
USCA1 Opinion

	




          January 27, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________                                 ____________________        No. 92-2106        No. 92-2106                                 KENNETH L. MAYNARD,                                 KENNETH L. MAYNARD,                                Plaintiff, Appellant,                                Plaintiff, Appellant,                                          v.                                          v.                              NARRAGANSETT INDIAN TRIBE,                              NARRAGANSETT INDIAN TRIBE,                                 Defendant, Appellee.                                 Defendant, Appellee.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                 ____________________                                        Before                                        Before                                  Cyr, Circuit Judge,                                  Cyr, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                              and Boudin, Circuit Judge.                                          _____________                                 ____________________                                 ____________________             W. Mark  Russo with  whom Adler, Pollock  & Sheehan, Inc.  was on             W. Mark  Russo with  whom Adler, Pollock  & Sheehan, Inc.  was on             ______________            _______________________________        brief for appellant.        brief for appellant.             John F. Killoy, Jr.  with whom Law Office of H.  Jefferson Melish             John F. Killoy, Jr.  with whom Law Office of H.  Jefferson Melish             ___________________            __________________________________        was on brief for appellee.        was on brief for appellee.                                 ____________________                                 ____________________                                 ____________________                                 ____________________                  CYR,  Circuit  Judge.   Kenneth  L. Maynard  appeals  from a                  CYR,  Circuit  Judge                        ______________        judgment  dismissing  his  claim  for injunctive  relief  against  the        Narragansett Indian  Tribe.   The district  court determined  that the        Tribe  possessed sovereign immunity from suit.  We affirm for substan-        tially  the same  reasons stated  in Section  III.A of  the unreported        district court memorandum and order of dismissal.                  "Indian tribes  have long been recognized  as possessing the        common-law immunity  from  suit  traditionally  enjoyed  by  sovereign        powers."  Santa Clara Pueblo v.  Martinez, 436 U.S. 49, 58 (1978); see                  __________________     ________                          ___        Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklaho-        ___________________    _______________________________________________        ma, 498 U.S. 505,    , 111 S. Ct. 905, 909 (1991); Bottomly v. Passam-        __                ___                              ________    _______        aquoddy Tribe, 599  F.2d 1061, 1066 (1st Cir. 1979).   Although sover-        _____________        eign immunity may  be waived by  the tribe, or abrogated  by Congress,        see Oklahoma Tax, 498 U.S. at     , 111 S. Ct. at 910, its relinquish-        ___ ____________              ____        ment  "cannot be implied but must be unequivocally expressed."  United               ______ __ _______                                        ______        States v. Testan, 424 U.S. 392, 399 (1976) (emphasis added); see  also        ______    ______                                             ___  ____        Fluent  v. Salamanca Indian Lease Auth., 928  F.2d 542, 546 (2d Cir.),        ______     ____________________________        cert. denied, 112 S. Ct. 74 (1991) ("When Congress has chosen to limit        _____ ______        or waive  the sovereign immunity of  Indian tribes, it has  done so in                                                                            __        clear language.")  (citing Act of July 22, 1958, Pub. L. No. 85-547,          _____ ________        1, providing that  tribes may "commence" and  "defend" actions against        each other) (emphasis added).                  Maynard  contends  that  the  Narragansett   Indian  Tribe's        sovereign immunity should not appertain in these circumstances because        its  actions encroach on lands to which the Tribe affirmatively relin-        quished all legal claim and title.                    The  present action arose out of a boundary dispute with the        Tribe, relating to Maynard's allegations that tribal officials repeat-        edly trespassed on  his property.*  The Tribe  acquired the land abut-        ting  Maynard's property in 1978, as part  of an overall settlement of        its legal claim that the Tribe possessed superior, aboriginal title to        3200  acres in  the State  of Rhode  Island.   In return  for eventual        congressional approval  of the land claims settlement terms, see Rhode                                                                     ___        Island Indian Claims  Settlement Act, 25  U.S.C.    1701-1716  (1978),        the  Tribe agreed  that its  claims to  non-settlement lands  in Rhode        Island  would be  extinguished and  that the  settlement lands  by and        large would  be "subject to the civil  and criminal laws and jurisdic-        tion of the State of Rhode Island."  Id.    1705(a), 1708.                                             ___                  Maynard  invites us to infer  a waiver or  abrogation of the                                         _____        Tribe's sovereign  immunity, citing  to the settlement  agreement, the        enacting legislation, and excerpts from  the legislative history.   As        the district court correctly  noted, however, the proposed inferential        leap is impermissible.**   Maynard cites no provision or  source which                                    ____________________        *Maynard  elected not  to  name individual  members  of the  Tribe  as        *Maynard  elected not  to  name individual  members  of the  Tribe  as        defendants, contending  that permanent injunctive  relief against  the        defendants, contending  that permanent injunctive  relief against  the        Tribe would be the only effective remedy.          Tribe would be the only effective remedy.          **Moreover,  were  the proposed  inference otherwise  permissible, the        **Moreover,  were  the proposed  inference otherwise  permissible, the        provisions cited by  Maynard would have to be construed  to afford the        provisions cited by  Maynard would have to be construed  to afford the        Tribe the benefit  of any  ambiguity on  the waiver-abrogation  issue.        Tribe the benefit  of any  ambiguity on  the waiver-abrogation  issue.        See, e.g., Mashpee  Tribe v. New Seabury Corp., 592  F.2d 575, 582 n.4        See, e.g., Mashpee  Tribe v. New Seabury Corp., 592  F.2d 575, 582 n.4        ___  ____  ______________    _________________        (1st Cir.) (protective  statutes enacted for benefit of  Indian tribes        (1st Cir.) (protective  statutes enacted for benefit of  Indian tribes        are  liberally construed in their  favor), cert. denied,  444 U.S. 866        are  liberally construed in their  favor), cert. denied,  444 U.S. 866                                                   _____ ______                                          3        even  alludes to the concept  of tribal sovereign  immunity, much less        its  relinquishment.***   The Tribe's  surrender of  its right  to sue        for non-settlement  lands neither  says nor  implies anything  about a        surrender of its sovereign immunity from suit relating to its territo-        rial  or  extraterritorial  actions.   Absent  explicit  congressional        authorization to the contrary, the district court had no choice but to        dismiss the present action for lack of jurisdiction.                  Affirmed.                  ________                                             ____________________        (1979).        (1979).        ***The Narragansett Indian Tribe acquired  federal status in 1983, see        ***The Narragansett Indian Tribe acquired  federal status in 1983, see                                                                           ___        Narragansett  Indian  Tribe v.  Guilbert, 934  F.2d  4, 4-5  (1st Cir.        Narragansett  Indian  Tribe v.  Guilbert, 934  F.2d  4, 4-5  (1st Cir.        ___________________________     ________        1991),  a process which entails  recognition that the  Tribe enjoys "a        1991),  a process which entails  recognition that the  Tribe enjoys "a        government-to-government  relationship  to  the  United States."    25        government-to-government  relationship  to  the  United States."    25        C.F.R.   83.11(a) (1992).  Even though it would be of no small signif-        C.F.R.   83.11(a) (1992).  Even though it would be of no small signif-        icance  in  defining the  Tribe's sovereign  status, Maynard  cites no        icance  in  defining the  Tribe's sovereign  status, Maynard  cites no        reference  during the 1983 recognition process to an abrogation of the        reference  during the 1983 recognition process to an abrogation of the        Tribe's sovereignty, or  to an acknowledgement of any  past abrogation        Tribe's sovereignty, or  to an acknowledgement of any  past abrogation        or waiver of its sovereign immunity.          or waiver of its sovereign immunity.                                            4
