Dodge v. Nakai
| Decision Date | 20 December 1968 |
| Docket Number | No. Civ-1209 Pct.,Civ-1209 Pct. |
| Citation | 298 F. Supp. 17 |
| Parties | John DODGE et al., Plaintiffs, v. Raymond NAKAI et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
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Jeremy E. Butler and Monroe G. McKay, of Lewis, Roca, Beauchamp & Linton, Phoenix, Ariz., for plaintiffs.
Harold E. Mott, Albuquerque, N. M., and Edmund D. Kahn, Window Rock, Ariz., for Navajo Tribe of Indians.
This action is brought on behalf of three plaintiffs: (1) a class of indigent Navajo Indians who secure legal assistance from Dinebeiina Nahiilna Be Agaditahe, Inc., (hereinafter called DNA), a nonprofit legal services corporation organized under the laws of the State of Arizona and financed by the Office of Economic Opportunity; (2) DNA and eight Navajo Indians who serve on the board of directors of DNA; and (3) Theodore R. Mitchell, a nonmember of the Navajo tribe who serves as executive director of DNA. The complaint names three defendants: (1) Raymond Nakai, Chairman of the Navajo Tribal Council; (2) V. Allen Adams, Superintendent of the Navajo Police Department; and (3) Graham Holmes, Area Director of the Navajo Indian Reservation of the Bureau of Indian Affairs. The central event common to all causes of action is the exclusion of the plaintiff Mitchell from the Navajo Indian Reservation. His exclusion was ordered by the Advisory Committee of the Navajo Tribal Council. The order was enforced by defendants Nakai and Adams, with the concurrence of defendant Holmes. Plaintiffs assert that the exclusionary order was illegal and unlawful, and that as a result plaintiffs were deprived of rights secured to them by the United States Constitution and various Acts of Congress. Defendants move to dismiss, asserting that this Court is without jurisdiction. The issues presented are complex.
Plaintiffs assert that the Court has jurisdiction under five sections of the United States Code: Title 28 U.S.C. I. § 1651, II. § 1361, III. § 1343(1), IV. § 1331 and V. § 1343(4).
I. Title 28 U.S.C. § 1651 may be invoked in a district Court only as an aid to already existing jurisdiction. See Stafford v. Superior Court, 272 F.2d 407 (9th Cir. 1959); United States ex rel. Rollingson v. Blackfeet Tribal Court, 244 F.Supp. 474 (D.Mont.1965). If this Court has jurisdiction, it does so by virtue of some other provision.
II. Title 28 U.S.C. § 1361 provides that the district courts "shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." This provision can affect the jurisdiction of this Court only with respect to defendant Holmes, the other defendants not being officers or employees of the United States or an agency thereof. With respect to defendant Holmes, this provision does not confer jurisdiction upon this Court. First, plaintiffs seek injunctive relief and damages, not mandamus. Second, plaintiffs sue defendant Holmes in his individual capacity, not as an officer or employee of the United States. Third, plaintiffs do not complain that defendant Holmes has failed to act, but rather that he has acted. Insofar as plaintiffs seek to direct a retraction of action already taken, mandamus is not a proper remedy. See Rural Electrification Administration v. Northern States Power Co., 373 F.2d 686 (8th Cir. 1967). Finally, mandamus is an extraordinary remedial device that may issue only when the claim for relief is clear and certain, and the duty of the officer involved is ministerial, plainly defined, and preemptory. See Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir. 1966). Plaintiffs do not allege facts that would justify the granting of mandamus, and the Court is without jurisdiction under Title 28 U.S.C. § 1361.
III. Title 28 U.S.C. § 1343(1) provides that the District Courts shall have original jurisdiction of civil actions based upon acts done in furtherance of any conspiracy mentioned in Title 42 U.S.C. § 1985. The relevant statutory language in Title 42 U.S.C. § 1985(3) states:
"If two or more persons in any State or Territory conspire * * * for the purpose of depriving * * * any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, and * * * if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy * * * the party so injured or deprived may have an action for the recovery of damages * * * against any one or more of the conspirators."
It has been held that this portion of Title 42 U.S.C. § 1985(3) is applicable only when the defendant-conspirators are alleged to have acted under color of state law. See Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951); Paynes v. Lee, 377 F.2d 61 (5th Cir. 1967); Wallach v. Cannon, 357 F.2d 557 (8th Cir. 1966). Defendants in this case acted under color of authority vested in them either by virtue of an order of the Advisory Committee of the Navajo Tribal Council or by virtue of duties possessed by the holder of a federal office. Such actions are not "under color of state law" and do not give rise to a cause of action under Title 42 U.S.C. § 1985(3). Cf., Toledo v. Pueblo De Jemez, 119 F.Supp. 429 (D.N.Mex. 1954). This Court does not have jurisdiction under Title 28 U.S.C. § 1343(1).
IV. Title 28 U.S.C. § 1331 confers original jurisdiction on the district courts for actions arising under the Constitution, laws or treaties of the United States where the matter in controversy exceeds in value the sum of ten thousand dollars.
The jurisdictional amount requisite to the commencement of an action under Title 28 U.S.C. § 1331 must exist with respect to each plaintiff's claim for relief against each defendant. Where plaintiffs seek injunctive relief, the value of the matter in controversy is the value of the right to be protected. Each plaintiff in this case has asserted a claim for injunctive relief against each defendant, alleging a denial of numerous civil rights, the value of which is alleged to exceed ten thousand dollars. In addition, plaintiffs DNA and Mitchell have asserted a claim for monetary damages in a yet undetermined sum. The jurisdictional amount having been satisfactorily alleged, this Court has jurisdiction of the action if it is one "arising under" the Constitution, laws, or treaties of the United States.
In Cohens v. Commonwealth of Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821), Chief Justice Marshall stated the rule as follows:
"A case in law or equity * * * may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either."
See Schulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 56 L.Ed. 1205 (1912); Littell v. Nakai, 344 F.2d 486 (9th Cir. 1965).
A. Plaintiffs assert that the case arises under the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment places restrictions upon State action. It could not, therefore, restrict the actions of defendant Holmes, who is an officer of the federal government. Nor could it restrict the actions of defendants Nakai and Adams, who are officers of the Navajo tribe, which is not a State within the meaning of the Fourteenth Amendment. See Native American Church of North America v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th Cir. 1958); Glover v. United States, 219 F.Supp. 19 (D.Mont.1963).
B. Plaintiffs assert that the case arises under the First, Fourth, Fifth and Sixth Amendments to the United States Constitution. These provisions protect only against action taken by the United States. They are, therefore, applicable to actions taken by defendant Holmes. Plaintiffs allege that defendant Holmes acted unconstitutionally by concurring in the order of August 7, 1968, in which defendant Nakai directed defendant Adams to remove plaintiff Mitchell from the Navajo Indian Reservation. Plaintiffs allege that defendant Holmes was under an obligation to refuse to concur in the exclusion order because of the facts that were known to him. If the concurrence of defendant Holmes was necessary to effectuate the exclusionary order, and was thus the cause of the deprivation of rights secured to plaintiffs under the Bill of Rights, that action would be in excess of defendant Holmes's authority and would subject him to suit as an individual.
A similar problem was presented in Oliver v. Udall, 113 U.S.App.D.C. 212, 306 F.2d 819 (1962). In that case plaintiffs alleged that the action of the Secretary of the Interior in approving an ordinance of the Navajo Tribal Council prohibiting the use of Peyote on the Navajo reservation had deprived them of their First Amendment right of freedom of religion. The Court rejected that contention, finding that "the Secretary has done no more than approve action which the Navajo Tribe was entitled to take." Furthermore, the Court stated:
It is our view that the Secretary's approval of the tribal action in 1959 was entirely in keeping with that abstinence from federal intervention in the internal affairs of an Indian tribe which the law clearly requires. The Secretary had simply recognized the valid governing authority of the Tribal Council.
Plaintiffs in this case have challenged the action taken by the Navajo tribe as unlawful under the treaty between the Navajo tribe and the United States, and under Title II of the Civil Rights Act of 1968, both discussed, infra. On the basis of the information presently before this Court, the complaint against defendant Holmes may not be dismissed under the authority of Oliver v. Udall, supra. Plaintiff is entitled to present his proof with respect to the effect of the concurrence of defendant Holmes and...
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