Maynard v. Narragansett Tribe ( 1993 )


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  • USCA1 Opinion









    January 27, 1993
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________
    ____________________

    No. 92-2106
    No. 92-2106

    KENNETH L. MAYNARD,
    KENNETH L. MAYNARD,

    Plaintiff, Appellant,
    Plaintiff, Appellant,

    v.
    v.

    NARRAGANSETT INDIAN TRIBE,
    NARRAGANSETT INDIAN TRIBE,

    Defendant, Appellee.
    Defendant, Appellee.

    ____________________
    ____________________


    APPEAL FROM THE UNITED STATES DISTRICT COURT
    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF RHODE ISLAND
    FOR THE DISTRICT OF RHODE ISLAND

    [Hon. Raymond J. Pettine, Senior U.S. District Judge]
    [Hon. Raymond J. Pettine, Senior U.S. District Judge]
    __________________________

    ____________________
    ____________________

    Before
    Before

    Cyr, Circuit Judge,
    Cyr, Circuit Judge,
    _____________

    Campbell, Senior Circuit Judge,
    Campbell, Senior Circuit Judge,
    ____________________

    and Boudin, Circuit Judge.
    and Boudin, Circuit Judge.
    _____________

    ____________________
    ____________________



    W. Mark Russo with whom Adler, Pollock & Sheehan, Inc. was on
    W. Mark Russo with whom Adler, Pollock & Sheehan, Inc. was on
    ______________ _______________________________
    brief for appellant.
    brief for appellant.
    John F. Killoy, Jr. with whom Law Office of H. Jefferson Melish
    John F. Killoy, Jr. with whom Law Office of H. Jefferson Melish
    ___________________ __________________________________
    was on brief for appellee.
    was on brief for appellee.


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    ____________________


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    CYR, Circuit Judge. Kenneth L. Maynard appeals from a
    CYR, Circuit Judge
    ______________

    judgment dismissing his claim for injunctive relief against the

    Narragansett Indian Tribe. The district court determined that the

    Tribe possessed sovereign immunity from suit. We affirm for substan-

    tially the same reasons stated in Section III.A of the unreported

    district court memorandum and order of dismissal.

    "Indian tribes have long been recognized as possessing the

    common-law immunity from suit traditionally enjoyed by sovereign

    powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); see
    __________________ ________ ___

    Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklaho-
    ___________________ _______________________________________________

    ma, 498 U.S. 505, , 111 S. Ct. 905, 909 (1991); Bottomly v. Passam-
    __ ___ ________ _______

    aquoddy Tribe, 599 F.2d 1061, 1066 (1st Cir. 1979). Although sover-
    _____________

    eign immunity may be waived by the tribe, or abrogated by Congress,

    see Oklahoma Tax, 498 U.S. at , 111 S. Ct. at 910, its relinquish-
    ___ ____________ ____

    ment "cannot be implied but must be unequivocally expressed." United
    ______ __ _______ ______

    States v. Testan, 424 U.S. 392, 399 (1976) (emphasis added); see also
    ______ ______ ___ ____

    Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542, 546 (2d Cir.),
    ______ ____________________________

    cert. denied, 112 S. Ct. 74 (1991) ("When Congress has chosen to limit
    _____ ______

    or waive the sovereign immunity of Indian tribes, it has done so in
    __

    clear language.") (citing Act of July 22, 1958, Pub. L. No. 85-547,
    _____ ________

    1, providing that tribes may "commence" and "defend" actions against

    each other) (emphasis added).

    Maynard contends that the Narragansett Indian Tribe's

    sovereign immunity should not appertain in these circumstances because





















    its actions encroach on lands to which the Tribe affirmatively relin-

    quished all legal claim and title.

    The present action arose out of a boundary dispute with the

    Tribe, relating to Maynard's allegations that tribal officials repeat-

    edly trespassed on his property.* The Tribe acquired the land abut-

    ting Maynard's property in 1978, as part of an overall settlement of

    its legal claim that the Tribe possessed superior, aboriginal title to

    3200 acres in the State of Rhode Island. In return for eventual

    congressional approval of the land claims settlement terms, see Rhode
    ___

    Island Indian Claims Settlement Act, 25 U.S.C. 1701-1716 (1978),

    the Tribe agreed that its claims to non-settlement lands in Rhode

    Island would be extinguished and that the settlement lands by and

    large would be "subject to the civil and criminal laws and jurisdic-

    tion of the State of Rhode Island." Id. 1705(a), 1708.
    ___

    Maynard invites us to infer a waiver or abrogation of the
    _____

    Tribe's sovereign immunity, citing to the settlement agreement, the

    enacting legislation, and excerpts from the legislative history. As

    the district court correctly noted, however, the proposed inferential

    leap is impermissible.** Maynard cites no provision or source which

    ____________________

    *Maynard elected not to name individual members of the Tribe as
    *Maynard elected not to name individual members of the Tribe as
    defendants, contending that permanent injunctive relief against the
    defendants, contending that permanent injunctive relief against the
    Tribe would be the only effective remedy.
    Tribe would be the only effective remedy.

    **Moreover, were the proposed inference otherwise permissible, the
    **Moreover, were the proposed inference otherwise permissible, the
    provisions cited by Maynard would have to be construed to afford the
    provisions cited by Maynard would have to be construed to afford the
    Tribe the benefit of any ambiguity on the waiver-abrogation issue.
    Tribe the benefit of any ambiguity on the waiver-abrogation issue.
    See, e.g., Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582 n.4
    See, e.g., Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582 n.4
    ___ ____ ______________ _________________
    (1st Cir.) (protective statutes enacted for benefit of Indian tribes
    (1st Cir.) (protective statutes enacted for benefit of Indian tribes
    are liberally construed in their favor), cert. denied, 444 U.S. 866
    are liberally construed in their favor), cert. denied, 444 U.S. 866
    _____ ______

    3

















    even alludes to the concept of tribal sovereign immunity, much less

    its relinquishment.*** The Tribe's surrender of its right to sue

    for non-settlement lands neither says nor implies anything about a

    surrender of its sovereign immunity from suit relating to its territo-

    rial or extraterritorial actions. Absent explicit congressional

    authorization to the contrary, the district court had no choice but to

    dismiss the present action for lack of jurisdiction.

    Affirmed.
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    ____________________

    (1979).
    (1979).

    ***The Narragansett Indian Tribe acquired federal status in 1983, see
    ***The Narragansett Indian Tribe acquired federal status in 1983, see
    ___
    Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 4-5 (1st Cir.
    Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 4-5 (1st Cir.
    ___________________________ ________
    1991), a process which entails recognition that the Tribe enjoys "a
    1991), a process which entails recognition that the Tribe enjoys "a
    government-to-government relationship to the United States." 25
    government-to-government relationship to the United States." 25
    C.F.R. 83.11(a) (1992). Even though it would be of no small signif-
    C.F.R. 83.11(a) (1992). Even though it would be of no small signif-
    icance in defining the Tribe's sovereign status, Maynard cites no
    icance in defining the Tribe's sovereign status, Maynard cites no
    reference during the 1983 recognition process to an abrogation of the
    reference during the 1983 recognition process to an abrogation of the
    Tribe's sovereignty, or to an acknowledgement of any past abrogation
    Tribe's sovereignty, or to an acknowledgement of any past abrogation
    or waiver of its sovereign immunity.
    or waiver of its sovereign immunity.

    4