United States District Court, Northern District of Illinois, E.D
September 9, 1982
JAMES COLEMAN, JR., HELEN FIGURES, B. HAMMOND, MARSHALL KELLY, IPETHA LEWIS, BRENDA PHILLIPS, EARL REAGAN, FRED REAGAN, MARY REAGAN, AND LONNIE WHITAKER, PLAINTIFFS,
THE UNITED STATES OF AMERICA BUREAU OF INDIAN AFFAIRS, DEFENDANT.
The opinion of the court was delivered by: Hart, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs James Coleman, Jr., Helen Figures, B. Hammond,
Marshall Kelly, Ipetha Lewis, Brenda Phillips, Earl Reagan, Fred
Reagan, Mary Reagan, and Lonnie Whitaker ("Plaintiffs"), heirs
and descendants of Creek Indians, brought this action against the
United States of America Bureau of Indian Affairs ("United
States"), alleging that the United States, as trustee over lands
which were allotted to the plaintiffs' ancestors, has breached
its fiduciary duty by failing to sell the plaintiffs' land
advantageously or selling it at artificially low prices.
Plaintiffs request an accounting and damages and interest
allegedly accumulated since 1906.
This matter is presently before the Court on the United States'
motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b). Plaintiffs allege jurisdiction
pursuant to 28 U.S.C. § 1331, 1346 and 1353 and that the amount
in controversy is more than $10,000.00. For the reasons set forth
below, the Court finds that jurisdiction is lacking and,
therefore, the defendant's motion to dismiss is granted.*fn1
Plaintiffs allege that they are heirs and descendants of
members of the Creek Indian Nation. The Creek Indians are one of
the "Five Civilized Tribes."*fn2 See Act of April 26, 1906. 34 Stat.
137, § 1. The Five Civilized Tribes entered into numerous
agreements with the United States, thereby relinquishing control
over large tracts of land situated in what is now the eastern
half of the State of Oklahoma. Two of those agreements are at
issue in this case. Act of March 1, 1901, 31 Stat. 861; Act of
April 26, 1906, 34 Stat. 137. According to those agreements, each
properly enrolled Creek would receive a portion of the ceded land
or its corresponding dollar value.
It is undisputed that plaintiffs' ancestors received title to
their respective allotments. Plaintiffs, however, allege that in
1906, and without due process of law or an accounting, the
Territorial Government of Oklahoma took over certain of the
allotted property, then valued at approximately $30.00 per acre.
Consequently, plaintiffs allege that the Territory of Oklahoma
became with the United States co-trustee*fn3 of the disputed
land for the benefit of the allottees.*fn4 Plaintiffs further allege
that between 1907 and 1920, the United States either sold the
disputed land at below market price or failed to sell to the
disadvantage of the plaintiffs and that the United States
permitted dissipation of the plaintiffs' property by improperly
enlarging the membership rolls of the Creek Nation. The
plaintiffs state, by supplementing their Amended Complaint, that
they only discovered the details of these alleged improprieties
in 1978 and 1979 while engaging in library research. They also
allege that their several written requests for accountings of
trust assets, commencing in the late 1930's and continuing
through 1979, have been denied by the United States.
Lack of Jurisdiction
In support of its motion to dismiss, the United States argues
that the plaintiffs' claims must be pursued in the Court of
Claims and not in a district court. This is because the
plaintiffs are members of one of the Five Civilized Tribes, which
tribes arguably are denied access to the district courts by the
terms of several acts of Congress.
28 U.S.C. § 1353
Section 1353 provides
The district courts shall have original jurisdiction
of any civil action involving the request of any
person, in whole or in part of Indian blood or
descent, to any allotment of land under any Act of
Congress or treaty.
but the provision shall not apply to any lands held
or on before December 21, 1911, by either of the Five
Civilized Tribes. . . .
Section 1353 is a recodification of 25 U.S.C. § 345, the latter
title dealing exclusively with Indian affairs. Thus § 345 also
prohibits to the Civilized Tribes access to the district courts
for claims relating to land allotted on or before December 21,
The parties have not cited any cases in which the proviso in §§
1353 or 345 regarding the Five Civilized Tribes has been
construed and we could find none.*fn5 However, the statute seems
clear: where, as here, claims relate to lands allotted before
1911, a member of one of the Five Civilized Tribes may not sue on
that claim in a district court. This apparent plain reading of §
1353 is yet more compelling when considered in conjunction with
possible district court jurisdiction pursuant to 28 U.S.C. § 1331.
28 U.S.C. § 1331
28 U.S.C. § 1331 grants the district courts original
jurisdiction "of all civil actions arising under the
Constitution, laws or treaties of the United States." Thus § 1331
does not provide an independent jurisdictional basis but
predicates jurisdiction on another source: a federal law, treaty
or the Constitution, from which the claim arises. Gully v. First
National Bank of Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70
(1936); Phillips Petroleum v. Texaco, 415 U.S. 125, 94 S.Ct.
1002, 39 L.Ed.2d 209 (1974); Hagans v. Lavine, 415 U.S. 528, 94
S.Ct. 1372, 39 L.Ed. 577 (1974). Plaintiffs' substantive claims
clearly arise under two United States statutes: Act of March 1,
1901, 31 Stat. 861, providing for allotments to Creek Indians and
Act of April 26, 1906, 34 Stat. 137, establishing, in pertinent
part, methods for enrollment of members of the
Five Civilized Tribes onto official rolls and uses to which the
allotments may be put.
The Act of 1901, however, contains a specific remedy provision
for disputes arising thereunder which is contradictory to §
1331's jurisdictional grant. Section 26 of the Act of 1901,
entitled "Claims", provides
All claims of whatsoever nature, . . . which the
tribe or any individual thereof may have against the
United States, or any other claim arising under the
treaty of eighteen hundred and sixty-six; or any
claim which the United States may have against said
tribe shall be submitted to the Senate of the United
States for determinations; and within two years from
the ratification of this agreement the Senate shall
make final determination thereof;
Any other claim which the Creek Nation may have
against the United States may be prosecuted in the
Court of Claims of the United States, with rights of
appeal to the Supreme Court; and jurisdiction to try
and determine such claim is hereby conferred upon
One construction of the remedy provision is that the direction
to bring to the Court of Claims "any other claim which the Creek
Nation may have against the United States" is merely precatory,
i.e., "may be prosecuted in the Court of Claims." Although the
statute is silent, the implication is that such other claims
might alternatively proceed in the district courts.
In light of 28 U.S.C. § 1353, and its counterpart 28 U.S.C. § 345,
we reject this construction. Sections 1353 and 345 provide,
as noted above, that the Five Civilized Tribes "shall" not bring
actions in the district courts regarding allotments of land held
by those tribes before 1911. The language of § 1353 and § 345 is
not precatory but expressly prohibitive. Nonetheless, neither
statute indicates which forum other than a district court is
appropriate. It is only by reading §§ 1353 and 345 with the Act
of 1901 that Congress' intention becomes clear: claims relating
to allotments of land to the Five Civilized Tribes should proceed
in the Court of Claims. See, e.g., Erlenbaugh v. United States,
409 U.S. 239, 93 S.Ct. 477, 34 L.Ed.2d 446 (1973); First Nat'l
Bank of Milaca v. Smith, 445 F. Supp. 1117 (D.C. Minn. 1977)
(statutes relating to same general subject matter are to be
construed together in order to effectuate both). This conclusion
is supported by the fact that § 345 was enacted with the
jurisdictional proviso in 1894 and amended without change to the
proviso in 1901, by the same Congress that passed the Act of 1901
just one month later.*fn6
We are aware that some Creek Indians have successfully brought
actions in the district courts by invoking § 1331 jurisdiction in
conjunction with the Acts of 1901 and 1906. The case of Harjo v.
Kleppe, 420 F. Supp. 1110 (D.D.C. 1976), aff'd sub nom. Harjo v.
Andrus, 581 F.2d 949 (D.C.C. 1978), is illustrative. In Harjo,
the plaintiffs, Creek Indians, sought declaratory and injunctive
relief from, inter alia, the policy and practice of the Interior
Department in recognizing and dealing with the defendant as the
Principal Chief of the Creek Nation. The Harjo plaintiffs
contended that the defendants' actions violated various
Congressional statutes, including those in issue in the instant
case. The Harjo defendants alleged that jurisdiction was improper
because the question under consideration was political, i.e., the
United States' alleged interference into tribal government.
According to the district court in Harjo, the defendants
confused justiciability, i.e., the appropriateness of a subject
for judicial consideration, with jurisdiction, i.e., the power of
the court to hear a matter. In its view, jurisdiction was proper
pursuant to 28 U.S.C. § 1331 as the "question clearly arose under
the laws of the United States." 420 F. Supp. at 1116.
Despite that decision, we are not persuaded that Harjo is
instructive in the instant case. Apparently, the court was not
asked to consider in which forum — the district court or the
Court of Claims — a member of the Creek Nation could bring a
claim arising under the Act of 1906 (and Act of 1901). Surely we
cannot assume that the matter was considered and decided in favor
of district court jurisdiction but that no recitation of the
deliberation was made in the opinion. See also Groundhog v.
Keeler, 442 F.2d 674 (10th Cir. 1971).
We therefore conclude that 28 U.S.C. § 1331 cannot provide a
basis for jurisdiction in this Court because the very law that
would give life to the plaintiffs' claims in this Court, the Act
of 1901, is fatal to it.*fn7 28 U.S.C. § 1346
Jurisdiction cannot be asserted pursuant to 28 U.S.C. § 1346
for reasons identical to the failure of jurisdiction pursuant to
§ 1331. Section 1346(a)(2) provides that the
district courts shall have original jurisdiction,
concurrent with the Court of Claims, of: "[a]ny other
civil action or claim against the United States, not
exceeding $10,000 in amount, founded either upon the
Constitution, or any Act of Congress,
Because this claim arises under the Act of 1901, its specific
remedy provision forecloses jurisdiction under § 1346 as well as
under § 1331. See discussion supra. Moreover, the plaintiffs, by
alleging that the amount in controversy is in excess of $10,000,
have removed their claim from the purview of § 1346.
As jurisdiction is improper under either §§ 1331, 1346 or 1353,
the defendant's motion to dismiss this action is granted.
IT IS SO ORDERED.