Greene v. Rhode Island

United States Court of Appeals
For the First Circuit
No. 03-2670

WILFRED W. GREENE, A/K/A "CHIEF EAGLE HEART", ET AL.,

Plaintiffs, Appellants,

v.

THE STATE OF RHODE ISLAND, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]

Before

Torruella and Howard, Circuit Judges,
and DiClerico, Jr.,* District Judge.

Lesley S. Rich, with whom Earl F. Pasbach, were on brief, for
appellants.
Neil F.X. Kelly, Assistant Attorney General, with whom Patrick
C. Lynch, Attorney General, Claire Richards, Special Counsel,
Joseph Carroll, Woonsocket City Hall, Thomas Hefner and Fogarty &
Hefner, were on brief, for appellees.
Katherine J. Barton, Appellate Section, Environment & Natural
Resources Division, U.S. Department of Justice, with whom Elizabeth
A. Peterson, Thomas L. Sansonetti, Assistant Attorney General, and
Suzanne Schaeffer, U.S. Department of the Interior, Office of the
Solicitor, were on brief, for the United States.

February 11, 2005

*
Of the District of New Hampshire, sitting by designation.
 TORRUELLA, Circuit Judge. With this appeal, the Seaconke

Wampanoag Tribe and its Chief, Wilfred W. Greene, continue their

efforts to recover a portion of their ancestral lands which they

claim were wrongfully taken from them by European colonists in the

17th century. Plaintiffs-appellants Wilfred W. Greene, "Chief

Eagle Heart," and the Seaconke Wampanoag Tribe, Wampanoag Nation

("the Tribe" or "the Wampanoags") brought suit against defendants-

appellees, the State of Rhode Island ("the State"), the Town of

Cumberland, and the City of Woonsocket ("the Municipalities"),

seeking a declaration that they are the lawful and equitable owners

of approximately thirty-four square miles of land in Rhode Island,

which they claimed was wrongfully taken from the Tribe's ancestors.

The State and Municipalities moved to dismiss the case for failure

to state a claim, see Fed. R. Civ. P. 12(b)(6), contending that the

Tribe's claims were barred by the Rhode Island Indian Claims

Settlement Act ("the Settlement Act"), 25 U.S.C. §§ 1701-1716. The

district court granted the motion to dismiss, and the Tribe now

appeals. We affirm the decision of the district court.

I. Background

A. Settlement Act

In 1978, Congress enacted the Rhode Island Indian Claims

Settlement Act in order to implement the Joint Memorandum of

Understanding ("the JMOU"), H.R. Rep. No. 95-1453, at 25-28 (1978),

reprinted in 1978 U.S.C.C.A.N. 1948, 1962-66, that resolved two

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lawsuits initiated by the Narragansett Indian Tribe ("the

Narragansetts") against the State of Rhode Island and landowners in

Charlestown, Rhode Island where the Narragansetts claimed

aboriginal title to approximately 3200 acres of land. H.R. Rep.

No. 95-1453, at 5; see also Narragansett Tribe of Indians v. S.

R.I. Land Dev. Corp., 418 F. Supp. 798 (D. R.I. 1976); Narragansett

Tribe of Indians v. Murphy, 426 F. Supp. 132 (D. R.I. 1976). Under

the terms of the JMOU and Settlement Act, the State donated

approximately 900 acres of land to the Narragansetts, and the

federal government committed to provide $3.5 million to the

Narragansetts for the acquisition of an additional nine hundred

acres. In exchange, the State sought to dispel all clouds on land

title in Rhode Island caused by Indian claims. In the Settlement

Act, Congress thus ratified any prior transfer of land or natural

resources located anywhere in the State of Rhode Island by the

Narragansetts or any other Indian, Indian tribe, or Indian nation.

25 U.S.C. §§ 1705(a)(1), 1712(a)(1). The Settlement Act also

extinguished any aboriginal title to land involved in such

transfers. Id. §§ 1705(a)(2), 1712(a)(2). The Act limited

challenges to the Settlement by providing that "[n]otwithstanding

any other provision of law, any action to contest the

constitutionality of this subchapter shall be barred unless the

complaint is filed within one hundred eighty days of September 30,

1978." Id. § 1711.

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B. Factual Background

Since the Wampanoags are appealing the district court's

dismissal of their case under Federal Rule of Civil Procedure

12(b)(6), the facts alleged in the Tribe's complaint must be taken

as true. Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir. 2000). These

facts are as follows:

Plaintiffs-appellants the Wampanoag Nation are an Indian

tribe recognized by the Commonwealth of Massachusetts and active in

Rhode Island. The Wampanoags are not, however, a federally

recognized Indian tribe.

According to the plaintiffs' complaint, in June 1643, the

General Court of the New Plymouth Colony created a formal procedure

for the purchase of Indian lands in order to prevent confusion and

controversy over land titles. In 1661, Chief Wamsutta of the

Wampanoags deeded land to Captain Thomas Willett, a colonist who

was authorized by the General Court of New Plymouth to purchase

land from the Indians. This transaction is generally known as the

"North Purchase" and the deed included what is now Attleboro and

North Attleboro, Massachusetts; Cumberland, Rhode Island; and part

of Woonsocket, Rhode Island. This deed reserved "a competent

portion of the land for some of the Natives at Mishanegitatonett1

for to plant and sojourn upon." The Wampanoags contend that this

1
The "Natives at Mishanegitatonett" were members of the Wampanoag
Nation of tribes.

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deed thereby afforded the Tribe a "coexisting right" with the

colonists to use the land.

On July 15, 1663, King Charles II granted the Charter of

Rhode Island and Providence Plantations ("the Charter"), which the

Wampanoags claim annulled all prior claims to Indian lands by right

of discovery or conquest. The Charter recognized the

responsibility of the government to oversee the conveyance of lands

from the Indians. In contrast to other colonies' charters, the

Rhode Island Charter provided that the Indians had title to Indian

lands and that any conveyance from the Indians must be confirmed

and established by royal consent.2

The land that was deeded to Captain Willet in 1661

includes the land at issue here. The Wampanoags describe the

subject land as thirty-four square miles in northeastern Rhode

Island comprised of land from the Pawtucket River along the expanse

running from Pawtucket up to Woonsocket, and moving east to what is

now the border between Rhode Island and Massachusetts. This land

comprises significant portions of what are now Cumberland and

Woonsocket, Rhode Island.

C. The Current Dispute

The Wampanoags contend that they are entitled to occupy

and use the land as it was reserved in the deed to Captain Willet

2
The Charter, including the provision that the Indians had title
to Indian lands, was granted after the Wampanoags transferred the
land in question to Captain Willet in 1661.

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in 1661, because following that transfer, the Tribe never made any

treaties, deeds, or other written agreements that would have

legitimately transferred their rights in the land. In the district

court, the Wampanoags sought a declaration that they are the lawful

and equitable owners of the land in question or, in the

alternative, the award of specified money damages. The State

defended by moving to dismiss the case on the ground that the

Wampanoags' claims are barred by the Settlement Act. In response,

the Wampanoags argued that their claims do not fall within the

scope of the Settlement Act and, if they did, that the Settlement

Act was unconstitutional as applied to their claims. The district

court rejected the Wampanoags' arguments and dismissed the case for

failure to state a claim.

II. Analysis

On appeal, the Wampanoags argue that (1) the district

court erred in considering the Settlement Act as an affirmative

defense in a 12(b)(6) motion to dismiss; (2) the Settlement Act

does not apply to the Wampanoags' claims because their claims are

based on deeded title and therefore are not claims raised by

Indians qua Indians; (3) the Settlement Act does not apply to the

Wampanoags' land claims because the Wampanoags never "transferred"

their deeded interest in land; and (4) the Settlement Act is

unconstitutional.

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 We review a district court's grant of a motion to dismiss

pursuant to Rule 12(b)(6) de novo. Calderón-Ortiz v. Laboy-

Alvarado, 300 F.3d 60, 62-63 (1st Cir. 2002). A complaint should

not be dismissed unless it is apparent beyond doubt that the

plaintiff can prove no set of facts in support of his claim that

would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46

(1957). We accept as true the well-pleaded facts in the

Wampanoags' complaint and indulge all reasonable inferences in the

their favor. Calderón-Ortiz, 300 F.3d at 62-63.

A. Conversion of motion to dismiss to summary judgment

The Wampanoag Tribe claims that the district court erred

in considering the State's affirmative defense –- that the

Settlement Act bars the Tribe's land claims –- without converting

the motion to dismiss into one for summary judgment. Federal Rule

of Civil Procedure 12(b) provides that a Rule 12(b)(6) motion to

dismiss for failure to state a claim upon which relief can be

granted shall be converted into a Rule 56 motion for summary

judgment whenever matters outside the pleading are presented to and

relied on by the district court. The Tribe's complaint did not

mention the Settlement Act, and the State first presented the

Settlement Act to the district court in a brief supporting the

State's motion to dismiss. The Wampanoags therefore assign error,

claiming that the court's failure to convert the motion into one

for summary judgment prevented them from introducing evidence

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intended to negate the affirmative defense. We find this challenge

without merit for the following reasons.

In general, courts have interpreted the Rule 12(b)

conversion provision to mean that courts may consider "not only the

complaint but also matters fairly incorporated within it and

matters susceptible to judicial notice" without converting the

motion to dismiss into a motion for summary judgment. In re

Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).

Indeed, we have specifically noted that "a court may look to

matters of public record in deciding a Rule (12)(b)(6) motion

without converting the motion into one for summary judgment."

Boateng v. InterAmerican Univ., Inc., 210 F.3d 56, 60 (1st Cir.

2000); see also Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993).

Such public records clearly include federal statutes, such as the

Settlement Act at issue here. See Pani v. Empire Blue Cross Blue

Shield, 152 F.3d 67, 75 (2d Cir. 1998) ("It is well established

that a district court may rely on matters of public record in

deciding a motion to dismiss under Rule 12(b)(6), including case

law and statutes.").

We have also held that, "[i]n an appropriate case, an

affirmative defense may be adjudicated on a motion to dismiss for

failure to state a claim." Colonial Mortgage, 324 F.3d at 16. An

appropriate case is one in which two conditions are met. First,

"the facts that establish the defense must be definitively

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ascertainable from the allegations of the complaint . . . matters

of public record, and other matters of which the court may take

judicial notice." Id.; Blackstone Realty L.L.C. v. FDIC, 244 F.3d

193, 197 (1st Cir. 2001). As we discussed above, the Settlement

Act is a public record which the court may appropriately consider.

Second, "the facts so gleaned must conclusively establish the

affirmative defense." Colonial Mortgage, 324 F.3d at 16; see also

Blackstone Realty L.L.C., 244 F.3d at 197; 5B Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 1357, at 708-

32 (3d ed. 2004) (citing numerous cases considering affirmative

defenses on motions to dismiss). Thus, we now proceed to consider

de novo whether, based on the facts pled, the Settlement Act bars

the Wampanoags' claims.

B. Applicability of the Settlement Act

The Wampanoag Tribe claims that the Settlement Act did

not extinguish their rights to the land in question because it

extinguished "aboriginal title" in Rhode Island, and the Tribe

argues they hold something more than aboriginal title to the

disputed land. In addition, the Wampanoags argue that the

Settlement Act does not apply to their claim to the land because

they never transferred their rights in the disputed land.

1. Form of Title

The Tribe claims that the deed generated by the

transaction between the predecessors to the Wampanoag Tribe and

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Captain Willett in 1661 converted their interest in the disputed

land from aboriginal title to either recognized title or fee simple

deeded title. As such, the Tribe argues that their claim to the

disputed land has not been extinguished by the Settlement Act,

which extinguished only Indian land claims by Indians qua Indians.

See H.R. Rep. No. 95-1453, at 12 ("Extinguishment of Indian land

claims is limited to those claims raised by Indians qua Indians,

and is not intended to affect or eliminate the claim of any Indian

under any law generally applicable to Indians as well as non-

Indians in Rhode Island."). The Tribe claims that if the colonists

were given a fee simple in the land then deeded to them by Willett,

the Indians must also have received a fee simple estate to their

Indian reservation, regardless of the nature of their prior

holdings. In the alternative, the Tribe argues that the deed

should be considered a recognized "treaty" title of a reservation

of land to the Indians. Upon reviewing these arguments, we find

that the deed in question does not give the Wampanoag Tribe

recognized title or fee simple title to the land in question.

An Indian tribe establishes aboriginal title by showing

that it has inhabited the land "from time immemorial." Mashpee

Tribe v. Secretary of the Interior, 820 F.2d 480, 481-82 (1st Cir.

1987) (quoting County of Oneida v. Oneida Indian Nation, 470 U.S.

226, 234 (1985)). This right does not have to be traced to a

written document or land grant. Instead, the tribe must show

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"historical evidence of the tribe's long-standing physical

possession" of the land. Zuni Indian Tribe v. United States, 16

Cl. Ct. 670, 671 (1989). The Supreme Court has defined this right

not as a fee simple property right, but rather as a "right of

occupancy which the sovereign [Federal Government] grants and

protects against intrusion by third parties." Tee-Hit-Ton Indians

v. United States, 348 U.S. 272, 279 (1955). This "right of

occupancy may be terminated and such lands fully disposed of by the

sovereign itself without any legally enforceable obligation to

compensate the Indians." Id.

"Specific congressional action . . . is necessary to

'recognize' aboriginal title." Zuni Indian Tribe, 16 Cl. Ct. at

672. Generally recognized title to Indian lands is recognized via

federal treaty or statute. Id. While "[t]here is no particular

form for congressional recognition of Indian right of permanent

occupancy," it is clear that there must be a "definite intention by

congressional action or authority to accord legal rights, not

merely permissive occupation." Tee-Hit-Ton Indians, 348 U.S. at

278-79. There is nothing to indicate any intention by Congress to

grant to the Wampanoags any permanent rights in the lands of Rhode

Island. The Wampanoags are not a federally recognized tribe and

the House Report at the time of the Settlement Act clearly stated

that Congress did not believe there were any possible Indian claims

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in Rhode Island other than those of the Narragansetts. H.R. Rep.

No. 95-1453, at 13.

In addition to recognized title as a result of direct

congressional action, "[i]ndians holding recognized title to land

under a foreign government may retain their title under the United

States Government if such is provided for by international

agreement or treaty." Zuni Indian Tribe, 16 Cl. Ct. at 672. There

is no indication of a treaty or agreement under which the United

States would have retained recognized title for the Wampanoags to

lands which they do not appear to have even occupied at the time

the Union was formed. According to the Tribe's complaint, Captain

Willett was authorized by the General Court of New Plymouth to

negotiate the North Purchase with the Tribe's ancestors. The area

later became a part of the colony of Rhode Island pursuant to the

Charter of King Charles II, dated July, 15, 1663. "[T]he charter

of the crown was considered as indispensable to [the] completion"

of an Indian grant in order for it to "constitute a complete

title." Johnson v. McIntoch, 21 U.S. (8 Wheat.) 543, 603 (1823)

(discussing the Rhode Island Charter granted by Charles II and the

Charter's "sanction [of] a previous unauthorized purchase from

Indians").3 The deed in question was not recorded or tendered to

the Court of New Plymouth until April 10, 1666, when Captain

3
The only Indians specifically mentioned in the Charter are the
Narragansett Indians.

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Willett transferred the conveyance to the court. Then, in 1672,

the transfer was confirmed in the first book of the records of the

Rehoboth North Purchase. The book described the purchased lands,

and confirmed that excepted out of this purchased land was a "Meete

proportion" of lands for the use of the Indians at Sinnichiteconett

(also known as Mishanegitatonett).4 We see nothing in this history

that shows a treaty or international agreement establishing

recognized title for the Wampanoags by the colonial sovereign which

would have been retained by the United States government upon its

formation. For the above reasons, we find that the Wampanoag Tribe

does not have recognized title to the disputed lands.5

We also fail to see any indication that the deed was ever

intended to convey fee simple title to the Indians. As we

4
The "Meete" in "Meete proportion" is the old spelling for the
adjective form of the word meet, which means fitting or proper.
5
It is important to note that even if we had found that the
Wampanoag Tribe has recognized title to the disputed lands, such
recognition would not replace the tribe's aboriginal title, "but
merely grant[] a higher, more permanent property right in addition
to the historical rights derived from longstanding physical
occupation and bring[] into play the 'just compensation' clause of
the Fifth Amendment." Zuni Indian Tribe, 16 Cl. Ct. at 672. In
other words, recognized title becomes a property right within the
meaning of the Fifth Amendment, rather than a mere right of
occupancy, such that its taking by the federal government would
give rise to a right to just compensation.

Even with recognized title, the Wampanoags' land claims would have
been extinguished by the ratification of transfers effected by
section 1712(a) of the Settlement Act, 25 U.S.C. § 1712(a)(1), (3).
The Wampanoags may, however, have had a valid claim for just
compensation if they had brought such a claim within the 180-day
limitations period required by section 1711 of the Act.

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previously noted, the deed reserved "a competent portion of the

land for some of the Natives at Mishanegitatonett for to plant and

sojourn upon." This is the same as saying that Captain Willet took

ownership to all of the land, including underlying fee title to the

Indian land that was reserved so that the Wampanoags' ancestors

could continue to occupy and use the land.

What the Wampanoags do have is a right that appears to

fall somewhere between aboriginal title and recognized title. As

we noted, recognized title is not completely separate from and a

replacement of aboriginal title, but rather lends a more permanent

property right to the holder of aboriginal title, resulting in a

right to compensation under the Fifth Amendment if the property is

taken. Zuni Indian Tribe, 16 Cl. Ct. at 672. The Wampanoag Tribe

had aboriginal title to the land at the time of its negotiations

with Captain Willet in 1661, based on their historical presence and

use of the land. While the Tribe argues that the Charter provided

them with greater title, this cannot be, because the Charter was

not granted until two years after the transaction creating the

deed. We agree with the district court that the deed "did not

alter the aboriginal status of the Wampanoags' interest in the

land." Greene v. Rhode Island, 289 F. Supp. 2d 5, 11 (D. R.I.

2003). The deed merely reserved for the Wampanoags a portion of the

land over which they would continue to have aboriginal title and

could continue to use as they had from time immemorial.

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 2. Whether the land was transferred

In its complaint, the Wampanoag Tribe sought, among other

things, possession of the subject land, damages, disgorgement of

any unjust enrichment as a result of the illegal taking of the

subject lands, and a declaration that the State authorized the

taking of the subject lands from the ancestors of the Tribe in

violation of federal and state common law and in violation of the

Indian Trade and Intercourse Act ("the Indian Nonintercourse Act"),

25 U.S.C. § 177. On appeal, the Tribe reasserts that the

Settlement Act does not bar their claims to the subject land

because the Tribe's right to use and occupy the land was never

transferred. The State maintains that the Settlement Act

extinguished the Tribe's claims because the land can be found to

have been "transferred" under the Settlement Act's broad definition

of a "transfer." We find that the provisions of the Settlement Act

bar the Tribe's land claims.6

a. Form of Title

In provisions pertinent to this dispute, the Settlement

Act provides for the ratification of various transfers of land and

natural resources, extinguishment of aboriginal title, and the

elimination of any further Indian claims arising subsequent to the

transfer to land and natural resources in Rhode Island.

6
We do not find it necessary to consider issues of abandonment of
the property and adverse possession here.

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Specifically, the Settlement Act ratified "any transfer of land or

natural resources located anywhere within the State of Rhode Island

outside the town of Charlestown from, by, or on behalf of any

Indian, Indian nation, or tribe of Indians" as congressionally

approved as of the date of the transfer. 25 U.S.C. § 1712(a)(1).

The Act also provided for ratification of any transfers of land or

resources located within the town of Charlestown. Id. § 1705

(a)(1). The Settlement Act defines a "transfer" as including, but

not limited to, "any sale, grant, lease, allotment, partition, or

conveyance, any transaction the purpose of which was to effect a

sale, grant lease, allotment, partition, or conveyance, or any

event or events that resulted in a change of possession or control

of land or natural resources." Id. § 1702(j) (emphasis added).

The Act then extinguished any Indian claims of aboriginal

title to all such property as of the date of the transfer. Id.

§§ 1705(a)(2), 1712(a)(2).

The Settlement Act also provided that:

by virtue of the approval of such transfers of
land or natural resources effected by this
subsection or an extinguishment of aboriginal
title effected thereby, all claims against the
United States, any State or subdivision
thereof, or any other person or entity, by any
such Indian, Indian nation, or tribe of
Indians, arising subsequent to the transfer
and based upon any interest in or rights
involving such land or natural resources
(including but not limited to claims for
trespass or claims for use and occupancy),
shall be regarded as extinguished as of the
date of the transfer.

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Id. § 1712(a)(3) (emphasis added).

The Settlement Act included an exception to these

provisions that section 1712 would "not apply to any claim, right,

or title of any Indian, Indian nation, or tribe of Indians that is

asserted in an action commenced in a court of competent

jurisdiction within one hundred and eighty days" of the Settlement

Act's enactment. Id. § 1712(b).

The Wampanoags contend that following the transfer of

land to Captain Willett in 1661, the Tribe never "transferred"

their interest in the remaining portion of land which was reserved

for them in the deed. Therefore, the Wampanoags argue, the

Settlement Act does not apply to their land claim. In bringing

this suit, however, the Wampanoag Tribe has declared that it has

been wrongfully dispossessed of these lands. The Settlement Act's

broad definition of transfer includes a catchall –- "any event or

events that resulted in a change of possession or control," Id.

§ 1702(j) -- which shows Congress's intent to include a situation

such as this one, where the Wampanoags clearly had an Indian claim

to the land long ago and now cease to possess the land. In

addition, the Settlement Act ratified any transfer of land "from,

by, or on behalf of any Indian, Indian nation, or tribe of

Indians." Id. §§ 1705(a)(1), 1712(a)(1) (emphasis added). This

would certainly encompass the Wampanoag Tribe of Indians. We

therefore agree with the district court's conclusion that this

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broad language precludes claims such as those asserted by the

Wampanoags in this case.

The Settlement Act left a brief window in which claims

such as the Wampanoags' could be brought. Id. § 1712(b). However,

because the Wampanoags failed to bring their claims within the 180-

day statute of limitation period provided for in section 1712(b),

they are now barred from asserting the claims presented in this

suit.

C. Constitutional Challenges to Settlement Act

In what appears to be an attempt to avoid the preclusive

effect of the statute of limitations imposed by section 1712(b) of

the Settlement Act, the Wampanoag Tribe claims that the Settlement

Act is unconstitutional to the extent that it extinguishes the

claims of Indians, other than the Narragansett Tribe of Indians, in

Rhode Island. The Tribe asserts a number of different arguments to

this end. First, the Wampanoags argue that the language in the

Settlement Act is not plain and unambiguous, as is required for

Congress to extinguish Indian claims to aboriginal rights. Second,

the Tribe suggests that the Settlement Act is impermissibly unfair

and violates the United States's fiduciary duty to the Wampanoag

Tribe. Third, the Tribe argues that the Settlement Act works an

unconstitutional taking in violation of the Just Compensation

Clause of the Fifth Amendment. Fourth, the Tribe claims that it

received inadequate notice of the Settlement Act's extinguishment

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of its claims, in violation of the Due Process Clause of the Fifth

Amendment. Finally, the Tribe claims that the Settlement Act's

provision for a 180-day statute of limitations on land claims

extinguished by the Act violates due process. The federal

government has intervened in this case to defend the

constitutionality of the Settlement Act.

At the outset, we note that the Settlement Act barred

constitutional challenges filed more than 180 days after

September 30, 1978. Id. § 1711. The Wampanoags' constitutional

challenges to the Settlement Act in this case are therefore nearly

twenty-five years outside the statutory limitations period.

The Settlement Act's purpose is "to remove all clouds on

titles resulting from . . . Indian land claims within the State of

Rhode Island." See 25 U.S.C. § 1701(c). As the D.C. Circuit noted

in Narragansett Indian Tribe v. National Indian Gaming Commission,

"[t]his suggests that Congress intended to ensure that any suits

challenging the validity of the Settlement Act were brought quickly

. . . ." 158 F.3d 1335, 1339 (D.C. Cir. 1998) (comparing the Rhode

Island Settlement Act to the later Alaska Native Claims Settlement

Act, which contains a provision with the same language as the Rhode

Island Act and adds that "[t]he purpose of this limitation on suits

is to insure that, after the expiration of a reasonable period of

time, the right, title, and interest of the United States, the

Natives, and the State of Alaska will vest with certainty and

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finality . . . ." 43 U.S.C. § 1609(a)). In the case at hand, the

Wampanoags seek to revive old land claims and unsettle land titles

in direct contravention of the purpose of the Settlement Act.

Section 1711 bars the constitutional claims put forth by the

Wampanoags in this suit.

The Wampanoags raise several issues in the section of

their brief challenging the constitutionality of the Settlement Act

which do not appear to be grounded in the Constitution. We address

these issues here.

1. Plain and Unambiguous

The Wampanoag Tribe claims that the language of the

Settlement Act is not plain and unambiguous and therefore cannot

effect an extinguishment of Indian title. Despite the fact that

this issue is raised in the section of the Tribe's brief that is

dedicated to the alleged unconstitutionality of the Settlement Act,

the Tribe cites no constitutional provision to this effect, and

indeed there is none. This policy arises in statutory construction

instead.

It is well established that courts will not infer

congressional intent to extinguish Indian claims to aboriginal

rights to land absent plain and unambiguous statutory language

making such an extinguishment. See County of Oneida, 470 U.S. at

247-48; United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 346

(1941). As these cases point out, "it has been the policy of the

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federal government from the beginning to respect the Indian right

of occupancy, which could only be interfered with or determined by

the United States." Id. at 345 (quoting Cramer v. United States,

261 U.S. 219, 227 (1923).

The language of the Act expressly declares that it

applies to "any transfer of land . . . located anywhere within the

State of Rhode Island outside the town of Charlestown from, by, or

on behalf of any Indian, Indian nation, or tribe of Indians." 25

U.S.C. § 1712(a)(1) (emphasis added). In addition, the House

Report on the Settlement Act explained that it provided not only

for "the extinguishment of all land claims of the Narragansett

Tribe," but also for the "extinguishment of all land claims, if

any, within the State of Rhode Island, by any other Indian tribes."

H.R. Rep. No. 95-1453, at 5 (emphasis added). While the Wampanoags

are correct that Congress thought it unlikely that there were other

potential Indian land claims in Rhode Island, Congress could not

have been more clear in its intent to extinguish any Indian claims

to land involved in any transfer by any Indians qua Indians by this

provision.

The Wampanoags incorrectly argue that Oneida requires

that the location of the land to which claims are extinguished must

be denominated in a plain and unambiguous fashion so that the

particular disenfranchised Indians are aware that their claims are

being extinguished. The statutory language at issue in Oneida was

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deemed ambiguous not because it failed to identify specific lands

or Indians, but because it did not clearly express an intent to

extinguish claims. Oneida, 470 U.S. at 247-48. In contrast, here,

the Settlement Act expressly states that Congress "does hereby

approve" any prior land transfers, 25 U.S.C. § 1712(a)(1); that

this statutory provision "shall be regarded as an extinguishment"

of any aboriginal title to land, id. § 1712(a)(2); and that "all

claims against the United States . . . shall be regarded as

extinguished as of the date of the transfer," Id. § 1712(a)(3).

2. Fiduciary Relationship

The Tribe appears to claim that the United States

Congress breached a fiduciary relationship it has with the

Wampanoag Tribe because Congress unfairly compensated the

Narragansett Tribe in the Settlement Act without providing

compensation for the extinguishment of the Indian title of "other

Indians" within the State of Rhode Island. In response to this

argument, the federal government claims that in the absence of

federal recognition of the Wampanoag Tribe, the United States owes

no them no special duty. The United States relies on Miami Nation

of Indians of Indiana, Inc. v. U.S. Dept. of the Interior, 255 F.3d

342 (7th Cir. 2001), and 25 C.F.R. § 83.2, for the proposition that

federal recognition of Indian groups as Indian tribes establishes

a government-to-government relationship with the United States and

is a prerequisite to the protection, services, and benefits of the

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federal government available to Indians. Therefore, the United

States claims it owes no special duty to a group of Indians where

they are not recognized as a tribe by the United States or where

Congress has not expressly imposed such a duty.

It is not completely accurate to say that the United

States has no special duty to Indians who are not recognized as a

tribe. In Miami Nation of Indians, 255 F.3d at 345, the Seventh

Circuit referred to a number of statutes that do require federal

recognition of a tribe before the Indians may partake of the

statutory benefits, including the Indian Self-Determination and

Education Assistance Act of 1975, 25 U.S.C. § 450b(e), and the

Indian Financing Act of 1974, 25 U.S.C. § 1452(c). However, we

have previously found that the Indian Nonintercourse Act, 25 U.S.C.

§ 177, establishes a trust relationship between the United States

and a tribe with respect to protection of the lands of a tribe

covered by the Act, regardless of whether it is federally

recognized. See Joint Tribal Council of the Passamaquoddy Tribe v.

Morton, 528 F.2d 370, 379 (1st Cir. 1975). The Indian

Nonintercourse Act expressly prohibits the conveyance of Indian

lands to unauthorized third parties. 25 U.S.C. § 177. In

Passamaquoddy Tribe, we noted that:

Congress is not prevented from legislating as
to tribes generally; and this appears to be
what it has done in successive versions of the
Nonintercourse Act. There is nothing in the
Act to suggest that 'tribe' is to be read to

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 exclude a bona fide tribe not otherwise
federally recognized.

Id. at 377.

While we find that the United States does have a trust

relationship with the Wampanoag Tribe pertaining to land

transactions that are or may be covered by the Indian

Nonintercourse Act, we do not find that the United States breached

its fiduciary duty toward the tribe by failing to compensate the

tribe for extinguishing any remaining aboriginal rights they may

have had to land in Rhode Island. As we noted above, it is well

established that aboriginal title is a mere right of occupancy, the

loss of which is not a compensable taking under the Just

Compensation Clause of the Fifth Amendment. See Tee-Hit-Ton

Indians, 348 U.S. 281 ("No case in this Court has ever held that

taking of Indian title or use by Congress required compensation.").

Accordingly, the United States has not breached its fiduciary duty

to the Wampanoags for failing to compensate the Tribe for the

extinguishment of Indian title.

III. Conclusion

For the reasons stated above, we affirm the district

court's dismissal of the case for failure to state a claim upon

which relief may be granted.

Affirmed.

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