Chilkat Indian Village v. Johnson, 86-4312

• Decision Date: 23 March 1989
• Docket Number: No. 86-4312,86-4312
• Citation: 870 F.2d 1469
• Parties: CHILKAT INDIAN VILLAGE, a federally recognized Indian Tribe, Plaintiff-Appellant, v. Michael R. JOHNSON, an individual, Michael R. Johnson, Inc., a Washington Corporation, The Whale House Group, Defendants-Appellees, and State of Alaska, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1469

870 F.2d 1469

CHILKAT INDIAN VILLAGE, a federally recognized Indian Tribe, Plaintiff-Appellant, v. Michael R. JOHNSON, an individual, Michael R. Johnson, Inc.,

a Washington Corporation, The Whale House Group,

Defendants-Appellees,

and

State of Alaska, Defendant-Intervenor-Appellee.

No. 86-4312.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 1987.

Decided March 23, 1989.

Donald S. Cooper, Carol H. Daniel, Alaska Legal Services Corp., Anchorage, Alaska, for plaintiff-appellant.

Donna C. Willard, Willoughby & Willard, Anchorage, Alaska, for defendants-appellees.

Douglas K. Mertz, Asst. Atty. Gen., Juneau, Alaska, for defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Alaska.

Before POOLE, FERGUSON and CANBY, Circuit Judges.

CANBY, Circuit Judge:

Chilkat Indian Village is an Indian group organized under section 16 of the Indian Reorganization Act (IRA), 25 U.S.C. Sec. 476. It owns fee lands located in and around Klukwan, Alaska. The Village sued Michael Johnson and sixteen other defendants in federal district court, alleging that defendants violated a Village ordinance and federal law by removing Tlingit Native artifacts from Klukwan. The district court dismissed the Village's complaint for lack of subject matter jurisdiction, ¹ ruling that the Village failed to state a cause of action arising under federal law, as required by 28 U.S.C. Secs. 1331 and 1362. ²

We review the district court's ruling on subject matter jurisdiction de novo. Peter Starr Productions Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986).

I.

The artifacts at issue in this case are four carved wooden posts and a wooden partition called a rain screen. They have been described as "the finest example of Native art, either Tlingit or Tsimshian, in Alaska." Emmons, the Whale House of Chilkat, in Raven's Bones 81 (1982). Art dealers and museums have repeatedly attempted to purchase the artifacts.

The Chilkat Indian Village Council is the governing body of the Village under the Village's IRA-authorized constitution. In 1976, the Council enacted an ordinance prohibiting the removal of artifacts from Klukwan:

No person shall enter on to the property of the Chilkat Indian Village for the purpose of buying, trading for, soliciting the purchase of, or otherwise seeking to arrange the removal of artifacts, clan crests, or other traditional Indian art work owned or held by members of the Chilkat Indian Village or kept within the boundaries of the real property owned by the Chilkat Indian Village, without first requesting and obtaining permission to do so from the Chilkat Indian Village Council.

No traditional Indian artifacts, clan crests, or other Indian art works of any kind may be removed from the Chilkat Indian Village without the prior notification of and approval by, the Chilkat Indian Village Council.

Chilkat Indian Village Ordinance of May 12, 1976.

On April 22, 1984, several defendants removed the four posts and the rain screen from Klukwan and delivered them to defendant Michael Johnson, an Arizona art dealer. When the Village discovered that the artifacts had been removed, it notified authorities of the State of Alaska. The State began a criminal investigation, located the artifacts in a warehouse in Seattle, Washington, and took custody of the artifacts. ³

The Village then filed suit, seeking return of the artifacts and monetary damages for their removal. The Village alleged that it was a federally recognized Indian tribe, and that (1) the artifacts belong to the tribe, and defendants removed them without permission ⁴; (2) defendants violated the ordinance prohibiting removal of artifacts; and (3) defendants violated 18 U.S.C. Sec. 1163. ⁵ The district court dismissed the Village's section 1163 claim, ruling that the statute did not create a private cause of action. Chilkat Indian Village v. Johnson, 643 F.Supp. 535 (D.Alaska 1986). In a separate memorandum and order, the district court also ruled sua sponte that it lacked subject matter jurisdiction over the Village's remaining claims. The court reasoned that (1) the Village's first claim was a simple conversion claim with no federal underpinning; and (2) the Village ordinance claim did not arise under federal law for purposes of 28 U.S.C. Secs. 1331 and 1362.

II.

We agree that section 1163 provides no private right of action. In determining whether a statute gives rise to a private right of action, "[t]he central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action." Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979). It is true that the Supreme Court's "focus on congressional intent does not mean that [the Court] requires evidence that Members of Congress, in enacting the statute, actually had in mind the creation of a private cause of action." Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988). Nevertheless,

The intent of Congress remains the ultimate issue, ... and "unless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist."

Id. (quoting Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 94, 101 S.Ct. 1571, 1582, 67 L.Ed.2d 750 (1981)). Nothing in the language or statutory structure of section 1163 gives rise to an inference that Congress intended to create a private right of action. The legislative history suggests that Congress was wholly concerned with criminal, rather than civil, objectives. The Senate Report accompanying section 1163 consists primarily of a letter from Assistant Secretary of the Interior Andaahl, who described problems attending the expansion of fiduciary responsibilities of tribal officials:

[I]n most instances the creation of fiduciary positions has not been paralleled by corresponding safeguards in the law and order codes under which the tribes operate. Even in those instances where criminal sanctions are provided in the tribal codes, the tribal members have been extremely reluctant to bring actions in the tribal courts against apparently faithless tribal officials.

* * *

* * *

In these circumstances, it is important that adequtae [sic] penal safeguards be established to protect the tribal members from actions of dishonest or corrupt tribal officials and other types of peculation.

Sen.Rep. No. 2723 (1956), reprinted at 1956 U.S.Code Cong. & Admin. News 3841, 3842. In light of these difficulties in "obtaining the prosecution of persons who misused tribal property [,]" the Committee recommended passage. Id. The clear congressional emphasis seems to have been upon replacing a defective tribal criminal penalty with an effective federal one; a civil remedy cannot be fit easily into the picture.

Finally, the same legislative history recites that section 1163 is modeled after 18 U.S.C. Secs. 641, 656 and 660. Id. As the district court noted, Chilkat, 643 F.Supp. at 536-37, none of those sections has been held to give rise to a private right of action. In the absence, then, of any basis for inferring an intent on the part of Congress to create a private remedy, we are not free to fashion one. See Thompson, 108 S.Ct. at 520; Touche Ross, 442 U.S. at 576, 99 S.Ct. at 2489. We therefore affirm the district court's dismissal of the Village's section 1163 claim.

III.

We also agree with the district court that the Village's first and fifth causes of action amount to claims for conversion, and that they do not arise under federal law. Both claims are based upon allegations that the Village has a "paramount possessory interest" in the artifacts, and that the defendants took the artifacts without the Village's permission. The Village strongly asserts that its possessory interest arises under and is protected by federal law, but it has neither alleged nor offered any factual or legal bias for that assertion. The artifacts are not alleged to be trust property, nor property held pursuant to federal statute or federal common law. Whatever proprietary interest the Village has in the artifacts is a creature of tribal law or tradition wholly unconnected with federal law. No construction of federal law is necessary to adjudicate title. The claim is therefore entirely different from the claim successfully maintained in Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). In that case, the Oneida Nation was suing on a possessory interest, a right of occupancy, that had been shaped and protected by federal common law, reinforced by a treaty and the federal Nonintercourse Acts, Id. at 677-78, 94 S.Ct. at 782-83. No such federal foundation underlies the Village's conversion claims in this case. ⁶

IV.

The most difficult question is whether the Village's claim to enforce its ordinance arises under federal law. For reasons to be explained, we believe that the answer depends upon the status of the defendants against whom the ordinance is sought to be imposed.

Although the matter is certainly not free from doubt, we conclude that the claims for enforcement of the ordinance against the non-Indian defendants ⁷ does arise under federal law within the meaning of 28 U.S.C. Secs. 1331 and 1362.

For its second "cause of action," the Village alleges:

The Chilkat Tribe possesses paramount sovereign rights over the Whale House artifacts. Relying on the authority given to it by its federally-approved constitution and its reserved powers, the Chilkat Tribe has regulated the use and disposition of all tribal artifacts found within its borders.

It then goes on to allege that the Village's ordinance prohibited removal of the artifacts without permission of the Village Council, that the defendants violated the ordinance, and that the Village ...