MARIE DUCHENEAUX, PETITIONER V. SECRETARY OF THE INTERIOR, ET AL.

   No. 87-1732

   In the Supreme Court of the United States

   October Term, 1987

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

   Memorandum for the Federal Respondent in Opposition

   Petitioner contends that the court of appeals erred in holding that
sovereign immunity barred her suit seeking to overturn the will of her
estranged Indian spouse and in holding, in the alternative, that the
will should not be overturned on the merits.

   1. Petitioner, a non-Indian, is the widow of Douglas Leonard
Ducheneaux, an enrolled member of the Cheyenne River Indian Tribe.
During their marriage, petitioner and her husband acquired several
tracts of property on the Cheyenne River Indian Reservation in Dewey
County, South Dakota.  Trust patents were issued to petitioner's
husband under the General Allotment Act of 1887, 25 U.S.C. (& Supp.
IV) 331 et seq.  /1/ Pet. App. 2a-3a, 14a-15a & n.1.  The United
States held legal title to the land, in trust for Mr. Ducheneaux.  See
25 U.S.C. 465.

   Petitioner and her husband separated in 1971 and remained separated
when Mr. Ducheneaux died on April 11, 1980.  Mr. Ducheneaux began
divorce proceedings in 1971, but the proceedings were never completed.
 Both the state court hearing the divorce proceeding and a federal
court in which petitioner initiated an action in 1972 held that they
had no jurisdiction to divide the trust property.  Pet. App. 3a,
15a-16a.  In his will dated January 24, 1980, Mr. Ducheneaux left his
entire estate to his brother's children, expressly disinheriting
petitioner (id. at 16a-17a n.3).  The will was probated by the Bureau
of Indian Affairs within the United States Department of the Interior,
and an order approving the will and issuing a decree of distribution
(id. at 28a-37a) was filed pursuant to 43 C.F.R. Pt. 1.  /2/
Petitioner filed objections to the will, alleging that she was
entitled to half of the land acquired during the marriage under a
theory that the Secretary of the Interior (Secretary) held the land in
constructive trust for her.  /3/

   Petitioner appealed unsuccessfully to the Interior Board of Indian
Appeals (IBIA) (Pet. App. 38a-47a).  She then filed suit in the United
States District Court for the District of South Dakota.  The
government argued that the Quiet Title Act (QTA), 28 U.S.C. 2409a,
shows that Congress intended to preserve the United States' sovereign
immunity from suit by third parties challenging the United States'
title to land held in trust for Indians, and that therefore the
district court had no jurisdiction under the QTA or any other statute.
 Without addressing this argument directly, the court held that
"(j)urisdiction is conferred upon the Court by 5 U.S.C. Section 706"
(Pet. App. 13a).  Because the court regarded petitioner as seeking
only "a property interest which is rightfully hers" (id. at 24a), it
directed the Secretary to issue a deed to petitioner for a one-half
interest in the decedent's real property as well as an accounting of
all rents and profits (id. at 27a).

   2. The court of appeals reversed (Pet. App. 1a-12a).  Citing United
States v. Mottaz, 476 U.S. 834, 842-843 (1986), and Block v. North
Dakota, 461 U.S. 273, 286 (1983), the court reasoned that the QTA by
its own terms fails to waive the United States' sovereign immunity for
actions challenging the United States' legal title to Indian trust
lands, and that the district court could not exercise jurisdiction, as
it did, under the Administrative Procedure Act (APA), 5 U.S.C. (&
Supp. IV) 551 et seq., because the QTA is the only avenue available
for claimants to challenge the government's title to real property.
Because there is no cause of action under the APA "if any other
statute that grants consent to suit expressly or impliedly forbids the
relief which is sought" (5 U.S.C. (Supp. IV) 702(2)), the court of
appeals concluded that the district court was without jurisdiction
under the APA and 28 U.S.C. 1331.  Pet. App. 4a-9a.

   The court of appeals also held that, even if the jurisdictional
issue had not been so dispositive, the district court's judgment still
would have to be reversed because the court lacked the authority to
override the terms of the decedent's valid will.  The court cited this
Court's decisions in Blanset v. Cardin, 256 U.S. 319, 326 (1921), and
Tooahnippah v. Hickel, 397 U.S. 598, 608-610 (1970).  Pet. App.
9a-10a.

   3. Petitioner contends that the court of appeals erred in holding
that her suit was barred by sovereign immunity and in holding that the
district court was without authority to override the express terms of
Mr. Ducheneaux's will.  The decision of the court of appeals, however,
is correct and does not conflict with any decision of this Court or
another court of appeals.  Accordingly, review by this Court is not
warranted.

   a. Petitioner states without explanation (Pet. 6) that the QTA is
inapplicable to this case, presumably because of the erroneous belief
that petitioner's equitable claim to the trust property is sufficient
to divest the United States of its legal title to the trust property.
This ignores the well-settled law that the United States has not
waived its sovereign immunity to suit when,, as in this case, the
United States holds legal title to trust or restricted land.

   The QTA provides that the United States may be named as a party
defendant in a "civil action * * * to adjudicate a disputed title to
real property in which the United States claims an interest" (28
U.S.C. 2409a(a)).  The QTA, however, expressly does not apply to
"trust or restricted Indian lands" (ibid.).  This exception, the Court
has recently observed, "operates * * * to retain the United States'
immunity from suit by third parties challenging the United States'
title to land held in trust for Indians" (United States v. Mottaz, 476
U.S. at 842;  see id. at 843 & n.6).

   In Block v. North Dakota, 461 U.S. at 286 (footnote omitted), the
Court held that "Congress intended the QTA to provide the exclusive
means by which adverse claimants could challenge the United States'
title to real property." The Court accordingly rejected the contention
that a party could contest the United States' title to real property
simply by bringing an action against the responsible federal officer,
either under the APA or pursuant to other authority (see id. at
280-286 & .22).  /4/

   The trust and restricted lands exception to the QTA's waiver of
sovereign immunity reflects the government's continuing responsibility
for such lands.  "By forbidding actions to quiet title when the land
in question is reserved or trust Indian land, Congress sought to
prohibit third parties from interfering with the responsibility of the
United States to hold lands in trust for Indian tribes." Florida v.
United States Dep't of the Interior, 768 F.2d 1248, 1254 (11th Cir.
1985), cert. denied, 475 U.S. 1011 (1986);  see Block v. North Dakota,
461 U.S. at 285.  If the approach urged by petitioner were adopted,
however, any claimant could seek title in probate proceedings,
circumventing the QTA and rendering "the Indian lands exception to the
QTA * * * nugatory" (ibid.).

   Petitioner cites several cases (Pet. 7) in an attempt to
demonstrate the inapplicability of the QTA's exception for suits
involving claims to Indian trust lands.  The cases, however, offer no
support for her argument.  In Conroy v. Conroy, 575 F.2d 175 (8th Cir.
1978), a divorce action between two members of the same Indian tribe,
a tribal court divided the trust property between the two spouses.  As
the court of appeals here stated in distinguishing its own prior
decision (Pet. App. 8a), the critical difference between the two cases
is that in Conroy "the Tribal Court's partition of the trust property
between two Indians did not divest the United States of its legal
title to the property as trustee, but merely substituted different
Indian beneficiaries." /5/

   Petitioner, in citing Bailess v. Paukune, 344 U.S. 171 (1952),
misapprehends the import of that decision.  In that case, an Indian
devised trust property to his non-Indian spouse.  Bailess merely
acknowledged that land so devised loses its character as trust
property, and "there remains only a ministerial act for the trustee to
perform, namely the issuance of a fee patent to the cestui" (id. at
173).  Here, by contrast, the property in questions remains trust
property, with legal title vested in the United States, and the
decedent has not devised the property to petitioner.  In such
circumstances, there is no applicable waiver of sovereign immunity to
support an action seeking to require the United States to divest
itself of legal title and give the property to petitioner.

   b. As the court of appeals also correctly held, even if the
district court had had a proper basis of jurisdiction its order could
not stand.  A court is without authority to override an Indian's valid
will.  In Blanset v. Cardin, 256 U.S. 319, 326-327 (1921), the Court
recognized the right of Indians to dispose of their property "free
from restrictions on the part of the State as to the portions to be
conveyed or as to the objects of the testator's bounty, provided such
wills are in accordance with the regulations and meet the approval of
the Secretary of the Interior." In Tooahnippah v. Hickel, 397 U.S.
598, 608-610 (1970), the Court further recognized the limited
authority of the Secretary when probating Indian wills, noting that
the Secretary himself lacks "the power to revoke or rewrite a will
that reflects a rational testamentary scheme with a provision for a
relative who befriended the testator and omission of one who did not,
simply because of a subjective feeling that the disposition of the
estate was not 'just and equitable.'" The district court's order in
this case, however, is based on nothing more than subjective feelings
about what is just and equitable.  As the court of appeals properly
held, such an order is improper on the merits.

   Petitioner asserts (Pet. 6) that the Secretary improperly failed to
modify the decedent's inventory of property to reflect petitioner's
claim of entitlement to part of the trust property under a
resulting-trust theory.  Although 43 C.F.R. 4.273(a) provides for
elimination of property from a decedent's inventory when "it is found
that property has been improperly included," such claims arise, as the
IBIA opinion in this case pointed out (Pet. App. 45a n.4), when "trust
property titled to the decedent should have been titled to another, or
* * * trust property titled to another should have been titled to the
decedent." That, however, was not the essence of petitioner's claim
before the agency or in the courts below.

   Petitioner quotes (Pet. 5) part of a brief submitted by the
Solicitor of the Department of the Interior in response to an IBIA
order in this case (Pet. App. 40a) on the issue of whether resulting
purchase money trusts in Indian trust property could be recognized
(Solicitor's Office Brief, Dkt. Nos. IBIA 83-53 and 84-4).  The IBIA,
after considering the Solicitor's views, agreed that, while resulting
purchase money trusts in Indian trust land could "be recognized under
appropriate circumstances" (Pet. App. 43a), such circumstances did not
include a claim by a non-Indian (id. at 47a).  The Solicitor had also
stated that, although an administrative law judge has the authority
under Department of the Interior regulations to modify a decedent's
estate inventory if sufficient evidence is presented to show improper
inclusion of certain assets, "such authority may not extend to curing
defects which are based on a resulting trust theory" (Solicitor's
Brief 5).  Finally, the Solicitor specifically rejected the view
adopted by the district court in this case that spousal contributions
during marriage could form the basis for a claim under a
resulting-trust theory.

   Under applicable regulations, the Secretary was without authority
to modify the decedent's inventory of property and to override the
express terms of the will of the decedent.  Petitioner cites Akers v.
Morton, 499 F.2d 44 (9th Cir. 1974), cert. denied, 423 U.S. 831
(1975), in an attempt to show that the mere fact of asserting a claim
in the decedent's trust property was sufficient to require the
Secretary to modify the decedent's inventory of property (Pet. 7-8).
In this case, however, the administrative law judge found no evidence
to support petitioner's claim that she owned an interest in the trust
property (Pet. App. 31a).  Moreover, in Akers, an Indian husband had
disinherited his Indian wife.  There, the trust property had been
acquired completely with the wife's funds although title was taken
solely in the husband's name.  Despite this fact, the wife had not
asserted in the probate proceedings that the land had improperly been
included in the decedent's inventory of property.  After an
unsuccessful administrative challenge, the wife sued the Secretary of
the Interior.  The court of appeals, relying on Tooahnippah, rejected
the widow's claim, noting that "(t)he Secretary may disapprove a will
only if it is technically deficient or if it is irrational" (499 F.2d
at 46-47).  Akers thus supports the ruling of the court of appeals in
this case.  /6/

   The court of appeals correctly held that petitioner's suit was
barred by the QTA and that, even without the jurisdictional bar, the
Secretary had no authority to override the express testamentary wishes
of the decedent.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   MAY 1988

   /1/ An Indian can receive a fee patent after 25 years, but the
trust status of restricted lands can instead be continued
indefinitely.  See Indian Reorganization Act of 1934, 25 U.S.C. (&
Supp. IV) 461 et seq.

   /2/ Under tribal law, petitioner received an elective share of Mr.
Ducheneaux's personal property amounting to $16,267.13.  Under its
bylaws incorporating 25 U.S.C. 464, the Cheyenne River Indian
Reservation cannot approve devises of restricted land to individuals
who are not heirs at law of the testator or members of the Tribe.  See
Cultee v. United States, 713 F.2d 1455 (9th Cir. 1983), cert. denied,
466 U.S. 950 (1984).

   /3/ At the time of petitioner's death, South Dakota had no
mandatory widow's share statute, and a husband could therefore
disinherit his wife of property to which he held sole title.  (Later
in 1980 the South Dakota Legislature passed an elective share statute,
S.D. Codified Laws Ann. ch. 30-5A (1984).  In addition, South Dakota
is not a community property state.  Under South Dakota law in effect
at the time in question, therefore, even if the land had been held by
Mr. Ducheneaux in fee simple rather than by the United States in trust
for Mr. Ducheneaux, petitioner would not have been entitled to any of
the property.

   /4/ With respect to the APA, the Court observed in Block v. North
Dakota that the last sentence of 5 U.S.C. (Supp. IV) 702 states that
it confers no authority to grant relief "if any other statute that
grants consent to suit expressly or impliedly forbids the relief which
is sought." The Court concluded that the QTA is an "other statute"
within the meaning of this sentence, because the QTA "forbids the
relief" sought if the conditions it imposes on Congress's consent to
suit are not satisfied (see 461 U.S. at 286 n.22).

   /5/ Petitioner (Pet. 7), citing Regents of the University of
California v. Bakke, 438 U.S. 265 (1978), and Kahn v. Shevin, 416 U.S.
351 (1974), assails this distinction as "rank discrimination." But in
Bakke, 438 U.S. at 304 n.42, the prevailing opinion specifically
distinguished Morton v. Mancari, 417 U.S. 535 (1974), in which the
Court has upheld legislation that singled out Indians for "particular
and special treatment." Similarly inapposite is Kahn, in which the
court upheld the validity of a Florida statute that granted a property
tax exemption to widows but denied it to widowers.  The present case
does not involve any distinction between widows and widowers:  if the
decedent had been an Indian woman and the surviving disinherited
spouse a non-Indian male, the result would have been the same.

   /6/ Furthermore, even if a non-Indian spouse inherits an interest
in trust property, particularly an interest held jointly with Indian
heirs, the property interest held by the non-Indian is very limited.
thus, "(h)e cannot, as a practical matter, manage, use, or lease the
land except with the consent and agreement of all his Indian
co-owners.  His own interest, although free of the trust, is virtually
unsaleable unless the trust is lifted as to all of his Indian
co-owners upon their request." Estate of Mary Ursula Rock Wellknown,
78 Interior Dec. 179, 184 n.4 (1971).