Tonkawa Tribe of Oklahoma v. Richards ( 1995 )

United States Court of Appeals,
Fifth Circuit.
Nos. 94-50369, 94-50541.
The TONKAWA TRIBE OF OKLAHOMA, in its sovereign capacity and as a
representative of its members, Plaintiff-Appellee,
v.
Ann RICHARDS, individually, George W. Bush, Jr., in his official
capacity as the Governor of the State of Texas, Garry Mauro,
individually and in his official capacity as Land Commissioner of
the State of Texas, and the State of Texas, Defendants-Appellants.
The TONKAWA TRIBE OF OKLAHOMA, in its sovereign capacity and as a
representative of its members, Plaintiff-Appellant, Cross Appellee,
v.
Ann RICHARDS, individually, George W. Bush, Jr., in his official
capacity as the Governor of the State of Texas, Garry Mauro,
individually and in his official capacity as Land Commissioner of
the State of Texas, and the State of Texas, Defendants-Appellees,
Cross-Appellants.
Oct. 23, 1995.
Appeals from the United States District Court for the Western
District of Texas.
Before POLITZ, Chief Judge, JONES and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Appellant, the Tonkawa Tribe of Oklahoma ("the Tribe" or "the
Tonkawas") brought suit against the State of Texas, its Governor
and Land Commissioner ("the State") to compel the State to donate
unspecified Texas lands to the Tribe for use as a homeland, and
seeking damages on the basis of an 1866 Act of the Texas
Legislature. The district court granted summary judgment for the
State. We affirm.
FACTS
1
Prior to the Spanish colonization of Texas, the Tonkawas lived
in what later became central Texas. During the Indian Wars, the
Tonkawas served as scouts and fought alongside the Texans against
other Indian tribes. In 1859, the Tonkawas were removed from Texas
to an Indian reservation in Oklahoma. On March 2, 1861, Texas
seceded from the Union and joined the Confederacy. Despite their
removal to Oklahoma, the Tonkawas remained loyal to Texas. In
1862, the Tonkawas learned of plans for an Indian raid on Texas and
forewarned the Texans. Because of this act of loyalty to the
Texans, the Tonkawas were massacred by the Delaware, Shawnee, and
Caddo tribes. In the massacre, 137 of the 300 Tribe members and
the Tribe's chief were killed. In recognition of the Tribe's
sacrifices, the Confederate Texas Legislature passed a Joint
Resolution in 18641 to provide temporary support and land to the
1
Joint Resolution in relation to the Tonkaway [sic] Indians
Whereas, From the earliest settlement of Texas,
and during the war of Texas Independence and border
wars with other Indian Tribes, the Tonkaway [sic] Tribe
of Indians have remained true and faithful, and have
been the close and constant allies of our people; and
Whereas, At the earliest dawn of the present war,
said tribe declared their destiny to be our destiny,
and in consequence of their fidelity to the cause of
Southern Independence they were attacked by our enemies
and more than one-half of the tribe perished, including
the brave old veteran Chief Placadore, who, with his
warriors, women and children, proudly perished rather
than betray or desert the cause which they had
espoused; and
Whereas, The remnant of this faithful people are
now wanderers on our soil, in the most wretched and
dependent condition; Therefore
1. Be it resolved, That the Governor take such
2
Tonkawas.
When the Civil War ended in 1865, Texas entered a period of
Reconstruction that lasted through January 1874. By letter of
September 20, 1866, Texas Governor J.W. Throckmorton appealed to
the federal government to allow a Texas agent to care for the
Tonkawas and advised the Commissioner of Indian Affairs that he
intended to request support for the Tribe from the Provisional
Texas Legislature. On November 1, 1866, the Provisional Texas
Legislature passed an Act to Provide for the Tonkawa Indians ("1866
Act")2 which included a section setting aside a league of land to
steps to settle them on the public domain of the State,
and at such place as he may deem proper.
2. That the sum of thirty-five thousand dollars
annually, for the years 1864 and 1865, be and the same
is hereby appropriated out of any money in the
Treasury, not otherwise set apart, for the support and
maintenance of said tribe of Indians; the same to be
expended under the direction of the Governor.
3. That these resolutions be in force from their
passage.
Approved May 28, 1864, 10th Leg., C.S., ch. 3, 1864
Tex.Gen.Laws 42, reprinted in 5 H.P.N. GAMMEL, LAWS OF TEXAS
800 (1898).
2
An Act to provide for the Tonkawa Indians
Sec. 1. Be it enacted by the Legislature of the
State of Texas,
That the Governor shall appoint an agent for the
Tonkawa Indians, whose duty it shall be, under the
direction of the Governor, to locate and settle said
Indians on the lands set apart for them by the
provisions of this act, and who shall superintend and
manage their affairs as the Governor shall direct, for
which service said agent shall receive not more than
five hundred dollars per annum, which amount is hereby
appropriated, and may be paid quarterly, upon the
3
be used by the Tonkawas "as a home, as long as they shall live on
the same." The Tonkawas have never resided on any land as provided
for under the 1866 Act.
After the massacre of the Tonkawas by the Delaware, Shawnee
and Caddo tribes, the Tonkawas returned to Texas, settling near
Austin. In April 1867, the Tonkawas were moved to Jacksboro,
approval of the Governor.
Sec. 2. That there shall be set apart for the use
of said Indians (Tonkawas), as a home, as long as they
shall live on the same, one league of land, out of the
unappropriated public domain of the State, to be
selected on the line of the frontier, at such suitable
place as the Governor may direct; Provided, the fee in
said land so selected shall remain in the State, and
shall not be subject to location or entry, as long as
it is used for the purpose herein provided for, and
when it shall cease to be so used, it shall not be
disposed of except by act of the Legislature.
Sec. 3. That the sum of three thousand five
hundred dollars, United States currency, or so much as
may be necessary, is hereby appropriated, out of any
unappropriated funds in the Treasury, which shall be
expended under the direction of the Governor for the
use and benefit of said Indians.
Sec. 4. That the Governor be required to apply to
the authorities of the General Government, to take
these Indians in charge and provide for them, and in
the event the Government shall do so, then the
appropriation of money herein made shall cease to be
used.
Sec. 5. That the Governor is hereby authorized to
furnish to the Tonkawa warriors, one gun each, if there
be any belonging to the State on hand.
Sec. 6. That this Act take effect and be in force
from and after its passage.
Approved Nov. 1, 1866, 11th Leg., R.S., ch. 78, 1866
Tex.Gen.Laws 73, reprinted in 5 H.P.N. GAMMEL, LAWS OF TEXAS
991 (1898).
4
Texas, where they were turned over to the care of Major Starr, the
Federal Commandant at the Jacksboro post.
Later in 1867, the Tonkawas were settled near Fort Griffin,
originally called Camp Wilson, in present-day Shackleford County.
During the time the Tonkawas resided near Fort Griffin, they
continued to serve as scouts for federal troops located at the
Fort. In September of 1874, the Tonkawas fought beside federal
troops against the Comanches in Palo Duro Canyon in the last major
battle of the Indian Wars. The Tonkawas remained at Fort Griffin
until 1884, at which time the Army left and the Tribe was once
again removed to Oklahoma.
The Tonkawas were settled on a reservation of approximately
91,000 acres located near Ponca City, Oklahoma, in June of 1885.
The Tribe's population continued to decline until there were fewer
than fifty tribal members left. The reservation has since been
decreased to 160 acres of land. The Tonkawas remain a small tribe,
with approximately 15 families living on the reservation. There is
no industry on the current tribal land, unemployment is high, and
the majority of the Tribe lives at or below the poverty line.
In June of 1992, the Tonkawas made a written request to Texas
Governor Ann Richards to select the league of land granted in the
1866 Act and apportion it to their use. By letter dated June 25,
1992, the Governor advised the Tribe that the Tribe's request had
been referred to Land Commissioner Garry Mauro, and that she had
requested him to investigate the Tribe's claim. In a letter dated
July 30, 1992, Mauro advised the Tribe that
5
[I]n 1867, at about the same time that the Tonkawa nation was
removed by the United States Army to Fort Griffin, the United
States imposed military rule on the State of Texas. The
imposition of Reconstruction effectively deprived the civilian
government of Texas of any ability to carry out the Act of
1866.
In the years following 1867, the entire public domain of
the State of Texas was appropriated to other uses, including
the establishment of the Permanent School Fund. All prior
grants that were not surveyed and located prior to the
exhaustion of the public domain cannot now be honored because
there is no longer any public domain from which to award them.
The Texas Constitution of 1876 prohibits the granting of any
lands belonging to the Permanent School Fund without full
compensation being paid.
I regret that the State of Texas is unable at this late
date to honor the commitment made by the Legislature of 1866
because there is no public domain from which to award the
league of land provided for in the Act of 1866.
DISTRICT COURT PROCEEDINGS
The Tribe sought a writ of mandamus from the Texas Supreme
Court. That court denied the Tribe leave to file the writ on July
8, 1993. Having exhausted its attempts to secure the league of
land directly from the State of Texas, the Tonkawas filed this
action.
In the Tribe's Complaint, filed November 15, 1993, they
requested the district court to declare that the 1866 Act granted
the Tribe an enforceable interest, claim, and right to land that
was not divested by the subsequent dedication of land to the
Permanent School Fund, or, alternatively, that if the Tribe's
interest and claim were so divested, such divestiture violated the
Nonintercourse Act, 25 U.S.C. § 177. In short, the Tribe sought a
court order directing the State to designate a league of land to be
used as a homeland by the Tribe and to take all steps necessary to
6
place the Tribe in possession of the land.
The district court, upon consideration of the parties' cross
motions for summary judgment, granted summary judgment for the
State and dismissed the case with prejudice. The ruling was based
on the district court's finding that the Tonkawas never retained a
vested property interest in the proposed league of land and that
the Tribe's claim does not come within the purview of the
Nonintercourse Act.
STANDARD OF REVIEW
Appellate courts review summary judgments de novo, applying
the same standard as the district court. Bodenheimer v. PPG Indus.
Inc., 5 F.3d 955, 956 (5th Cir.1993). Summary judgment shall be
rendered if there is no genuine issue of material fact and if the
moving party is entitled to judgment as a matter of law.
FED.R.CIV.P. 56(c). In making its determination, the court must
draw all justifiable inferences in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,
2513-14, 91 L. Ed. 2d 202 (1986).
Additionally, treaties and statutes should be liberally
construed in favor of Indian tribes, with ambiguous provisions
interpreted to their benefit. See, e.g., Winters v. United States,
207 U.S. 564, 576-77, 28 S. Ct. 207, 211, 52 L. Ed. 340 (1908);
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582, 8 L. Ed. 483
(1832).
NONINTERCOURSE ACT
a. Elements of a Nonintercourse Claim.
7
To establish a violation of the Nonintercourse Act3 ("the
Act") the Tribe must show that (1) it constitutes an Indian tribe
within the meaning of the Act; (2) the Tribe had an interest in or
claim to land protected by the Act; (3) the trust relationship
between the United States and the Tribe has never been expressly
terminated or otherwise abandoned; and (4) the Tribe's title or
claim to the interest in land has been extinguished without the
express consent of the United States. See Catawba Indian Tribe v.
South Carolina, 718 F.2d 1291, 1295 (4th Cir.1983), rev'd on other
grounds, 476 U.S. 498, 106 S. Ct. 2039, 906 L. Ed. 2d 490 (1986);
Mashpee Tribe v. New Seabury Corp., 427 F. Supp. 899, 902
(D.Mass.1977); Narragansett Tribe of Indians v. Southern Rhode
Island Land Dev. Corp., 418 F. Supp. 798, 803 (D.R.I.1976). The
district court expressly determined, and Appellees concede, that
3
The Nonintercourse Act, codified at 25 U.S.C. § 177,
provides:
No purchase, grant, lease, or other conveyance of
lands, or of any title of 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. Every person who, not being employed
under the authority of the United States, attempts to
negotiate such treaty or convention, directly or
indirectly, or to treat with any such nation or tribe
of Indians for the title or purpose of any lands by
them held or claimed, is liable to a penalty to $1000.
The agent of any State who may be present at any treaty
held with Indians under the authority of the United
States, in the presence and with the appropriation of
the commissioner of the United States appointed to hold
the same, may, however, propose to, and adjust with,
the Indians the compensation to be made for their claim
to lands within such State, which shall be extinguished
by treaty.
8
the Tribe has satisfied the first and third elements. There is
likewise no dispute concerning the fourth element. Rather, the
district court's decision was based on its holding that the Tribe
failed to establish the second element—that is, the Tribe had no
interest in or claim to land protected by the Nonintercourse Act.
b. The District Court's Analysis.
The district court relied on the Supreme Court's decision in
United States v. Rowell, 243 U.S. 464, 37 S. Ct. 425, 61 L. Ed. 848
(1917). In Rowell, the plaintiff, an adopted member of the Kiowa,
Comanche, and Apache Tribes, asserted a vested property right and
a right to issuance of an allotment under a statute that authorized
and directed "the Secretary of the Interior ... to issue a patent
in fee for the tract in controversy to James F. Rowell." Rowell,
243 U.S. at 465, 37 S.Ct. at 426. Rowell argued that the statute
was a grant in praesenti. The Supreme Court stated:
But it is insisted that the provision of June 17, 1910, was a
grant in praesenti and operated in itself to pass the full
title to Rowell, and therefore that he had a vested right in
the land which the repealing act could not affect. Of course,
a grant may be made by a law as well as by a patent issued
pursuant to a law, but whether a particular law operates in
itself as a present grant is always a question of intention.
Rowell, 243 U.S. at 469, 37 S.Ct. at 427. In the statute in
controversy, there were no words of present grant but only a
direction to the Secretary of Interior to issue a patent to Rowell.
The Supreme Court held that the statute should be construed only as
a proposal by the government, which was amendable and repealable at
the will of Congress. Because the act in controversy had not been
carried into effect by the issuance of an allotment, no vested
9
property right ever accrued in favor of Rowell.
The district court found, under the reasoning in Rowell, that
no vested property right accrued in favor of the Tribe under the
1866 Act.
The 1866 Act set aside the league of land so long as the Tribe
used it as a homeland. It directed the Governor, in
permissive rather than mandatory language, to set aside the
land. The land was never set aside by the Governor, the Tribe
never used any "league of land" as its homeland.... The Texas
Legislature, in subsequent legislation, dedicated all of the
unappropriated public domain to other purposes. The Tonkawas
never retained a vested property interest in the proposed
league of land. The interest at best could have been
correctly characterized as a mere expectancy—an expectancy
which was extinguished when the State dedicated the public
domain to other purposes.
Memorandum Opinion and Order, July 21, 1994, p. 16. The district
court went on to hold that the Tribe's claim does not come within
the purview of the Nonintercourse Act because a cause of action
under that Act requires an "alienation of Indian Lands." Because
the Tonkawas never held the land as their own or used it as a
homeland, there was no alienation of Indian Lands under these
circumstances, according to the district court.
The Tribe contends on appeal that the 1866 Act granted the
Tribe, at the minimum, a present equitable interest in or claim to
a league of unappropriated land in Texas. When the legislature
later disposed of all the remaining unappropriated land, they
argue, it extinguished the Tribe's claim in violation of the
Nonintercourse Act.
c. The Reach of the Nonintercourse Act
We must analyze the question thus presented in the context of
Congressional intent and judicial interpretation of the
10
Nonintercourse Act. It was originally enacted in 1790, see Mohegan
Tribe v. Connecticut, 528 F. Supp. 1359, 1362-63 (D.Conn.1982), and
the current version dates to 1834. 25 U.S.C. § 177 (1983). The
Act's purpose is to prevent unfair, improvident, or improper
disposition by Indians of lands owned or possessed by them to other
parties, except the United States, without the consent of Congress.
Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 119,
80 S. Ct. 543, 555, 4 L. Ed. 2d 584 (1960). The Act broadly protects
Indian tribes' rights to and interests in land:
The Indian Nonintercourse Act ... has been perhaps the most
significant congressional enactment regarding Indian lands.
The Act's overriding purpose is the protection of Indian
lands. It acknowledges and guarantees the Indian tribes'
right of possession and imposes on the federal government a
fiduciary duty to protect the lands covered by the Act.
United States on behalf of Santa Ana Indian Pueblo v. University of
New Mexico, 731 F.2d 703, 706 (10th Cir.), cert. denied, 469 U.S.
853, 105 S. Ct. 177, 83 L. Ed. 2d 111 (1984) (citations omitted). The
Act applies to "any title or claim" to real property, including
nonpossessory interests. See United States v. Devonian Gas & Oil
Co., 424 F.2d 464, 467 n. 3 (2d Cir.1970) (Nonintercourse Act
applies to oil and gas leases); Mohegan Tribe, 528 F. Supp. at 1370
("Whether or not Connecticut held the fee to the land in question,
it could not alienate Indian land without the consent of the
federal government after the passage of the first Nonintercourse
Act in 1790"); Lease of Indian Lands for Grazing Purposes, 18
Op.Att'y Gen. No. 583 (July 21, 1885) ("This statutory provision [§
177] is very general and comprehensive. Its operation does not
depend upon the nature or extent of the title to the land which the
11
tribe or nation may hold.").
The Nonintercourse Act protects a tribe's interest in land
whether that interest is based on aboriginal right, purchase, or
transfer from a state. See, e.g., Alonzo v. United States, 249
F.2d 189, 196 (10th Cir.1957) (grants made by governments of Spain
and Mexico and by purchase), cert. denied, 355 U.S. 940, 78 S. Ct.
429, 2 L. Ed. 2d 421 (1958); Joint Tribal Council of Passamaquoddy
Tribe v. Morton, 528 F.2d 370 (1st Cir.1975) (grants by state);
United States v. 7405.3 Acres of Land, 97 F.2d 417, 422 (4th
Cir.1938) ("[I]t makes no difference that title to the land in
controversy was originally obtained by grant from the state of
North Carolina."); see also, Oneida Indian Nation v. County of
Oneida, 434 F. Supp. 527, 538 (N.D.N.Y.1977) (Nonintercourse Act
protects land reserved for tribe in treaty with New York prior to
passage of United States Constitution), aff'd, 719 F.2d 525 (2d
Cir.1983), aff'd in part and rev'd in part on other grounds, 470
U.S. 226, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985). As stated in
Alonzo:
[T]he reason for the imposition of the restrictions [set forth
in § 177] is in nowise related to the manner in which the
Indians acquired their lands. The purpose of the restrictions
is to protect the Indians ... against the loss of their lands
by improvident disposition or through overreaching by members
of other races.
Alonzo, 249 F.2d at 196 (footnote omitted).
The Nonintercourse Act's prohibition is effective against
states, as well as private parties, who attempt to obtain tribal
land in violation of its provisions. See Mohegan Tribe v. State of
Connecticut, 528 F. Supp. 1359, 1364-65 (D.Conn.1982). In this
12
regard, the Act reaches not only conveyances by a tribe, but also
any action by a state which purports to divest a tribe of an
interest in land. See Tuscarora Nation of Indians v. Power
Authority of New York, 257 F.2d 885, 893 (2d Cir.1958)
(Nonintercourse Act applied to condemnation proceeding by state),
vacated as moot, 362 U.S. 608, 80 S. Ct. 960, 4 L. Ed. 2d 1009 (1960);
United States v. First Nat'l Bank, 56 F.2d 634, 635 (D.Neb.1931)
("The Omaha tribe owned its lands before Nebraska became a
state.... It is not competent for either the Congress by
legislation or the states by court decisions to impair those
rights."), aff'd, 59 F.2d 367 (8th Cir.1932).
d. Does the Tribe have a claim to lands covered by the 1866 Act?
The Tribe's claim arises under Texas legislation, to which we
must apply Texas' rules of statutory construction. See Oregon ex
rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363,
372, 97 S. Ct. 582, 588, 50 L. Ed. 2d 550 (1977) (holding state law
governs disputed ownership of lands). In determining the meaning
of the 1866 Act, our primary goal under Texas' rules of statutory
interpretation is to ascertain the intention of the legislature.
See, e.g., Jones v. Del Andersen & Assoc., 539 S.W.2d 348, 350
(Tex.1976). This intention is to be ascertained from the language
of the statute itself, id., as of the time the law was passed,
Harris v. Ft. Worth, 142 Tex. 600, 180 S.W.2d 131, 133 (1944), and
further, from the entire act and not from isolated portions of it.
Calvert v. Texas Pipe Line Co., 517 S.W.2d 777, 781 (Tex.1974).
The 1866 Act must be read in light of the circumstances and the
13
public policy prompting its passage. Austin v. Collins, 200 S.W.2d
666, 669 (Tex.Civ.App.—Ft. Worth 1947, writ ref'd n.r.e.).
The Tonkawas argue that the language in the 1866 Act
directing that the land "shall be set apart" is a mandatory
directive, revealing the legislature's intent to make a present
grant of the property. The Tribe also points out that the Texas
Legislature never repealed the 1866 Act or took any action
specifically addressing the land after the 1866 Act. The State
responds that "shall" is not necessarily mandatory, but may be
directory only. Lewis v. Jacksonville Bldg. & Loan Ass'n, 540
S.W.2d 307, 310 (Tex.1976); Hunt v. Heaton, 631 S.W.2d 549, 550
(Tex.App.—Beaumont 1982), aff'd, 643 S.W.2d 677 (Tex.1982).
"Provisions which do not go to the essence of the act to be
performed, but which are for the purpose of promoting the proper,
orderly and prompt conduct of business, are not ordinarily regarded
as mandatory." Lewis, 540 S.W.2d at 310. Because the essence of
the 1866 Act was to provide subsistence for the Tribe until such
time as the Federal government took the Tonkawas in charge and
provided for them, rather than to set apart particular real estate,
we conclude that the "shall" language in question was not
mandatory.
Next, the Tribe contends that the grant could have been
perfected solely through ministerial duties of the state, and that
it was therefore "self-executing and effective to grant the the
tribe an equitable interest in the unappropriated public domain of
the state as it existed in 1866." The Tribe distinguishes what it
14
refers to as the self-executing nature of the grant from unsurveyed
land certificates. "A land certificate is merely the obligation of
the government entitling the owner of it to secure the designated
quantity of land by following the requirements of the law." New
York & T. Land Co. v. Thomson, 83 Tex. 169, 17 S.W. 920, 923
(1891). The owner of a land certificate had to affirmatively take
steps to locate the certificate to obtain any right to land. Not
until the land certificate was properly located did it vest either
equitable or legal title to land in the owner of the certificate.
See Sledge v. Humble Oil & Refining Co., 340 S.W.2d 517, 520
(Tex.Civ.App.—Beaumont 1960, no writ) ("An un-located land
certificate vests in its holder no justiciable interest in any
specific land."); Abbott v. Gulf Prod. Co., 100 S.W.2d 722, 724
(Tex.Civ.App.—Beaumont 1936, writ dism'd w.o.j.). Under the 1866
Act, the Tribe was not required to take any action to perfect its
interest in the land granted, but rather the burden of acting was
upon the state.
The Tribe cites Hogue v. Baker, 92 Tex. 58, 45 S.W. 1004
(1898), in which the Texas Supreme Court held that a constitutional
provision establishing that one-half of the public domain of the
state would be allocated to the perpetual public school fund was
self-executing. The Court held that the provision conferred the
school fund with an equitable right to its share, even though the
legislature retained authority over the partition of the lands.
The State distinguishes Hogue, arguing that unlike a grant to
another party, Texas' grant to the public school fund was actually
15
a grant to itself which did not rest on the issuance of a patent.
We conclude that the language in the 1866 Act was not a
self-executing grant of land to the Tonkawas. The Act required
action by the State (designation of the location of the league of
land) as well as action by the Tribe (the making of a tribal
homeland on the designated land) in order for the Tribe to take
benefit from the grant. Because these two conditions were never
fulfilled, the grant was never perfected.
Finally the Tonkawas argue, citing Jones v. Meehan, 175 U.S.
1, 20 S. Ct. 1, 44 L. Ed. 49 (1899), that federal law conferred them
with an equitable interest in the land. In Jones, the Court held
that the reservation of land pursuant to a treaty created an
equitable title in the Chickasaw Indian tribe, even though the land
was not yet precisely located or surveyed. This analogy is
unpersuasive; the Chickasaws acquired an equitable interest
through a treaty with the United States supported by valid
consideration. Although the Texas Legislature recited the
Tonkawas' past fidelity to Texas and their indigency as the
motivation for the 1864 Resolution, there is no evidence of
bargained-for consideration exchanged for an interest in land.
In sum, we hold that the grant was not mandatory or
self-executing, and vested no interest, equitable or otherwise, in
the Tribe. The purpose of the 1866 Act was to provide for the
surviving Tonkawa Indians until such time as the federal government
could provide for them. At the time of the enactment, Texas
considered this an obligation of the "central government," see § 2
16
of the 1866 Act, and even applied for reimbursement from the
federal government for sums expended out of the appropriation
contained in the 1866 Act. The fee was reserved to the state and
the Tribe was entitled to use of the land only so long as it served
as their homeland. It is clear that the Tribe's claim to the land,
as well as to the money and guns mentioned in the 1866 Act, was
extinguished when the Tribe was placed on the Oklahoma reservation.
The public domain, from which the potential grant would have been
carved out, was in fact later disposed of by various acts of the
Legislature, as required by the 1866 Act.
e. Does the Tribe have a Nonintercourse Act "claim"?
The Tonkawas assert that the language of the Act, which
prohibits the alienation "of lands, or any title or claim thereto
" (emphasis added) covers their "claim" although it is unvested.
The Tribe relies primarily on Oneida Indian Nation v. New York, 691
F.2d 1070, 1084 (2d Cir.1982), where the Second Circuit concluded
that an Indian tribe's interest in land was covered by the Act even
though the land was unprotected by legal title. A crucial
distinction, however, lies in the fact that the Oneida tribe had a
possessory interest in the disputed land. Indeed, this is
consistent with the purpose of the Act, which was to protect Indian
tribes' aboriginal title to land on which they live. There being
no support for the Tribe's claim under Texas law, the Tribe's
proposed distinction between vested property rights and unvested
"claims" provides them no basis for recovery.
ELEVENTH AMENDMENT
17
The State filed a Motion to Dismiss in the district court
contending that the court lacked jurisdiction over this cause of
action because the suit was barred by the Eleventh Amendment to the
Constitution of the United States. The district court, in its
Order on Motion to Dismiss, stated that the Eleventh Amendment bar
to suits against states is circumvented when: (1) the state has
waived immunity and consented to suit, Papasan v. Allain, 478 U.S.
265, 276 n. 10, 106 S. Ct. 2932, 2939 n. 10, 92 L. Ed. 2d 209 (1986);
(2) Congress has clearly expressed its intent to abrogate or limit
that immunity through its legislative authority, Quern v. Jordan,
440 U.S. 332, 333-34, 99 S. Ct. 1139, 1141-42, 59 L. Ed. 2d 358
(1979); or (3) the suit is instituted under a fiction which allows
suits for prospective injunctive relief against a state official in
vindication of a federal right, Ex parte Young, 209 U.S. 123, 28
S. Ct. 441, 52 L. Ed. 714 (1908). The district court focused its
analysis on the second exception—Congressional abrogation of Texas'
immunity from suit. The Tribe sought, through judicial process, to
enforce rights created by the Nonintercourse Act. The district
court found that Congress clearly intended to abrogate the States'
Eleventh Amendment immunity when it enacted the Nonintercourse Act
and had the power to do so under the Indian Commerce Clause,4
citing Oneida Indian Nation of New York v. Oneida, 719 F.2d 525,
543 (2nd Cir.1983), aff'd in part and rev'd in part on other
grounds, 470 U.S. 226, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985). The
4
"The Congress shall have Power ... To regulate Commerce
with foreign Nations, and among the several States, and with the
Indian Tribes...." U.S. Const. art. I, § 8, cl. 3.
18
Order on Motion to Dismiss was not appealed. The Tribe adopts the
district court's position below as its position on appeal as to the
immunity question. The State argues on appeal its contention that
it was immune from suit, but nevertheless contends that this Court
need not reach the questions of whether Congress abrogated Texas'
Eleventh Amendment immunity when it enacted the Nonintercourse Act
and, if so, whether Congress possessed the power to do so. We
agree.
While we could raise the issue sua sponte because the
Eleventh Amendment operates as a jurisdictional bar, Ysleta Del Sur
Pueblo v. Texas, 36 F.3d 1325, 1335 (5th Cir.1994), cert. denied,
--- U.S. ----, 115 S. Ct. 1358, 131 L. Ed. 2d 215 (1995), we do not.
Even if Congress validly waived the State's Eleventh Amendment
immunity here, the appellants have no claim for relief. Further,
because this case turns on the interpretation of a Texas Act with
narrow application, this precise immunity question is not likely to
recur so as to require appellate court guidance for district
courts. See Texas Employers' Ins. Ass'n v. Jackson, 862 F.2d 491,
496-97 n. 8 (5th Cir.1988). We therefore decline to reach the
question of Eleventh Amendment immunity.
CONCLUSION
We affirm the district court's summary judgment in favor of
the State, and decline to reach the Tribe's argument premised on 42
U.S.C. § 1983.
AFFIRMED.
19