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July 20, 1990



The opinion of the court was delivered by: NORMA HOLLOWAY JOHNSON


The Crow Tribe of Montana (Crow Tribe), a federally recognized Indian tribe under the laws and treaties of the United States, seeks a declaratory judgment and a writ of mandamus against the United States and federal officials responsible for the enforcement of Section 2 of the Crow Act of 1920, 41 Stat. 751 (1920) ("Section 2 of the Crow Act" or "Section 2"). In its second amended complaint, the Crow Tribe alleges that defendants have failed to enforce Section 2 of the Crow Act, which prohibits any person from acquiring more than a certain number of acres of land from a Crow Indian within the boundaries of the Crow Indian reservation.


 I. Standing

 The discrete claim presented in this case is that federal officials have failed to enforce Section 2 of the Crow Act. This statute provides:

 No conveyance of land by any Crow Indian shall be authorized or approved by the Secretary of the Interior to any person, company, or corporation who owns at least [640] acres of agricultural land or [1,280] acres of grazing land within the boundaries of the Crow Indian reservation, nor to any person who, with the land to be acquired by such conveyance, would become the owner of more than [1,280] acres of agricultural land or [1,920] acres of grazing land within said reservation. Any conveyance by any such Indian made directly or indirectly to any such person, company, or corporation of any land within said reservation as the same now exists, whether held by trust patent or by patent in fee shall be void and the grantee accepting the same shall be guilty of a misdemeanor and be punished by a fine of not more than $ 5,000 or imprisonment not more than six months or by both such fine and imprisonment.

 41 Stat. 751 (1920). Thus, a conveyance of land that violates this provision is subject to two distinct components of the provision: one, the conveyance is per se void; and two, the grantee, but not the grantor, is guilty of a misdemeanor. The Crow Tribe maintains that Congress intended that enforcement of Section 2 would protect the territorial integrity of the reservation and the sovereignty of the Tribe. Therefore, plaintiff argues, the Tribe is the direct beneficiary of the Act and, as such, has standing to challenge its nonenforcement.

 The doctrine of standing, under current Supreme Court precedent, encompasses both constitutional requirements and prudential considerations. Article III of the Constitution limits the power of courts to the resolution of "cases" and "controversies." See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). To establish standing under article III, a plaintiff must demonstrate "actual or threatened injury," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979), that "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976).

 Prudential considerations may also determine whether a plaintiff has standing to sue. In general, courts employ the zone of interests test to determine whether Congress intended to authorize a particular plaintiff to invoke the power of the courts to enforce a statute. Hazardous Waste Treatment Council v. Thomas, 280 App. D.C. 296, 885 F.2d 918, 921-22 (D.C. Cir. 1989). This test requires that the interests sought to be protected by a plaintiff be "arguably within the zone of interests to be protected or regulated by the statute in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). The Supreme Court has more recently stated that the zone of interests test should be used to infer congressional intent to deny standing only "if the plaintiff's interests are so marginally related or inconsistent with the purposes of the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Clarke v. Securities Industry Association, 479 U.S. 388, 399, 93 L. Ed. 2d 757, 107 S. Ct. 750 (1987).

 However, the purpose of restricting the alienation of allotted lands through the enforcement of Section 2 is to prevent any one firm, person, or corporation from acquiring a large acreage of land within the Crow reservation. Such ownership of reservation land by non-Indians is inconsistent with the interests of the Crow Tribe in preserving the integrity of the reservation. While the goal of the Crow Act, as a whole, was to "break up the reservations," Defendants' Reply at 14, *fn1" Section 2 of the Crow Act limited the market for reservation land and, in this respect, protected the Tribe's interest in preserving a contiguous land base, to which the Tribe's culture and society is closely tied, according to plaintiff. On this basis, the Court finds that the Crow Tribe is a beneficiary of the restriction on alienation of land in Section 2 and, therefore, defendant's alleged failure to enforce Section 2 poses an actual or threatened risk of injury to the Tribe sufficient to confer standing in this case. *fn2"

 Next, the alleged injury to the Crow Tribe can be traced directly to the challenged action -- namely, the failure of federal officials to enforce Section 2. Furthermore, a favorable decision in the form of a mandamus would be likely to redress, to some extent, the harm alleged by plaintiff. *fn3" Defendants argue that a proper structural concern for the separation of powers, which underlies the doctrine of standing, indicates that standing is inappropriate here, because the Crow Tribe is seeking to compel agency enforcement of a statute. The Court disagrees. The question of what Congress intended to commit to executive discretion in enacting Section 2 is a matter of substantive law in this case rather than an issue of standing. See Women's Equity Action League v. ...

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