 47-1, and

48-1)

apetye

shin sstatnates hited Sats

1898; (2) the Guam Land Transfer Act of November 15, 1945,

Pub. L. No. 225, 59 Stat. 584; (3) the Guam Land Acquisition Act

of August 2, 1946, Pub. L. No. 594, 60 Stat. 803; (4) Section 28 of

the Guam Organic Act of August 1, 1950, Pub. L. No. 630, 64

Stat. 392, as amended by Pub. L. No. 90-497 in 1968, codified at

48 U.S.C. § 1421f; (5) Section 33 of the Guam Organic Act of

August |, 1950, 64 Stat. 393, codified at 48 U.S.C. § 1421k; (6)

Executive Order No. 10178, October 30, 1950, 15 F.R. 7313: and

(7) Sections I(a) and 1(b) of the Territorial Submerged Lands Act

of October 5, 1974, Pub. L. No. 93-435, codified at 48 U.S.C.

§ 1705(a) and (b).

STATEMENT OF THE CASE

A. Factual and Statutory Background

At stake here are some 3,900 acres of upland and tidelands

within the Territory of Guam, an island possession of the United

States in the Western Pacific, together with some 15,000 acres of

submerged lands, out to the three-mile limit, offshore. We note

these acreages separately because insofar as size matters (cf Tee-

Hit-Ton Indians v. United States, 348 U.S. 272, 285 n.18 (1955)),

it would be grossly deceptive to “count in” submerged lands when

comparing the acreage claimed to the “size” of the island (214

square miles) or the total “land” in federal ownership at any given

time (“44,800 acres” or “approximately 33 percent of the total

land area of Guam,” as of April 1995), which are usually stated in

terms of dry land alone. E£.g., Robert M. Rogers, Destiny's

Landfall: A History of Guam (Univ. of Hawaii Press 1995) |

[G.Exh. 12]; 1994 Guam Land Use Plan (“GLUP 94”) [G.Exh. 1].

1. Long before the “discovery” of Guam by Magellan in

1521, a substantial indigenous population lived on the island in

permanent settlements, notably those located at the northern end of

Guam, the area that concerns us here.’ The native Chamorro were

* See Decl. of Robert M. Rogers at 4-6 [E.R. 70-71]; Paul Carano and Pedro C.

Sanchez, A Complete History of Guam (Charles E. Tuttle Co. 1965) 20-22

[G.Exh. 14]; Fray Juan Pobre de Zamora, The Account of the Loss of the Galleon

San Felipe (1598-1603), 18 J. Pac. Hist. 198, 213 (trans. by M. Driver, 1983)

organized into family clans, each asserting exclusive possessory

rights over land, including offshore lagoons and reefs? Although

they earlier claimed Guam for the Crown, the Spanish at first

made no attempt to colonize the island or interfere with the

natives. Thompson, supra, 58. By the last third of the

Seventeenth Century, however, this attitude changed, and despite

indigenous rebellions during which much of the male population

was slaughtered, the remaining Chamorro were subdued and

forcibly “reduced” to a few settlements. Rogers Decl., supra, 5-7

[E.R. 70-71]; U.S. Navy, “Report on Guam, 1899-1950” (Dept. of

Navy, Office of Chief of Naval Operations 1951) at 1-2 [G.Exh.

28]; Wyttenbach-Santos, supra, 2-3; Thompson, supra, 40, 58,

102, 294.

Without benefit of cession or purchase, most of the Chamorro

properties were henceforth deemed “Crown Lands,” albeit under

prevailing Spanish law, the title of the natives remained

unimpaired * The lands in suit, at the northern end of the island.

[G.Exh. 32]: F. Olive y Garcia, The Mariana Islands, 1884-1887 (1887) (trans.

by M. Driver. pub. By MARC 1984) 21-22 [G.Exh. 31].

We cite to these sources, rather than to the decision below. only because the

district court and the court of appeals made few relevant findings for this period.

preferring to “assume, without deciding, that the doctrine of aboriginal title [to

which these facts are primarily relevant] applies to the natives of Guam.” (App.

B at 19a.)

> See Rogers Decl., supra. 7-8 [E.R. 71}; Laura S. Thompson, Guam and Its

People (Princeton Univ. Press 1947) 100, 102-03 [G.Exh. 13]: Carano and

Sanchez, supra, 21-22 [G.Exh. 14]; Lawrence J. Cunningham, Ancient Chamorro

Society (The Bess Press, Honolulu, 1992) 162, 170-72 [G.Exh. 41]: Richard H.J.

Wyttenbach-Santos, Ph.D., Captain, U.S. Navy (Retired), “An Historical

Overview of the Military’s Objectives on Guam and in Micronesia” (1994) at 1, 3

[G.Exh. 29]; Stanley K. Laughlin, Jr.. The Law of the United States and Affiliated

Jurisdictions (Lawyers Coop. 1995) 400; Rogers, Destiny's Landfall, supra, 74-

75 [G.Exh. 12].

* See Response to Request for Admission Nos. 2 & 3 [E.R. 25-26]: Rogers Decl.

at 7-9 [E.R. 75]: Carano and Sanchez, supra, 53, 58; Paul B. Souder, “Guam:

Land Tenure in a Fortress,” in Land Tenure in the Pacific (Univ. of South Pacific,

Suva Fiji, 3d Ed. 1987) 212 [G.Exh. 15]; Thompson, supra, 102-03; Laws of the

Indies (Recopilacion de Leyes de Los Reinos de las Indias), (1681). Book IV, Tit.

12, Laws 7, 9, 17, 18 (in American West Center (Tyler, ed.), Occasional Paper

No. 17, Spanish Laws Concerning Discoveries, Pacifications, and the Settlements

Among the Indians (Univ. of Utah 1980) 159, 160, 165-66 [G.Exh. 38]) and Book

Il, Tit. 31, Law 13; Book VI, Tit. 1, Law 23 (in American West Center (Tyler.

ed.), Occasional Paper No. 16, The Indian Cause in the Spanish Laws of the

Indies (Univ. of Utah 1980) 108, 114, 116-17 [G.Exh. 30]).

Say wo Riv aerate ws a

were never appropriated to any specific governmental use during

the Spanish regime, and, at least in the Nineteenth Century, the

natives were apparently not excluded from using them. Rogers

Decl., supra, 9-10 [E.R. 77].

2. By the Treaty of Paris in 1898, at the close of the Spanish

American War, Spain ceded Guam to the United States.

Stipulated Fact No. | [E.R. 41]. Because of its special importance

as a forward naval base, the President assigned the island to the

Secretary of the Navy with full discretion “to take such steps as

may be necessary to establish the authority of the United States

and give it the necessary protection and Government.” Exec.

Order No. 108-A (Dec. 23, 1898) (App. F at 57a). For the ensuing

half-century, Guam was administered as a military post, under the

paternalistic, but absolute, control of a Naval Governor.

Thompson, supra, 64-67, 297-98. Until World War II, however,

the United States took no special interest in the northern end of the

island, and while viewing all Spanish Crown lands as owned by

the United States, did not interfere with native use of the lands in

suit. Rogers Decl., supra, 10 [E.R. 77].

Guam was occupied by Japanese forces from December 1941

until mid-July 1944. Upon the recapture of the island, the United

States “increased its military presence . . . [and] that increased

presence required more land, which the United States continued to

acquire until 1950.” (App. B at 4a.) Accordingly, the American

Armed Forces appropriated, initially without payment, much of

the land on Guam, including all the acreage in suit except the

Ritidian beach strip at the northernmost tip of the island? In due

course, formal condemnation proceedings were instituted to

establish military reservations. Although the parcels here claimed

as aboriginal lands were included in these reservations, no

payment was made for them, the Federal Government’s view

being that these areas were already owned by the United States as

Crown Lands ceded to it by Spain. Response to Request for

Admission Nos. 6, 8, 9-13 [E.R. 27-32].

* See Robert K. Coote, U.S. Bureau of Land Management, U.S. Dep’t of Interior,

A Report on the Land-Use Conditions and Land Problems on Guam (1950) at 2-3

{G.Exh. 17]; Hearings on H.R. 6547, before the House Committee on Naval

Affairs, 79th Cong., 2d Sess. (May 29 and June 5, 1946) at 3448, 3460, 3469

[G.Exh. 54].

3. In 1945, the Navy sought and obtained from Congress

ongoing authority to transfer lands not needed for military

purposes to Guamanians. Guam Land Transfer Act of

November 15, 1945 (App. G at 58a). The next year, Congress

granted the Navy's request for formal authority to acquire

additional land on Guam for naval purposes and, as something of

an afterthought, for the resettlement program, too. Guam Land

Acquisition Act of August 2, 1946 (App. H at 59a). In mid-1950,

the Guam Organic Act was passed. (App. I at 60a.) By now,

according to the court of appeals, “the military was no longer

using much of that land; by 1950, more than 50 percent of the

actual acreage in Guam was occupied by inactive military

installations {citing a Congressional Report of 1950].” (App. B at

17a.) Noting that “Congress previously had enacted the Guam

Land Transfer Act to allow for the release of some of this land,”

(App. B at 17a), the court went on to quote two further 1950

Reports indicating that “Congress expressed a similar purpose

when drafting the Organic Act.” (App. B at 17a.)

Among the provisions of the Organic Act was one (Section

28(b)) transferring all land not reserved by the President within

ninety days to the new Guam Government established by the

legislation. (App. I at 60a.) On the last day permitted, President

Truman signed an Executive Order which, inter alia, reserved for

military use all the land that had recently been condemned for that

purpose. Exec. Order No. 10178, October 30, 1950, 15 F.R. 7313

(App. K at 63a). In 1958, the Air Force transferred to the Navy

the northernmost slice of Andersen Northwest Field at the

northern end of Guam, comprising some 184 acres. Stipulated

Facts Nos. 17, 18 & 32 [E.R. 45, 50]. In 1962, the United States

condemned for the Navy an adjoining strip of beach and tidelands

of similar acreage. Stipulated Facts Nos. 33 & 34 [E.R. 50].

4. In 1974, Congress passed the Territorial Submerged Lands

Act, 48 U.S.C. § 1705(a) et seg. (App. L at 66a), the evident

purpose of which was to transfer to named territories some of the

adjacent offshore water bottoms. Specifically exempted, however,

are, inter alia, “all submerged lands adjacent to property owned by

the United States above the line of mean high tide.” § 1705(b)(ii)

(App. L at 66a).

Guam claimed the seabed off the Ritidian Point parcel

identified in its first claim, but could do so only contingently, i.e.

if it prevailed on that initial claim. Since that submission failed in

both courts below, the Territorial Submerged Lands Act claim

must await this Court’s ruling on Claim One. In the meanwhile,

however, we may and do preserve it.

5. In 1992, the Navy determined to close its Ritidian Facility

(composed of the two strips of land described a moment ago), and

formally declared these 371 acres, together with some 15,500

acres of adjacent submerged lands, excess to its needs. Stipulated

Fact No. 48 [E.R. 52]. Although Guam sought this acreage (later

identified as Guam’s First and Second Claims), the General

Services Administration transferred the uplands and tidelands to

the United States Fish and Wildlife Service the following year.

Stipulated Facts Nos. 49-51 [E.R. 52-53]. They then became the

“Ritidian Unit” of the Guam National Wildlife Refuge, which was

established primarily to protect endangered species of native birds.

Stipulated Facts Nos. 91 & 92 [E.R. 61-63]. Unfortunately, the

predation of the alien Brown Tree Snake, so far evading the best

efforts of the Refuge guardians, has effectively eliminated these

species. Dep. of Michael W. Ritter, 21:21-23:21, 25:11-19, 36:23-

25, 51:17-25, 71:11-14 [E.R. 84-96]; Stipulated Facts Nos. 73-75

[E.R. 57-58].

In April 1995, after two years of intensive study and wide-

ranging consultations at every level of the concerned military

services, the Department of Defense published GLUP 94

[G.Exh. 1]. That report unequivocally concludes that substantial

additional acreage now in Navy and Air Force reservations is no

longer needed for military purposes and is accordingly

“releasable.” Guam’s Third Claim seeks transfer of the Air Force

lands identified as “releasable” in that report.

B. Procedural History

1. Guam initiated this suit in late 1995 against the United

States and the several federal agencies holding the lands claimed.

The Amended Complaint [E.R. 1] asserted a right to title or

control of three categories of land, particularized in three

separately stated claims: (1) some 371 acres of uplands and

tidelands at the north tip of the island formerly constituting a

United States Navy Communications Center, but declared

“excess” to Naval requirements in 1992, thereafter transferred to

the U.S. Fish and Wildlife Service, and today constituting the

Ritidian Unit of the Guam National Wildlife Refuge (First Claim);

(2) approximately 15,571 acres of submerged lands and reefs

adjoining the uplands just described, also declared excess by the

Navy in 1992, and presently held for disposition by the General

Services Administration (Second Claim);° and (3) some 3,553

acres of uplands held by the United States Air Force in northern

Guam, which have been identified in GLUP 94 as “releasable”

because no longer needed for Air Force purposes (Third Claim, as

reduced during the proceedings below).’

By its Answer [E.R. 10] and Motion for Summary Judgment

[E.R. 19], the Federal Defendants interposed a number of

jurisdictional objections and also sought dismissal of the action on

the merits. Guam filed its own Motion for Summary Judgment

[E.R. 22], and the case was briefed and orally argued on the cross-

motions in July 1996. A year later, the district court issued a

Memorandum Order, granting summary judgment for the United

States. (App. E at 27a.)

The court overruled the jurisdictional objections of the United

States—albeit without discussing all of them—and turned to the

merits. (App. E at 38a-39a.) Initially, however, the court declined

to reach Guam’s aboriginal title argument (Issue 3) on the ground

that, if successful, it would not result in any specific relief.

(App. E at 39a-40a.) The statutory claim was then rejected, the

court holding that Section 28(b) of the Guam Organic Act was

fully spent on October 30, 1950, when the President reserved the

lands in suit, and has no continuing force. (App. E at 40a-55a.)

® During the pendency of this proceeding. the U.S. Fish and Wildlife Service

sought, and obtained from General Services Administration, a transfer of some of

the submerged acreage formerly part of Guam’s Second Claim.

"Tt may be helpful to note straightaway that the three Questions Presented and

the three Claims for Relief presented here do not correspond. The Claims refer to

lands in different federal custodial hands (the Fish and Wildlife Service, the

General Services Administration or the Air Force); the Questions, on the other

hand, are framed in terms of legal bases for recovery (Section 28(b) of the Guam

Organic Act, Section I(a) of the Territorial Submerged Lands Act, or

unextinguished aboriginal title). The court of appeals is, of course, correct that

Question 2 is moot if Question | is properly answered “No.” (App. B at 19a.)

Question 3, on the other hand, is only mooted (as potentially providing at best

lesser included relief) if Question | is answered in the affirmative.

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2. Guam moved for reconsideration [E.R. 129], asking the

district court to consider and decide the aboriginal title claim, as

well as the contention that there exists a fiduciary relationship

between the United States and the native people of Guam. But, by

a second Memorandum Order dated August 29, 1997 (App. D at

23a), the Motion was denied, the court adhering to the view that

decision of these issues would “have no effect on the outcome of

the case” and would constitute “mere dicta.” (App. D at 24a, 26a.)

A final judgment dismissing the suit was entered on October 22.

1997. (App. C at 22a.)

3. Guam’s appeal was unsuccessful. The first Claim was

disposed of on the merits. (App. B at 10a-19a.) The Territorial

Submerged Lands Act claim was held mooted by the denial of the

First Claim (App. B at 19a), while the aboriginal title claim (Third

Claim) was rejected on the ground that the Territory of Guam

lacked standing to advance it. (App. B at 20a.)

In sum, the court of appeals held that Section 28(b) of the

Guam Organic Act is plain on its face and provides only for a

“one-time grant of property.” (App. B at 19a.) Thus, held the

court, the lands in suit having been specifically reserved from

transfer in 1950, they must be viewed as permanently withheld by

the United States.

4. Rehearing was denied, albeit by an Order (App. A at la)

amending the opinion in a minor respect. The judgment of

affirmance previously entered remained undisturbed.

REASONS FOR GRANTING THE WRIT

This case has been a century in the making. It starts with our

acquisition of the Island of Guam, together with the neighboring

Philippines, in 1898, at the conclusion of the Spanish-American

War, and with a decision by this Court a few years later resolving

a dispute over aboriginal lands that the Federal government

wished to use for its own purposes (Carifio). It will end (with or

without an acknowledgment of kinship) at more or less the same

time as other litigation (Rice v. Cayetano) in which the special

status of other native American islanders is implicated.

I. The Decision Below Conflicts with Long-Settled Law

Established by This Court

A. Direct Conflict with Carifio

The most immediate conflict is between the decision below

and Carino v. Insular Government of the Philippine Islands, 2\2

U.S. 449 (1909), a decision written for a unanimous Court by

Justice Holmes.* The dispositive rulings of the court of appeals in

the present case cannot be squared with Carifio. Moreover,

although repeatedly invoked in both courts below by the

Government of Guam, neither the district court nor the court of

appeals so much as cited the case. There is no polite explanation:

Unless the courts below are to be taxed with failing to understand

an apparently obvious conflict that was pointed out to them, one

must conclude that, disagreeing with Carino, but lacking power to

overrule the precedent, those courts chose simply to ignore it.

There are, of course, differences between Carifio and the

present case (albeit not so many as the United States has at times

asserted).’ In the earlier litigation, a leading member of a native

* Lest it be thought that “Homer nodded” in Carifo, it should be noted that

Justice Holmes was especially happy with his opinion in the case. See | Holmes-

Pollock Letters (Harv. Univ. Press 1941) 148, 152. 153, 2 id at 27-28. See also

1 Holmes-Laski Letters (Harv. Univ. Press 1953) 6, 67.

* Thus, notwithstanding the representations of counsel for the United States at the

oral argument before the district court (Tr.Or.Arg., July 26, 1996, NR. 65-1, at

44:20-22), it is not true that “plaintiff [in the Carifio case] was living on that land

his entire lifetime. His ancestors had always lived on that land. They lived on it

exclusively.” The Philippines Supreme Court, whose factual summary was not

disputed, stated that “[n]Jo one has lived on the land for many years. It was never

used for anything but pasturage of animals, except insignificant portions thereof,

and since the insurrection against Spain it has apparently not been used by

petitioner for any purpose.” Carifio v. Insular Government, 7 Phil.Rep. 132, 135

(1906). And in his own Brief in this Court it is expressly recited that “Matco

Carifio [the plaintiff] himself actually never lived upon the land, but up to 1903

occupied and used the said lands as pasturage lands for his cattle, constructing, in

addition to the old fences maintained by his grandfather, other fences of wire.”

Brief on Behalf of the Plaintiff in Error in No. 72, O.T. 1908, at 3. Nor does this

Court's Opinion assert anything more than that the plaintiff's “grandfather had

lived upon [the land], and had maintained fences sufficient for the holding of

cattle, according to the custom of the country . . . .; that the plaintiff's “father had

cultivated parts and had used parts for pasturing cattle”; and that the plaintiff

himself “had used it for pasture cattle in his turn.” Carifio, 212 U.S. at 456.

tribe was seeking to establish his individual claim to particular

lands (some 370 acres), both as a matter of aboriginal title and

under the doctrine of lost grant or adverse possession.’” There,

unlike here, both the United States and the Territorial Government

opposed the native claim. And, while in the earlier case the United

States was invoking the Organic Act to sustain its title, here the

corresponding Organic Act provisions are pleaded in support of

the native claim. But these differences cannot obscure the

controlling relevance to our case of both the result in Carifio and

the underlying rationale of the decision.

1. The ultimate holding of Carifo was to sustain the native

claim, notwithstanding the President’s express reservation of the

disputed land (or most of it) for a military hospital'’ under a

Based on a half-truth at best is the further attempted distinction drawn

between Carifio and the present case on the ground that in the earlier litigation

“there was no Royal or Crown land at issue.” Tr.Or.Arg., supra, at 45:7. Even

though the point escapes us, it is well to set the record Straight. As this Court’s

Opinion repeatedly notes, although Carifio himself asserted that his acreage had

never been Crown land. the Federal stance in Carino was that the land in dispute

was Spanish Crown land which had passed to the United States by virtue of the

Treaty of Paris, free of any native title cloud. See 212 U.S. at 457-58.

The United States did not repeat these statements on appeal. Instead, the

precedent was sought to be avoided by a new representation, the misleading

character of which will appear in a moment. In the Ninth Circuit, counsel for the

United States asserted that (contrary to Guam’s argument) “Carino did not

involve the canon governing ambiguities in statutes enacted for the benefit of

native Americans, or, indeed, any statutory construction questions at all.” No. 97-

17140, C.A.9, Brief for the Federal Appellees at 29.

In this Court we expect to encounter no such false points.

independent of any reliance on a supposed “lost grant” or “acquisitive

prescription.” See Brief on Behalf of the Plaintiff in Error, supra, at 13-36; Reply

Brief at 9-10.

” According to the opinion of the Supreme Court of the Philippine Islands which

this Court reviewed, “(t]he Government of the United States also appeared and

opposed the petition [for land registration] on the ground that the land was part of

the military reservation of Baguio.” 7 Phil.Rep. at 133. The Brief for the United

States and the Insular Government, filed in this Court (No. 72, OT 1908, at 29)

recites that “[o}n October 10, 1903, the Government of the United States, by

proclamation of the President, set aside a military post and reservation which

includes a large portion of the land in question, and has since been occupied by

the army of the United States for the Purposes specified.” See also, Brief on

Behalf of the Plaintiff in Error in No. 72, O.T. 1908. at 4. Finally, in its Opinion,

this Court notes that Section 12 of the Philippines Organic Act excepts “such land

provision of the Philippines Organic Act virtually identical (in its

relevant parts) to Section 28(b) of the Guam Organic Act.” On its

face, this ruling is entirely at odds with the result here in which

unrecognized aboriginal title attaching to similarly modest

acreage, again claimed to be former Spanish Crown land, was

effectively defeated by a like Presidential reservation under the

purported authority of a like statute, even as to the portions

relinquished by the military services as surplus to their needs.”

b. Equally inconsistent with the present decision are the

subsidiary holdings in Carifio. These are of specia! interest

because they affect both claims advanced here, the statutory claim

under Section 28(b) of the Guam Organic Act and th« aboriginal

title claim attaching to a lesser acreage.

As this Court itself later explained Carino, “[t}he Court relied

chiefly upon the purpose of our acquisition of the Philippines as

disclosed by the Organic Act of July 1, 1902, which was to

administer property and rights ‘for the benefit of the inhabitants

thereof.’” Tee-Hit-Ton Indians v. United States, 348 U.S. 272,

284-85 n.18 (1955) (quoting 32 Stat. 695).'* This is, of course, a

and property as shall be designated by the President for military or other

reservations, as this land since has been.” 212 U.S. at 459.

> Section 28(b) of the Guam Organic Act is quoted in the Appendix, infra, at

60a. The full text of section 12 of the Philippines Organic Act of July 1, 1902, 32

Stat. 691, 695, is as follows:

That all property and right which may have been acquired in the

Philippine Islands by the United States under the treaty of peace with

Spain, signed December tenth eighteen hundred and ninety eight,

except such land or other property as shall be designated by the

President of the United States for military and other reservations of

the Government of the United States, are hereby placed under the

control of the government of said islands, to be administered for the

benefit of the inhabitants, except as provided in this act.

'? To be sure, the couri of appeals did not reach the merits of the aboriginal claim,

having ruled that the Government of Guam lacked standing to make the argument

(an error discussed in a moment). But it left undisturbed the ruling of the district

court on this aspect of the case, which can only be understood as a holding that

unextinguished aboriginal title cannot be asserted against the United States, at

least in the face of a Presidential reservation apparently authorized by Act of

Congress.

'* Although we deal with the point in due course, it is well to stress here that

Guam’s submission is in no way inconsistent with the actual holding of Tee-Hit-

Ton that the United States is not constitutionally bound to pay compensation

when it extinguishes aboriginal land rights. See 348 U.S. at 284-85.

reference to Section 12 of the Philippines Organic Act, quoted in

footnote 12, supra, which enjoins the territorial government, upon

receiving federal lands, to administer them in the interest of the

natives. See Carifio, 212 U.S. at 458-59. As already noted, the

provision finds an exact parallel in Section 28(b) of the Guam

Organic Act, which likewise directs that the land transferred to the

local government shall be “administered for the benefit of the

people of Guam.” One cannot suggest a reason (and the attempt

has not been made) why these virtually identical provisions, the

second obviously borrowed from the first, should not have the

same import in the Philippines and in Guam, neighboring islands

acquired from Spain by the same Treaty of Paris.

In Carino the Court did not restrict the quoted words to their

literal context - lands actually transferred to local administration.

On the contrary, they were understood as indicating a generous

disposition in the Congress that wrote the Philippines Organic Act

and were treated as announcing a canon of construction for all its

provisions. Thus, the “due process” and “equal protection” clauses

of the “bill of rights” included in the Philippines Organic Act

(which have their counterpart in Sections 5(e) and (n) of the Guam

Organic Act, 48 U.S.C. §§ 1421b(e) and (n)) were read inclusively

to protect the natives and their land, even where title was

recognized neither by Spain nor by the United States (Carifio, 212

U.S. at 459); the implications of a provision empowering the

territorial government to perfect titles were minimized (id.); and

the scope of the “property and rights acquired [in the Philippine

Islands] by the United States,” which were subject to Presidential

reservation, was restricted (id. at 459-60). So here, if Carifio is

followed, the same words in Section 28(b) require that the Section,

as a whole, be construed, not woodenly, but generously “for the

benefit of the people of Guam,” to accommodate their modest

claim to acreage no longer needed for the military purposes in

whose name it was initially withheld.

3. Also relevant here are the repeated statements in Carino to

the effect that any doubt must be resolved in favor of the native

claim; as the Court phrased it, “every presumption is and ought to

be against the government in a case like the present.” 212 U.S. at

460. In some instances, this seems to be tied to the language of

the Organic Act just quoted. E.g., id. at 459-60. Elsewhere, the

Court seems to be announcing a more general principle. Indeed, it

must be so when the presumption is invoked in construing Spanish

law. E.g., Carifio at 460-63. Given that the Guam Organic Act has

the same language, it does not matter. What cannot be ignored,

however, is that this Court found the relevant provisions of the

Organic Act ambiguous and therefore open to construction, and

that it actually applied a rule of construction favoring the native

claim in a context indistinguishable from the present case. In

holding otherwise, the court below put itself in conflict with

Carino.

B. Conflict with “Plain Meaning Rule”

The conflict with Carifio is perhaps the most obvious, but it is

far from the only, or, in the long term, the most important, respect

in which the decisions below clash with the law settled by this

Court. If Cariwo had never been written, irreconcilable conflicts

would remain.

Both the district court and the court of appeals were able to

avoid relevant canons of construction, and thereby to defeat our

argument under Section 28(b) of the Organic Act, only by

misapplying the so-called “plain meaning” rule. We refer

primarily’ to the canon that enjoins courts, where possible, to

'* Other canons of construction implicated in the case include: the canon that

requires reading a Statute, where possible, so as to further, rather than defeat, its

evident purpose (e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571,

575 (1982)), the canon that prefers a construction that gives effect to all the

words of a provision, over one that renders some parts surplusage (e.g.,

Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995)): the canon that counsels

courts construing a statute to “recur to the history of the times when it was

passed” (e.g. Leo Sheep Company v. United States, 440 U.S. 668, 669 (1979)), in

addition to immediate legislative history and laws in paria materia (e.g., Watt v.

Alaska, 451 U.S. 259, 266-72 (1981)); and the canon directing, when more than a

single reasonable reading of the statute is possible, that deference be given to

contemporary administrative construction (e.g, Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc, 467 U.S. 837, 844-45 (1984)). Somewhat

inconsistently with its ruling that Section 28(b) had a “plain meaning,” the Court

of Appeals purported to answer some of Guam’s arguments under these heads.

(App. B at 10a-18a.) This is not the place to respond. We do note, however, that

after correctly reciting the historical background of Section 28(b) and the

Congressional determination to return to Guamanians, directly or through their

local government, land appropriated by the Armed Services, but no longer needed

for that purpose (App. B at 17a), the court below went on to endorse a reading of

the provision that predictably would transfer none of that land to Guam, given

construe in their favor a statute affecting the rights of native

people.’ When confronting Guam’s submission on this point, the

court below declined even to decide whether the canon might be

applicable in the present context,’ holding that the “clearly

expressed intent of Congress” left no room for construction

(quoting South Carolina v. Catawba Indian Tribe, Inc., 476 U.S.

498, 506 (1986)). (App. B at 15a). This, we submit, was a plain

misapplication of Catawba and of the “plain meaning” rule. That

rule was never intended to require (or permit) a court to stretch the

that the Congress must have expected the President to be persuaded, for the

moment, to retain all the acreage freshly condemned in the name of national

defense.

'© The court of appeals stated the rule much too restrictively, as applying “when

the United States grants lands to native Americans.” (App. B at 15a.) Of course.

the canon is applicable to treaties and agreements in which the native is deemed

to have been at a disadvantage. E.g., Choctaw Nation of Indians v. United States.

318 U.S. 423, 431-32 (1943), Jones v. Meehan, 175 US. 1, 11 (1899):

Washington v. Fishing Vessel Ass'n, 443 U.S. 658, 675-76 (1979). But it is much

broader, applying to statutes enacted without any participation of the natives and

even to provisions designed to restrict their rights. E.g., Solem v. Bartlett, 465

U.S. 463, 470, 472 (1984) (Cheyenne River and Standing Rock Sioux

Reservations Surplus Land Act); Wilson v. Omaha Indian Tribe, 442 U.S. 653.

666 (1979) (25 U.S.C. § 194); Bryan v. Itasca County, 426 U.S. 373, 392 (1976)

(Public Law 280); Menominee Tribe of Indians v. United States, 391 U.S. 404.

412-13 (1968) (Menominee Termination Act of 1954): United States, ex rel

Hualapai Indians v. Santa Fe Pacific R.Co., 314 U.S. 339, 354, 356 (1941)

(Railroad Land Grant Act of July 27, 1866 and various land grant, land claims,

and Indian Reservations statutes). See also, County of Oneida v. Oneida Indian

Nation, 470 U.S. 226, 247-48 (1985).

'’ This reluctance may have been influenced by the then stance of Federal

counsel, vigorously denying the benefit of the canon to the natives of Guam on

the ground that they had never been in any trust relationship with the United

States. See Brief for Federal Appellees in the 9th Cir. at 27-28. In the district

court counsel for the United States had added that native Guamanians should be

viewed in the same light as native Hawaiians, with whom, it was said, no such

special relationship exists. See Defendants’ Memorandum in Opposition to

Plaintiff's Cross-Motion for Summary Judgment and in Further Support of

Defendants’ Motion for Summary Judgment at 11-12. Today, however, the

United States has completely changed position. In an eloquent Brief for the

United States as Amicus Curiae, filed in No. 98-818, Rice v. Cayetano, argued

October 6, 1999, the Solicitor General emphatically maintains that there does

exist a special fiduciary relationship between the United States and native

Hawaiians. Presumably, he takes the same view with respect to native

Guamanians. At all events, it is premature to assume otherwise and we

accordingly do not now argue a matter that may well no longer be at issue. But

see Point II, infra.

words of a statute by doubtful feats of deduction or intuition,

informed by no recognized principle of construction, to fill a gap

in the text, rather than resorting to well-established canons of

construction. That is especially so when the outcome, using the

first method, leaves the unanswerable question, “Why would

Congress want to do that?” (Here, that unanswerable question is

“Why would Congress want lands not needed for military

purposes to go to Guam if found surplus immediately after

enactment, but not if found surplus more than ninety days later?’’)

This is not one of those arguably close cases - one in which

the “plain meaning” is invoked to sustain “an odd result.” Public

Citizen v. United States Dep't of Justice, 491 U.S. 440, 454-55

(1989); Boston Sand and Gravel Co. v. United States, 278 U.S. 41,

48 (1928). Obviously enough, a statute may be open to

construction, no matter how clear the words actually used, if the

text fails to address, or unequivocally to resolve, the particular

point at issue. See Green v. Bock Laundry Machine Co. 490 U.S.

504, 509 (1989); id. at 527 (Scalia, J. concurring); United States v.

Ron Pair Enterprises, 489 U.S. 235, 242 (1989); Griffin, supra,

458 U.S. at 571, 575; United States v. American Trucking Ass'ns,

310 U.S. 534, 543 (1939). That is this case. The statute remains

open to consideration because it fails to address, or unequivocally

to resolve, the particular point at issue. The question under

Section 28(b) of the Guam Organic Act is: What happens to land

expressly reserved by the President for military purposes in 1950

which later becomes surplus to the needs of the Armed Services?®

'S What is more, the construction placed on Section 28(b) by the court of appeal

seems to contradict the President’s contemporary understanding. Indeed, by § |

of his Executive Order (App. K at 64a-65a), President Truman established several

exclusively military reservations with the express proviso that the Secretary of

the Navy, to whom initial custody was given, should allocate the lands

encompassed among the Armed Services “as may be required for their respective

purposes.” But the Secretary was not authorized to assign any of the reserved

lands to a non-military federal agency, such as the Fish and Wildlife Service. Nor

did the President reserve any such power to himself. There being, at the time, no

Federal Property Act or Base Realignment and Closure Act applicable to Guam,

the expectation presumably was that when, in due course, military land needs

diminished (as was anticipated), the surplus acreage would be released to Guam

under Section 28(b). After all, that must be the result if the President had

expressly reserved the lands “for so long as national defense concerns require”

and that is, in fact, the implied term of any military reservation. Or does the

The bare text does not tell us, and the combined efforts of both

courts below do not succeed in proving otherwise.

1. We are not sure how much (if at all) the court of appeals

relied on the use of the present tense (“is hereby transferred”) in

the text of Section 28(b) to bolster its conclusion that the text

“plainly” ordained a single, “one-time,” transfer of land 90 days

after the effective date of the Organic Act. However much it did.

this is not a sound basis for the court’s result since, on any reading

of the text, the wording cannot be taken literally, given that no

transfer could occur until after the President has made his

reservations, up to 90 days later. The present tense here

necessarily refers to a future event, dependent on what happens in

the interim.'? The choice between a nearer future and a more

distant one is surely not a matter that can be resolved on the basis

of “plain meaning.”

2. Primary reliance for the result reached below rested, it

seems, on the 90-day provision in Section 28(b), together with its

echo in Section 28(a). (App. I at 60a.) But this is equally false

reasoning. Suppose no time limit had been placed on the

President’s power of reservation: Would it then be conceded that

the provision enacted a continuous program of transferring

unwanted lands to the territorial government? Presumably so,

albeit Guam might have to await a “clearance” from the Federal

Government as to any given parcel. The substantial delays likely

to accompany such a scheme obviously counseled forcing the

President to act more promptly’ But there is no justification for

United States assert that such a stipulation would have been unlawful under

Section 28(b)?

'? That this is not unique is all we meant to demonstrate by analogy to other

Statutes. (App. L at 66a.) For instance, despite its language of present

conveyance, the Submerged Lands Act of 1953 has been read to transfer to the

States offshore land now and /ater submerged, but only so long as they remain

submerged. See California, ex rel. State Lands Comm'n v. United States, 457

U.S. 273 (1982). That, it still seems to us, is comparable to the suggestion that

Section 28(b) of the Guam Organic Act should be read to mean that the

withholding of land from transfer to Guam lasts only so long as the original

reservation endures (“while reserved” in our shorthand).

*° We note that the counterpart provision of the Philippines Organic Act, § 12,

quoted in n.12, supra, did not specify a time limit for the President’s action and

that more than fifteen months elapsed before the military reservation at issue in

Carino was created. Apparently, no conflicting claim to the land was entertained

converting a time limit imposed upon the President, for the benefit

of Guam, into a harsh, and seemingly pointless, cut-off of the

transfer program Congress intended.

3. As for the 90-day provision of Section 28(a), it is a red

herring. No doubt, several weeks were thought necessary to

segregate “lands used in the civil affairs,” just as it was thought

appropriate to allow the President some period to decide what

lands to withhold. And, unsurprisingly, the same 90-day span was

chosen for both purposes. As the court below suggests, this would

fix a boundary, for the time being at least, between federally

administered lands and those administered by the new

government. But, on no reading of Section 28(b) was that

boundary meant to be permanent. Even under Guam’s more

restrictive construction, the line drawn under Section 28(b) could

be upset by application of Section 28(c) (as, indeed, it was in

1952) or by special legislative grants (as has occurred over the last

several decades).

4. Superficially more troubling is Section 28(c), which

provides as follows (App. I at 60a-61 a):

All property owned by the United States in Guam, the title

to which is not transferred to the government of Guam by

subsection (a) hereof, or which is not placed under the

control of the government of Guam by subsection (b)

hereof, is transferred to the administrative supervision of

the [Secretary of the Interior],’’ except as the President

may from time to time otherwise prescribe: Provided,

That the [Secretary of the Interior] shall be authorized to

lease or sell, on such terms as he may deem in the public

interest, any property, real or personal, of the United States

under his administrative supervision in Guam not needed

for public purposes.

until the President decided how much he would reserve. See Brief on Behalf of

the Plaintiff in Error, in No. 72, O.T. 1908, at 5.

*! Here and in the subsequent bracketed passage, we have substituted the revised

language enacted in 1968. It should be noted that the Secretary of the Interior had

already been designated by Executive Order in 1949 under Section 3 of the Act.

See “Historical and Statutory Notes” to 48 U.S.C.A. § 142If.

The court of appeals apparently read the provision as applicable to

all \ands reserved in 1950 and as authorizing the President to shift

any such acreage to a non-military federal use, at any time in the

future; and, when in the custody of the Secretary of the Interior, to

be disposed of by him at any time. Accordingly, the court

concluded that Section 28(c) would be “superfluous” under

Guam’s reading of Section 28(b). (App. B at 19a.) One can

debate whether “superfluous” is the accurate characterization, but

it is certainly true that the court’s novel construction of Section

28(c) is inconsistent with our argument under Section 28( b).

The court below went astray, we submit, in supposing that

Section 28(c) applies to all lands reserved in 1950, including lands

initially reserved for military purposes. On its face, the wording of

the provision is ill-suited to that result. Indeed, if all reserved

property is affected, one wonders why Section 28(c) does not

simply begin with “All property reserved by the President under

subsection (b),” instead of a longer phrase that, at first blush, sends

us vainly searching for federal lands not covered either by

subsection (a) or subsection (b).” Still more puzzling is why lands

reserved by the President specifically for military purposes, and

which, for some time, had already been so dedicated, should, at

least initially, be “transferred to the administrative supervision of

the Secretary of the Interior.” Also, given the universal

understanding that most, if not all, lands withheld from transfer to

Guam were lands deemed required for national defense, it is very

odd that military control of its own lands should be dealt with in a

belated “except” clause. And, finally, is it conceivable that the

Secretary of the Interior was meant to be given discretion to

dispose of lands condemned and reserved for military purposes

while they were temporarily in his custody?

All these difficulties disappear if, for a moment, we allow

ourselves to read a page of history. First, we note that, unlike

Section 28(b), nothing comparable to Section 28(c) appears in the

2 The most plausible conjecture is that the draftsman intended to deal with

federal lands dedicated to “civil” uses in subsection (a), with lands dedicated to

military uses in subsection (b), and to “vacant” lands not dedicated to any use

(mainly, if not exclusively, former Spanish “Crown lands”) in subsection (c), but

that this neat division got muddled when he worded subsection (b) to embrace

“[aJll other property.” At all events, we must accept that, as written,

subsection (b) includes lands covered by subsection (c).

Organic Acts for the other islands acquired from Spain in 1898. In

the case of Guam, uniquely, there was a special resettlement

problem at the time the Organic Act was written, shortly after the

end of World War II, because a large segment of the native

population lost their homes and farms in the massive

bombardment of the island prior to its recapture in mid-1944 and,

shortly afterwards, through the very substantial eviction of

civilians by the American military forces. To deal with this

situation, the Guam Land Transfer Act of 1945 (App. G at 58a)

was passed and, in due course, substantial “replacement” lands,

mainly unused former Spanish Crown lands, were identified as

eligible for transfer to Guamanians, via the “Naval Government of

Guam,” the predecessor of the Territorial Government. For

reasons not entirely clear, however, very little of this acreage had

actually been transferred by 1950 and it was evidently deemed

appropriate to make provision in the Organic Act for carrying out

the program. This, we suggest, is what Section 28(c) was

addressed to, nothing more.

Our submission is not mere conjecture. It evidently reflects the

view taken by the Executive Branch at the time. Thus, in 1950

when President Truman made his reservations under the Organic

Act, he indicated his understanding that Section 28(c) had only a

limited application, having been crafted to deal with the

“resettlement” or “replacement” lands recently identified (within

the Armed Services) as not needed for military purposes; witness

his explicit reference to subsection (c) in his reservation of those

lands (Exec. Order No. 10178, sec. 2; App. K at 65a), and his

omission of any such reference in connection with his military

reservations {id., sec. 1; App. K at 64a-65a.) And that was

apparently also the understanding of the Secretary of the Interior

when, eighteen months later, he invoked Section 28(c) in releasing

the “resettlement” lands to Guam, under specific conditions. See

Deed of Transfer, February 26, 1952 [G.Exh. 18].”

> There are, it should be stressed, substantial differences between a transfer

under subsection (c) and one under subsection (b). In the latter case, the transfer

occurs (at least in theory) by operation Of law and there is no power in the

Executive Branch to impose conditions. Thus, the few acres of tidelands at

Ritidian Point that, it is now agreed, inured to Guam when they were omitted

from the 1950 Presidential reservations, passed without condition and, indeed,

without any instrument of conveyance. Per contra, the transfer of the

Nor did this administrative construction change with time.

When the former Naval Communications Center at Ritidian (the

subject of Guam’s First Claim) was transferred to the Fish and

Wildlife Service in 1993, Section 28(c) was not invoked (as

presumably it should have been under the court of appeals’

reading). And, today, counsel for the United States insist

(correctly, we believe) that subsection (c) was “fully spent” in

1952 when the “resettlement” lands were conveyed to Guam. The

upshot is that our reading of Section 28(b) as applied to lands

reserved for military purposes (the only subject of this case) does

not render Section 28(c) superfluous. The latter was designed for a

specific situation and has fully served that role.

The truth is that the answer to the dispositive question under

Guam’s Organic Act argument - whether or not Section 28(b)

enacts a continuing program or makes only a “one-time” grant - is

not to be found by parsing the bare words of that Section or the

related provisions of the Act. On the other hand, all applicable

canons of statutory construction point in the same direction (a

most unusual circumstance). Certainly, there can be no debate that

Guam’s argument must be sustained if the canon requiring the

resolution of doubts in favor of native claims is applied. In

refusing to invoke it here, the courts below have perverted the

“plain meaning” rule in derogation of this Court’s clear teaching.

C. Conflict with Precedents Governing Standing to Assert

an Aboriginal Title Claim

In dismissing the aboriginal title claim on the sole ground that

Guam was not the proper plaintiff (App. B at 20a), the court of

appeals overlooked or misread relevant precedents.

1. The fact that Guam is neither a “tribe” nor an individual

landowner is not a proper basis for disqualifying it from asserting

aboriginal title on behalf of the natives of the Island. In the first

place, the doctrine of aboriginal titie is not dependent on any

particular kind of ownership. That tribes have been the usual

plaintiffs in cases of this sort is simply a reflection of the historical

circumstance that, in the continental United States, the land rights

“resettlement” acreage just discussed was a purely discretionary act by the

Secretary of the Interior to which he could, and did, attach reversionary clauses.

—

of the aboriginal inhabitants were usually communally held by

tribes. But the principle on which native land interests are

respected in American law is much broader, derived as it is from

international law, basically of Spanish origin. See Felix S. Cohen,

The Spanish Origin of Indian Rights in the Law of the United

States, 31 Geo.L.J. 1, 15-21 (1942); Felix S. Cohen, Original

Indian Title, 32 Minn.L.Rev. 28, 43-47 (1947). The governing

Spanish Laws of the Indies, which applied indiscriminately in all

the Spanish possessions, made no distinction as between lands

held communally and those held individually, nor as between

those held by a “tribe,” defined by ethnicity, those held by a

“pueblo” or “rancheria,” defined geographically, and those held by

a society, defined politically. Decisions of this Court sufficiently

illustrate the point. E.g., Jones v. Meehan, 175 U.S. 1 (1899);

Carino v. Insular Government of the Philippine Islands, 212 U.S.

449 (1909); Cramer v. United States, 261 U.S. 219 (1923); United

States v. Candelaria, 271 U.S. 432 (1926); United States v. Dann,

470 U.S. 39, 50 (1985).

In any event, there is no inflexible rule that the plaintiff

initiating the litigation must be the owner. Suits under particular

statutes sometimes restrict the character of the eligible litigant. But

when, as here, no such condition is prescribed, the courts have

taken a very relaxed view as to who properly may be the plaintiff.

Native claims have been represented in court by tribal chiefs (e.g.,

Kansas Indians, 72 U.S. (5 Wall.) 737 (1867); Lone Wolf v.

Hitchcock, 187 U.S. 553 (1903)), by an Indian superintendent

(e.g., Superintendent of Five Civilized Tribes v. Commissioner,

295 U.S. 418 (1935)), by a group acting for all the Indians within a

State (e.g., Thompson ex rel. Indians of California vy. United

States, 122 Ct. Cl. 348, 356-57, 358-61, cert. denied, 344 U.S. 856

(1952)); by the United States (e.g., Heckman v. United States, 224

U.S. 413 (1912)); or by a State through its Attorney General (e.g.,

Indians of California v. United States, 98 Ct. Cl. 583 (1942), cert.

denied, 319 U.S. 764 (1943); Indians of California, 102 Ct. Cl.

837 (1944)).* In the absence of any presently identified

4 To be sure, in this instance, a special jurisdictional Act provided that the

California Attorney General could present the claims to the Court of Claims. Act

of May 18, 1928, ch. 624, 45 Stat. 602, 25 U.S.C. § 654. But this appears to be no

more than acquiescence in the decision, previously taken at the State level, that

descendants of the aboriginal owners in this case,” there ought to

be no objection to their representation by the Government of

Guam. Guam, it should be stressed, is not claiming for itself, but

only as a specie of “parens patriae,” prepared, in due course, to

make appropriate disposition or dedication of the lands affected in

accordance with a later determination of the true owners. This is

especially appropriate given the refusal of the United States to

pursue the claims and the unique fact that in Guam the present

population is substantially descended from the original natives.

2. What we suggest is in no way inconsistent with the

proposition that “tribal rights to Indian lands [are the] exclusive

province of federal law,” nor with the principle that “[only]

Congress can delegate its authority over aboriginal land rights.”

(App. B at 20a.) Neither of these axioms casts any doubt upon the

standing of the Government of Guam to assert aboriginal rights on

behalf of the native titleholders. On the contrary, the first case

quoted by the court of appeals (Oneida Indian Nation vy. County of

Oneida, 414 U.S. 661 (1974)), together with its sequel (County of

Oneida v. Oneida Indian Nation, 470 US. 226, 241-44 (1985)

(“Oneida IT’’)), establishes that the failure of the federal executive

to assert aboriginal claims does not extinguish them or bar their

assertion by others. See also, 28 U.S.C. § 1362. And the second

case invoked (Turtle Mountain Band of Chippewa Indians y.

United States, 490 F.2d 935, 953 (Ct. Cl. 1974)) confirms that no

one, unless clearly authorized by Congress, can abrogate those

rights.

In sum, the precedents reflect the tradition that native title is

jealously protected by federal law against impairment or

destruction at the hands of the State, third persons, or unauthorized

federal officers. But nothing in these cases or others prevents the

vindication of aboriginal rights by appropriate representatives

when the United States, as here, denies the claims, or when it

simply defaults.

California would attempt to vindicate the aboriginal claim of all Indians within

the State. See Cal.Stats. 1927, ch. 643, p. 1092.

> It is not essential, at this point, to determine how the aboriginal land should be

allocated among the successors of the aboriginal owners, or otherwise dealt with.

That can be left to another day. See Fishing Vessel Ass'n, 443 U.S. at 671.

D. Conflict with Precedents Allowing Assertion of

Aboriginal) Title against the United States

As already noted, the court of appeals, rejecting Guam’s

aboriginal claim for lack of standing, left undisturbed the district

court’s apparent holding that no such claim can ever prevail

against the United States. This has never been the law.

In at least four landmark cases, this Court early made clear

that the Executive Branch, absent express Congressional

authorization, cannot extinguish aboriginal title, even though that

title had not been recognized by the United States or anv prior

“colonial” sovereign. Carifio, supra (Presidential resery » of

native land under ambiguous statute ineffective); Lane v. + ueblo

of Santa Rosa, 249 U.S. 110, 113 (1919) (“threatened disposal by

[federal] administrative officers” of Pueblo lands would be an

enjoinable “act of confiscation”); Cramer v. United States, 26)

U.S. 219, 231-32 (1923) (leases of native land by federal officers

and a patent executed by the President ineffective); United States,

ex rel. Hualapai Indians v. Santa Fe Pacific Railroad Co., 3\4

U.S. at 354-56 (forcible eviction from aboriginal lands by Federal

Forces held ineffective to extinguish native title). Nor is there

today any viable argument that these precedents have been eroded

by the decision in Tee-Hit-Ton. The attempt to extend the broader

dicta of that case beyond the Just Compensation context has been

firmly rejected, most explicitly in the Ninth Circuit. See United

States v. Dann, 873 F.2d 1189, 1196 n.5 (9th Cir. 1989), cert.

denied, 493 U.S. 890 (1989).”° Indeed, the law cannot be that the

aboriginal rights of Native Americans depends upon the stance

taken by the Department of Justice in litigation.

The only remaining question on this score is whether the

aboriginal title of native Guamanians (assuming it survived until

1950) was extinguished by the President’s inclusion of the

affected land in military reservations. There is, in fact, no

** “We reject the government's argument that aboriginal title can never be

asserted against the government. Aboriginal title can be extinguished by

Congress or with the authorization of Congress. Dann I, 706 F.2d 919, 928-29

(Mth Cir. 1983). If an executive officer or agency attempts to extinguish

aboriginal title without any congressional authorization, the title holder must be

able to protect the title by asserting it against the officer or agency.” 873 F.2d at

1196 n.5.

eee

indication whatever that the President appreciated that he was

doing so. But, in any event, Section 28(b) of the Organic Act does

not remotely qualify as a “plain and unambiguous” law evincing a

“clear and plain” intention to extinguish aboriginal title or to

authorize the President to do so. See Hualapai Indians, 314 US.

at 346, 353-55, quoted and followed in County of Oneida vy.

Oneida Indian Nation, 470 U.S. 226, 247-48 (1985). Indeed,

construed most favorably to the native claimants, as it must be,

Section 28(b) can be read not to condone the incorporation in

reservations of lands as to which aboriginal title subsists. See

Carino, 212 U.S. at 459-60 (construing the counterpart provision

of the Philippines Organic Act). At most, as Guam has submitted,

it should be construed as permitting a temporary “borrowing” of

those lands for the time required by the exigencies of national

defense. So understood, Section 28(b) permits the United States to

retain its rights as trustee over aboriginal lands for the time being,

but directs the transfer to the Government of Guam of the future

reversion of those rights, effective whenever the military need for

the lands ceased. This is, of course, an independent ground for

sustaining Guam’s standing as plaintiff here.

Il. The Errors Below Involve Matters of Recurring

Importance That Call for Correction by this Court

A. Relevance of the Context to the Grant of Certiorari

At first blush, one might be tempted to dismiss the present

case as not a serious candidate for review by this Court, on the

ground that it involves questions of very local interest only, which,

whether or not correctly decided, are of no recurring importance.

After all, the conflict between the decision below and Carino is, as

a practical matter, largely mooted by the independence of the

Philippines, and any prospect that the Ninth Circuit’s construction

of the Guam Organic Act might be applied to Puerto Rico, the

only other remaining United States territory acquired from Spain

by the Treaty of Paris, is long since removed by new constitutional

arrangements that have converted that territory to a largely self-

governing Commonwealth. Ironically, Hawaii advanced this

argument in unsuccessfully opposing the Petition for Certiorari in

No. 98-818, Rice v. Cayetano, argued October 6, 1999. See

Respondent's Brief in Opposition, 11. The point is no better here

and, again, ought not prevail against stronger reasons for the

Court’s intervention.

1. Needless to say, blatant disregard of a clear precedent of

this Court, no matter how long forgotten, is never lightly to be

condoned. It is a matter of judicial integrity that must always be of

concern, whether or not the underlying events occurred in a “far

away” time and place. Thus, the “exotic” setting of the case cannot

diminish the gross misuse of the “plain meaning” rule in reading

statutes indulged by both courts below. Increasingly, it seems,

lower federal courts are tempted (albeit selectively) to resolve

statutory questions by resort to complex word games, restricted to

the vocabulary of the text, even when a glance at history and

appeal to common sense canons of construction would readily, and

more reliably, supply the answer. This appears to be an over-

reaction to this Court’s criticism of the opposite tendency. Only

this Court can supply the guidance that will redress the balance,

and the present case, we submit, is a convenient vehicle for that

purpose.

2. In fact, the subject matter of this case - the rights of native

Americans, their land rights as well as other fundamental rights

deeply rooted in our political history - is an added reason for this

Court’s intervention. From the beginning, final resolution of the

sensitive issues involved in this field of litigation has been a duty

undertaken by the highest Court of the Nation.”’ That is no doubt

27 A very abbreviated sampling includes: Johnson v. M'Intosh, 21 U.S.

(8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831);

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Mitchel v. United States, 34

U.S. (9 Pet.) 711 (1835); Chouteau v. Malony, 57 U.S. (16 How.) 87 (1853); The

Kansas Indians, 72 U.S. (5 Wall.) 737 (1867); United States v. Forty-three

Gallons of Whisky., 93 U.S. 188 (1876); United States v. McBratney, 104 U.S.

621 (1882); Ex Parte Crow Dog, 109 U.S. 556 (1883); Elk v. Wilkins, 112 U.S.

94 (1884); United States v. Kagama, 118 U.S. 375 (1886); Talton v. Mayes, 163

U.S. 376 (1896); Ward v. Race Horse, 163 U.S. 504 (1896); Jones v. Meehan,

175 U.S. 1 (1899); United States v. Rickert, 188 U.S. 432 (1903); Morris v.

Hitchcock, 194 U.S. 384 (1904); United States v. Winans, 198 U.S. 371 (1905):

Winters v. United States, 207 U.S. 564 (1908); Carifio v. Insular Government of

the Philippine Islands, 212 U.S. 449 (1909); Heckman v. United States, 224 U.S.

413 (1912); Choate v. Trapp, 224 U.S. 665 (1912); United States v. Sandoval,

231 U.S. 28 (1913): United States v. Pelican, 232 U.S. 442 (1914); United States

v. Nice, 241 U.S. 591 (1916); Williams v. City of Chicago, 242 U.S. 434 (1917);

Turner v. United States. 248 U.S. 354 (1919); Lane v. Pueblo of Santa Rosa, 249

in part because, almost by definition, competing claims of

sovereignty are implicated, as they are when State and Nation

dispute offshore boundaries. Cf. California, ex rel. State Lands

Comm'n, 457 U.S. 273, 277 n.6 (1982); United States vy. Alaska,

422 U.S. 184, 186 n.2 (1975) (indicating that such cases, although

within the concurrent jurisdiction of other courts, are appropriately

initiated in this Court). See Oneida II, 470 U.S. at 236-50. And

rightly so, since resolution of the controversy usually depends as

much on the historic “backdrop” as on written texts or established

precedents. E.g., McClanahan, v. Arizona Tax Comm'n, 411 U.S.

164, 171-73 ( 1973); White Mountain Apache Tribe v. Bracker, 448

U.S. 136, 141-45 ( 1980); New Mexico v. Mescalero Apache Tribe,

462 U.S. 324, 334 (1983). That remains the reality today.

What has just been said, we appreciate, argues for the grant of

certiorari in all cases like this one — not a practical solution. The

next best thing is to ask the Court to provide the tools. A

significant response historically has been to re-affirm the special

rule favoring native rights in the construction of ambiguous

U.S. 110 (1919): Cramer v. United States, 261 U.S. 219 (1923); United States vy.

Candeleria, 271 U.S. 432 (1926); United States v. Creek Nation, 295 U.S. 103

(1935): United States v. McGowan, 302 U.S. 535 (1938): United States v. US

Fidelity & Guaranty Co., 309 U.S. 506 (1940); United States,. ex rel Hualpai

Indians v. Santa Fe Pacific Railroad C. 0., 314 U.S. 339 (1941): Board of County

Comm'rs v. Seeber, 318 US. 705 (1943): Williams y. Lee, 358 U.S. 217 (1959):

Federal Power Comm'n y. T, uscarora Indian Nation, 362 U.S. 99 (1960);

Seymour v. Superintendent, 368 U.S. 35] (1962); Arizona vy. California, 373 US.

546 (1963); and sequel, 460 U.S 605 (1983); McClanahan v. Ariz. State Tax

Comm'n, 411 U.S. 164 (1973); Keeble v. United States. 412 U.S. 205 (1973):

Oneida Indian Nation v. C. ounty of Oneida, 414 U.S. 661 (1974) and County of

Oneida v. Oneida Indian Nation, 470 U.S. 226 ( 1985): Morton v. Ruiz, 415 US.

199 (1974); Morton v. Mancari, 417 U.S. 535 (1974): United States vy. Mazurie,

419 U.S. 544 (1975): Fisher v. District C ourt, 424 U.S. 382 (1976): Bryan v.

Itasca County, 426 U.S. 373 (1976); United States vy. Antelope, 430 U.S. 64]

(1977); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978): Santa Clara

Pueblo v. Martinez, 436 U.S. 49 (1978); Wilson v. Omaha Indian Tribe, 442 U.S.

653 (1979); Washington vy. Fishing Vessel Ass'n, 443 U.S. 658 (1979): White

Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); United States v. Sioux

Nation of Indians, 448 U.S. 37] (1980); Montana v. United States. 450 U.S. 544

(1981); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 ( 1982); New Mexico v.

Mescalero Apache Tribe, 462 US. 324 (1983); United States v. Mitchell, 463

U.S. 206 (1983); Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195

(1985); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); South Dakota

v. Yankton Sioux Tribe, 522 U.S. 329 (1998).

statutes. But when, as here, that canon is shunned, it must fall to

this Court to remind inferior courts that applying it is not a matter

of discretion.

3. For the natives of Guam, moreover, there is more at stake

than a question of principle. Although Carifio has no further force

in the Philippines, it remains an important precedent in Guam,

governing present land rights. If our arguments prevail, the

decision here will govern not only the acreage involved in this

case, but also any future release of land on the Island originally

reserved for military purposes but no longer needed for national

defense.

B. Relevance of Rice v. Cayetano

Finally, it is not irrelevant that, as already noted, the Court has

very recently heard oral argument in No. 98-818, Rice v.

Cayetano, a case that may well turn on some of the same questions

involved here. Thus, several of the briefs in Rice, among them that

of the United States (Brief for the United States as Amicus Curiae

Supporting Respondent), back their conclusion that electors for the

trustees of the Office of Hawaiian Affairs constitutionally may be

restricted to descendants of the aboriginal inhabitants by stressing

the existence of a special fiduciary relationship between the

United States and the natives of Hawaii, and incidentally assert

that Hawaiians are no less entitled to enjoy the benefits of that

relationship because they are not organized as ‘tribes’. These

were issues in the present case.

What is more, in this Court the Solicitor General apparently

takes a position on these matters directly at odds with the

submission of Federal counsel in our case in the courts below. We

do not say, of course, that this Court sits to ensure consistency in

Government arguments. But when the outcome in a case not yet

final might well be different if the United States had advanced its

present view in that case, and no possible prejudice can result, nor

any cost to the Court’s crowded docket, this is surely a proper

consideration in deciding whether to grant certiorari. Neither the

principle of equal justice for all, nor the prohibition on advisory

opinions, requires us to ignore what chronology normally would

reveal.

BEAN, APR MET, Ms RCN

CONCLUSION

For the reasons stated, certiorari should be granted.

Respectfully submitted,

November 10, 1999

LOUIS F. CLAIBORNE

JOHN BRISCOE

Counsel of Record

MICHAEL K. PIGNATO

WASHBURN, BRISCOE & McCARTHY

A Professional Corporation

55 Francisco Street, Suite 600

San Francisco, California 94133

ANDREW M. GAYLE

GAYLE & TEKER

A Professional Corporation

330 Hernan Cortez Avenue

Agana, Guam 96910-5018

APPENDIX A

THE GOVERNMENT OF GUAM, ex rel.

THE GUAM ECONOMIC DEVELOPMENT AUTHORITY,

Plaintiff-Appellant,

THE UNITED STATES OF AMERICA, THE DEPARTMENT

OF DEFENSE, THE DEPARTMENT OF THE NAVY, THE

DEPARTMENT OF THE AIR FORCE, THE DEPARTMENT OF

THE INTERIOR, THE UNITED STATES FISH AND

WILDLIFE SERVICE, and THE GENERAL SERVICES

ADMINISTRATION,

Defendants- Appellees.

No. 97-17140

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

1999 U.S. App. LEXIS 18691; 99 Cal. Daily Op. Service 6474;

99 Daily Journal DAR 8269

August 12, 1999, Filed

PRIOR HISTORY: Amended Opinion of June 4, 1999, Reported

at: 1999 U.S. App. LEXIS 11340.

COUNSEL: For GOVERNMENT OF GUAM, Plaintiff -

Appellant: John Briscoe, Esq.. WASHBURN BRISCOE &

MCCARTHY, Michael K. Pignato, Esq., WASHBURN,

BRISCOE & McCARTHY, San Francisco, CA; Andrew M.

Gayle, Esq., GAYLE & TEKER, Agana, GU.

For UNITED STATES OF AMERICA, UNITED STATES

DEPARTMENT OF DEFENSE, DEPARTMENT OF NAVY,

DEPARTMENT OF THE AIR FORCE, DEPARTMENT OF THE

INTERIOR, U.S. FISH AND WILDLIFE SERVICE, GENERAL

SERVICES ADMINISTRATION, Defendants - Appellees: Ellen

J. Durkee, Esq., U.S. DEPARTMENT OF JUSTICE, Margo D.

Miller, Esq., DOJT - DEPARTMENT OF JUSTICE, Washington,

DC; Mikel W. Schwab, Esq., OFFICE OF THE USS.

ATTORNEY, Agana, GU.

OPINION:

ORDER AMENDING OPINION AND DENYING PETITION

FOR REHEARING

The opinion filed June 4, 1999, is amended as follows:

On slip opinion page 5603, in the quotation delete emphasis

presently used and instead emphasize "are hereby” and "vested

in." Then in the sentence following the quotation and citation

replace "is hereby determined” with "are hereby . . . vested in.”

With this amendment, the petition for rehearing is DENIED.

APPENDIX B

THE GOVERNMENT OF GUAM, ex rel.

THE GUAM ECONOMIC DEVELOPMENT AUTHORITY,

Plaintiff-A ppellant,

THE UNITED STATES OF AMERICA, THE DEPARTMENT

OF DEFENSE, THE DEPARTMENT OF THE NAVY, THE

DEPARTMENT OF THE AIR FORCE, THE DEPARTMENT OF

THE INTERIOR, THE UNITED STATES FISH AND

WILDLIFE SERVICE, and THE GENERAL SERVICES

ADMINISTRATION,

Defendants-Appellees.

No. 97-17140

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

179 F.3d 630; 1999 U.S. App. LEXIS 11340; 99 Cal. Daily Op.

Service 4270; 99 Daily Journal DAR 545]

June 4, 1999, Filed

SUBSEQUENT HISTORY: As Amended on Denial of Rehearing

August 12, 1999, Reported at: /999 US. App. LEXIS 1869].

PRIOR HISTORY: Appeal from the District Court of Guam. D.C.

No. CV-95-00111-JSU. John S. Unpingco, District Judge,

Presiding.

DISPOSITION: AFFIRMED.

COUNSEL: John Briscoe and Michael K. Pignato, Washburn,

Briscoe & McCarthy, San Francisco, California, for the plaintiff-

appellant.

Margo’ D. Miller, United States Department of Justice,

Washington, D.C., for the defendants-appellees.

JUDGES: Before: Jerome Farris, John T. Noonan, and Susan P.

Graber, Circuit Judges.

OPINION:

GRABER, Circuit Judge:

The government of Guam brought this action against the

United States, alleging that it is entitled to own or control about

24,000 acres of land pursuant to the Organic Act of Guam, the

Territorial Submerged Lands Act, and the doctrine of aboriginal

title. The district court disagreed and granted summary judgment

to the United States. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are not in dispute. In 1898, Spain ceded Guam,

including 41,859 acres of Spanish-owned property (crown land),

to the United States. In that same year, the President of the United

States placed Guam under the control of the Department of the

Navy. Guam remained under the Navy's control until 1941, when

Japan captured the island during World War II.

After the United States recaptured Guam in 1944, it increased

its military presence on the island. That increased presence

required more land, which the United States continued to acquire

until 1950.

In 1950, Congress passed the Organic Act of Guam, which

established a civil government in Guam. Pursuant to that Act, the

United States gave to the newly created government 1,250 acres of

land that the naval government of Guam had used in the

administration of civil affairs. However, the United States retained

more than 42,000 acres of land that it had been using for other

purposes.

Between 1950 and 1991, the United States condemned new

land in Guam at least once (186.87 acres in 1962) and occasionally

transferred unneeded land to the government of Guam (879 acres

in the early 1980s and 3,200 acres in 1994). In 1992, the Navy

declared to be "excess" (a) 371 acres of land at Ritidian Point and

(b) 15,571 acres of submerged land adjacent to the property. The

Navy transferred the 371 acres of dry land to the United States

Fish and Wildlife Service for use as part of a wildlife refuge and

transferred the 15,571 acres of submerged land to the General

Services Administration for later redistribution.

In April 1995, the Department of Defense published the

"Guam Land Use Plan 1994." That plan identified another 8,200

acres of land in Guam that the United States military did not need.

On September 22, 1995, the government of Guam brought this

action against the United States to acquire title to or control over

(1) the 371 acres of land at Ritidian Point, (2) the 15,571 acres of

submerged lands adjacent to Ritidian Point, and (3) the 8,081 acres

of other land in Guam that is no longer needed for military

purposes.’ Guam argued that it was entitled to that land pursuant

to the Organic Act of Guam, the Territorial Submerged Lands Act,

and the doctrine of aboriginal title.

Thereafter, the parties filed cross-motions for summary

judgment. The district court granted the United States’ motion.

Guam moved for reconsideration, which the district court denied.

This timely appeal ensued.

STANDARD OF REVIEW

We review de novo the district court's grant of summary

judgment to determine "whether the district court correctly applied

the law and if, viewing the evidence in the light most favorable to

the non-moving party, there are no genuine issues of material

fact.” Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1 998).

' Guam's original complaint sought 22,477 acres of "other" land. Guam filed an

amended complaint on November 9, 1995, reducing its request to 8,081 acres.

ORGANIC ACT OF GUAM

A. Statutory Framework

On August 1, 1950, Congress passed the Organic Act of Guam

(Organic Act). See Organic Act of Guam, Pub. L. No. 630, 64

Stat. 384 (1950) (codified at 48 U.S.C. § 1421 et seq.).’ The Act

establishes and defines the power of a civil government in Guam.

See § 3 (codified at 48 U.S.C. § 142]a); see also § 5 (codified at

48 U.S.C. § 1421b) (establishing the Guam Bill of Rights); Kenda

K. Tornes, State Taxation of Puerto Rican Obligations: An

Interest(ing) Question, 66 Chi.-Kent L. Rev. 903, 930 (1992)

("Congress enacted the 'Organic Act of Guam' to provide a civil

government for Guam.").

To help the newly established government, Congress

transferred to it some of the property that the United States owned

in Guam. First, Congress unconditionally transferred title to all

property owned by the United States that the naval government of

Guam had used "in the administration of the civil affairs of the

inhabitants":

The title to all property, real and personal, owned by the

United States and employed by the naval government of

Guam ir. the administration of the civil affairs of the

inhabitants of Guam, including automotive and other

equipment, tools and machinery, water and sewerage

facilities, bus lines and other utilities, hospitals, schools,

and other buildings, shall be transferred to the

government of Guam within ninety days after the date of

enactment of this Act.

§ 28(a) (codified at 48 U.S.C. § /421f(a)). The land at issue here

was not "employed by the naval government of Guam in the

administration of the civil affairs" and, thus, Guam did not receive

an unconditional grant of that land.

* The enacted wording and the codified wording of the Act differ slightly. We

rely on the enacted version. See Trailer Train Co. v. Leuenberger, 885 F.2d 415,

416 n.2 (8th Cir. 1988) ("The language of 49 U.S.C. § 11503 codifying Section

306 differs from the language of Section 306 as enacted. The court relies on the

language used in Section 306.").

Subsection (b) transferred control over the remainder of the

property that the United States owned in Guam, subject to one

limitation:

All other property, real and personal, owned by the

United States in Guam, not reserved by the President of

the United States within ninety days after the date of

enactment of this Act, is hereby placed under the control

of the government of Guam, to be administered for the

benefit of the people of Guam, and the legislature shall

have authority, subject to such limitations as may be

imposed upon its acts by this Act or subsequent Act of the

Congress, to legislate with respect to such property, real

and personal, in such manner as it may deem desirable.

§ 28(b) (codified at 48 U.S.C. § 1421 f(b)) (emphasis added). The

land at issue here was "other property . . . owned by the United

States."’ However, the President reserved that land for the United

States on October 30, 1950, which was a date "within ninety days

after the date of enactment of this Act." See Executive Order No.

10178, 15 Fed. Reg. 7313 (1950), reprinted at 48 U.S.C. § 1421 f

Thus, the land did not pass to Guam in 1950.

Guam argues, however, that § 28(b) has continuing force and

requires the United States to transfer all property that it owns in

Guam that is no longer used for a military purpose. Because the

land at issue here is no longer needed for a military purpose,

Guam argues that § 28(b) entitles it to control that land.

B. Statutory Text and Context

"When interpreting a statute, this court looks first to the words

that Congress used." Sanchez v. Pacific Powder Co., 147 F.3d

1097, 1099 (9th Cir. 1998). "Rather than focusing just on the word

or phrase at issue, this court looks to the entire Statute to determine

Congressional intent." Id. If the wording of the statute

unambiguously demonstrates Congressional intent, we need look

no further. See Sloan v. West, 140 F.3d 1255, 1261 (9th Cir. 1998)

> When Congress passed the Organic Act, the United States had not yet acquired

183.7 acres of the land at issue here.

("If the intent of Congress is clear from the face of the statutory

language, we must give effect to the unambiguously expressed

Congressional intent.").

The plain wording of § 28(b) establishes that Congress

intended a one-time grant of property. Section 28(b) contains two

interrelated clauses. The first clause gives the Guamanian

government control over all property not already transferred to it

under § 28(a). The second clause, however, conditions that grant

on the President's not reserving the property within 90 days: "All

other property . . . owned by the United States in Guam, not

reserved by the President of the United States within ninety days

after the date of enactment of this Act, is hereby placed under the

control of the government of Guam .. . ." § 28(b) (emphasis

added).

After 90 days, the condition was satisfied and the grant of

property was complete: Guam owned or controlled all the property

previously owned by the United States, except for the property

that the President had reserved. Nothing in the wording of the

Statute suggests that § 28(b) has continuing force or that § 28(b)

requires the United States to transfer all property that it owns in

Guam that is no longer used for a military purpose.

Context supports the plain meaning of subsection (b). First,

Congress included a similar 90-day provision in subsection (a):

"The title to all property . . . shall be transferred to the government

of Guam within ninety days after the date of enactment of this

Act." Congress’ choice to fix Guam's right to property under

subsection (a) after 90 days suggests that Congress intended

similarly to fix Guam's right to property under subsection (b) after

90 days.

~ Second, subsection (c) provides:

All property owned by the United States in Guam, the

title to which is not transferred to the government of

Guam by subsection (a) hereof, or which is not placed

under the control of the government of Guam by

subsection (b) hereof, is transferred to the administrative

supervision of the head of the department or agency

designated by the President under section 3 of this Act,

except as the President may from time to time otherwise

prescribe: Provided, That the head of such department or

Se ln tn A lly a ARLE ate

agency shall be authorized to lease or to sell, on such

terms as he may deem in the public interest, any property,

real and personal, of the United States under his

administrative supervision in Guam not needed for public

purposes.

§ 28(c) (codified at 48 US.C. 1421f\c)) (emphasis added, except

emphasis on “Provided").’ The final clause of subsection (c)

allows the United States to sell property that the President reserved

under subsection (b). That provision can have meaning only if

Congress intended for subsection (b) to constitute a one-time grant

of property. Under Guam's reading of the statute, Congress’

inclusion of the last clause is superfluous - the United States never

could sell any property, because the property would revert to

Guam automatically as soon as it was "not needed for public

purposes.” This court generally refuses to interpret a statute in a

way that renders a provision superfluous. See Burrey v. Pacific

Gas & Elec. Co. 159 F.3d 388, 394 (%h Cir 1998) ("In

interpreting a statutory provision, we must avoid any construction

that renders some of its language superfluous.").

Moreover, Guam's argument - that § 28(b) requires the United

States to transfer control to Guam over all property not used for a

military purpose - would eviscerate another of subsection (c)'s

provisions. Subsection (c) gives the President the authority to

choose the department that will control the property reserved

under subsection (b). Under Guam's interpretation of the Act, the

President could give control over the property to a non-military

agency such as the Department of Education, but if that agency

used the property for a non-mii.tary purpose, then the property

would revert to Guam. Guam's interpretation thereby robs

Subsection (c) of its practical meaning.

A contextual reading of the Organic Act thus supports the

plain meaning of subsection (b): Congress intended to provide

Guam with a one-time grant of property, a grant that became fixed

90 days after enactment of the Organic Act. Therefore, we hold

* Congress amended subsection (c) in 1968 to give control over the property to

the Secretary of the Interior, unless the President provides otherwise. See Pub. L.

No. 90-497, 82 Stat. 848 (1968).

that the wording of the Organic Act unambiguously demonstrates

Congressional intent.

C. Guam's Arguments

Guam nevertheless presents six reasons why Congress

intended for § 28(b) to have continuing force. We consider each in

turn.

1. Guam's Reading of § 28(b)

Guam argues that, when Congress drafted § 28(b), it intended

for the phrase "is hereby placed" to mean "is hereby ordained to be

placed when the appropriate circumstances arise." Similarly,

Guam asserts, Congress intended for the phrase "not reserved" to

mean "while reserved." Guam thus concludes that Congress

intended for § 28 to read:

All other property, real and personal, owned by the

United States in Guam, [while reserved] by the President

of the United States within ninety days after the date of

enactment of this Act, [is hereby ordained to be placed

when the appropriate circumstances arise] under the

control of the government of Guam, to be administered

for the benefit of the people of Guam, and the legislature

shall have authority, subject to such limitations as may be

imposed upon its acts by this Act or subsequent Act of the

Congress, to legislate with respect to such property, real

and personal, in such manner as it may deem desirable.

Were we to accept Guam's significant redrafting of the statute,

then Guam might be entitled to the land at issue. However, we are

bound by the words that Congress actually used. See United States

v. Great Northern Ry. Co., 343 U.S. 562, 575, 96 L. Ed. 1142, 72

S. Ct. 985 (1952) ("It is our judicial function to apply statutes on

the basis of what Congress has written, not what Congress might

have written."); Nugget Hydroelectric, L.P. v. Pacific Gas & Elec.

Co., 98] F.2d 429, 437 (9th Cir. 1992) ("Separation of powers

principles and the value of democratic rule prohibit us from

‘interpreting’ [a] statute such that we are, in fact, amending [it].").

10a

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ipicaoee igi re witb or

2. Section 33

Guam next argues that § 33 of the Organic Act authorizes the

President to reserve land for military purposes. According to

Guam, if we interpret § 28(b) as a one-time grant, then § 33 is

superfluous.

Section 33 states:

Nothing contained herein shall be construed as limiting

the authority of the President to designate parts of Guam

as naval or military reservations, nor to restrict his

authority to treat Guam as a closed port with respect to

the vessels and aircraft of foreign nations.

(Codified at 48 US.C. § 1421k.) As is apparent, § 33 is not an

operative provision but, instead, is a provision designed to protect

against reading implications into the Organic Act. See Garnett v.

Renton Sch. Dist. No. 403, 987 F 2d 641, 645 (9th Cir. 1993) (so

interpreting a similar provision in the Equal Access Act).

Our interpretation of § 28(b) does not render § 33 superfluous.

In § 28(b), Congress authorized Guam to control, but not to own,

federal public land - land that the President did not reserve within

90 days of enactment. Section 33 simply ensured that, to the extent

that Guam received control of such land, nothing in the Act

prevented the President from taking back control of the land if

needed later for a military purpose. Whether § 28(b) provides a

one-time or a continuing grant of property, § 33 still serves this

intended purpose.

3. Interpretation of Similar Statutes

Third, Guam argues that its reading of the Organic Act is

mandated by the Supreme Court's interpretation of similar statutes.

We disagree.

Guam relies first on the Supreme Court's interpretation of the

Utah Enabling Act, which states in part:

lla

That upon the admission of said State into the Union,

sections numbered two, sixteen, thirty-two, and thirty-

six in every township of said proposed State, and where

such sections or any parts thereof have been sold or

otherwise disposed of by or under the authority of any

Act of Congress other lands equivalent thereto, in legal

subdivisions of not less than one quarter section and as

contiguous as may be to the section in lieu of which the

same is taken, are hereby granted to said State for the

support of common schools, such indemnity lands to be

selected within said State in such manner as the

legislature may provide, with the approval of the

Secretary of the Interior. . . .

Utah Enabling Act, Pub. L. No. 138, 28 Stat. 109 (1894)

(emphasis added). In Andrus v. Utah, 446 U.S. 500, 64 L. Ed. 2d

458, 100 S. Ct. 1803 (1979), the Supreme Court held that Utah's

right to indemnity or "in lieu" land (lands to replace land sold by

the United States) did not become "vested" when Utah became a

state. Guam suggests that the Court reached that decision by

holding that the phrase “hereby granted” constituted a continuing

grant of land. Guam reasons that we must give the term "hereby" a

similar meaning in the Organic Act.

Contrary to Guam's argument, the Court did not rely on the

phrase “hereby granted." Instead, the Court held that it was

unnecessary to decide whether the Act constituted a present or

future grant of land, because the Act granted specific, numbered

parcels of land. See id. at 506-07. Accordingly, title to the land did

not vest until Utah actually surveyed the land: "Whether the

Enabling Act contained words of present or future grant, title to

the numbered sections did not vest in the State until completion of

an official survey." /d@. Until Utah satisfied that condition, the

United States “remained free to dispose of the designated lands.”

Id. at 507; see id. at 508 n.10 ("Until the status of the lands was

fixed by a survey, and they were capable of identification,

Congress reserved absolute power over them.") (citation and

internal quotation marks omitted) (emphasis in original). Thus, the

right to indemnity or "in lieu" lands did not become fixed until

Utah had satisfied the condition of the Act. See id at 507.

"Because much of the State was not surveyed until long after its

l2a

;

BISA ie age PGA aan civ NE lac et wt a Sern iS

admission to the Union, its indemnity or 'in lieu’ selections were

not made promptly." /d. at 502.

Indeed, rather than Supporting Guam's argument, Andrus

Supports our interpretation of the Organic Act. As in Andrus, the

Organic Act provided a grant of land subject to a condition: that

the President not reserve the land within 90 days. That condition

was Satisfied 90 days after the effective date of the Organic Act.

At that time, the rights of all parties became fixed: Guam received

all land that the President had not reserved.

Guam also relies on the Supreme Court's interpretation of the

Submerged Lands Act of 1953, which states in part:

It is hereby determined and declared to be in the public

interest that (1) title to and ownership of the lands

beneath navigable waters within the boundaries of the

respective States, and the natural resources within such

lands and waters . . . are hereby, subject to the provisions

hereof, recognized, confirmed, established, and vested in

and assigned to the respective States ... .

43 U.S.C. § 1311(a) (emphasis added). Guam argues that the

Supreme Court interpreted the phrase "are hereby . . . vested in" as

a continuing grant of land. Once again, we are not persuaded.

The Submerged Lands Act does "hereby" grant the states

certain rights. However, the Act defines the boundaries of the land

grant using ambiguous terms. For example, Congress did not

define the term "inland waters," even though the location of such

waters necessarily changes over time due to erosion, accretion,

and reliction. See United States vy. Louisiana, 394 U.S. 11, 33, 22

L. Ed. 2d 44, 89S. Ct. 773 (1969) (The Louisiana Boundary Case)

("The shoreline is constantly shifting as the Mississippi River and

violent Gulf storms remold the soft, silt-like delta soil."). Thus, the

question before the Court was whether to fix the boundary at a

specific date or leave it ambulatory, changing as the coastline

changes:

The 1845 coastline has been substantially modified by

extensive erosion and some accretion in the intervening

period of more than a century. This modification has

occasioned a dispute between the United States and Texas

13a

as to whether the [Act] . . . is to be read as measuring

from the 1845 coastline, as Texas contends, or from the

coastline as it exists currently or at any time in the future,

as the United States contends.

United States v. Louisiana, 394 U.S. ], 2-3, 22 L. Ed. 2d 36, 89 S.

Cr. 768 (1969) (The Texas Boundary Case).

In three cases, the Supreme Court adopted the ambulatory

definitions from the Convention on the Territorial Sea and the

Contiguous Zone, an international treaty. See United States v.

California, 381 U.S. 139, 165, 14 L. Ed. 2d 296, 85 S. Ct. 1401

(1965) ("The Convention on the Territorial Sea and the

Contiguous Zone, approved by the Senate and ratified by the

President, provides such definitions. We adopt them for purposes

of the Submerged Lands Act.") (footnote omitted); see also The

Texas Boundary Case, 394 U.S. 1 at 4-6, 89 S. Ct. 768, 22 L. Ed.

2d 36 (stating the same rule); The Louisiana Boundary Case, 394

U.S. at 35 (stating the same rule) (citation omitted). Pursuant to

those decisions, the boundaries of the land (i.e., the location of the

land) granted to the states necessarily would change over time.

But, that change occurs not because Congress provided a

continuing grant of land. Instead, it occurs because Congress

defined the boundaries of the granted land using ambulatory terms.

Congress faced no such problem under the Organic Act. The

boundary dispute cases thus shed no light on whether Congress

intended the Organic Act to constitute a one-time or a continuing

grant of land.

Guam also argues that courts have interpreted Section 5(a) of

the Submerged Lands Act to provide a continuing grant of land:

"Section 5(a) of the Submerged Lands Act, 43 U.S.C. 13/3(a), ...

omits from the grant ‘land expressly retained by . . . the United

States when the State entered the Union.’ Notwithstanding the

literal tie to a specific date, this provision has been construed to

exempt from transfer land that emerged after statehood and after

passage of the Submerged Lands Act."

Guam misconstrues precedent. Courts have held that the

United States owns newly emerged land because the Act, 43

U.S.C. § 1313(a), expressly retains for the United States

"accretions" to its land. See California ex rel. State Lands Comm 1:

v. United States, 457 U.S. 273, 283, 73 L. Ed. 2d 1, 102 S. Ct.

l4a

Sri a ares tb ea

2432 (1982) ("Section 5(a) of the Act [43 US.C. § 1313(a)],

however, withheld from the grant to the States all ‘accretions’ to

coastal lands acquired or reserved by the United States.”);

California ex rel. State Lands Comm'n v. United States, 805 F.2d

857, 861 & n.2 (9th Cir. 1986) (stating a similar proposition).

Because Congress expressly reserved future land in the

Submerged Lands Act but not in the Organic Act, the former

provides no support for Guam's argument that we should imply

such a future grant in the latter.

4. Interpretation of a Statute in Favor of Aboriginal

Inhabitants

Ordinarily, courts interpret a federal land grant in favor of the

United States. See United States v. Union Pac. RR. Co., 353 US.

112, 116, 1 L. Ed. 2d 693, 77S. Ct. 685 (1957). That rule does not

apply, however, when the United States grants land to Native

Americans. In those circumstances, "statutes are to be construed

liberally in favor of the Indians. with ambiguous provisions

interpreted to their benefit." County of Yakima y. Confederated

Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269,

116 L. Ed. 2d 687, 112 §. Ct 683 (1992) (citation and internal

quotation marks omitted).

Guam argues that this principle applies equally to the native

inhabitants of Guam and, thus, requires us to interpret the statute

in its favor. Assuming, without deciding, that the rule applies here,

it does not assist Guam. "The canon of construction regarding the

resolution of ambiguities in favor of Indians . . . does not permit

reliance on ambiguities that do not exist; nor does it permit

disregard of the clearly expressed intent of Congress." South

Carolina v. Catawba Indian Tribe. Inc., 476 U.S. 498, 506, 90 L.

Ed. 2d 490, 106 S Ct 2039 (1986). The Organic Act

unambiguously demonstrates Congress’ intent to provide a one-

time grant of property. This interpretative aid cannot defeat that

unambiguously expressed intent.

lSa

5. Guam Land Transfer Act and Guam Land Acquisition Act

Guam next argues that we must read the Organic Act in the

light of the Guam Land Transfer Act of 1945, which allows for the

sale of land that is no longer required for a military purpose:

That for the purpose of effecting the rehabilitation and

resettlement of the residents of Guam, the Secretary of

the Navy, or such officer as he may designate for such

purpose and under such regulations as he may prescribe,

is hereby authorized to transfer to the naval government

of Guam, for transfer or sale by the naval government of

Guam at its discretion, to such persons and upon such

terms and conditions and at such times as it may

determine to be suitable, in replacement of lands acquired

for military or naval purposes in Guam, such lands owned

by the United States in Guam as may be determined by

the Secretary of the Navy, after consultation with the

Secretary of War, not to be required for military or naval

purposes.

Guam Land Transfer Act, Pub. L. No. 225, 59 Stat. 584 (1945).

That Act expressly authorized the transfer of land "not .. .

required for military or naval purposes." Congress chose not to

include similar wording in the Organic Act. In the circumstances,

we must give effect to the different wording. See Zimmerman v.

Oregon Dep't of Justice, 170 F.3d 1169, 1177 (9th Cir. 1999)

("We must give effect to the different wording and different focus

of the two provisions.").

Guam also attempts to rely on the Guam Land Acquisition Act

of 1946, Pub. L. No. 594, 60 Stat. 803 (1946). However, that Act

pertains to acquisition, not transfer, of land. That being so, the Act

sheds no light on the meaning of the land-transfer provisions in the

Organic Act.

6. Defeat of the Obvious Intent of Congress

Finally, Guam argues that interpreting the statute as a one-

time grant would defeat the obvious intent of Congress. "In all

cases of statutory construction, the plain meaning of legislation

l6a

SOLAR AH Te cals Bhat opis het Shes Batix jade Cs kre.

should be conclusive, except in the rare cases in which the literal

application of a statute will produce a result demonstrably at odds

with the intention of its drafters." California Central Trust

Bankcorp v. Been (In re Been), 153 F.3d 1034, 1036 (9th Cir.

1998) (citation and internal quotation marks omitted). See also

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 5 71, 73 L. Ed.

2d 973, 102 S. Ct. 3245 (1982) ("In rare cases the literal

application of a statute will produce a result demonstrably at odds

with the intentions of its drafters, and those intentions must be

controlling.”). This is not one of those "rare" cases.

After the United States recaptured Guam from Japan, the

United States acquired many acres of land for use by the military.

However, by the late 1940s, the military was no longer using

much of that land; by 1950, more than 50 percent of the actual

acreage in Guam was occupied by inactive military installations.

See Civil Gov't of Guam: Hearing on S. 185, S. 1892 & H.R. 7273

Before a Senate Subcomm. of the Comm. on Interior and Insular

Affairs, 81st Cong. 62, 2d Sess. (Apr. 19, 1950). As noted above,

Congress previously had enacted the Guam Land Transfer Act to

allow for the release of some of this land. Congress expressed a

similar purpose when drafting the Organic Act:

The committee recommends that the need of the military

for the land now held by it should be carefully

reexamined, with the object of releasing at the first

possible moment all lands not actually required for

military purposes.

H.R. Rep. No. 81-1677, at 11 (1950).

That the armed forces immediately resurvey their military

needs for lands throughout the Trust Territory, and in

Guam and American Samoa, so that all land not

absolutely required for military purposes may be returned

to private ownership and use.

Hearing on H.R. 4499 Before the Senate Comm. on Interior and

Insular Affairs, 81st Cong. 20, Exec. Sess. (Jan. 30, 1950).° Guam

argues that interpreting the Organic Act as a one-time grant would

defeat that obvious purpose, because the President reserved all or

almost all the property subject to § 28(b). Thus, Guam reasons,

unless § 28(b) imposes a continuing grant of property, it was an

"empty promise to the Guamanian people."

Guam's argument is premised on its belief that the sole

purpose of § 28(b) was to transfer control of property to the

Guamanian government. However, Congress knew how to create

such a transfer provision if it had that intent: Subsection (a)

unconditionally transferred all property owned by the United

States that the naval government of Guam had used "in the

administration of the civil affairs of the inhabitants." See also

Guam Land Transfer Act, 59 Stat. 584 (authorizing Congress to

transfer land when no longer required for military purposes).

Congress used different wording in subsection (b).

The wording of subsection (b) instead suggests that Congress’

purpose was to force the President to decide promptly and

affirmatively whether to retain property. That interpretation is

equally supported by the legislative history, which demonstrates

Congress’ frustration that the military had not yet released land

that even it believed was unnecessary. See, e.g., Civil Gov't of

Guam, at 37 ("I am going to ask the Governor now, have they

returned that 26,000 acres that the military agrees it does not need

and which we in Public Lands were told 2 years ago that the

military did not need . . . ?"). If Congress’ purpose was to require

the President affirmatively and promptly to reserve land that he

believed that the federal government still needed, then that

purpose was accomplished, even though the President decided to

reserve all or almost all the land subject to § 28(b). Guam has not

established an "obvious" purpose that the plain wording of the

statute will defeat.

> Both passages from the legislative history, as well as the Land Transfer Act,

refer to Congress’ desire to return unneeded land to private use in Guam. They do

not necessarily suggest that Congress intended to give such property to the

territorial government of Guam.

18a

D. Conclusion

We hold that Congress unambiguously intended for § 28(b) to

provide Guam with a one-time grant of property. The district court

did not err by granting summary judgment to the United States on

Guam's first claim.

TERRITORIAL SUBMERGED LANDS ACT

Guam also claims that it is entitled to submerged land adjacent

to the land discussed above. However, Guam acknowledges that it

cannot prevail on its claim for submerged land unless it prevails

on its claim under the Organic Act. Because we hold that Guam is

not entitled to any land under the Organic Act, we also hold that it

is not entitled to any submerged land adjacent to that property.

ABORIGINAL TITLE

Finally, Guam claims that it is entitled to control some of the

land at issue under the doctrine of "aboriginal title." The district

court refused to decide whether that doctrine applies to the native

inhabitants of Guam, holding instead that the doctrine would not

entitle Guam to the relief that it seeks. Because we agree with the

district court, we also assume, without deciding, that the doctrine

of aboriginal title applies to the native inhabitants of Guam.

"Aboriginal title refers to the right of original inhabitants of

the United States to use and occupy their aboriginal territory."

Confederated Tribes of Chehalis Indian Reservation vy.

Washington, 96 F.3d 334, 341 (9th Cir. 1996). Accordingly, the

right to aboriginal title belongs only to tribes and, in some

circumstances, to individual members of tribes. See United States

v. Dann, 873 F.2d 1189, 1195-96 (9th Cir. 1989) ("The common

view of aboriginal title is that it is held bytribes. . . . Nevertheless.

the Supreme Court has . . . recognized that individual aboriginal

rights may exist in certain contexts.") (citation and internal

quotation marks omitted); see also William C. Canby, Jr.,

American Indian Law, pp. 347-48 (3d ed. 1998) (stating a similar

proposition).

19a

The government of Guam is neither a tribe nor a tribal

member. Therefore, the government of Guam qua government

cannot claim any aboriginal right to use or occupy tribal land.

Guam argues in response that it has a right to control the land

as a trustee for the aboriginal inhabitants of Guam. The

Constitution, however, gives Congress that power:

It very early became accepted doctrine in this Court that

although fee title to the lands occupied by Indians when

the colonists arrived became vested in the sovereign -

first the discovering European nation and later the

original States and the United States - a right of

occupancy in the Indian tribes was _ nevertheless

recognized. . . . Once the United States was organized

and the Constitution adopted, these tribal rights to Indian’

lands became the exclusive province of the federal law.

Oneida Indian Nation of N.Y. State v. County of Oneida, 414 U.S.

661, 667, 39 L. Ed. 2d 73, 94S. Ct. 772 (1974). See also Mountain

States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 276,

86 L. Ed. 2d 168, 105 S. Ct. 2587 (1985) ("The Constitution grants

Congress . . . the power to set national policy respecting Indian

lands... .").

Congress can delegate its authority over aboriginal land rights.

See Turtle Mountain Band of Chippewa Indians v. United States,

203 Ct. Cl. 426, 490 F.2d 935, 945 (Ct. Cl. 1975). Guam argues

that the Organic Act constitutes such a delegation. As noted above,

however, the Organic Act delegates authority over the property at

issue to the executive branch of the federal government, not to the

territorial government of Guam. To the extent that Congress

intended to delegate its trust authority over aboriginal rights to that

land, Congress did not delegate its authority to the territorial

government of Guam. :

In this connection, Guam also relies on the Land Transfer Act

of 1945. That Act allowed the United States naval government, not

the territorial government, to transfer or sell property for the

"resettlement of the residents of Guam." See Pub. L. No. 225, 59

Stat. 584 (1945). Nothing in that Act suggests an intention to

delegate trust responsibility to the territorial government of Guam.

20a

In summary, Guam has not demonstrated that Congress

delegated its authority over aboriginal land rights to the territorial

government. Guam has cited no precedent allowing a

governmental body to compel Congress to make such a delegation.

Guam's claim to aboriginal title would not entitle it to any relief.

AFFIRMED.

2la

APPENDIX C

THE GOVERNMENT OF GUAM, et al.

UNITED STATES OF AMERICA, et al.

Case No. CV 95-00111

DISTRICT COURT OF GUAM

TERRITORY OF GUAM

JUDGMENT

October 22, 1997, Filed

In accordance with the findings and conclusions within this

Court’s July 16, 1997 Order, it is

ORDERED that the defendants are entitled to summary

judgment with respect to each and every claim raised by plaintiff

in its Amended Complaint. Further it is

ORDERED, DECREED AND ADJUDGED that the

defendant retain title to all lands at issue in the above-captioned

case;

Finally, it is

ORDERED and ADJUDGED that this civil action shall be,

and it is hereby, DISMISSED with prejudice, each party to bear

their own costs.

Dated: October 22, 1997.

/s/John S. Unpingco

JOHN S. UNPINGCO

District Judge

APPENDIX D

THE GOVERNMENT OF GUAM, et al.

UNITED STATES OF AMERICA. et al.

Case No. CV 95-0011]

DISTRICT.COURT OF GUAM

TERRITORY OF GUAM

MEMORANDUM ORDER ON MOTION FOR

RECONSIDERATION

August 29, 1997, Filed

This matter is before this Court on the Plaintiff Government of

Guam’ s, et al. (“GOVGUAM”) Motion for Reconsideration. This

Court has reviewed GOVGUAM’s Memoranda, the cases

GOVGUAM cites in Support and this Court’s July 17, 1997

Memorandum Order. Based on this review this Court finds that

reconsideration of the two issues presented is not warranted.

Accordingly, GOVGUAM’s Motion for Reconsideration is

DENIED. This determination is based on the Court’s finding that

the two issues presented for reconsideration were: (1) considered

by the Court in its prior order and (2) not material to the final

resolution of issues presented by this case. Backlund v. Barnhart,

778 F.2d 1386 (9th Cir. 1985)

GOVGUAM requests this Court reconsider its July 16, 1997

Memorandum Order granting summary judgment in favor of the

Jnited States. LR 7. 1(1)(3) (“A motion for reconsideration of the

decision on any motion may be made only on the grounds of a

manifest showing of a failure to consider material facts presented

to the Court before such.a decision.”); see also Fed.R.Civ.P. 59e);

Fed.R.Civ.P. 60(b). GOVGUAM bases this motion on its position

that this Court “failed to consider and decide the following two

23a

issues presented by the pleadings, briefs and parties arguments:

(1) Whether unextinguished aboriginal title attaches to some 2,200

acres in suit, and if so whether possession and control of these

parcels, no longer needed for military purposes, must now be

transferred to the Government of Guam as representative of the

aboriginal owners; and (2) Whether a special fiduciary relationship

subsists between the United States and the native people of Guam,

and if so, whether the attendant cannon of construction requires

reading § 28(b) of the Guam Organic Act as imposing an

obligation to transfer the lands in suit to the Government of Guam,

now that they are no longer needed for Military purposes.”

GOVGUAM et al. v. United States et al., District Court of Guam,

CV 95-00111, GOVGUAM’s Motion for Reconsideration filed

July 25, 1997.

ABORIGINAL TITLE CLAIMS

As to the claim that this Court failed to evaluate

GOVGUAM’s argument regarding Aboriginal Title this Court

disagrees. At pages 14-15 of the July 16, 1997 Memorandum

Order this issue was addressed; this Order stated the Court’s

determination that this issue as presented was not justiciable.

Accordingly, this Court’s Memorandum Order, on its face, clearly

demonstrates its evaluation of this issue. Nothing in

GOVGUAM’s Motion to Reconsider alters this Court’s evaluation

of this finding.

It is the Court’s position that, assuming arguendo, the doctrine

of aboriginal title applied this determination alone is insufficient to

provide the relief requested - a determination that the federal

government has a mandatory obligation to release and transfer

these lands to GOVGUAM. Local No. 8-6 Oil Chemical and

Atomic Workers etc. v. Missouri, 361 U.S. 363, 367 (1960)

(stating the general rule that a federal court is without power to

decide moot questions or to give advisory opinions which cannot

affect the rights of the litigants in the case before it). Quite

simply, as this issue has been presented a holding one way or the

other on the question of aboriginal title would have no effect on

the outcome of this particular case. Defendant United States, as

title holder or trustee, would not be required to transfer any lands

to GOVGUAM as a substitute trustee. Accordingly, any

24a

determination regarding aboriginal title on these facts would be an

advisory opinion only; as such opinions are to be avoided this

Court declines to rule on this matter in this case.

EXISTENCE OF GENERAL FIDUCIARY OBLIGATION

Second, GOVGUAM seeks reconsideration of this Court’s

July 16, 1997 Memorandum Order as to the existence of a special

fiduciary relationship. In its original motion papers GOVGUAM

contended that a special fiduciary relationship — analogous to that

of the United States and the tribes of Native Americans — exists

between the United States and the Chamorro race. In its Motion

for Reconsideration GOVGUAM argues that this Court failed to

“consider and decide” this issue. This Court did not decide this

issue. However, a full reading of the Court’s reasoning discloses

the inapplicability of this argument in this case.

GOVGUAM admits that the purpose behind its raising this

fiduciary relationship argument is an effort to make a specific

Statutory canon of construction” applicable to its case.

GOVGUAM admitted that in and of itself “the existence of a

fiduciary relationship does not... command the relinquishment”

of excess military lands. GOVGUAM et al. v. United States et al.

District Court of Guam, CV 95-00111, GOVGUAM’s Opening

Memorandum in Opposition filed June 6, 1997, at p. 38. This

issue was not presented to directly support its claim of a

mandatory duty to transfer lands. Rather, this issue was raised in

order to support GOVGUAM’’s application of a specific “canon of

construction requiring the resolution of ambiguities in favor of the

native claim.” Id. Furthermore, GOVGUAM argued: “Of course,

there must be an ambiguity in the text before the rule can operate.”

Id. at 39.

Based on the presentation of this argument this Court found

that an initial or preliminary finding of Statutory ambiguity was

required to place this fiduciary relationship argument at issue. As

this Court unequivocally found that section 28(b) of the Organic

Act was clear and unambiguous the issue of the existence of this

special fiduciary relationship was foreclosed. GOVGUAM et

* The canon of construction advanced by GOVGUAM is one which requires

resolution of any statutory ambiguity in favor of the native American claim.

25a

al. v. United States et al., District Court of Guam, CV 95-00111,

Memorandum Order filed buly 16, 1997, at pp. 16-32. Therefore,

to rule on this issue, after making a determination that the statute

is unambiguous, would, like the previous issue, be mere dicta and

immaterial to the final outcome.

In sum, despite GOVGUAM’s contention that its motion is

based on this Court’s failure to consider material issues in granting

summary judgment for the United States, the issues identified by

GOVGUAM in its motion were either expressly considered by this

Court’s prior order or immaterial to the summary judgment

decision. GOVGUAM’s lawsuit sought to establish the existence

of a mandatory duty on the part of the United States to transfer

federal lands no longer needed for military purposes to

GOVGUAM. That GOVGUAM disagrees with this Court’s

determination is expected. However, this disagreement alone does

not entitle it to seek reconsideration of claims that have been

considered and ruled upon by this Court. Accordingly, the Motion

for Reconsideration is DENIED.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the United States shall, as to

this causes of action, prepare and submit the appropriate judgment,

stipulated as to form by all parties, in accordance with the findings

and conclusions within this Court’s July 16, 1997 Order. See

generally Fed.R.Civ.P. 54; L.R. 54.1. This Proposed Judgment

shall be filed no later than September 5, 1997.

Dated: August 28, 1997.

/s/John S. Unpingco

JOHN S. UNPINGCO

District Judge

APPENDIX E

THE GOVERNMENT OF GUAM, et al.,

Vv.

UNITED STATES OF AMERICA, et al.

Case No. CV 95-001 11

DISTRICT COURT OF GUAM

TERRITORY OF GUAM

MEMORANDUM ORDER

July 16, 1997, Filed

This matter is before this Court of the Defendant United

States’, et al. (“United States”) Motion for Summary Judgment

and Plaintiff Government of Guam’s, et_al. (“GOVGUAM”)

Cross-Motion for Summary Judgment. This Court has reviewed

the parties submitted papers/exhibits, the controlling legal

authority and considered the parties arguments put forth at the

motion hearing. For the reasons that follow the United States’

Motion for Summary Judgment is GRANTED and GOVGUAM’s

Cross-Motion for Summary Judgment is DENIED.

A. BACKGROUND

GOVGUAM filed the above-captioned case in an effort to

establish the existence of a statutory, mandatory duty on the part

of the United States to transfer federal lands no longer needed for

military purposes to GOVGUAM. The cornerstone of

GOVGUAM’s argument is its proposed interpretation of section

28(b) (codified at 48 U.S.C. § 1421f(b)) of the Organic Act of

Guam (“Organic Act”). It is this question of statutory construction

which is the subject of these motions.

27a

The Government of Guam’s argument is based on its belief

that the 8ist Congress, in drafting section 28(b) of the Organic

Act, intended to create a clear, continuous and mandatory duty to

transfer (hereinafter “Duty to Transfer”) federal lands to

GOVGUAM once these lands were determined to be in excess of

military needs. The United States counters with the contention

that GOVGUAM’s interpretation is erroneous. The United States

counters that the plain text of the Organic Act demonstrates that

the purpose of section 28(b) was the creation of a one-time,

discretionary transfer which expired 90 days after the Organic Act

became law.

Guam was ceded to the United States by Spain in 1898 at the

end of the Spanish-American War. Following this acquisition, the

United States governed Guam under the administration of the

Department of the Navy, with the exception of the Japanese

occupation (December 1941 — July 1944) until 1950. In 1950, a

civil government was established with the passage of the Organic

Act of Guam. ch. 512, 64 Stat. 384 (1950)(codified as amended at

48 U.S.C. §§ 1421-1424c). The Organic Act established Guam as

an unincorporated territory of the United States. The Act’s

purpose was the creation of a civilian territorial government.

Since 1950, the Organic Act has been amended on several

occasions; however, it remains the functional equivalent of a

constitution for Guam, operating as an outline for the scope of the

territorial government’s legal authority. Agana Bay Development

Company (Hong Kong) Ltd. v. Supreme Court of Guam, 529 F.2d

952, 954 (9th Cir. 1976).

In addition to these background facts, the Court accepts as true

the parties’ stipulated facts submitted to the Court on June 13,

1996 (Docket #49). GOVGUAM v. United States, District Court

of Guam, CV 95-00111, Parties’ Stipulated Facts (“Stipulation”).

While a number of these facts are not dispositive as to the dispute

in this case they are helpful in defining the issues presented by this

case.

The joint stipulation evidences that the federal government has

possession of these lands. Stipulation at paragraphs | 1-29. These

lands have come into the possession of the United States through a

series of statutory reservations and condemnation cases. Id.

Paragraphs 11 through 41 describe the statutory and condemnation

processes through which the United States obtained possession of

28a

these lands. Moreover, this joint stipulation outlines the history of

the United States’ attempt to provide Guam’s Jand owners with

the opportunity to present compensation claims for federal land

takings. Stipulation, at paragraphs 11-41. The parties affirm that:

“all persons whose lands were acquired between July 21, 1994

(Liberation Day) and August 23, 1963, were afforded jurisdiction

to pursue claims for ‘fair compensation’ if they alleged that they

had received less than fair market value as a result of ‘unfair,

unjust, and inequitable actions of the United States.” Sti ulation,

at paragraph 35. The parties also agree that since 1977 the United

States has paid over forty-two million dollars in additional

compensation to former land owners or their heirs for lands

acquired by the United States between June21. 1994 and

August 23, 1964. Stipulation, at paragraphs 35-4].

These factual stipulations also clarify the specific nature of the

legal dispute in this case. Based on an objective reading of this

joint stipulation, it is clear thatGOVGUAM’s present lawsuit does

not seek federal lands through any claim to superior legal title.

Moreover, GOVGUAM does not object to the United States’ past

actions under eminent domain or the reasonableness of the

compensation paid for these lands. This case. unlike past Guam

“land cases,” does not present claims of inequitable or

unconstitutional government takings. Rather this dispute narrowly

focuses on whether the United States, through the Organic Act of

1950, obligated itself to transfer federal lands to the Government

of Guam after such lands are no longer needed for military or

national security purposes.

Among the provisions of the Organic Act of 1950 was

section 28. This section was drafted with three subsections:

§ 28(a), (b) and (c). Section 28(a) of the Organic Act, 48 U.S.C.

§ 1421f(a), directed the United States (Naval Government of

Guam) to transfer to the new government of Guam, within ninety

days of the Act’s enactment, all property owned by the United

States and used by the Naval Government of Guam in the

administration of the civil affairs of the inhabitants of Guam.

Section 28(b), 48 U.S.C. § 1421f(b), provided that the control of

all other property owned by the United States in Guam was to be

transferred to the administration of the new civilian government of

Guam. However, this “other property” transfer was conditional:

subsection (b) expressly provided the means for the federal

29a

government, within the discretion of the Executive Branch, to

exempt any “other property” from this subsection (b) transfer.

And lastly, section 28(c), 48 U.S.C. § 1421f(c), sets out a

provision transferring the administrative supervision of federal

lands on Guam from the former Naval Government of Guam to a

specified federal agency. Accordingly, property reserved by the

President was to be retained, controlled and administered by the

United States. 48 U.S.C. § 1421f(c).

On October 31, 1950, the President issued Executive Order

No. 10178, 15 Fed.Reg. 7313 (1950), reprinted in 48 U.S.C.

§ 1421f app. at 1358-59, reserving the lands in question to the

United States, to be administered by the Secretary of the Navy.

The Executive Order listed the various properties by acreage,

common description, and other particulars. The Executive Order

also recited that it was being used pursuant to section 28 of the

Organic Act of Guam, and that these were the same parcels which

had been quitclaimed by the Naval Government of Guam to the

United States.

Between 1986 and 1994, as a result of a series of Department

of Defense reviews (including the 1986 “Arny Report” and GLUP

94), the United States has determined that certain federal lands on

Guam, previously reserved for military purposes, were now

“excess” to military needs. These excess lands have been, or are

currently being, administered and redistributed by the General

Services Administration (“GSA”), pursuant to the Federal

Property Act.

Now, close to fifty years after section 28(b) was drafted,

GOVGUAM claims that property reserved by the President under

section 28(b), which has subsequently become unneeded for

military purposes, must be transferred to the government of Guam

under an alleged continuing mandate of section 28(b). These

former military lands, contend GOVGUAM, are being unlawfully

retained by the United States.

In 1995, the Guam Economic Development Authority

(“GEDA”) filed an action on behalf of GOVGUAM claiming that

the United States decision to transfer these lands to USFWS is

improper under the Organic Act. The suit alleged that the federal

lands in question, once determined that they are no longer needed

for military purposes, must be transferred to GOVGUAM under

§ 28(b) of the Organic Act. GOVGUAM argues, inter alia, based

30a

on its interpretation of Section 28 of the Organic Act (read in the

context of history, the Land Transfer Act of 1945, Land

Acquisition Act of 1946, Territorial Submerged Lands Act, sat

Fiduciary Duty and the Doctrine of Aboriginal Title) that the

United States has a mandatory obligation to turn over to

GOVGUAM real property found to be unneeded for military

purposes. Specifically, GOVGUAM has, under this legal theory,

pled three separate claims:

(1) The first claim for relief is Plaintiff GOVGUAM’s

challenge of the United States ownership of 371 acres of

land, comprised of beach and cliff parcels, located on the

northern tip of Ritidian Point. This land is currently held by

the United States Fish and Wildlife Service.

(2) The second claim for relief jis Plaintiff

GOVGUAM’s challenge of the United States ownership of

15,571 acres of land, comprised of submerged lands adjacent

to the Ritidian Point Uplands described in the First Claim.

This land is currently held by the General Services

Administration.

(3) The third claim for relief is Plaintiff GOVGUAM’s

challenge of the United States ownership of 3,553 acres of

U.S. Air Force land, comprised of lands adjacent to the

Ritidian Point Uplands described in their first claim. This

land is currently held by the Air Force, but has been listed as

releasable in the Department of Defense 1994 Guam Land

Use Plan (“GLUP 94”).

B. SUMMARY JUDGMENT STANDARD

Pursuant to Federal Rule of Civil Procedure 56(c), summary

judgment:

...Shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a

matter of law.

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Rule 56(c) mandates the entry of summary judgment after

adequate time for discovery and upon motion, against a party who

fails to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which that party will

bear ‘he burden of proof at trial. Celotex Corp. v. Catrett, 477

U.S. 317 (1986). Summary judgment is only appropriate if, under

the governing law, there can be but one reasonable conclusion as

to the verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986

In -.aluating a Rule 56 motion, courts must view the evidence

in the ight most favorable to the non-moving party; if direct

evidence as to material facts conflicts, summary judgment must be

denied. Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574. 586-87 (1986). A material fact is one that is

relevant to the claim or defense at issue and will affect the

outcome of the suit; disputes over unnecessary immaterial facts

will not preclude summary judgment. Anderson, 477 US. at 248.

The initial burden, under Rule 56, belongs to the moving party to

establish (by identifying these materials on file that demonstrate)

the absence of any genuine issue of material fact. Celotex, 477

U.S. at 331-332. Then the burden shifts to the non-moving party,

who “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Anderson, 477 U.S.

at 248. Where the moving party meets its initial burden of

identifying for the court the portions of the materials on file that it

believes demonstrates the absence of any genuine issue of material

fact, the non-moving party may not rely on the mere allegations in

the pleadings in order to preclude summary judgment -- the burden

of persuasion shifts to the non-moving party. First National Bank

of Arizona v. Cities Services Co., 391 U.S. 253, 290, n.19 (1968).

“The moving party is ‘entitled to a judgment as a mater of law’ [if]

the nonmoving party has failed to make a sufficient showing on an

essential element of her case with respect to which she has the

burden of proof.” Celotex, 477 U.S. at 323.

Consequently, in opposing a summary judgment motion the

nonmoving party must, after the moving party has made a prima

facie showing of entitlement to summary judgment, come forward

with competent evidence through which a jury could find in her

favor. Id. The non-moving party must come forward with

“specific facts showing that there is a genuine issue for trial.” Id.

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Additionally, the non-moving party must support the existence of

specific factual showings with references to the record. Nilsson,

Robbins, Dalgarn, Berliner, Carson & Wurst. wv. Leurianta

rrydroiec, 854 F.2d 1538 (9th Cir. 1988). In short, diligence in

Opposing a summary judgment motion is required. Southern

Rambler Sales, Inc. v. American Motors Corp., 375 F.2d 932, 937

(Sth Cir. 1967).

C. ANALYSIS

There is no dispute that the issue brought by these cross-

motions is the interpretation of section 28(b) of the Organic Act:

whether the Act created a mandatory, continuing obligation on the

part of the United States to transfer federal lands no longer

necessary for military purposes to GOVGUAM. This

determination is clearly a matter of Statutory construction.

Accordingly as it is well-recognized that Statutory interpretation is

a question of law, Van Der Salm Bulb Farms, Inc. v. Hapag, 818

F.2d 699 (9th Cir. 1987), citing, Trustees of Amalgamated Ins.

Fund v. Geltman Ind., 784 F.2d 926, 929 (9th Cir. 1986) and

Schlothan v. Territory of Alaska, 276 F.2d 806, 815 (9th Cir.

1960), this dispute can properly be resolved by summary

judgment. However, before this Court may address the merits of

the parties’ positions, it must first determine the isswe of whether

this Court has jurisdiction to resolve this dispute.

1. Jurisdiction

As a threshold matter, the parties are in dispute regarding the

jurisdiction by which this matter is before the Court. GOVGUAM

claims that this action is a straightforward federal question case;

further asserting that under this Statutory jurisdiction it brings two

alternative causes of action: (1) declaratory judgment (28 U.S.C.

§ 2201) and (2) writ of mandamus (28 U.S.C. § 1361).

GOVGUAM states that it does not contest the United States legal

title to the lands in dispute, rather it only seeks a legal

interpretation of the United States’ duty to transfer. On the other

hand, the United States contends that GOVGUAM’s claims place

the United States’ interest in the land in dispute and such claims

are only cognizable under the Quiet Title Act (28 U.S.C. § 2409a).

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Furthermore, pursuant to the 12-year statute of limitations set forth

in § 2409a(f), GOVGUAM’s claims are now barred. For the

reasons that follow this Court finds that jurisdiction is proper

under either 28 U.S.C. § 1331 or 28 U.S.C. § 2409a.

(a) DECLARATORY JUDGMENT and WRIT OF

MANDAMUS

GOVGUAM contends that this Court has jurisdiction to

review this matter under 28 U.S.C. § 1331, general federal

question jurisdiction. As evaluated below, GOVGUAM argues

that: (1) jurisdiction is proper under 28 U.S.C. § 1331; (2) a cause

of action for declaratory judgment (28 U.S.C. § 2201) has been

stated, to resolve a controversy arising under the Organic Act of

Guam, 48 U.S.C. § 1421f; and (3) the United States has waived

sovereign immunity pursuant to 5 U.S.C. § 702.

An examination of the complaint demonstrates that the issue

presented in this case is the interpretation of a federal statute —

section 28(b) of the Organic Act. A claim based on an alleged

violation of, or a dispute over, the effect of a federal statute is a

claim arising under federal law within the meaning of section

1331. Guinasso v. Pacific First Federal Sav. And Loan Ass’n, 656

F.2d 1364, 1365-66 (9th Cir. 1981) (holding that section 1331,

federal question jurisdiction is triggered where the complaint

presents a substantial dispute over the effect of federal law), citing,

Spokane County Legal Services Inc. v. Legal Services Corp., 614

F.2d 662, 667 (9th Cir. 1980), Standage Ventures, Inc. v. Arizona,

499 F.2d 248, 249 (9th Cir. 1974). Therefore, as the dispute in

this case involves the interpretation of federal law and “arises

under the...laws...of the United States,” pursuant to

section 1331, this Court has subject-matter jurisdiction. 28 U.S.C.

§ 1331.

Next GOVGUAM asserts that the actual causes of action are

founded on the two different remedies requested: (1) a writ of

mandamus (28 U.S.C. § 1361) and (2) declaratory relief (28

U.S.C. § 2201). As to the mandamus action, GOVGUAM

concedes that the mandamus cannot lie if this Court finds in its

interpretation of Section 28(b) that the United States does not have

a clear statutory duty to transfer. Nevertheless, posits the plaintiff,

this Court certainly has the authority and jurisdiction under

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section 1361 to make the threshold determination regarding

whether the United States owes a clear duty. Piledrivers’ Local

Union No. 2375 v. Smith, 695 F.2d 390, 392 (9th Cir. 1981). This

Court agrees.

Furthermore, despite the interesting and complex issues raised

in evaluating the propriety of mandamus relief. such argument in

this case is immaterial. This conclusion is based on the fact that

GOVGUAM’s complaint pled an alternative cause of action under

the Declaratory Judgment Act. Under this theory, this Court is

authorized to “declare the rights and other legal relations of any

interested party seeking such a declaration .. . in a case of actual

controversy within its jurisdiction.” The equitable remedy of

declaratory judgment and injunction is available to GOVGUAM,

independent of mandamus.

Lastly, sovereign immunity is waived pursuant to 5 U.S.C.

§ 702. Assiniboine and Sioux Tribes v. Board of Oil and Gas, 792

F.2d 782, 792-793 (9th Cir. 1986) (reaffirming the broad scope of

the § 762 waiver of sovereign immunity defense in non-monetary

relief cases brought under general federal question jurisdiction),

citing, Rowe v. United States. 633 F.2d 799, 801 (9th Cir. 1980)

(§ 702 waiver of statutory immunity has broad effect and provide

waiver for actions brought under section 1331: § 702 abolish

sovereign immunity in actions for “relief other than money

damages”).

GOVGUAM'’s jurisdictional analysis is sound and this Court

concurs that it has jurisdiction to entertain this matter. Yet.

GOVGUAM’s position, and the clear legal framework which

Supports its argument, avoids the issue of whether this action is

required to be pled under the exclusive jurisdiction of the Quiet

Title Act. As set forth below, this Court finds that this lawsuit is

governed by the Quiet Title Act.

(b) The Quiet Title Act

The United States contends that GOVGUAM’s reliance on

standard federal question jurisdiction is contrived and erroneous.

Defendant argues that despite GOVGUAM’s “artful pleading” this

dispute concerns more than a Statutory interpretation of future

rights, it is a direct challenge to the United States’ present interest

in real property. Accordingly, under the broad and exclusive

35a

interpretations of the Quiet Title Act (28 U.S.C. § 2409a) this

action must be pursued under this statute, and, because

GOVGUAM'’s complaint was filed outside the Act's twelve-year

limitations period, there is no jurisdictional basis upon which this

Court may proceed. Block v. North Dakota, 461 U.S. 273, 286

(1983) (“We hold that Congress intended the Quiet Title Act to

provide the exclusive means by which adverse claimants could

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

In support of this position the United States correctly asserts

that plaintiffs may not “artfully plead” themselves outside the

contours of the Quiet Title Act. Humboldt County v. United

States. 684 F.2d 1276, 1280 (9th Cir. 1982) (court looks to the

essence of the complaint/action to determine if action is, in reality,

a Quiet Title Action); McClellan v. Kimball, 623 F.2d 83, 85-86

(9th Cir. 1980); see also Block, 461 U.S—at 286 (“it would require

the suspension of disbelief to ascribe w Congress the design to

allow its careful and thorough remedial scheme to be

circumvented by artful pleading.”) GOVGUAM responds that it

does not seek a declaration as to legal title or land ownership, but

only a declaration of its entitlement under § 1421 f(b) to these

lands.

The United States’ assertion that this lawsuit is really an

action to determine the ownership interests of real property on

Guam is persuasive. This Court agrees the provisions of the Quiet

Title Act cannot be circumvented by drawing distinctions between

a present (pre-lawsuit) interest and a future (post-lawsuit) interest.

See generally GOVGUAM Opening Memoranda at 6. In this

case, GOVGUAM’s claim requests a declaration/interpretation as

to the United States duty to transfer land under 1421 f(b). The

outcome of this case will directly impact the United States’ title

and interest in real property. The practical consequence of the

declaratory judgment requested is the determination of whether the

United States retains, or GOVGUAM gains, legal title and interest

to these lands. The fact that GOVGUAM's theory of the case is

founded on an alleged statutory “duty to transfer” does not remove

this dispute from the ambit of the Quiet Title Act. Quite simply,

this lawsuit is a dispute over land ownership. GOVGUAM's

lawsuit must stand or fall under the Quiet Title Act.

The Quiet Title Act provides a limited waiver of the sovereign

immunity of the United States. It permits the United States to be

36a

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

disputed title to real property in which the United States claims an

interest, other than a security interest or water rights.” 28 U.S.C.

§ 2409a(a). Such an action, however, “shall be barred unless it is

commenced within twelve years after the date upon which it

accrued.” 28 U.S.C. § 2409a(g)’. As this limitations period is a

condition on the waiver of sovereign immunity, the Court’s

jurisdiction depends upon timely filing. Block, 461 U.S. at 282-

83. It is the United States’ position thatGOVGUAM’s claims are

barred by § 2409a(g), the Quiet Title Act 12-year statute of

limitations.

Quiet ttle actions under the statute are deemed to accrue on

the date the plaintiff or his predecessor in interest knew or should

have known of the claim of the United States. 28 U.S.C.

§ 2409a(2). GOVGUAM filed this case on September 22, 1995.

The United States argues that GOVGUAM’s action is barred

because “|t}he United States has held fee title to the lands at issue

since at least !962, thirty-three years prior to the filing of this

suit.” United States Opening Memorandum at 37. While this fact

is true, and uncontested by GOVGUAM, this does not end the

inquiry.

GOVGUAM does not deny that it has known of the federal

government's title to these lands in excess of twelve years.

However, in evaluating whether a plaintiff “knew or should of

known of the claim of the United States” it must be shown that the

plaintiff knew the United States’ claim was contrary or adverse to

the plaintiff's claimed interest. Michel v. United States, 65 F.3d

130, 132 (9th Cir. 1995), citing, Fadem v. United States. 52 F.3d

202, 207 (9th Cir. 1995). Plaintiff's mere knowledge that the

United States claimed title is not always sufficient to trigger the

running of limitations period. Id. If the United States claim to

title were all that was needed to trigger the running of the

limitations period on any claim affecting use of the property, a

claimant of a future interest of right of access would be forced to

bring suit within twelve years even though the United States has

provided no indication that it contested the claimant’s right. The

"USC. § 2409a(g) states: “Any civil action under this section shall be barred

unless it is Commenced within twelve years of the date upon which it is accrued.

Such action shall be deemed to have accrued on the date the plaintiff knew or

should have known of the claim of the United States.”

37a

claimant would be compelled to sue to protect against the

possibility, however remote, that the United States might someday

deny claimant his alleged interest. The Quiet Title Act should not

be read in a manner that

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