Narragansett Tribe of Indians v. Murphy

• Citation: 426 F. Supp. 132
• Decision Date: 01 December 1976
• Docket Number: Civ. A. No. 75-0005.
• Parties: NARRAGANSETT TRIBE OF INDIANS v. Dennis J. MURPHY, Jr.
• Court: U.S. District Court — District of Rhode Island

426 F. Supp. 132

NARRAGANSETT TRIBE OF INDIANS v. Dennis J. MURPHY, Jr.

Civ. A. No. 75-0005.

United States District Court, D. Rhode Island.

December 1, 1976.

Barry Margolin, Boston, Mass., Charles Edwards, Providence, R.I., Thomas N. Tureen, and David Crosby, Calais, Maine, for plaintiffs.

Allen P. Rubine, Asst. Atty. Gen., William Brody, Special Asst. Atty. Gen., Providence, R.I., for defendant.

OPINION

PETTINE, Chief Judge.

In this case, which has been consolidated for hearing with Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., Civil Action No. 76-0006, the Narragansett tribe hereinafter referred to as plaintiffs seek possession of certain land held by Dennis J. Murphy, Director of the Department of Natural Resources of the State of Rhode Island hereinafter referred to as defendant. Plaintiffs allege that the land in question, located in Charlestown, Rhode Island, has belonged to them since time immemorial and that defendant is now in possession of that land, contrary to the provisions of the Indian Nonintercourse Act, 25 U.S.C. § 177 (1970).

In previous rulings in this case and in the companion case, this Court has held that plaintiffs have stated a claim upon which relief could be granted, that they are proper parties to bring this action, that the United States need not be made a party, and that certain defenses raised by defendants are insufficient as a matter of law. The Court has also denied motions to dismiss by various defendants based on contentions that plaintiffs' tribe has been dissolved by the state legislature, that plaintiffs lack recognition as a tribe by federal authorities, and that the instant case is an exclusively political question. Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 418 F.Supp. 798 (D.R.I.1976) Narragansett I.

Defendant in C.A. No. 75-0005 now moves to dismiss that case for lack of subject matter jurisdiction. As grounds for this motion, he urges that C.A. No. 75-0005 is an action against the State of Rhode Island and so barred by the Eleventh Amendment, which provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.¹

The parties do not disagree about the basic propositions of Eleventh Amendment law. The Amendment preserves the common law doctrine of sovereign immunity, applicable to both federal and state governmental bodies, which shields the sovereign from liability for its wrongful conduct.² This immunity cannot be circumvented merely by naming an individual governmental official as party defendant rather than the state itself.³ See, e. g., Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Nevertheless, where a governmental official's actions are unconstitutional or exceed his powers, specific relief is available against the officer. See, e. g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 701-702, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). Jurisdiction to hear such cases and to grant relief appears to be bottomed on the fiction that an official's ultra vires or unconstitutional acts are not really governmental acts at all and therefore relief against the official does not amount to relief against the sovereign. See L. Jaffe, Judicial Control of Administrative Action 212. This fiction is maintained even where the relief granted may clearly have a drastic effect upon the public treasury, see, e. g., Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335 (1952) (injunction against collection of a state tax); or upon other attributes of sovereignty, see, e. g., Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (enforcement of state statute enjoined).

As a matter of logic, the fiction that such suits are not really "against the government" is relatively easy to maintain when the relief sought is an injunction against future unconstitutional or illegal conduct on the part of the named official, as in Georgia Railroad and Fuentes, supra. Somewhat more difficult are those cases where plaintiff seeks the return of property that has allegedly been wrongfully taken by a government official. In such cases, the court's decree would operate upon property that is in the government's possession and to which the government may claim title. Courts have nevertheless granted this type of relief.⁴See, e. g., United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882).

In Lee, the descendants of General Robert E. Lee sought the return of certain land that the government intended to use for the National Cemetery at Arlington, Virginia. The land had been purchased on behalf of the United States at a sale that later turned out to be invalid. The Supreme Court's affirmance of the judgment of the court below awarded possession to the plaintiffs against the government officials, but the Court noted that that title remained in the United States, because the United States had not consented to be a party defendant in the action, and therefore the judgment could not affect the interest of the United States in the property. Id. at 222, 1 S.Ct. 240. This distinction between possession and title thus preserved the fiction that suits are maintainable against officials but not against the sovereign.

The rationale under which the Lee plaintiffs established jurisdiction and obtained relief was re-examined and limited by the Supreme Court in Larson v. Domestic & Foreign Corp., supra.⁵ The narrow holding of Larson is simply stated: in order to obtain property alleged to have been wrongfully taken by a government official, a plaintiff cannot merely allege that the taking was mistaken, tortious or in breach of contract; rather, there must be an allegation that the official who took or withheld the property acted unconstitutionally or in excess of statutory authority. See Larson, supra, 337 U.S. at 701-702, 69 S.Ct. 1457.

It is at this point that the issue is joined in the present case. Plaintiffs contend that the instant suit, seeking possession of wrongfully withheld property, comes within an exception to the rule of sovereign immunity recognized in Lee and reaffirmed in Larson. Defendant argues that a close reading of Larson makes it clear that the present case does not fit into the Lee exception as modified by Larson but rather falls within the general Eleventh Amendment proscription and so must be dismissed.

Under defendant's analysis of Larson, a suit seeking possession of property against a government official can only be maintained if the complaint alleges a Fifth or Fourteenth Amendment violation (in that the property sought by the plaintiff was unconstitutionally taken without just compensation) or that the official who took plaintiff's property did so in excess of his or her powers. Because plaintiffs do not allege a taking without just compensation and because defendant claims ample authority for his conduct under the statutes of Rhode Island, defendant urges that the Larson test is not met and the complaint should be dismissed.

The Court disagrees with this analysis of Larson. It is true that Larson does contain a statement that

only where there is a claim that the holding constitutes an unconstitutional taking of property without just compensation does the Lee case require the conclusion that a claim of title to property held by an officer is, of itself, sufficient to demonstrate that the officer holding the property is not validly empowered by the sovereign to do so.

Larson, supra, 337 U.S. at 697, 69 S.Ct. at 1465.

However, this statement is made in the context of a discussion of why Lee does not stand for the rule that all wrongful takings by government officers are excepted from the general rule of sovereign immunity, whether such takings are mistaken, tortious or in breach of contract on the one hand or unconstitutional or in excess of statutory authority on the other.

After its particularized discussion of the Lee case, the Larson court states the general rule:

The action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property), can be regarded as so "illegal" as to permit a suit for a specific relief against the officer as an individual only if it is not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void.

Larson, supra, 337 U.S. at 701-702, 69 S.Ct. at 1467.

Defendant, in urging the Court to accept his somewhat tortured reading of Larson in preference to this very clear statement of the general rule, has not suggested any principled basis upon which unconstitutional takings in violation of the Fifth or Fourteenth Amendments should be distinguished from all other unconstitutional actions by government officials. There is no suggestion that the Fifth and Fourteenth Amendments, which forbid property takings without due process, have been exalted to higher status than other constitutional prohibitions or limitations on official power. It is possible, as discussed below, that the question of whether or not property has been seized in violation of the Fifth or Fourteenth Amendments might bear on the propriety of the relief sought, but the Court cannot conceive any reason why an allegation of unconstitutional official action should be in any way affected by the nature of the constitutional limitation relied upon to support such an allegation.⁶

In their complaint, plaintiffs allege that Defendant Murphy keeps plaintiff out of possession of the land described in paragraphs nineteen through fifty-five of this Complaint in violation of 25 U.S.C. § 177, and in excess of his authority under the laws of the State of Rhode Island; or if within the authority vested in him by the laws of

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