23 Mass. App. Ct. 122 | Mass. App. Ct. | 1986
The plaintiffs in these two consolidated actions claim to be Wampanoag Indians. They have brought an action in the Probate Court and another in the Superior Court in Suffolk County, alleging several violations of State
The long and tortuous history of the land dispute, and the inception of these actions, is set forth in two opinions of the United States Court of Appeals for the First Circuit, James v. Watt, 716 F.2d 71 (1st Cir. 1983), cert. denied sub nom. James v. Clark, 467 U.S. 1209 (1984), and James v. Bellotti, 733 F.2d 989 (1st Cir. 1984). There is no need to repeat the background which is adequately detailed in these two opinions.
The judge was correct. The original action brought by the defendant, Wampanoag Tribal Council of Gay Head, Inc. v. Gay Head, No. 74-5826 (D. Mass.) (Gay Head I), is twelve years old and was eight years old when the plaintiffs sought to intervene in it as a party. The Federal courts have acquired exclusive in rem and in personam jurisdiction over the final disposition of all the land claims. See James v. Bellotti, 733 F.2d at 993. Under the applicable statute, 25 U.S.C. § 177 (1982), a conclusive decision of the land claims necessarily requires determinations of (1) whether a tribe of Gay Head Indians exists, and (2) whether the defendant has authority to speak for that tribe. See James v. Watt, 716 F.2d at 72.
The second determination is the one involved in these cases. When they sought to intervene in the original action, the plaintiffs were aware of the fact that the defendant claimed that it, not the plaintiffs, was the exclusive spokesman for the tribe. The plaintiffs’ motion to intervene in the original Federal action alleged that they were indispensable parties and that a failure to join them could lead to loss of their rights, on issue preclusion principles, to act independently of the tribe or the defendant. Moreover, the pleadings in the original action (particularly a motion to dismiss filed and argued by the town of Gay Head on the ground that the tribe was not a party to the suit) squarely
Cognizant of these facts, the plaintiffs withdrew their appeal from the order denying intervention in the original action.
We think the conclusion inescapable that the plaintiffs have engaged in a carefully calculated litigating strategy designed
Under the standards set forth in Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444, 450-451 (1982), we also have no doubt that the Federal District Court judge who heard Gay Head I would have taken and decided, under the doctrine of pendent jurisdiction, the plaintiffs’ present State claims had it been decided on appeal that his order denying the plaintiffs’ intervention was erroneous. By the time intervention was sought, the judge had spent a considerable amount of time and effort in the litigation of Gay Head I. The judge would not have wanted his efforts to be attacked collaterally in State courts on grounds that could have fairly been decided in the litigation before him. By withdrawing their appeal of the denial of intervention a week after the decision in James v. Watt, supra, by litigating the latter action to final judgment
Finally, it is of no consequence that a final judgment has not yet entered in Gay Head I.
2. As the action in the Superior Court (No. 65145) sought declaratory relief, it might have been preferable for the judge to have cast the judgment in a form which declared the basis for dismissing the claim. As that case, and the whole litigation, reveal unusual complexity, we think it the wiser course simply to affirm the judgment as it presently stands. The docket of the Probate Court for Suffolk County case (No. C-2390) reveals that no judgment has been entered in that case. One should be entered.
Accordingly it is ordered (1) that the judgment in Superior Court case No. 65145 be affirmed; and (2) that a judgment enter pursuant to Mass.R.Civ.P. 56(b), in Probate Court case No. C-2390, dismissing the complaint.
So ordered.
We expand the history of the litigation only to clarify one point and state another. First, the reference in James v. Bellotti, 733 F.2d at 992, to the dismissal of the so-called Bellotti I action is incorrect. Bellotti I is Probate Court, Suffolk County, No. C-2390 (1986), which is one of the two consolidated cases before us. The reference to a dismissal may not be to Bellotti I but may be to another action brought by the plaintiffs against the Attorney General and other defendants, namely, Probate Court, Suffolk County, No. 84E-0047 (1984).
Second, the Federal legislation necessary to consummate the settlement apparently is still before Congress. See H.R. 2868, 99th Cong., 1st Sess. (1985), “A BILL To settle Indian land claims in the town of Gay Head, Massachusetts.” In connection with that legislation, the Assistant Secretary for Indian Affairs in the Department of the Interior has apparently reached a preliminary conclusion that the Gay Head Indians may not meet
When this appeal was withdrawn, it had been calendared for oral argument in the United States Court of Appeals for the First Circuit. That court noted, in its opinion in James v. Watt, 716 F.2d at 77, a separate land claim brought by the plaintiffs which parallels Gay Head 1, that the question of the defendant’s authority to act for the tribe would be decided on the plaintiffs’ appeal from the denial of intervention.
Specifically, the court said the following:
“For another thing . . . other Indians [viz., the Indians represented by the defendant in these cases] have brought a suit on behalf of the Gay Head tribe to obtain land on the peninsula, and they are presently in the process of settling their suit. The plaintiffs here disagreed with the plaintiffs in the other suit, but they evidently did not, or could not, name the tribe as a party plaintiff in this case because the other plaintiffs control the tribe. These facts suggest to us that the pleadings in this case were drawn as part of a litigating strategy and plaintiffs showed the district court no reason why they should not be bound by the consequences of that strategy. In any event, the issue at stake — whether plaintiffs here have a right to upset the settlement entered into by the tribe and its other members — is more appropriately before us in another case appealed to this court, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head, No. 83-1163, scheduled to be heard this September” (bracketed material added).
It is argued that not all the plaintiffs in these cases attempted to intervene in the original action. Consequently, it is urged that these “new” plaintiffs cannot be precluded by litigation to which they were not a party. Although not certified as a class, we think these plaintiffs who did not seek to intervene in the original action were effectively present through the representation of the defendant. Moreover, when two actions raise the same issues, arise out of the same occurence, and, especially, where a victory by any one plaintiff will necessarily benefit equally everyone similarly situated, issue preclusion should not be avoided simply by adding new people to a hundred-name list of plaintiffs. Such an approach would give a vexatious litigant a potent weapon to avoid the finality of judgment despite adequate opportunities to litigate dispositive issues.
This is so because the plaintiffs’ State law theories depend on the syllogism that they are Gay Head Indians, that the defendant does not represent them, and that, as a result, the defendant’s asserted representation constitutes a misappropriation of their names and an interference with their privacy. This overlooks the fact that a bona fide tribal government possesses the right to bind individual tribal members against their will, just as a State may enforce a law against a citizen who disagrees with that law. The question of the defendant’s authority to represent the tribe has been adjudicated as far as the plaintiffs are concerned. It logically follows from that determination that the defendant cannot have misappropriated the plaintiffs’ names or interfered with their privacy.
The plaintiffs also assert that because the defendant has organized as a Massachusetts charitable corporation it has only that power over tribal members that State law gives such a corporation over its members. This view is wrong. If the Gay Head Indians constitute a tribe, and the defendant is its government, (an issue now apparently under decision in Washington) the tribe is a sovereign, and it is not answerable to State law. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
The entry of final judgment in Gay Head I is made contingent by the joint memorandum of settlement on the passage of the Federal legislation authorizing and implementing the settlement.
This conclusion applies equally to the claims alleging fraud and deceit in the 1983 tribal vote approving the settlement. By abandoning their appeal from the intervention issue, the plaintiffs lost standing to attack the settlement on State law grounds which would have been accepted for decision on the basis of pendent jurisdiction. Moreover, if a tribe does exist, see note 2, supra, it is likely, given the sovereignty of Indian tribes, that any question pertaining to the regularity of the vote approving the settlement may also be an exclusively Federal question. See note 5, supra.
If we are wrong in this analysis, we would still uphold the allowance of summary judgment on the fraud and deceit claims on an alternative ground. The defendant’s rule 56(b) motion was accompanied by affidavits and materials which, in our opinion, demonstrated that the vote was conducted regularly and properly. That being the case, the plaintiffs, to avoid summary judgment, were required to allege specific facts which established that there existed a genuine triable issue. Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976). It is not sufficient to rely upon conclusions, assertions in legal memoranda, allegations in pleadings, or the hope that the judge might draw contradictory inferences from materials in the record. See Farley v. Sprague, 374 Mass. 419, 425 (1978). Specifically, the plaintiffs were required to proffer specific facts which supported their fraud and deceit claims. See, e.g., Old Towne Liquor Store, Inc. v. Alcoholic Beverages Control Commn., 372 Mass. 152, 155 (1977); First Natl. Bank v. Slade, 379 Mass. 243, 245 (1979).
In our view, the plaintiffs failed to meet that burden. The only allegations in their affidavit concerning the vote are contained in paragraphs 30, 31 and 35. We do not consider the mere assertion, without more, that “partisan literature” was included with the ballots as creating an issue of fact. The affidavit furnished on behalf of the defendant provides the material distributed to the voters which, in the absence of anything further, we find to be impartial. Thus, the conclusion that the literature was “partisan” without more does not suffice to create an issue for trial.
Further, the assertion that after the vote “157 ballots [were] unaccounted for” does not establish the possibility of fraud, as the plaintiffs’ affidavit establishes its own complete answer to this assertion. According to the plaintiffs, 350 ballots were mailed but only 193 votes were said to have been received and tallied. The allegedly missing ballots are accounted for in paragraph 30 of the plaintiffs’ affidavit, which states that the plaintiffs,