DONALD PUCKETT, ET AL., PETITIONERS V. NATIVE VILLAGE OF TYONEK, ET
AL.

   No. 89-609

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Brief For The United States As Amicus Curiae

            TABLE OF CONTENTS
   Questions Presented
   Interest of the United States
   Statement
   Discussion
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether respondent Native Village of Tyonek, an Alaska Native
Village exercising self-governing powers under a constitution adopted
pursuant to Section 16 of the Indian Reorganization Act, 25 U.S.C.
476, is immune from the counterclaims in this civil action under the
doctrine of tribal sovereign immunity.

   2. Whether the Village's immunity from suit was abrogated by
Congress when it enacted the Alaska Native Claims Settlement Act, 43
U.S.C. 1601 et seq., or the Indian Civil Rights Act, 25 U.S.C. 1301 et
seq.

   3. Whether the Village waived its immunity to the counterclaims,
either by a "sue or be sued" clause in the corporate charter it was
issued under Section 17 of the Indian Reorganization Act, 25 U.S.C.
477, or by filing its complaint in this civil action.

   4. Whether derivative immunity bars petitioners' third-party claims
against the officers of the Village in connection with their
enforcement of a Village ordinance providing that, without the consent
of the Village Council, housing built with tribal trust funds may not
be leased or alienated to persons who are not members of the Village.

                     INTEREST OF THE UNITED STATES

   This brief is filed in response to the Court's invitation to the
Solicitor General to file a brief expressing the views of the United
States.

                               STATEMENT

   1. The Village of Tyonek, on the northwest shore of Cook Inlet, has
been inhabited by Tanana Indians since as early as the eighteenth
century, when the first white settlers arrived in Alaska.  Pet. App.
8, 10.  In 1915, President Wilson issued an executive order
withdrawing 25,000 acres surrounding the Village, which became known
as the Moquawkie Reservation.  Executive Order No. 2141 (Feb. 27,
1915);  Pet. App. 8, 10.  The area was set aside for the purpose of
"aiding the natives to practice self-support and industry" and
preventing them from being "hemmed in by white intrusion." Letter from
Comm'r of Educ. Tallman to Sec'y of the Interior (Feb. 23, 1915)
reprinted in Oil and Gas Leasing on Lands Withdrawn by Executive Order
for Indian Purposes in Alaska, 70 Interior Dec. 166, 175-176 (1963).

   In 1939, the Natives living in the Village adopted a constitution
and bylaws under Section 16 of the Indian Reorganization Act of 1934
(IRA), 25 U.S.C. 476, and a corporate charter under Section 17 of the
Act, 25 U.S.C. 477.  Both were approved by the Secretary of the
Interior.  Pet. App. 11.  Section 16(e) of the IRA provides that the
constitution adopted by an Indian tribe shall vest in the tribe or its
council the power, inter alia, "to prevent the sale, disposition,
lease, or encumbrance of tribal lands, interests in lands, or other
tribal assets without the consent of the tribe." The constitution of
the Native Village of Tyonek lists among its powers the rights to
"deal with the Federal and Territorial Governments," "stop any giving
or taking away of Village lands or other property without its
consent," "control the use by members and nonmembers of any reserve
set aside by the Federal Government for the Village and to keep order
in the reserve," and "guard and * * * foster native life, arts and
possessions and native customs not against the law." Tyonek Const.
Arts. I, IV (Supp. C.R. 46, Exh. B, at 1, 2).  /1/

   In the mid-1960s, the Secretary of the Interior, with the consent
of the Village Council as required by 25 U.S.C. 398 and 398a, granted
oil and gas leases covering a portion of the Reservation.  Pet. App.
12;  Fondahn v. Native Village of Tyonek, 450 F.2d 520, 521 (9th Cir.
1971).  Under 25 U.S.C. 398b, the proceeds of such leases on an
Executive Order Indian Reservation must be deposited in the Treasury
to the credit of the "tribe of Indians" for whose benefit the
reservation was established and must thereafter be available for the
"use and benefit of such Indians." In this case, a portion of the
lease proceeds was used to build 60 houses in the Village to help
solve a housing shortage.  The Tyonek Council established a "Family
Plan" for this purpose, under which families comprised of Village
members could obtain the construction and furnishing of a house at the
Village's expense.  Pet. App. 12.  While the houses were being
constructed, the Council passed Village Ordinance No. 65-32, which
provides in pertinent part (ibid. (emphasis omitted)):

      (T)he interests of members of the Village in houses which are
      acquired by such members by virtue of the Family Plan of the
      Village cannot be sold, conveyed, leased, mortgaged, or
      otherwise alienated by any member of the Village to a person,
      corporation, or other legal entity which or who is not a(n)
      enrolled member of the Village of Tyonek, Alaska.

   2. The Moquawkie Reservation, along with all other reservations in
Alaska save one, was revoked by Section 19(a) of the Alaska Native
Claims Settlement Act (ANCSA), 43 U.S.C. 1618(a).  The surface estate
in former Reservation land was conveyed to the for-profit Tyonek
Native Corporation, pursuant to Section 14(a) of ANCSA, while the
subsurface estate was conveyed to the Cook Inlet Regional Corporation,
pursuant to Section 14(f).  43 U.S.C. 1613(a) and (e), 43 U.S.C.
1606(a);  Pet. App. 14.  ANCSA did not purport to affect the Village's
governing powers, its ordinances, or other measures, such as the
Family Plan.  Pet. App. 14.

   3. Petitioners are nonmembers of the Village who desired to rent
Family Plan units from Village members.  The Pucketts, who had been
living at a nearby timber camp, requested and were granted permission
by the Village Council to lease one unit from October 1981 through May
1982, in order to enable their children to complete the school year at
the Village school.  The Village President, Donald Standifer, informed
the Pucketts in April and June 1982 that their authorization to lease
the unit expired at the end of the school year, but the Pucketts
refused to vacate the premises and signed a lease for another year.
The Slawsons requested permission to reside in another Family Plan
unit, but their request was denied by the Council.  The Slawsons
nevertheless signed a lease and moved into the unit.  Pet. App. 15-16.

   4. The Village of Tyonek initiated this action in 1982 to evict the
Pucketts and the Slawsons from the Family Plan units and to enjoin the
lessors, who are members of the Village, from leasing their units to
nonmembers.  The Village sought to enforce both Ordinance No. 65-32
and Village Rule No. 4.  The latter provision was adopted by the
Village Council in 1942 and prohibits any "white men" (other than
government employees) from remaining in the Village more than
twenty-four hours and from bringing liquor into the Village.  Pet.
App. 11, 16.  Although Rule No. 4 uses the term "white men," the
Village introduced an affidavit of Village President Standifer that
described Rule No. 4 as applying to "nonmembers of the Tribe" (Supp.
C.R. 50, Exh. A, at 23-24), and the district court and court of
appeals both apparently understood the Rule to apply to "nonmembers."
Pet. App. 4, 9, 11, 23 n.11;  cf. Wilson v. Omaha Indian Tribe, 442
U.S. 653, 666-669 & n.16 (1979) (discussing 25 U.S.C. 194, which
imposes burden of proof on "white person" in property dispute with
Indians);  442 U.S. at 679-681 (Blackmun, J., concurring).

   Petitioners counterclaimed against the Village and filed
third-party claims against four Village officers (the president, vice
president, secretary-treasurer and Village administrator), seeking
declaratory and injunctive relief as well as compensatory and punitive
damages.  Petitioners alleged that the enforcement of Ordinance No.
65-32's restriction on leases to nonmembers constituted unlawful
discrimination on the basis of race, in violation of the Fourteenth
Amendment and various civil rights statutes:  42 U.S.C. 1981, 1982,
1983 and 1985;  the Fair Housing Act of 1968, 42 U.S.C. 3604 and 3617;
 the Indian Civil Rights Act, 25 U.S.C. 1302(a);  and state housing
discrimination laws.  Pet. App. 23-24 n.12.

   In an unpublished bench opinion, the district court dismissed all
of the parties' claims.  Pet. App. 7-36.  In doing so, the court
addressed the validity of Ordinance No. 65-32, id. at 32-35 (see page
7, infra), but it stated that petitioners' counterclaims and
third-party claims were not based upon alleged attempts by the Village
or its officers to enforce Rule No. 4 and that it therefore was not
deciding the validity of that provision.  Id. at 23 n.11.

   The district court dismissed the Village's complaint for lack of
subject matter jurisdiction, because, in the court's view, the
Village's suit to enforce its own laws (Ordinance No. 65-32 and Rule
No. 4) did not "arise under" federal law for purposes of 28 U.S.C.
1331 or 1362.  Pet. App. 17-22.  The district court dismissed
petitioners' counterclaims on the ground that the Village is immune
from suit by virtue of tribal sovereign immunity.  Id. at 23-32.  And
it dismissed the third-party claims against the Village officers on
the ground that they were barred by derivative immunity because the
officers' enforcement of Ordinance No. 65-32 was within the scope of
their official authority.  Id. at 32-35.  On this issue, the court
reasoned that whether the Village officers possess derivative immunity
depends on whether the Village itself had the governmental authority
to adopt Ordinance No. 65-32 to exclude nonmembers from Family Plan
housing.  The court concluded that it did.  It pointed out that "by
the express terms of (25 U.S.C.) 398b, the funds obtained from
Tyonek's oil and gas leases were held in trust for members of the
Village alone." Pet. App. 35.  The court found it "completely logical,
therefore, for Tyonek to use those funds in 1965 to build housing for
Village members only, and to attempt to restrict the extent to which
these houses would benefit or be used by non-members of Tyonek." Ibid.

   5. In a brief opinion, the court of appeals reversed the dismissal
of the Village's complaint, finding that its suit to enforce Ordinance
No. 65-32 and Rule No. 4 against petitioners does arise under federal
law;  the court therefore remanded the Village's claims to the
district court.  Pet. App. 1-5.  Petitioners do not challenge that
ruling here.  In a single sentence at the conclusion of its opinion,
id. at 5, the court of appeals, without elaboration, affirmed the
remaining portions of the district court judgment, which included the
dismissal of petitioners' counterclaims and third-party claims.  /2/

                              DISCUSSION

   Petitioners seek review of the court of appeals' summary affirmance
of the district court's unpublished decision dismissing their claims
against the Village and the Village officers.  That decision, however,
is correct, does not conflict with any decision of this Court or of
another court of appeals, and presents no issue warranting review by
this Court.

   1. Although the legal issues presented at this stage of the case
concern immunity from suit, the underlying dispute centers on Village
Ordinance No. 65-32.  That Ordinance provides that housing constructed
with the tribal trust funds that were derived from oil leases on the
Moquawkie Reservation before the Reservation was revoked, may not be
leased to nonmembers without the consent of the Village Council.  We
agree with the district court that Ordinance No. 65-32 is a valid
implementation of 25 U.S.C. 398b, which provides that the proceeds of
leasing of an Executive Order Reservation set aside for a "tribe of
Indians" are to be devoted to the "use and benefit of such Indians."
Restrictions of this sort based on tribal membership, especially when
congressionally authorized and related to the use of tribal property,
do not constitute prohibited discrimination on the basis of race.
Duro v. Reina, 110 S. Ct. 2053, 2063 (1990);  Washington v. Yakima
Indian Nation, 439 U.S. 463, 500-501 (1979);  United States v.
Antelope, 430 U.S. 641, 646 (1977);  Fisher v. District Court, 424
U.S. 382, 390-391 (1976);  Morton v. Mancari, 417 U.S. 535 (1974).

   Conversely, as amicus State of Alaska recognizes (Br. 6 n.6),
neither court below passed upon the validity of Village Rule No. 4,
because the district court understood that Rule to be at issue only in
the Village's principal action against petitioners (which has been
remanded to the district court for further proceedings), not in
petitioners' counterclaims and third-party claims, at issue here.
Accordingly, even if we assume (contrary to the interpretation
apparently given to the Rule by the Village and both courts below)
that Rule No. 4's reference to "white men" is not to be understood as
merely a short-hand reference to nonmembers of the Village, this case
does not present the primary issue petitioners seek to have resolved:
whether Tyonek may "exclude Petitioners from Tyonek, Alaska, on the
basis of their race" (Pet. i).  For these reasons, the setting of this
case would not, in our view, render it a suitable vehicle for
consideration of the various issues petitioners seek to raise
concerning the application of civil rights statutes to Indian Tribes
-- even if those issues otherwise warranted review.

   Moreover, the interaction of the civil rights laws with the
traditional independent and sovereign powers of Indian Tribes has been
the subject of considerable review by other departments of government
in recent years.  The Commission on Civil Rights has undertaken a
thorough study of the enforcement of the Indian Civil Rights Act
(ICRA), including a series of extensive field hearings, /3/ and we
have been informed by the Commission that its final report on that
subject is now being prepared.  The Senate Select Committee on Indian
Affairs conducted hearings on the same subject during the last
Congress.  /4/ And a bill has been introduced in this Congress that
would authorize suits against Indian Tribes and tribal officers for
injunctive or other equitable relief (but not money damages) to secure
compliance with the Indian Civil Rights Act.  S. 517, 101st Cong., 1st
Sess. (1989).  The bill would expressly waive the sovereign immunity
of Tribes to those suits, but would require exhaustion of tribal
remedies before such a suit could be brought.  The effect of the bill,
if enacted, would be to allow (albeit under special procedures)
certain of the suits that this Court held in Santa Clara Pueblo v.
Martinez, 436 U.S. 49 (1978), are not authorized under the ICRA as it
now reads.

   In these circumstances, it would, in our view, be appropriate to
defer to the legislative process to resolve the difficult questions of
how civil rights are best defined, enforced and remedied in this
setting, rather than to grant petitioners' request for a judicial
overruling of Martinez or dilution of settled immunity doctrines in
order to achieve the same end.  In this case, the lower courts'
rulings on those issues are fully consistent with this Court's
precedents, and present no occasion for further review.

   2. The district court held, based upon "Tyonek's history and the
manner in which the federal government has dealt with Tyonek," that
the Village possesses sovereign immunity from suit in the same manner
as other Indian Tribes.  Pet. App. 24.  That holding is correct,
especially in the context of this case.  The sovereign immunity of
Indian Tribes "is a necessary corollary to Indian sovereignty and
self-governance," Three Affiliated Tribes v. Wold Engineering, 476
U.S. 877, 890 (1986), and it has been repeatedly recognized by this
Court.  See id. at 890-891;  Santa Clara Pueblo, 436 U.S. at 58-59;
Puyallup Tribe v. Washington Dep't of Game, 433 U.S. 165, 172-173
(1977);  United States v. U.S. Fidelity & Guaranty Co., 309 U.S. 506,
512-513 (1940);  Turner v. United States, 248 U.S. 354, 358 (1919).
We discuss the origins and purposes of this rule in our amicus brief
(at 7-9) filed in response to the Court's invitation in Oklahoma Tax
Commission v. Citizen Band Potawatomi Indian Tribe, petition for cert.
pending, No. 89-1322, and there is no need to repeat that discussion
here.  Petitioners in fact do not challenge this basic rule.  Instead,
they argue that it should not be applied in this case.  None of the
reasons they advance has merit.

   a. Petitioners first contend (Pet. 13-17) that historical
differences between the Nation's treatment of Alaskan Natives and its
treatment of Natives in the contiguous 48 States justify a finding
that Alaska Native villages like Tyonek are not entitled to immunity.
While the history of federal Indian policy in Alaska is to some extent
unique, the conclusion urged by petitioners does not follow.  That
Alaska Native Villages may be self-governing tribes, akin to those in
the continental United States, /5/ has been recognized by Executive
action, Legislative enactment and judicial precedent for more than one
hundred years.  It is important to stress, however, that this case
involves only the question of the Village's sovereign immunity to suit
as a procedural matter.  A finding of such immunity does not resolve
the distinct question of the scope of the Village's powers of
self-government as a substantive matter.

   Article III of the 1867 Treaty of Cession (Treaty of March 30,
1867, 15 Stat. 542) provided:

      The uncivilized tribes (of Alaska) will be subject to such laws
      and regulations as the United States may, from time to time,
      adopt in regard to aboriginal tribes of that country.

This provision was interpreted in In re Minook, 2 Alaska 200, 221 (D.
Alaska 1904), as giving "the Indian tribes of Alaska the same status
before the law as those of the United States." A 1923 opinion of the
Interior Solicitor, dealing specifically with the Village of Tyonek,
similarly concluded that "(t)he relations existing between (the Alaska
Natives) and the Government are very similar and in many respects
identical with those which have long existed between the Government
and the aboriginal peoples residing within the territorial limits of
the United States." Leasing of Lands Within Reservations Created for
the Benefit of the Natives of Alaska, 49 Pub. Lands Dec. 592, 593
(1923).  Accord Status of Alaskan Natives, 53 Interior Dec. 593
(1932).  And a 1932 Solicitor's Opinion concluded that marriage among
Alaska Natives maintaining their tribal relations should be governed
by the laws and customs of the Alaska Native tribes.  Validity of
Marriage By Custom Among the Natives Or Indians of Alaska, 54 Interior
Dec. 39, 46 (1932).

   The Indian Reorganization Act (IRA), 25 U.S.C. 461 et seq., was
amended by the Act of May 1, 1936, ch. 254, Section I, 49 Stat. 1250
(25 U.S.C. 473a), in order to permit "groups of Indians in Alaska not
(heretofore) recognized as bands or tribes, but having a common bond
of occupation, or association, or residence within a well-defined
neighborhood, community, or rural district" to adopt constitutions and
bylaws and receive charters of incorporation under Sections 16 and 17
of the IRA, 25 U.S.C. 476, 477.  Many Native Villages in Alaska,
including Tyonek, took advantage of these provisions to reorganize
their existing governments to carry on municipal activities and
business affairs more effectively.  See F. Cohen, Handbook of Federal
Indian Law 751 (1982).

   In recent enactments, Congress has again treated Alaska Native
Villages such as Tyonek as self-governing tribes.  For instance, under
Sections 103(8), 108, and 109 of the Indian Child Welfare Act of 1978,
25 U.S.C. 1903(8), 1918, and 1919, any Alaska Native Village may
obtain retrocession of jurisdiction over Indian child welfare cases
and may negotiate jurisdictional arrangements with the state.
Congress in 1982 made revenue sharing grants available to any "Alaskan
native village that carries out substantial governmental duties and
powers." 31 U.S.C. 6701(a)(5)(B) (repealed April 7, 1986, Consolidated
Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, Section
14001(a)(1), 100 Stat. 327).  Moreover, the Indian Civil Rights Act,
which petitioners invoke (Pet. 8, 25-26), imposes restrictions only on
an "Indian tribe in exercising (its) powers of self-government." 25
U.S.C. 1302.  Petitioners cannot both claim the protection of that Act
and deny the existence of the Village as such a Tribe.

   The courts, too, have treated Alaska Natives as subject to many of
the same rules that apply to Indians in the lower States.  For
instance, in Tee-Hit-Ton Indians v. United States, 348 U.S. 272,
285-286 (1955), this Court rejected the argument that the nature of
Indian landholding in Alaska, which it described as "tribal," was
significantly different from that of Tribes elsewhere in the United
States.  See also Alaska Chapter, Associated Gen'l Contractors v.
Pierce, 694 F.2d 1162, 1169 n.10 (9th Cir. 1982) ("Alaskan Natives,
including Eskimos and Aleuts, have been considered to have the same
status as other federally recognized American Indians.");  Petition of
McCord, 151 F. Supp. 132, 135 (D. Alaska 1957) ("(t)he prosecution's
argument that Alaska natives have a different status than Indians of
the States is a rather novel concept which I regard as inaccurate").
Correspondingly, courts have recognized the applicability of the
doctrine of tribal immunity to self-governing Alaska Native Villages.
See Cogo v. Central Council of Tlingit and Haida Indians, 465 F. Supp.
1286 (D. Alaska 1979);  Johnson v. Chilkat Indian Village, 457 F.
Supp. 384, 387 (D. Alaska 1978);  Atkinson v. Haldane, 569 P.2d 151
(Alaska 1977).

   The Alaska Supreme Court, in a sharply divided opinion, has held
that the Native Village of Stevens does not enjoy sovereign immunity.
Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32
(Alaska 1988).  But as the dissent in Stevens correctly observed, 757
P.2d at 44, the majority placed undue emphasis on the facts that
Alaska Natives do not reside on reservations and are generally subject
to state law.  Those factors should not preclude immunity, so long as
a Native Village is in fact a self-governing body.  In Puyallup, for
example, the Tribe was held to be protected by sovereign immunity even
as to matters arising off reservation.  433 U.S. at 167, 171.  /6/ In
any event, the majority in Stevens expressly recognized that the
district court's decision in the instant case was distinguishable
based upon what it termed the "unique" history of Tyonek, because the
Village occupied a Reservation at the time it adopted a constitution
and by-laws under the IRA.  757 P.2d at 35-36 n.4.  That point has
particular significance here, because the housing that is the subject
of the suit was constructed with funds derived from the leasing of the
Reservation before it was revoked.  Accordingly, even if the question
of the immunity of other Alaska Native Villages might at some time
warrant review by this Court, the decision below presents no conflict
with rulings by the Alaska courts in the circumstances of this case.

   b. Petitioners next contend (Pet. 17, 25) that ANCSA and the ICRA
"extinguished" or waived the Village's sovereign immunity.  While
Congress may waive a tribe's sovereign immunity, such a waiver "cannot
be implied but must be unequivocally expressed." Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 58 (1978).  As the district court correctly
pointed out, ANCSA "did not expressly change the status of Tyonek or
its IRA Village government." Pet. App. 14.  By contrast, ANCSA did
explicitly extinguish aboriginal hunting, fishing and land rights.
Although ANSCA's revocation of Tyonek's reservation may affect the
extent of the Village's political authority over its former
Reservation lands, see, e.g., Organized Village of Kake v. Egan, 369
U.S. 60 (1962), neither reservation status nor land ownership is an
absolute prerequisite for the existence of Native self-governance --
or, in particular, tribal sovereign immunity.  See note 6, supra.  /7/

   Petitioners' alternative argument that the ICRA waived tribal
sovereign immunity has already been rejected in Santa Clara Pueblo,
436 U.S. at 59, where this Court, after finding no "unequivocal
expression of contrary legislative intent," concluded that "suits
against the tribe under the ICRA are barred by its sovereign immunity
from suit." /8/ Petitioners' reliance on Dry Creek Lodge, Inc. v.
Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), cert.
denied, 449 U.S. 1118 (1981), is misplaced.  The majority opinion in
Dry Creek Lodge found that the ICRA waived immunity in a suit against
a tribe by non-Indians who had no remedy within the tribal courts.  As
the district court pointed out (Pet. App. 29-32), Dry Creek Lodge is
plainly inconsistent with Santa Clara.  Nothing in Santa Clara limits
a tribe's sovereign immunity to suits arising from intra-tribal
disputes.  To the contrary, this Court supported its sovereign
immunity holding in Santa Clara by relying on earlier decisions that
did not involve intra-tribal disputes.  See 436 U.S. at 58 (citing
Puyallup, 433 U.S. at 172-173, and U.S. Fidelity & Guaranty Co., 309
U.S. at 512-513).  Furthermore, Dry Creek Lodge rests on the spurious
premise that "(t)here has to be a forum where the dispute can be
settled." 623 F.2d at 685.  The very purpose of sovereign immunity is
to protect the sovereign against suits in any court, unless immunity
has been waived.

   The Ninth Circuit has rejected the analysis of Dry Creek Lodge as
inconsistent with Santa Clara Pueblo.  See R.J. Williams Co. v. Fort
Belknap Housing Authority, 619 F.2d 979, 981 (1983).  The importnce of
this circuit conflict is minimal, however, because the Tenth Circuit
has studiously avoided following Dry Creek Lodge by giving that case
an extremely narrow reading.  See, e.g., Nero v. Cherokee Nation, 892
F.2d 1457, 1460 (10th Cir. 1989) (Dry Creek Lodge exception is
"narrowly construed");  Seneca-Cayuga Tribe v. State ex rel. Thompson,
874 F.2d 709, 715 n.6 (10th Cir. 1989) ("Dry Creek Lodge was based on
highly unusual circumstances");  White v. Pueblo of San Juan, 728 F.2d
1307, 1312 (10th Cir. 1984) ("Dry Creek opinion must be regarded as
requiring narrow interpretation in order to not come into conflict
with the decision of the Supreme Court in Santa Clara.");  Ramey
Constr. Co. v. Apache Tribe of the Mescalero Reservation, 673 F.2d
315, 319 n.4 (10th Cir. 1982) (same).

   Moreover, even if the Dry Creek Lodge exception could somehow be
reconciled with Santa Clara Pueblo, petitioners could not bring
themselves within it, because (1) enforcement of Ordinance 65-32's
requirement -- that tribal members lease their Family Plan housing
units only to other tribal members -- would appear to relate primarily
to "internal tribal issues," Nero, 892 F.2d at 1460, and (2) the
Village did afford petitioners a forum for relief, id. at 1460 n.5,
since the Village Council may grant permission to lease to nonmembers
and the Pucketts in fact were granted such permission.  There is,
accordingly, no conflict between the decision below and Dry Creek
Lodge warranting review by this Court.  /9/

   c. As explained in our amicus brief in Potawatomi, 89-1322 U.S.
Amicus Br. at 9-10, petitioners' argument that the Village waived its
immunity to the counterclaims and cross-claims (Pet. 25) by filing its
principal action against petitioners is wrong and was rejected in U.S.
Fidelity and Guaranty Co., 309 U.S. at 513.  /10/ Nor are petitioners
correct in contending (Pet. 24) that the Village consented to this
suit by adopting a corporate charter with a "sue and be sued" clause.
Section 16 of the IRA authorizes tribes to organize a constitutional
entity, while Section 17 authorizes organization of a corporate
entity.  The courts have recognized that these two entities are
distinct, and that a consent to suit clause in a corporate charter in
no way waives the sovereign immunity of a tribe as a constitutional
entity.  Seneca-Cayuga Tribe, 874 F.2d at 715 n.9;  Ramey Constr., 673
F.2d at 320;  Kenai Oil & Gas, Inc. v. Department of the Interior, 522
F. Supp. 521 (C.D. Utah 1981), aff'd and remanded, 671 F.2d 383 (10th
Cir. 1982);  Gold v. Confederated Tribes, 478 F. Supp. 190, 196 (D.
Ore. 1979);  Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977);  but see
Martinez v. Southern Ute Tribe, 150 Colo. 504, 374 P.2d 691 (1962).

   Petitioners' reliance (Pet. 24) on Fontenelle v. Omaha Tribe, 430
F.2d 143 (8th Cir. 1970), is misplaced.  That decision did not
consider the distinction between the tribe's constitutional entity and
its corporate entity.  In a later decision, the Eighth Circuit made
clear that a consent to suit clause in a Section 17 corporate charter
does not waive immunity for actions taken pursuant to a tribe's
constitution.  American Indian Agricultural Credit Consortium v.
Standing Rock Sioux Tribe, 780 F.2d 1374, 1379-1380 (8th Cir. 1985).
/11/

   3. Finally, petitioners briefly challenge (Pet. 27-29) the district
court's holding that because their claims against the Village are
barred by tribal sovereign immunity, their claims against the Village
officers in their official capacities based on their enforcement of
Ordinance 65-32 are barred by derivative immunity.  Pet. App. 32-35.
/12/ Contrary to petitioners' contention, the courts below correctly
disposed of this issue.

   The courts have frequently described tribal sovereign immunity as
"co-extensive with that of the United States." See, e.g., Kennerly v.
United States, 721 F.2d 1252, 1258 (9th Cir. 1983);  Jicarilla Apache
Tribe v. Andrus, 687 F.2d 1324, 1344 (10th Cir. 1982).  Derivative
immunity for officers acting within the scope of their duties is an
essential component of sovereign immunity, because judgments against
the officers may interfere with public administration or expend
themselves against the public treasury.  See Dugan v. Rank, 372 U.S.
609, 620-621 (1963);  Larson v. Domestic & Foreign Commerce Corp., 337
U.S. 682, 687-688 (1949).

   The Court's statement in Santa Clara Pueblo that one of the
officers of the Pueblo was "not protected by the Tribe's immunity from
suit," 436 U.S. at 59, therefore must be understood to mean that the
officer did not have the absolute immunity of the Tribe.  This is
evident from the Court's citation, ibid., to Ex parte Young, 209 U.S.
123 (1908), which accepts the proposition that state officers have
derivative immunity from suits brought against them in their official
capacities, but concludes that a suit challenging the
constitutionality of an officer's actions in enforcing a state law is
not one against the State for purposes of the Eleventh Amendment.
"The theory of Young was that an unconstitutional statute is void, id.
at 159, and therefore does not 'impart to (the official) any immunity
from responsibility to the Supreme authority of the United States.'"
Green v. Mansour, 474 U.S. 64, 68 (1985), quoting 209 U.S. at 160.
Accordingly, the lower courts have recognized that derivative tribal
immunity "extends to tribal officials when acting in their official
capacity and within the scope of their authority." United States v.
Oregon, 657 F.2d 1009, 1012 n.8 (9th Cir. 1981);  see also Oklahoma ex
rel. Oklahoma Tax Comm'n v. Graham, 822 F.2d 951, 956-957 (10th Cir.
1987), rev'd on other grounds, 109 S. Ct. 1519 (1989);  Hardin v.
White Mountain Apache Tribe, 779 F.2d 476, 479-480 (9th Cir. 1985).

   Petitioners appear to accept the proposition that tribal officers
acting within the scope of their authority are generally protected by
the Tribe's immunity when sued in their official capacity, but they
contend (Pet. 27) that the tribal officers in this case "exceeded the
permissible scope of their authority as (Village) officers." /13/
There can be no serious contention that the district court erred in
finding that the four named Tyonek officers were acting within the
scope of authority delegated to them by the Village when they enforced
Ordinance No. 65-32.  Pet. App. 33.  Rather, the thrust of
petitioners' argument seems to be that the Ordinance restricting
Family Plan housing units to members of the Village is void because it
was beyond the Village's authority to adopt.  This claim is
insubstantial.

   The district court correctly pointed out (Pet. App. 34-35) that the
statute that authorized the oil and gas leasing on the Reservation,
the proceeds of which were used to build the Family Plan housing,
clearly contemplated that the proceeds should be used to benefit "the
tribe of Indians for whose benefit the reservation or withdrawal was
created." 25 U.S.C. 398b.  Tyonek, which was a reservation Tribe when
the Ordinance was passed in 1965, clearly was authorized to take
necessary measures to assure that the housing built with the lease
proceeds continued to benefit tribal members.  Moreover, Section 16 of
the Indian Reorganization Act provides that the constitution adopted
by a tribe shall vest in it the power "to prevent the sale,
disposition, lease, or encumbrance of tribal lands, interests in
lands, or other tribal assets without the consent of the tribe," 25
U.S.C. 476, and Article IV of the Tyonek Constitution contains such a
provision.  Even apart from the IRA, the power to prevent alienation
of tribally-constructed housing would appear to fall squarely within
the Village's "inherent power to determine tribal membership, to
regulate domestic relations among members, and to prescribe rules of
inheritance for members." Montana v. United States, 450 U.S. 544, 564
(1981).  Ordinance No. 65-32 affects nonmembers only indirectly, to
the extent that they seek to lease Family Plan units.  Montana affirms
that "(a) tribe may regulate * * * the activities of nonmembers who
enter consensual relationships with the tribe or its members, through
commercial dealing, contracts, leases, or other arrangements." 450
U.S. at 565.

   Alaska's contention (Amicus Br. 5) that ANCSA terminated the
Village's authority to enforce the Family Plan ordinance is without
support in the language or legislative history of that statute.  There
is no evidence in ANCSA of a general intent to terminate Indian
self-government in Alaska.  Even where Congress has enacted explicit
termination legislation, the courts have found that Tribes retain
residual power over matters such as membership and the regulation of
remaining treaty rights.  See Kimball v. Callahan, 590 F.2d 768,
775-776 (9th Cir.), cert. denied, 444 U.S. 826 (1979);  Menominee
Tribe v. United States, 388 F.2d 998 (Ct. Cl. 1967), aff'd, 391 U.S.
404 (1968).  /14/

   At bottom, moreover, petitioners' objection to the district court's
derivative immunity ruling rests entirely on their disagreement with
that court's interpretation of 25 U.S.C. 398b to authorize the Village
to adopt Ordinance No. 65-32 in order to preserve housing built with
funds derived from oil leasing for the benefit of tribal members.  See
Pet. 28-29.  In our judgment, that narrow ruling, upheld by the court
of appeals, does not warrant further review.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   RICHARD B. STEWART

      Assistant Attorney General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   EDWARD J. SHAWAKER

   DAVID C. SHILTON

      Attorneys

   AUGUST 1990

   /1/ "Supp. C.R." refers to Appellants' Supplement to the Excerpts
of the Clerk's Record in the court of appeals.

   /2/ The court of appeals amended its opinion on November 24, 1989,
to add a paragraph stating that the Kaloas and Constantines, the
Village members who leased their Family Plan units to petitioners and
who are defendants in the Village's principal action, did not have
standing to appeal the district court's dismissal of the Village's
complaint against them.  See Pet. Supp. Br. App. at 13900-13901.  The
Kaloas and Constantines filed a petition for a writ of certiorari
seeking review of that ruling, Kaloa v. Native Village of Tyonek, No.
89-1358.  The Court denied their petition on April 16, 1990.  110 S.
Ct. 1812 (1990).

   When the court of appeals amended its opinion, it also designated
the opinion for publication.  See 890 F.2d 1054 (1989).

   /3/ Hearings Before the United States Comm'n on Civil Rights
Enforcement of the Indian Civil Rights Act (1986-1988) (5 vols.).

   /4/ Tribal Court Systems and Indian Civil Rights Act:  Hearing
Before the Senate Select Comm. on Indian Affairs, 100th Cong., 1st
Sess. (1988).

   /5/ The organization of Alaska Natives along village rather than
tribal lines is not unique.  See Washington v. Washington State
Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 664 & n.5
(1979) (noting that some Northwest Indians entitled to treaty fishing
rights had lived in "loose bands" that were organized into "tribes" by
the government agents who negotiated the treaties);  see also Puget
Sound Gillnetters Ass'n v. United States District Court, 573 F.2d
1123, 1127 n.2 (9th Cir. 1978) (while "questionable * * * whether the
collections of villages Governor Stephens made for purposes of his
negotiations were in fact tribes," court treated them as sovereign
entities);  cf. United States v. Sandoval, 231 U.S. 28, 39 (1913)
(Pueblo Indians treated like other Indian tribes, despite fact that
they are "sedentary rather than nomadic" and live on lands held in
communal, fee simple ownership).  Thus, a village can be a tribe in
the legal sense of being a self-governing Indian community.  See D.
Case, Alaska Native and American Laws 436 (1984) ("(u)nless law is
simply a word game, whether a Native community exercises powers of
self-government should not turn on whether it is described as a
'tribe,' a 'village' or something else").

   /6/ See also United States v. Sandoval, 231 U.S. 28, 46 (1913)
(federal Indian liquor laws apply to Pueblo Indian communities
occupying lands owned in unreserved, communal fee title);  Jones v.
Meehan, 175 U.S. 1, 29 (1899) (tribe retains authority over
inheritance of non-reservation, non-trust property);  Three Affiliated
Tribes II, 476 U.S. at 892 (state jurisdiction over an Indian tribe is
not inconsistent with tribal sovereign immunity);  U.S. Fidelity &
Guaranty Co., 309 U.S. at 512 (immunity exists "even after dissolution
of the tribal government');  Bottomly v. Passamaquoddy Tribe, 599 F.2d
1061, 1064-1066 (1st Cir. 1979;  Haile v. Saunooke, 246 F.2d 293 (4th
Cir. 1957).

   /7/ Congress amended ANCSA in 1988 to permit the shareholders of
ANCSA corporations to decide whether to continue restrictions on
alienation of corporation stock.  Alaska Native Claims Settlement Act
Amendments of 1987, Pub. L. No. 100-241, Section 2, 101 Stat. 1788.
Section 2(8) of the Amendments, 101 Stat. 1789, 43 U.S.C. 1601, states
that no provision of the Act shall "confer on, or deny to, any Native
organization any degree of sovereign governmental authority over lands
(including management, or regulation of the taking, of fish and
wildlife) or persons in Alaska." The legislative history indicates
that Congress was aware of the controversy over whether there are
tribal entities in Alaska that can exercise governmental authority
over lands or persons, and determined to leave that issue "to the
courts." S. Rep. No. 201, 100th Cong., 1st Sess. 23 (1987).

   /8/ Petitioners do not argue that tribal sovereign immunity was
waived by Congress when it enacted 42 U.S.C. 1981, 1982, 1983, or the
Fair Housing Act, 42 U.S.C. 3610(d).

   /9/ In Dry Creek Lodge itself, the United States filed an amicus
brief in this Court at the petition stage urging the Court to grant
the Tribe's petition and summarily reverse the Tenth Circuit's
decision because it was so clearly inconsistent with Santa Clara
Pueblo.  See 80-613 U.S. Amicus Br. at 9.  The Court denied the
petition, over three dissents.  Because Dry Creek Lodge has been
effectively confined to its facts by the Tenth Circuit, and because
the decision below is clearly correct under Santa Clara Pueblo, we do
not believe that the immunity issue warrants review here.

   /10/ As respondents properly concede (Br. in Opp. 25 n.5),
petitioners' contentions regarding the invalidity of the Village
ordinances can be raised as a defense to the eviction action, should
the Village pursue that action on remand.

   /11/ Parker Drilling Co. v. Metlakatla Indian Community, 451 F.
Supp. 1127 (D. Alaska 1978), also cited by petitioners (Pet. 24),
likewise recognizes the distinction between the entities.

   /12/ The portion of the petition discussing petitioners' claims
against the Village officers indicates that petitioners are pursuing
those claims only in the latter's official capacities, since it is
devoted almost entirely to a discussion of the Village's authority to
adopt the ordinance the officers enforced.  See Pet. 27-29.  If the
Village officers were sued in their personal capacities, questions of
qualified immunity would also arise.

   /13/ Although petitioners assert (Pet. 27) that the Village
officers exceeded their authority by excluding petitioners "because of
their race," the ensuing discussion makes clear that the quoted phrase
simply refers to the officers' enforcement of Ordinance No. 65-32
against them.  As we have explained (see page 6, supra), the Ordinance
restricts eligibility to lease Family Plan housing on the basis of
membership in the Village, not race, and such distinctions are not
prohibited racial classifications.

   /14/ The State of Alaska incorrectly suggests that this case
presents the question whether Native Villages may exercise
"reservation-like governmental authority" (Amicus Br. 9) and whether
the State's jurisdiction is limited by Villages' retained powers of
self-government (Amicus Br. 8).  The lower courts did not reach those
broader issues;  they resolved only the authority of the Village to
restrict the alienability of housing originally built with trust
funds.  Pet. App. 33-35.  The court of appeals remanded the eviction
action, which, if the Village continues to rely on Rule No. 4, would
eventually present the broader question of whether the "traditional
and undisputed power (of tribes) to exclude persons whom they deem to
be undesirable from tribal lands," Duro v. Reina, 110 S. Ct. at 2065,
survives where the lands in question are no longer part of a
reservation but have been transferred in fee to a for-profit
corporation pursuant to ANCSA.  Cf. Organized Village of Kake v. Egan,
369 U.S. 60 (1962).  That question is not, however, involved here.