Brooks v. Nez Perce County, Civ. No. 2-72-27.

• Decision Date: 25 April 1975
• Docket Number: Civ. No. 2-72-27.
• Citation: 394 F. Supp. 869
• Parties: Vera Rogers BROOKS and Ada Rogers Graham, Plaintiffs, v. NEZ PERCE COUNTY et al., Defendants.
• Court: U.S. District Court — District of Idaho

394 F. Supp. 869

Vera Rogers BROOKS and Ada Rogers Graham, Plaintiffs, v. NEZ PERCE COUNTY et al., Defendants.

Civ. No. 2-72-27.

United States District Court, D. Idaho.

April 25, 1975.

Allen Sims and Robert P. Stephens of Idaho Legal Services, Inc., Lewiston, Idaho, for plaintiffs.

Dean W. Kaplan and Theodore V. Spangler, Jr., Asst. Attys. Gen., State of Idaho, State Tax Comm., Boise, Idaho, for defendant Nez Perce County, Idaho.

William A. Stellmon, Ware, Stellmon & O'Connell, Lewiston, Idaho, for defendants Vale and Vivian A. Lisher.

MEMORANDUM OF OPINION AND ORDER

J. BLAINE ANDERSON, District Judge.

This matter is now before the Court on plaintiffs' motion for summary judgment on the questions of title and the right to possession of certain real property described below which plaintiffs contend is Indian trust property of which they were wrongfully dispossessed. The defendants, Nez Perce County ("County") and Vale and Vivian Lisher ("Lishers") have moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

As is often the case, unconventional litigation in federal court brings with it difficult questions of federal jurisdiction. This case is no exception. The Court has considered the arguments and the briefs of the parties and is now of the opinion that it lacks the power to proceed. Accordingly, the motion for summary judgment will not be considered. The relevant facts set forth below are taken from the amended complaint and the supporting summary judgment papers.

I.

The plaintiffs are the daughters of Hattie Davis Rogers, a full-blood Nez Perce Indian, now deceased, who was an allottee of an original trust patent on the Nez Perce Indian Reservation issued on June 13, 1895. On May 12, 1912, the United States, acting through the Superintendent of the Nez Perce Tribal Agency and in trust for Hattie Davis Rogers, purchased a parcel of real property within the Nez Perce Indian Reservation, described as Lot 1, Block 8, Toyaulkt's Addition, City of Lapwai, County of Nez Perce, State of Idaho ("subject property"). The money used to purchase the subject property was a portion of the proceeds from the sale of her original allotment by the United States at her request pursuant to 25 U.S.C. § 405,¹ proceeds which were likewise held in trust by the United States for her pursuant to that statute.

Sometime prior to January 10, 1916, the County levied and assessed property taxes against the subject property and other parcels of property which had also been purchased for other Indians with proceeds of the sale of their original allotment. Consequently, on that date the United States, acting in its fiduciary capacity as trustee of those properties, brought an action in the United States District Court for this district against the County to have those tax levies and assessments set aside and declared void, to enjoin the County from levying taxes on the properties in the future and to quiet title in the United States as trustee for the beneficiaries, one of which was Hattie Davis Rogers. United States v. Nez Perce County, No. 459. (Decree of Judge Dietrich, infra).

The County appeared and contested the relief sought, at one point moving to dismiss the government's amended complaint on the grounds that the subject property and the other parcels were not trust properties and, therefore, were taxable. In ruling on the motion, however, Judge Dietrich, then District Judge, concluded that the properties remained trust properties because the original allotments had been sold pursuant to what is now 25 U.S.C. § 405, such that the proceeds from the sale of the allotment also were held in trust for the benefit of the allottees and non-taxable. United States v. Nez Perce County, 267 F. 495 (D.C.Idaho 1917). Subsequently, on May 10, 1918, Judge Dietrich entered a decree in the case adjudging that any and all property tax levies, assessments or tax deeds issued prior to January 10, 1916, on the subject property and the other parcels were null and void. The decree also enjoined the County from levying or assessing any taxes on the properties so long as the United States held title in trust for the beneficiaries and enjoined the County from in any manner encumbering or casting a cloud on the title of the United States or the interest of the beneficiaries or asserting any right or title to the interest of the United States or its Indian wards.

In 1923 the County again levied property taxes on the subject property in the amount of $44.29 and this assessment was never paid.

On May 27, 1926, Hattie Davis Rogers conveyed her beneficial interest in the subject property to her two minor daughters, the plaintiffs herein. This transfer was by deed entitled, "Deed Noncompetent Indian Lands" and provided that the transfer "was subject to the condition that while the title is in the grantees or heirs, the land or property shall not be alienated or encumbered without the consent of the Secretary of Interior, . . ." This deed was recorded in the offices of the Secretary of the Interior in Washington, D.C. However, there is nothing on its face indicating that the transfer was made with the consent of the Secretary.

On March 16, 1928, the County issued a tax deed to the subject property based upon the unpaid 1923 assessment and on May 12, 1937, held a tax sale of the subject property. The property and all improvements were purchased by Forrest Lisher for $253.50. Forrest Lisher later died, purportedly leaving the subject property to his wife, who, in 1972 conveyed it to the Lishers. The Lishers have leased the subject property from time to time and now lease the property to the defendants Bernard and Audrey Charpentier, who operate a tavern on all or a portion of it.

Based upon these facts, the plaintiffs instituted this action against the County, the Lishers and the Charpentiers. Plaintiffs seek to have the tax assessment and tax deed and sale of subject property declared void, possession of the subject property, to quiet title in the name of the United States as trustee for them, an award of punitive damages and lost profits against the County, a declaration that the lease between the Charpentiers and the Lishers is void, and attorneys' fees.

II.

In their amended complaint plaintiffs set forth numerous statutes which in their minds confer federal jurisdiction over their cause of action. Plaintiffs invoke jurisdiction under 28 U.S.C. § 1331, § 1343(3), § 1345, § 1337, § 1353 and 25 U.S.C. § 345. However, upon examination, their jurisdictional allegations are without merit.

28 U.S.C. § 1343(3)² is the jurisdictional counterpart to 42 U.S.C. § 1983,³ the civil rights statute. Thus, it is incumbent upon plaintiffs to allege in their complaint a cause of action against a "person" within the meaning of 1983 who has, under color of state law, deprived them of a right, privilege or immunity secured by the Constitution or laws. As respects their allegation of jurisdiction under 1343(3), it is sufficient to state that, at least with respect to suits for damages, a county is not a "person" within the meaning of the civil rights statute. Monroe v. Pape, 365 U. S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Viewing the allegations against the Lishers and the Charpentiers in their most favorable light, there is not the slightest allegation or inference that those defendants acted or are acting under color of state law to deprive plaintiffs of their property or that such a deprivation even amounted to a violation of civil rights. Sykes v. State of California, 497 F.2d 197 (9th Cir. 1974).

Neither is jurisdiction conferred under 28 U.S.C. § 1345.⁴ Plaintiffs' argument that the United States, as trustee, has the right to bring this action but has not seen fit, giving the plaintiffs, as holders of the beneficial interest, the right to sue, does not alter the fact that this action was not "commenced by the United States". Cf. Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.C.D.C.1973). Plaintiffs may certainly have the right to sue to protect their interests but 28 U.S.C. § 1345 provides no access for them into this Court.

Plaintiffs rely upon 28 U.S.C. § 1353⁵ which is a jurisdictional recodification of 25 U.S.C. § 345⁶. However, the claim here is not of a denial of a right to an allotment of land as against the United States nor is the subject property an original allotment of land. 28 U.S.C. § 1353 was not intended as a jurisdictional means to determine title or possession to all Indian lands. Cf. Seifert v. Udall, 280 F.Supp. 443 (D.C. Mont.1968). It is a limited consent by the United States to be sued in order to assert the right to an allotment or the preservation of it as against the government. Scholder v. United States, 428 F.2d 1123 (9th Cir. 1970).

The allegation that jurisdiction is conferred by 28 U.S.C. § 1337⁷ is unique, considering the type of claim plaintiffs have set forth. Since plaintiffs also argue that jurisdiction is conferred by the federal question statute, 28 U.S.C. § 1331,⁸ and rely upon the same statutes and treaty for both arguments, they will be considered together. If plaintiffs' action is not one "arising under" the Constitution, laws or treaties of the United States, then neither does it arise under an Act of Congress regulating commerce. Carlson v. Coca-Cola Company, 483 F.2d 279 (9th Cir. 1973).

The rules of play are well-known. Before an action may be considered as one "arising under" some federal law, the well-pleaded complaint must show that federal law is an essential element of the plaintiffs' claim, unaided by anticipatory, defensive allegations. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Phillips Petroleum Company v. Texaco, 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed. 2d 209 (1974). And since plaintiffs' claim against the County is quite different from their claim against...