James v. Watt, 83-1026

• Decision Date: 24 August 1983
• Docket Number: No. 83-1026,83-1026
• Citation: 716 F.2d 71
• Parties: Frank B. JAMES, et al., Plaintiffs, Appellants, v. James G. WATT, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 71

716 F.2d 71

Frank B. JAMES, et al., Plaintiffs, Appellants, v. James G. WATT, et al., Defendants, Appellees.

No. 83-1026.

United States Court of Appeals, First Circuit.

Argued June 7, 1983.

Decided Aug. 24, 1983.

Robert C. Hahn, Boston, Mass., with whom William A. Hahn, Boston, Mass., and Hahn & Matkov were on brief, for plaintiffs, appellants.

Allan van Gestel, Boston, Mass., with whom Andrew S. Hogeland, and Goodwin, Procter & Hoar, Boston, Mass., were on brief, for defendants, appellees Christopher S. Look, Jr., as Sheriff of Dukes County, Beverly W. King, as Register of Deeds for Dukes County, and Alexander D. Forger, Trustee.

Thomas N. Tureen, with whom Tureen & Margolin, Portland, Me., was on brief, for defendant, appellee Wampanoag Tribe of Gay Head.

Thomas R. Kiley, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Paul R. Matthews, Asst. Atty. Gen., Boston, Mass., were on brief, for defendant, appellee Commonwealth of Mass.

Jacques B. Gelin, Attorney, Dept. of Justice, Washington, D.C., with whom Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C., William F. Weld, U.S. Atty., Boston, Mass., and Anne S. Almy, Attorney, Dept. of Justice, Washington, D.C., were on brief, for defendant, appellee United States Secretary of Interior.

Before COFFIN and BREYER, Circuit Judges, and SELYA, ^* District Judge.

BREYER, Circuit Judge.

The plaintiffs in this case are individual Indians who claim an interest in land on Gay Head Peninsula, Martha's Vineyard, Massachusetts. In order to prevail, they must upset the present landowners' chain of title by showing that certain conveyances made many years ago by the Gay Head Indian tribe (or by individual Indians) are invalid. The district court granted summary judgment against the plaintiffs, from which they appeal. We find that the district court was correct.

A

The plaintiffs' initial argument is based upon the Indian Nonintercourse Act (the INA)--a federal statute that provides:

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.

25 U.S.C. Sec. 177. The plaintiffs argue that the relevant conveyances were not made pursuant to a "treaty or convention," that Massachusetts law could not authorize what the INA forbade, and that the conveyances are therefore invalid. The district court correctly rejected this argument, however, on the ground that the plaintiffs sued as individual Indians. The plaintiffs did not seek to represent the tribe, nor did they name the tribe as a plaintiff in the suit. We are not certain why they did not do so. But we know that the Gay Head Indian tribal government earlier filed a related suit by, and on behalf of, the Gay Head tribe; and we believe that plaintiff Indians here are dissidents who disapprove of the way that suit is being handled. This litigation strategy apparently played a role in the framing of their complaint.

Regardless, this court has held that the INA was designed to protect the land rights only of tribes; that the INA therefore granted a cause of action to tribes; and that individual Indians could not assert INA rights on their own behalf. See Epps v. Andrus, 611 F.2d 915, 917 (1st Cir.1979); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 581 (1st Cir.1979), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979); see also Mashpee Tribe v. Watt, 542 F.Supp. 797, 803 (D.Mass.1982), aff'd, 707 F.2d 23 (1st Cir.1983); Oneida Indian Nation v. County of Oneida, 434 F.Supp. 527, 537 (N.D.N.Y.1977); Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 418 F.Supp. 798, 803 (D.R.I.1976). In Epps v. Andrus, 611 F.2d at 917 (original in ital.), we explicitly stated that to invoke the INA a plaintiff "must show that ... it is or represents an Indian 'tribe' within the meaning of the Act...." That holding is stare decisis in this circuit, and we shall not reexamine it. Thus, plaintiffs' claim, insofar as it is based on the INA, must fail.

B

The plaintiffs raised another argument below, which they now press strongly on appeal. They argue that the Indian Commerce Clause, U.S. Const. art. 1, Sec. 8 automatically (in and of itself, without the INA) invalidated the Massachusetts statutes permitting the conveyances in question. See 1870 Mass.Acts ch. 213; 1869 Mass.Acts ch. 463; 1862 Mass.Acts ch. 184, and that the conveyances were therefore invalid. The Indian Commerce Clause grants to Congress the "Power ... To regulate Commerce ... with the Indian Tribes...." In the plaintiffs' view, this grant of power is exclusive, and took from Massachusetts all power to legislate in the area of Indian affairs.

Plaintiffs' proposed interpretation of the Indian Commerce Clause closely resembles James Madison's view of the Interstate Commerce Clause, U.S. Const. art. 1, Sec. 8. Madison, believing it essential that states not be able to restrict trade among themselves, The Federalist No. 42 (J. Madison); 3 The Records of the Federal Convention of 1787 at 478, 547-48 (M. Farrand ed. 1937), apparently thought that the mere existence of the Clause precluded state legislation regulating interstate commerce, regardless of whether Congress chose to exercise its own power to legislate. See id.; L. Tribe, American Constitutional Law Sec. 6-3 (1978); Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425, 431 (1982); cf. Tribe, Toward A Syntax of the Unsaid: Construing the Sounds of Congressional and Constitutional Silence, 57 Ind.L.J. 515, 521 (1982) [hereinafter cited as "Tribe, Silence"]. In Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 209, 6 L.Ed. 23 (1824), Chief Justice Marshall, following the Madisonian interpretation, suggested that the Clause not only grants Congress regulatory power over interstate commerce, but also "excludes, necessarily, the action of all others that would perform the same operation on the same thing." Soon after Chief Justice Marshall's tenure, however, the Supreme Court began to expand the area in which states were free to act. See, e.g., The License Cases, 46 U.S. (5 How.) 504, 573-74, 12 L.Ed. 256 (1847); L. Tribe, American Constitutional Law Sec. 6-3. And, modern cases use a particularized analysis, weighing the strength of relevant state and federal interests, to determine whether or not the Interstate Commerce Clause forbids a particular state law as an unconstitutional "burden" on interstate commerce. See, e.g., Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 186-87, 71 S.Ct. 215, 219-20, 95 L.Ed. 190 (1950); Southern Pacific Co. v. Arizona, 325 U.S. 761, 770-71, 65 S.Ct. 1515, 1521, 89 L.Ed. 1915 (1945); L. Tribe, American Constitutional Law Sec. 6-5. Thus, the strong Madison/Marshall "preemptive" view of the Interstate Commerce Clause is no longer the law of the land. See L. Tribe, American Constitutional Law Secs. 6-4 to 6-26.

Similarly, in citing Chief Justice Marshall's strong, preemptive interpretation of the Indian Commerce Clause, plaintiffs overstate the force of the Clause under modern Indian law. In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832), for example, the Chief Justice wrote that "[t]he whole intercourse between the United States and this [Cherokee] nation, is, by our constitution and laws, vested in the government of the United States." See also Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 19, 8 L.Ed. 25 (1831) (Marshall, C.J.). Nevertheless, despite similar dicta in some later cases, see, e.g., Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 670, 94 S.Ct. 772, 778, 39 L.Ed.2d 73 (1974), Supreme Court decisions since Chief Justice Marshall's time have generally rejected the concept that the Clause automatically and necessarily preempts all state laws dealing with Indians. Instead, these decisions have tended to expand the area in which states may legislate. See, e.g., Rice v. Rehner, --- U.S. ----, ---- - ----, 103 S.Ct. 3291, 3298-01, 77 L.Ed.2d 961 (1983); Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 481 n. 17, 96 S.Ct. 1634, 1645 n. 17, 48 L.Ed.2d 96 (1976); Organized Village of Kake v. Egan, 369 U.S. 60, 74-76, 82 S.Ct. 562, 570-571, 7 L.Ed.2d 573 (1962); United States v. McGowan, 302 U.S. 535, 539, 58 S.Ct. 286, 288, 82 L.Ed. 410 (1938); New York v. Dibble, 62 U.S. (21 How.) 366, 370, 16 L.Ed. 149 (1858). And, when the Supreme Court has found state legislation preempted, it has used an analysis that balances the interests of the federal, state, and tribal authorities, rather than any rule that automatically preempts state statutes on the basis of the Clause. See, e.g., New Mexico v. Mescalero Apache Tribe, --- U.S. ----, ----, 103 S.Ct. 2378, 2384, 76 L.Ed.2d 611 (1983); Ramah Navajo School Board, Inc. v. Bureau of Revenue, --- U.S. ----, ----, 102 S.Ct. 3394, 3398, 73 L.Ed.2d 1174 (1982); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145, 100 S.Ct. 2578, 2584, 65 L.Ed.2d 665 (1980); McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973). This shift in the method of analysis is fatal to plaintiffs' case for one simple reason: plaintiffs' only hope of success rests upon a strict, absolutist view of Indian Commerce Clause preemption. Any "interest balancing" approach--in view of the enactment of the INA--leads to the conclusion that the Indian Commerce Clause does not preempt the application of the relevant Massachusetts laws to this case.

To see why this is so, first imagine the circumstances in which plaintiffs' preemption argument would be strongest--namely, if Congress had never enacted the INA. Even under those circumstances, one could make a strong argument for the validity of the state statutes--an argument based upon the special,...