FRANK B. JAMES, ET AL., PETITIONERS V. WILLIAM P. CLARK, SECRETARY
OF THE INTERIOR, ET AL.

   No. 83-623

   In the Supreme Court of the United States

   October Term, 1983

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

   Memorandum for the Federal Respondents

   1. Since 1974, litigation has been pending in the United States
District Court for the District of Massachusetts concerning claims to
land in the Town of Gay Head, on Martha's Vineyard, advanced by the
Wamponoag Tribe of Gay Head Indians.  Wampanoag Tribal Council of Gay
Head, Inc. v. Town of Gay Head, Civil Action No. 74-5826-MC (Gay Head
I).  We are advised that an agreement in principle to settle that
litigation has been reached by the immediate parties;  but legislation
to implement the settlement must still be enacted by Congress and the
Massachusetts General Court.

   Petitioners are 102 individuals who claim to be members of the Gay
Head Tribe or descendents of members and who are dissatisfied with the
proposed settlement of Gay Head I.  They also brought suit in the
District of Massachusetts, claiming the right to possession of all
land in the Town of Gay Head.  They claim to represent a class of all
members and descendents of the Tribe.  First Amended Complaint, paras.
1(b), 3(a)

   Petitioners allege that their oboriginal tribal ancestors came to
Gay Head Peninsula on Martha's Vineyard about 4,000 years ago.  In
1869, according to petitioners, the Massachusetts legislature
authorized the alienation of Indian land in the State without federal
assent.  The following year, petitioners allege, Massachusetts, again
without federal authority, purportedly incorporated the Gay Head
Reservation as a town and authorized the allotment or conveyance of
the Gay Head tribal lands.  Petitioners further allege that as a
result of the 1869 and 1870 legislation, certain Indians, without
federal consent, have conveyed lands to non-Indians.  Petitioners
contend that because these conveyances were made without the consent
of the United States, they are invalid.  First Amended Complaint,
paras. 11, 21-23.

   The district court dismissed the complaint, reasoning that in
attempting to invalidate the conveyances petitioners could not invoke
the Indian Nonintercourse Act, 25 U.S.C. 177, because they sued as
individuals and "only an Indian nation or tribe may bring an action
under (the Nonintercourse) Act" (Pet. App. B1-B2).  The district court
also rejected petitioners' arguments based on the Constitution and
various other federal statutes on the ground that they "are either
dependent upon their Nonintercourse Act claim or are independently
devoid of merit" (id. at B2).

   The court of appeals affirmed (Pet. App. A1-A13).  It too rejected
petitioners' argument based on the Indian Nonintercourse Act on the
ground that only a tribe may invoke that statute and petitioners sued
as individuals (id. at A3).  /1/ The court then ruled that the Indian
Commerce Clause of the Constitution, Article I, Section 8, Clause 3,
did not invalidate the Massachusetts statutes authorizing the
conveyances because the Clause does not "automatically and necessarily
preempt() all state laws dealing with Indians" but instead requires a
court to "balance() the interests of the federal, state, and tribal
authorities" (Pet. App. A5).  The court of appeals then discussed
these interests at length (id. at A5-A11) and concluded that "this
'balance' tilts decisively in favor of the application of the state
laws" (id. at A9-A10).

   2. a. In our view, the court of appeals erred in concluding that
Massachusetts was free to authorize the alienation, without federal
consent, of an Indian Tribe's right to occupy its aboriginal lands.
As this Court has recently explained (Oneida Indian Nation v. County
of Oneida, 414 U.S. 661, 667(1974):

         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.  That right, sometimes called
      Indian title and good against all but the sovereign, could be
      terminated only by sovereign act.  Once the United States was
      organized and the Constitution adopted, these tribal rights to
      Indian lands became the exclusive province of the federal law.
      Indian title, recognized to be only a right of occupancy, was
      extinguishable only by the United States.

   "The rudimentary proposition() that Indian title * * * can be
extinguished only with federal consent appl(ies) in all of the States,
including the original 13" (id at 670).

   The court of appeals appears to have dismissed these statements as
"dicta" (Pet. App. A5) inconsistent with "modern Indian law" (id. at
A4).  But the principle that Indian title cannot be alienated without
federal assent has been established by a long line of cases.  See,
e.g., United States v. Santa Fe Pac. R.R., 314 U.S. 339, 345-347
(1941) ("Extinguishment of Indian title based on aboriginal possession
is of course a different matter.  The power of Congress in that regard
is supreme.  * * * As stated by Chief Justice Marshall in Johnson v.
M(c) Intosh, (21 U.S. (18 Wheat.) 5431) 586(1823)), 'the exclusive
right of the United States to extinguish' Indian title has never been
doubted.");  United States v. Kagama, 118 U.S. 375, 381 (1886);
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 560 (1832);  id. at 584
(McLean, J.);  Johnson v. McIntosh, supra.  See also Wilson v. Omaha
Indian Tribe, 442 U.S. 653, 670-671 (1979);  United States v. Wheeler,
435 U.S. 313, 326 (1978).  This ancient principle precludes the
balancing of interests in which the court of appeals engaged.

   The court of appeals relied (Pet. App. A5) on a number of cases
decided under the Indian Commerce Clause that suggest that that Clause
does not preempt all state regulations of Indian Affairs.  But as this
Court's opinion in Oneida makes clear, Congress's power under the
Indian Commerce Clause is not the sole source of the rule that Indian
title cannot be alienated without the consent of the federal
government.  That principle is rooted in the relationship between
Indian tribes and the succession of sovereigns that have ruled the
land they occupied, and it is among the attributes of sovereignty to
which the United States succeeded.  See 414 U.S. at 667, quoted at
pages 3-4, supra.

   The court of appeals also reasoned that "(t)he original enactment
of the INA (Indian Nonintercourse Act) in 1790 suggests that the first
Congress did not believe that the Indian Commerce Clause -- in and of
itself -- prohibited state laws validating Indian land conveyances.
Otherwise, why would the INA have been necessary?" (Pet. App.
A10-A11).  But the principle that Indian title cannot be alienated
without the consent of the sovereign antedated the Nonintercourse Act
(see Oneida, 414 U.S. at 667);  that statute constitutes a
congressional assertion of preexisting prerogatives (ibid). and, of
course, imposes a criminal penalty for improper attempts to obtain
lands from Indians (see id. at 668 n. 4;  25 U.S.C. 177).  Indeed, in
Johnson v. McIntosh, supra, the Court refused to recognize conveyances
made by Indians in 1773 and 1775 on the basis of this principle;
these conveyances occurred not only before the Nonintercourse Act was
passed but before the Union was formed.

   The Court in Johnson v. McIntosh also treated the existence of
legislation proscribing transactions with Indians in a fashion wholly
inconsistent with the reasoning of the court of appeals.  Johnson
rejected the argument that because certain colonial legislatures had
enacted laws prohibiting purchases from Indians, Indians' conveyances
were valid where there was not such legislation;  instead, the Court
reasoned that such legislation merely confirmed a universally
recognized prohibition against the alienation of Indian title.  "(T)he
fact that such acts have been generally passed, is strong evidence of
the general opinion, that such purchases are opposed by the soundest
principles of wisdom and national policy" (21 U.S. (8 Wheat.) at 604).
 Similarly, the Nonintercourse Act merely confirmed the authority of
the federal sovereign.  See also Oneida Indian Nation v. County of
Oneida, 719 F.2d 525, 530-532 (2d Cir. 1983).

   b. Because federal prerogatives over the alienation of Indian title
are rooted in the Constitution and in the federal government's
sovereignty, and were merely confirmed by the Nonintercourse Act, the
question whether petitioners have stated a claim under the Act appears
to us to be of limited importance.  To be sure, the question whether
petitioners are entitled to assert the rights of the Tribe is crucial.
 See pages 6-7, infra.  But the court of appeals' decision does not
rest on the conclusion that petitioners were not entitled to do so;
indeed, the court of appeals specifically noted that that question
would be more appropriately resolved in another proceeding (Pet. App.
A13).  Since petitioners claim to represent a class consisting of all
members and descendents of members of the Tribe, and the Tribe itself
is not recognized by the federal government, it is certainly not
obvious that petitioners' complaint, on its face, fails to allege that
petitioners are entitled to assert the Tribe's Indian title.

   3. Although we believe the court of appeals erred, we do not urge
this Court to grant review at this time.  The proposed settlement of
Gay Head I, if implemented through an Act of Congress (as is
contemplated), will extinguish all claims to the land in issue here
that arise from the Gay Head Indians' aboriginal title;  that, of
course, includes petitioners' claims.  Litigation is now pending in
the lower courts in which petitioners have sought to enjoin the
proposed settlement on the ground that they, not the plaintiffs in Gay
Head I, legitimately represent the Gay Head Indians.  James v.
Bellotti, No. 83-3562-Mc(D. Mass), on appeal from denial of a
preliminary injunction, No. 83-1878 (1st Cir.).

   There would be little purpose in the Court's reviewing petitioners'
present contentions if petitioners' claims will ultimately be
extinguished by legislation.  Indeed, if the settlement of Gay Head I
is upheld, the proper course may be to vacate the decisions below as
moot and order petitioners' complaint dismissed.  On the other hand,
should petitioners' claim to represent the interests of the Gay Head
Indians be sustained, the court of appeals' erroneous rejection of
their arguments might well warrant review.  We accordingly submit that
the Court should hold the petition pending the resolution of James v.
Bellotti, supra, or a legislative resolution of the Gay Head claims.
We will apprise the Court of pertinent developments when they occur.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   JANUARY 1984

   /1/ The court of appeals also upheld the district court's decision
denying petitioners leave to amend their complaint to attempt to cure
this defect (Pet. App. A12-A13).