UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-50369

Consolidated with 94-50541

THE TONKAWA TRIBE OF OKLAHOMA,

in its sovereign capacity and as a

representative of its members,

Plaintiff/Appellant/Cross Appellee,

VERSUS

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.

Appeals from the United States District Court

for the Western District of Texas

February 9, 1996

(Opinion October 23, 1995, 5th Cir., 1995, ____F.3d______)

Before POLITZ, Chief Judge, JONES and PARKER, Circuit Judges.

ROBERT M. PARKER:

The State's Petiton for Rehearing was granted in order to

correct a factual error contained in the original opinion. That

opinion, Tonkawa Tribe of Oklahoma v. Richards

, 67 F.3d 103 (5th

Cir. 1995) is vacated and the following opinion is substituted in

its place.Appellant, the Tonkawa Tribe of Oklahoma ("the Tribe" or "the

Tonkawas") brought suit again st 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 h omeland, and

seeking damages on the ba sis of an 1866 Act of the Texas

Legislature. The district court granted summary judgment for the

State. We affirm.

FACTS

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 Oklahom a. 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

C addo 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 JointJoint R esolution 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 ea rliest 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

o ld 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, Th at the Governor take such

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 tho usand 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. G AMMEL

, L AWS OF T EXAS 800 (1898).

3 Resolution in 1864 1 to provide temporary support and land to the

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 T exas agent to care for theAn 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 hund red dollars per annum,

which amoun t is hereby appropriated, and may be paid

quarterly, upon the 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 curren cy, or so much as

may be necessary, is hereby a ppropriated, 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 Go vernment 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

4 Ton kawas 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, passe d an Act to Provide for the Tonkawa Indians

("1866 Act") 2 which included a section setting aside a league ofbe 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. G AMMEL

, L AWS OF T EXAS 991 (1898).

5 land to 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 Delawa re, Shawnee

and Caddo tribes, the Ton kawas returned to Texas, settling near

Austin. In April 1867, the Tonkawas were moved to Jacksboro,

Texas, where they were turned over to the care of Major Starr, the

Federal Commandant at the Jacksboro post.

Later in 1867, th e Tonkawas were settled near Fort Griffin,

originally called Camp Wilson, in present-day Shackleford County.

During the ti me 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 r eservation 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 been6

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

[I]n 1867, at about the same time that the Tonkawa nation

was removed by the United States Army to Fo rt 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 S tate 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 pu blic 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 Schoo l 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 of7

land directly from the State of Texas, the Tonkawas filed this

action.

In the T ribe'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

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 judgm ents d e 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 m atter of law. F E D

. R.

C IV

. P. 56(c). In making its determination, the court must draw allThe 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 unde r the

authority of the United States, in the presence and with

the appropriation of t h e 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 S tate, which

shall be extinguished by treaty.

8 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. S ee, 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.

To establish a violatio n of the Nonintercourse Act 3 ("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 relationship9

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. S ee 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. Co rp. , 418 F. Supp. 798, 803 (D.R.I. 1976). The district

court expressly determined, and Appellees concede, that 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 R owell

, 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 pass10

the full title to Rowell, and therefore that he had a

vested right in the lan d 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

property right ever accrued in favor of Rowell.

The district court found, under the reasoning in Rowell, that

no vested property right ac crued 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

Gov ernor, 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 oth er 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 Tonkawa s never held the land as their own or used it as a11

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

Nonintercourse Act. It was originally enacted in 1790, s ee 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, improvide nt, 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 5 84 (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.12

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 Non intercourse

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

tribe or nation may hold.").

The Nonintercourse Act protects a tribe's interest in land

whether that interest in based on aboriginal righ t, purchase, or

transfer from a state. S ee, e.g., Alonzo v. United St ates , 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 Ci r. 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 to13

pas sage of United States Constitution), a ff'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 l oss of their lands by improvident disposition or

through overreaching by members of other races.

Alonzo , 249 F.2d at 196 (footnote omitted).

T he Nonintercourse Act's prohibition is effective against

states, as well as private parties, who attempt to obtain tribal

land in violation of its provisions. S ee Mohegan Tribe v. State of

Connecticut , 528 F. Supp. 1359, 1364-65 (D. Conn. 1982). In this

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),

vaca ted as moot , 362 U.S. 608, 80 S. Ct 960, 4 L. Ed. 2d 1009

(1960); United States v. F irst 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 stat es 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 constructi on. S ee Oregon ex14

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

interpret ation 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

, 180 S.W.2d 131, 133 (Tex. 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 public

policy prompting its passage. Austin v. C ollins , 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 leg islature's intent to make a present

grant of the property. The Tribe also points out that the Texas

L egislature never repealed the 1866 Act or took any act ion

specifically addressing the land after the 1866 Act. The State

responds that "shall" is not necessarily mandatory, but may be

directory only. L ewis v. Jacksonville Bldg. & Loan Ass'n

, 540

S.W.2d 307, 310 ( Tex. 1976); H unt v. Heaton

, 631 S.W.2d 549, 550

(Tex. App.--Beaumon t 1982), a ff'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,15

orderly and prompt conduct of business, are not ordinarily regarded

as mandatory." Lewis

, 540 S.W .2d at 310. Because the essence of

t he 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 Tri be 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 tribe

an equitable interest in the unap propriated public domain of the

state as it existed in 1866." The Tribe distinguishes what it

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 f ollowing the requirements of the law." N ew

York & T. Land Co. v. Thomson , 17 S.W. 920, 923 (Tex. 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. S ee 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 not16

req uired 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 , 45 S.W. 1004 (Tex. 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 p ublic school fund was selfexecuting. 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 partiti on of the lands.

The Stat e distinguishes H ogue

, arguing that unlike a grant to

another party, Texas' grant to the public school fund was actually

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 selfexecuting 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 through17

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 c onsideration

exchanged for an interest in land.

In sum, we hold that the grant was not mandatory or selfexecuting, 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

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 dispose d 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

, 69118

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 betw een vested property rights and unvested

"claims" provides them no basis for recovery.

ELEVENTH AMENDMENT

The State filed a Motion to Dismiss in the district court

contending that the court lacked jurisdic tion 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, 9 2 L. Ed. 2d 209 (1986); (2)

Congress has clearly expressed its intent to abrogate or limit that

immunity through its legislative authority, Q uern v. Jordan

, 440

U.S. 332, 333-34, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979); or (3)

the suit is instituted under a fiction which allows suits for

prospective injunctive rel ief 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"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.

19 ana lysis 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 Ac t 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. 266, 105 S. Ct. 1245, 84 L. Ed.

2d 169 (1985). 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 th is 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.

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 d istrict

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.20 CONCLUSION

We affirm the district co urt's summary judgment in favor of

the State, and decline to reach the Tribe's argument premised on 42

U.S.C. § 1983.

AFFIRMED.