UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAN XAVIER DEVELOPMENT
AUTHORITY,
Plaintiff-Appellant, No. 99-16158
v. D.C. No.
CV-99-00065-JMR
SUSAN CHARLES, a.k.a. Susan
Charet d.b.a. Desert Sands Mobile OPINION
Home Sales and Service,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
October 31, 2000--San Francisco, California
Filed January 29, 2001
Before: Betty B. Fletcher, Diarmuid F. O'Scannlain, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge O'Scannlain
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COUNSEL
Louis W. Barassi (argued), Tucson, Arizona, and Robert
Moeller, Phoenix, Arizona, for the plaintiff-appellant.
Ned Garn (argued), Armand Salese, Salese & McCarthy, P.C.,
Tucson, Arizona, for the defendant-appellee.
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OPINION
O'SCANNLAIN, Circuit Judge:
This case presents questions of standing to sue under the
Nonintercourse and General Allotment Acts with respect to a
leasehold in allotted land on an Indian Reservation in Ari-
zona.
I
San Xavier Development Authority (the "Development
Authority") is a non-profit corporation chartered by the
Tohono O'odham Indian Nation, a federally-recognized
Indian tribe. The Development Authority is the lessee of allot-
ted Indian land which is now part of the San Xavier Industrial
Park, located within Arizona's San Xavier Indian Reserva-
tion. The Development Authority and the allottee landowners
executed a "Master Lease" on February 3, 1971, and the
Bureau of Indian Affairs ("BIA") approved it on April 16, 1971.1
The parties amended the Master Lease on December 19,
1982, and the BIA approved the amendment on September 9,
1983. The amended Master Lease is the only conveyance that
is part of the record on appeal; neither the original Master
Lease, nor the sublease that is the subject of the instant litiga-
tion, is part of the record.
On November 1, 1985, the Development Authority sub-
leased Lot 12 of the Industrial Park to Susan Charles, who
operates the Desert Sands Mobile Home Sales and Service
company on the property. The sublease was for a term of five
_________________________________________________________________
1 The various pleadings, cases, statutes, and regulations at issue on this
appeal refer to the governmental entity authorized to approve conveyances
as the Department of the Interior, the Secretary (of the Department of the
Interior), and the Bureau of Indian Affairs, which is part of the Depart-
ment of the Interior. In the interests of simplicity and consistency, we refer
to the government as the Bureau of Indian affairs ("BIA"), except when
quoting from a statute.
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years, with options for three additional terms of five years
each. The BIA never approved this sublease.
On February 8, 1999, fourteen years after the execution of
the sublease, the Development Authority filed a complaint in
the District of Arizona seeking to terminate it. The complaint
alleged that the sublease was invalid because it violated the
Nonintercourse Act, 25 U.S.C. S 177; the General Allotment
Act, 25 U.S.C. S 348; and the provision of Title 25 which
authorizes leases of property within the San Xavier Indian
Reservation, 25 U.S.C. S 416. The complaint also alleged that
the sublease was invalid because the Master Lease required
subleases to be approved by the BIA, and the BIA never pro-
vided its consent. In a May 5, 1999 order, the district court
granted Charles's motion to dismiss the Development Author-
ity's complaint for lack of standing and failure to state a claim
upon which relief can be granted pursuant to Fed. R. Civ. P.
12(b)(6). The district court held that S 177 did not apply to the
allotted land at issue in this case, and that the Development
Authority, as a lessee of allotted land, did not have standing
to bring claims under SS 348 and 416. The district court also
rejected the Development Authority's argument that the sub-
lease was invalid because the Master Lease requires that the
BIA approve subleases, holding that the Development
Authority could not invalidate the sublease based on its own
failure to comply with its obligations as the allottee landown-
ers' lessee.
The Development Authority filed this timely appeal.
II
[1] The district court held that the Development Authority
could not present a claim pursuant to the Nonintercourse Act,
25 U.S.C. S 177, which states, in relevant part, that, "No pur-
chase, grant, lease, or other conveyance of lands, or of any
title or claim thereto, from any Indian nation or tribe of Indi-
ans, shall be of any validity in law or equity, unless the same
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be made by treaty or convention entered into pursuant to the
Constitution." 25 U.S.C. S 177. By its terms, this prohibition
only applies to tribal land, which is land held in common for
the benefit of all members of a tribe. It does not apply to allot-
ted land, which is land once held in common, but now owned
by individual Indians, and held in trust by the federal govern-
ment. Compare Felix S. Cohen, Handbook of Federal Indian
Law 253 (1982) (tribal land) with id. at 605-07 (allotted land).
Every court which has addressed a claim brought under the
Nonintercourse Act has discussed the Act in reference to
tribal, and not allotted, land. For example, in United States v.
Dann, we stated that, "The common view of aboriginal title
is that it is held by tribes. Among the most important protec-
tions of aboriginal title were the Trade and Intercourse Acts,
which invalidated transfers of title from tribes without the
approval of the United States." 873 F.2d 1189, 1195 (9th Cir.
1989) (citations omitted). See also Golden Hill Paugussett
Tribe of Indians v. Weicker, 39 F.3d 51, 56 (2d Cir. 1994)
("To establish a prima facie case based on a violation of the
[Nonintercourse] Act, a plaintiff must show that (1) it is an
Indian tribe, (2) the land is tribal land . . . .").
[2] The property subleased by the Development Authority
to Charles is not tribal land, held in common by the members
of the tribe. Instead, it is allotted land owned by individual
landowners. The district court properly concluded that S 177
does not apply to this property and to this conveyance.
[3] Furthermore, the district court properly dismissed the
S 177 claim because the Development Authority, as a lessee
of allotted land, does not have standing to bring an action
under the Nonintercourse Act. Only Indian tribes may bring
S 177 actions, and "individual Indians do not even have stand-
ing to contest a transfer of tribal lands on the ground that the
transfer violated that statute." Dann, 873 F.2d at 1195. See
also Golden Hill, 39 F.3d at 56; Tonkawa Tribe of Okla. v.
Richards, 75 F.3d 1039, 1044 (5th Cir. 1996) ("To establish
a violation of the Nonintercourse Act . . . the Tribe must show
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that (1) it constitutes an Indian Tribe within the meaning of
the Act . . ."); Epps v. Andrus, 611 F.2d 915, 918 (1st Cir.
1979) (citations omitted) ("As the courts have stated repeat-
edly, claims on the part of individual Indians or their repre-
sentatives are not cognizable in federal courts under the
Indian Trade and Non-Intercourse Act. In short, since plain-
tiffs are not suing as a tribe, they do not have standing to
bring this claim; and because plaintiffs failed to allege tribal
status when these conveyances of property were made, they
have failed to state a claim upon which relief can be afforded
under the Non-Intercourse Act.").
The Development Authority is not a tribe, and the land that
it leased and then subleased to Charles is allotted, not tribal,
land. The district court properly dismissed theS 177 claim.
III
[4] The Development Authority also asserted claims under
the General Allotment Act, 25 U.S.C. S 348, 2 which regulates
conveyances of allotted land, and 25 U.S.C. S 416, which spe-
cifically authorizes leases of land located within the San
_________________________________________________________________
2 The General Allotment Act provides, in relevant part, that,
Upon the approval of the allotments provided for in this Act
by the Secretary of the Interior, he shall cause patents to issue
therefor in the name of the allottees, which patents shall be of the
legal effect, and declare that the United States does and will hold
the land thus allotted, for the period of twenty-five years, in trust
for the sole use and benefit of the Indian to whom such allotment
shall have been made . . . and that at the expiration of said period
the United States will convey the same by patent to said Indian,
or his heirs as aforesaid, in fee, discharged of said trust and free
of all charge or incumbrance whatsoever . . . And if any convey-
ance shall be made of the lands set apart and allotted as herein
provided, or any contract made touching the same, before the
expiration of the time above mentioned, such conveyance or con-
tract shall be absolutely null and void . . .
25 U.S.C. S 348 (emphasis added).
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Xavier Indian Reservation.3 Together, these two sections
explicitly permit leases of property located within the San
Xavier reservation, but state that for leases to be valid, they
must be approved by the BIA.
The district court did not specifically state that it dismissed
the claims under these sections for want of standing, but it is
apparent from the order that the Development Authority's
lack of standing under these sections was the basis for its
order. The district court stated that, "The standing of an
Indian tribe to challenge the validity of a contract does not
confer a similar right on non-tribal litigants whom the federal
statutes were not designed to protect," and it cited Chuska
Energy Company v. Mobil Exploration & Producing North
America, Inc., 854 F.2d 727, 732 (5th Cir. 1998). The district
court also rejected the argument that the Development
Authority could bring an action under S 416, because "[b]y its
terms Section 416 applies to a lease of land executed by the
Indian owner rather than the lessee."
[5] As a lessee, and not an allottee landowner, the Develop-
ment Authority's interest is not "arguably within the zone of
interests to be protected or regulated by the statute or constitu-
tional guarantee in question." Association of Data Processing
Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970). As the district
court noted, SS 348 and 416 limit conveyances from Indian
owners to potential purchasers or lessees. Section 348 places
restrictions on alienation of property held "in trust for the sole
_________________________________________________________________
3 Section 416 provides, in relevant part, that,
Any trust or restricted Indian lands, whether tribally or individu-
ally owned, located on the San Xavier Indian Reservation and the
Salt River Pima-Maricopa Indian Reservation, in the State of Ari-
zona, may be leased by the Indian owners, with the approval of
the Secretary of the Interior, for public, religious, educational,
recreational, residential, business, farming, or grazing purposes
. . . .
25 U.S.C. S 416.
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use and benefit of the Indian to whom such allotment shall
have been made." 25 U.S.C. S 348. Section 416 refers to
property "leased by the Indian owners," but it is silent with
respect to transactions in which the Indian owners are not par-
ties. 25 U.S.C. S 416.
In rejecting the Development Authority's argument that it
could bring an action under these sections, the district court
properly analogized the Development Authority's claims to
those dismissed by the Fifth Circuit in Chuska . There, the
Chuska Energy Company brought an action under 25 U.S.C.
S 396d, which requires BIA approval of mineral agreements
entered into by the Navajo Nation or individual members of
that tribe. 854 F.2d at 727. The Fifth Circuit held that the
company did not have standing to present a S 396d claim,
stating, "That the Navajos or the Secretary of Interior could
have standing in federal court to challenge the assignment
does not confer a similar right on non-tribal or non-
governmental litigants who it was not designed to protect." Id.
at 732. In the instant case, the district court properly cited
Chuska for the principle that a non-Indian party to a contract
does not have the right to employ statutory remedies enacted
to protect Indian tribes and their members.
[6] Similarly, the Development Authority cannot derive
standing from the regulations under Title 25. Those regula-
tions clearly require BIA approval of conveyances:"a sub-
lease, assignment, amendment, or encumbrance of any lease
or permit issued under this part may be made only with the
approval of the Secretary and the written consent of all parties
to such lease or permit." 25 C.F.R. S 162.12(a) (2000). But
this regulation does not state that a sublease which did not
receive BIA approval is void or voidable. Instead, the remedy
for a violation of S 162.12(a) is found in 25 C.F.R. S 162.14,
which provides in part that,
Upon a showing satisfactory to the Secretary that
there has been a violation of the lease or the regula-
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tions in this part, the lessee shall be served with writ-
ten notice . . . . If within the ten-day period, it is
determined that the breach may be corrected and the
lessee agrees to take the necessary corrective mea-
sures, he will be given an opportunity to carry out
such measures . . . . If the lessee fails within such
reasonable time to correct the breach or to furnish
satisfactory reasons why the lease should not be can-
celled, the lessee shall forthwith be notified in writ-
ing of the cancellation of the lease.
25 C.F.R. S 162.14 (2000). This regulation provides a remedy
for an allottee landowner (the lessor) against its lessee (here,
the Development Authority), and that remedy is the cancella-
tion of the lease between those parties (the Master Lease). In
other words, S 162.14 protects a lessor whose lessee violates
S 162.12 by subleasing the leasehold to a third party. The reg-
ulation does not provide a remedy for a lessee-sublessor; the
Development Authority lacks standing to sue under the Gen-
eral Allotment Act.
IV
[7] The Development Authority also argues that it can sue
to void the sublease in federal court because it is seeking to
enforce its right to possess its interest in the property it leased
from the allottee landowners, and that its leasehold is autho-
rized and protected by the many federal statutes and regula-
tions which govern Indian lands. But the fact that a property
interest is regulated by, or was created by, federal law does
not confer standing under otherwise inapplicable federal stat-
utes on the holder of that interest.
In Oneida Indian Nation of New York State v. County of
Oneida, New York, 414 U.S. 661 (1974), the Supreme Court
addressed a tribe's assertion of a right to possession of land
ceded by the tribe to the federal government in 1795. In
reversing the Second Circuit, which had affirmed the dis-
1286
missal of the tribe's complaint, the Court distinguished claims
to possession arising under federal law in the first instance
(such as the Oneida Nation's claim) with the ejectment action
presented in the earlier case of Taylor v. Anderson, 234 U.S.
74 (1914). The Court summarized Taylor as "more like those
cases indicating that a `controversy in respect of lands has
never been regarded as presenting a Federal question merely
because one of the parties to it has derived its title under an
act of Congress.' " 414 U.S. at 676. The Court then explained
that in that category of cases, "Once patent issues, the inci-
dents of ownership are, for the most part, matters of local
property law to be vindicated in local courts, and in such situ-
ations it is normally insufficient for `arising under' jurisdic-
tion merely to allege that ownership or possession is claimed
is under a United States patent." 414 U.S. at 676-77. Oneida
and Taylor stand for the principle that a plaintiff asserting a
right to possession of allotted land cannot rest its right to
relief (or its basis for federal jurisdiction) on the bare fact that
one of the parties to it has derived its title under an act of
Congress authorizing leases of Indian owned-property, such
as 25 U.S.C. S 416.
V
Congress has enacted a comprehensive regulatory regime
governing conveyances of property from both tribal and allot-
tee landowners, but it has not provided comparable remedies
for these landowner's lessees. As a lessee, the Development
Authority does not have standing under SS 177, 348, or 416,
and the judgment of the District Court dismissing its com-
plaint is
AFFIRMED.
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