269 F.2d 555 (9th Cir. 1959), 16008, Skokomish Indian Tribe v. France

Docket Nº16008.
Citation269 F.2d 555
Party NameSKOKOMISH INDIAN TRIBE, Appellant, v. E. L. FRANCE, Trustee, et al., Appellees.
Case DateJune 26, 1959
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 555

269 F.2d 555 (9th Cir. 1959)

SKOKOMISH INDIAN TRIBE, Appellant,

v.

E. L. FRANCE, Trustee, et al., Appellees.

No. 16008.

United States Court of Appeals, Ninth Circuit.

June 26, 1959

Page 556

Keith, Winston & Repsold, Spokane, Wash., Little, Le Sourd, Palmer, Scott & Slemmons, Kenneth A. Cox, Keith M. Callow, Frederick Paul, Malcolm S. McLeod, Seattle, Wash., for appellant.

Skeel, McKelvy, Henke, Evenson & Uhlmann, William E. Evenson, Jr., Seattle, Wash., Carnahan, Gordon & Goodwin, Harry Sager, Tacoma, Wash., Glenn E. Correa, Shelton, Wash., Ryan, Askren, Mathewson, Carlson & Bush, Raymond C. Swanson, Seattle, Wash., Marshall McCormick, City Attorney, Robert R. Hamilton, Allan B. Billett, Asst. City Attys., Tacoma, Wash., B. Franklin Heuston, J. W. Graham, Shelton, Wash., for appellees.

Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Atty., Dept. of Justice, Washington, D.C., Charles P. Moriarty, U.S. Atty., Seattle, Wash., Charles W. Billinghurst, Asst. U.S. Atty., Tacoma, Wash., for appellee, U.S.A.

John J. O'Connell, Atty. Gen., H. T. Hartinger, E. P. Donnelly, Asst. Attys. Gen., State of Washington, for appellee, State of Washington.

Before POPE, CHAMBERS, and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

This is a trespass and quiet-title action involving certain tidelands located at the head of Hood Canal in the State of Washington. The action was commenced by

Page 557

the Skokomish Indian Tribe which claims the tidelands by virtue of a certain treaty and an executive order. Named as defendants are the State of Washington and several corporations and individuals who are alleged to claim some interest in these tidelands.

After proceedings extending over several years an order was entered (1) denying plaintiff's motion to order the joining of the United States of America as an additional party plaintiff, (2) dismissing the action as to the State of Washington for want of consent to be sued in a federal court, and (3) dismissing the action as to all defendants for want of jurisdiction of the subject matter. Plaintiff appeals, contesting each of these rulings. 1

The last of these rulings will be considered first. Appellant predicates jurisdiction on§§28 U.S.C.A. 1331 and 1345. The effect of the order under review is to deny the applicability of either of these jurisdictional statutes.

Under §1331 district courts have original jurisdiction of civil actions wherein the matter in controversy exceeds the sum or value of three thousand dollars, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. Appellant argues that the allegations of the complaint establish the jurisdictional prerequisites specified in §1331. 2

The allegations relied upon are summarized in this and the following three paragraphs. The Skokomish Indian Tribe and certain other tribes entered into a treaty with the United States on January 26, 1855. 3 Article II of this treaty reserved to the tribes an aggregate of six sections of land at the head of Hood Canal. The sections referred to in this treaty were not specifically described, it being provided that they would be thereafter set apart. Article IV of this treaty reserved to the Indian tribes certain fishing rights 'at usual and accustomed grounds and stations.'

On February 25, 1874, and executive order was issued by President Grant setting aside the present Skokomish Indian Reservation. This order employs a metes and bounds description which is stated to be 'inclusive of the six sections situated at the head of Hood's Canal, reserved by treaty with said Indians January 26, 1855. * * *' The metes and bounds description closes with these words: '* * * thence southerly and easterly along said Hood's Canal to the place of beginning.'

Continuing with the summary of the complaint: It was the intent and purpose of the United States and of the Indian tribes which executed this treaty to encourage the tribes to reside at one place on a reservation which would be sufficient for their wants. The effect of the executive order was to reserve for the exclusive use, benefit, and occupancy of the Skokomish Indian Tribe the described uplands and adjacent shorelands on Hood Canal. Included in such reservation was the exclusive right to use the bed of Hood Canal and all tidelands touching and bordering the reservation, also including the exclusive fishing rights mentioned in article IV of the treaty.

It is finally alleged that notwithstanding the setting aside of rights in these tidelands to the Skokomish Indian Tribe the State of Washington has leased and conveyed portions thereof to certain of the defendants, and claims ownership of the remaining portions. The portions so conveyed or claimed are described with particularity and the persons claiming an interest in each such portion are named.

Page 558

Appellees other than the State of Washington and the United States argue that under these allegations only the meaning of descriptive words in an executive order is involved. Since, in their view, no provision of the Constitution, laws, or treaties of the United States is at issue, they contend that the action does not give rise to a federal question within the meaning of §1331. Appellant, on the other hand, urges in effect that the meaning of the executive order is dependent upon the construction to be placed upon the treaty of 1855 concerning which the parties are in disagreement.

The executive order makes reference to the treaty. It was apparently designed to describe the land actually reserved by the treaty. The treaty mentions certain fishing rights. The executive order specifies boundary lines bordering on waters where fishing may be an important activity. There is accordingly a relationship between the treaty and the order which may or may not have significance. The parties are in disagreement as to the meaning of the executive order. Under these circumstances it is our view that ascertainment of the meaning of the order draws into question the construction of the treaty.

It is therefore our conclusion that under the allegations of the complaint a claimed right created by treaty is an essential element of appellant's cause of action. It is a right which will be supported if the treaty is given the construction for which appellant contends, and defeated if given the construction advocated by appellees. The controversy as to the meaning of the treaty is a genuine and present controversy. It is not specifically alleged in the complaint that appellees contest appellant's interpretation of the treaty. But this is necessarily to be inferred from the allegations concerning the nature of the claims which appellees assert.

It follows that the complaint meets the essential tests requisite to the existence of federal-question jurisdiction under§28 U.S.C.A. 1331. 4

It is true, as appellee State of Washington contends, that jurisdiction under §1331 does not obtain if prior decisions have so defined the claimed federal rights that they are removed from controversy. 5 The arguments made and authorities cited on this appeal have not convinced us that the controversy concerning the meaning of this treaty has been set at rest by prior decisions. 6

Appellees other than the State of Washington and the United States further argue, however, that even if a federal question is presented jurisdiction under §1331 may not be invoked because the complaint fails to show that the matter in controversy exceeds the sum of three thousand dollars. As before noted, such a showing must be made if §1331 is to apply.

It is alleged in the complaint that the matter in controversy exceeds the sum of three thousand dollars. It is not alleged, however, that the matter in controversy exceeds this sum as to each defendant.

The land involved in this quiet-title action is divided into separate parcels, each described with particularity in the complaint, separate appellees being named as to each such parcel. 7 All of

Page 559

the appellees, however, claim to derive their title from a common source. 8 Moreover, while the land in question is divided into parcels, it comprises essentially a single tract of land consisting of the tidelands adjoining the Skokomish Indian Reservation.

Under these circumstances the value of the entire tract is to be considered in determining whether the jurisdictional amount has been pleaded, notwithstanding the fact that the claims of individual appellees relate to particular parcels contained in such tract. 9 The allegations of the complaint with regard to the jurisdictional amount are therefore adequate.

We accordingly hold that the district court had federal-question jurisdiction under §1331. It was therefore error to dismiss the action as to all defendants for want of jurisdiction of the subject matter.

It is contended by appellees that a prior quiet-title action instituted in the Superior Court of the State of Washington for Mason County, involving some of the same lands and appellees, makes it necessary to dismiss this action. The state action was instituted by one of the appellees. According to the contentions of appellees, as set out in the pretrial order, it involves title to 'part' of the lands involved in the instant suit. Appellant and six other appellees are named defendants in the state action.

The parties differ widely in their opinion as to the similarity of issues in the two suits. The briefs and record do not provide enough information to enable us to resolve the conflict. Appellees contend, however, that appellant failed to appear in that action and that an order of default was entered against it. Under the circumstances we need not pass upon this contention at the present time. If in the further proceedings before the district court it is determined that as to some parcels or some appellees a prior state action involving substantially the same issues is...

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34 practice notes
  • 591 F.2d 1300 (Fed. Cir. 1979), 772-71, Mitchell v. United States
    • United States
    • Federal Cases Court of Federal Claims
    • January 24, 1979
    ...F.2d 1194, 1198, 190 Ct.Cl. 790, 797--98, cert. denied, 400 U.S. 819, 91 S.Ct. 37, 27 L.Ed.2d 47 (1970); Skokomish Indian Tribe v. France, 269 F.2d 555, 560 (9th Cir. 1959); Donahue v. Butz, 363 F.Supp. 1316, 1320, 1323, 1324 In others of defendant's 'precedents,' there was no statute empow......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • June 26, 1978
    ...Amendment immunity (State of Missouri v. Fiske, 290 U.S. 18, 24, 54 S.Ct. 18, 78 L.Ed. 145 (1933); Skokomish Indian Tribe v. France, 269 F.2d 555, 560 (9th Cir. 1959) ), such a waiver is not lightly to be inferred. Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1361 (9th Cir. 19......
  • 674 F.2d 1277 (9th Cir. 1982), 80-4373, Moose v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • April 19, 1982
    ...the consent of the United States to be sued ... cannot be predicated on the guardian and ward concept. Skokomish Indian Tribe v. France, 269 F.2d 555, 560 (9th Cir. 1959) (footnotes omitted). 1 Another general proposition relied on by the majority is the idea that Indian funds held or contr......
  • 676 P.2d 1011 (Wash.App. Div. 1 1983), 11120-5, State v. Courville
    • United States
    • Washington Court of Appeals of Washington
    • December 12, 1983
    ...State Comm'l Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Skokomish Indian Tribe v. France, 269 F.2d 555 (9th Cir.1959). The State does not contend that the reservation to take "fish" in these treaties exempts shellfish. In fact, the reservat......
  • Request a trial to view additional results
34 cases
  • 591 F.2d 1300 (Fed. Cir. 1979), 772-71, Mitchell v. United States
    • United States
    • Federal Cases Court of Federal Claims
    • January 24, 1979
    ...F.2d 1194, 1198, 190 Ct.Cl. 790, 797--98, cert. denied, 400 U.S. 819, 91 S.Ct. 37, 27 L.Ed.2d 47 (1970); Skokomish Indian Tribe v. France, 269 F.2d 555, 560 (9th Cir. 1959); Donahue v. Butz, 363 F.Supp. 1316, 1320, 1323, 1324 In others of defendant's 'precedents,' there was no statute empow......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • June 26, 1978
    ...Amendment immunity (State of Missouri v. Fiske, 290 U.S. 18, 24, 54 S.Ct. 18, 78 L.Ed. 145 (1933); Skokomish Indian Tribe v. France, 269 F.2d 555, 560 (9th Cir. 1959) ), such a waiver is not lightly to be inferred. Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1361 (9th Cir. 19......
  • 674 F.2d 1277 (9th Cir. 1982), 80-4373, Moose v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • April 19, 1982
    ...the consent of the United States to be sued ... cannot be predicated on the guardian and ward concept. Skokomish Indian Tribe v. France, 269 F.2d 555, 560 (9th Cir. 1959) (footnotes omitted). 1 Another general proposition relied on by the majority is the idea that Indian funds held or contr......
  • 676 P.2d 1011 (Wash.App. Div. 1 1983), 11120-5, State v. Courville
    • United States
    • Washington Court of Appeals of Washington
    • December 12, 1983
    ...State Comm'l Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Skokomish Indian Tribe v. France, 269 F.2d 555 (9th Cir.1959). The State does not contend that the reservation to take "fish" in these treaties exempts shellfish. In fact, the reservat......
  • Request a trial to view additional results