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United States District Court, Northern District of Illinois, E.D

September 9, 1982


The opinion of the court was delivered by: Hart, District Judge.


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

Factual Summary

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, 1911.

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
  said courts.

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.


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