Johnson v. Eastern Band Cherokee Nation, Misc. No. 2409.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Writing for the CourtMcCURN
Citation718 F. Supp. 6
PartiesLinda L. JOHNSON, Plaintiff, v. EASTERN BAND CHEROKEE NATION, Defendant.
Decision Date15 August 1989
Docket NumberMisc. No. 2409.

718 F. Supp. 6

Linda L. JOHNSON, Plaintiff,
v.
EASTERN BAND CHEROKEE NATION, Defendant.

Misc. No. 2409.

United States District Court, N.D. New York.

August 15, 1989.


ORDER

McCURN, Chief Judge.

Plaintiff pro se Linda L. Johnson herein has made application to this court to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915, in prosecution of the action set forth in the plaintiff's complaint. The complaint drafted and presented to the court by plaintiff pro se appears in essence to be an action to compel plaintiff's membership in an Indian Nation, i.e., Eastern Band Cherokee Nation. The question presented is whether this court has subject matter jurisdiction over the matter in issue. If not, the court must deny the application pursuant to 28 U.S.C. § 1915(d).

A district court may refuse an application to proceed in forma pauperis if the action is frivolous. When a court does not have jurisdiction to hear an action, the claim is considered frivolous. This court does not have jurisdiction to enjoin the Eastern Band of the Cherokee Indians from excluding the plaintiff. The plaintiff's claim is therefore frivolous, and this court must refuse her application to proceed in forma pauperis.

STATEMENT OF FACTS

On May 15, 1989, Ms. Linda Johnson, a Nedrow resident, submitted a proposed complaint to this court against the Appealing Officer of the Eastern Band Cherokee Indian Nation of North Carolina. Plaintiff alleges that she has been wrongfully denied official membership to the Nation, even though she is a direct descendent of the Cherokee Tribe. Through her complaint, she seeks an order compelling the Cherokee Tribe to grant her full membership, and the privileges pertaining thereto. Plaintiff's claim was supplemented by an application to proceed in forma pauperis. The issue presently before the court is whether to grant plaintiff's application to proceed in forma pauperis.

DISCUSSION

28 U.S.C. § 1915(a) (West 1982) ("Proceedings in forma pauperis") states, in pertinent part:

Any court of the United States may authorize the commencement, prosecution, or defense of any suit, action, or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes an affidavit that he is unable to
718 F. Supp. 7
pay such costs or give security therefor....

Section 1915(d) limits the scope of in forma pauperis proceedings, though, by authorizing the court to dismiss in forma pauperis claims which are frivolous or malicious. 28 U.S.C. § 1915(d) (West 1982). The Second Circuit has interpreted the "frivolous" claims provision to include those which present little chance for success on the merits in light of the various defenses which may be asserted. Anderson v. Coughlin, 700 F.2d 37, 43 (2d Cir.1983) (application to proceed (in forma pauperis) may be denied if the complaint fails to state a claim upon which relief can be granted, and hence could be dismissed on Rule 12(b)(6) grounds).

If a court does not have jurisdiction to hear an action, then chances of success in light of the probable defenses, e.g. Fed.R. Civ.P. 12(b)(1), 12(b)(2) (motions to dismiss for lack of...

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12 practice notes
  • Johnson v. Saul, Case No.: 20-CV-747 JLS (AHG)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 25 d1 Janeiro d1 2021
    ...a court does not have jurisdiction to hear an action, the claim is considered frivolous." Johnson v. E. Band Cherokee Nation, 718 F. Supp. 6, 6 (N.D.N.Y. 1989). Moreover, "[t]he Court has an independent obligation to determine whether it has subject-matter jurisdiction." Cox ......
  • Humphries v. Various Federal USINS Employees, No. 96-10383
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 21 d4 Janeiro d4 1999
    ...meaning of § 1915(d), if its subject matter is outside the jurisdiction of the court."); Johnson v. Eastern Band Cherokee Nation, 718 F.Supp. 6, 6 (N.D.N.Y.1989) ("When a court does not have jurisdiction to hear an action, the claim is considered With regard to Humphries' remainin......
  • Poodry v. Tonawanda Band of Seneca Indians, No. 492
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 16 d4 Maio d4 1996
    ...membership ...."), cert. denied, 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067 (1958); Johnson v. Eastern Band Cherokee Nation, 718 F.Supp. 6 (N.D.N.Y.1989) (observing that "[t]he Supreme Court has held that controversies surrounding membership in an Indian Nation are reserved to the......
  • Johnson v. Kijakazi, 20-cv-747 JLS (AHG)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 1 d1 Novembro d1 2021
    ...“When a court does not have jurisdiction to hear an action, the claim is considered frivolous.” Johnson v. E. Band Cherokee Nation, 718 F.Supp. 6, 6 (N.D.N.Y. 1989). Moreover, “[t]he Court has an independent obligation to determine whether it has subject-matter jurisdiction.” Cox v. Lee, No......
  • Request a trial to view additional results
12 cases
  • Johnson v. Saul, Case No.: 20-CV-747 JLS (AHG)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 25 d1 Janeiro d1 2021
    ...a court does not have jurisdiction to hear an action, the claim is considered frivolous." Johnson v. E. Band Cherokee Nation, 718 F. Supp. 6, 6 (N.D.N.Y. 1989). Moreover, "[t]he Court has an independent obligation to determine whether it has subject-matter jurisdiction." Cox ......
  • Humphries v. Various Federal USINS Employees, No. 96-10383
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 21 d4 Janeiro d4 1999
    ...meaning of § 1915(d), if its subject matter is outside the jurisdiction of the court."); Johnson v. Eastern Band Cherokee Nation, 718 F.Supp. 6, 6 (N.D.N.Y.1989) ("When a court does not have jurisdiction to hear an action, the claim is considered With regard to Humphries' remainin......
  • Poodry v. Tonawanda Band of Seneca Indians, No. 492
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 16 d4 Maio d4 1996
    ...membership ...."), cert. denied, 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067 (1958); Johnson v. Eastern Band Cherokee Nation, 718 F.Supp. 6 (N.D.N.Y.1989) (observing that "[t]he Supreme Court has held that controversies surrounding membership in an Indian Nation are reserved to the......
  • Johnson v. Kijakazi, 20-cv-747 JLS (AHG)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 1 d1 Novembro d1 2021
    ...“When a court does not have jurisdiction to hear an action, the claim is considered frivolous.” Johnson v. E. Band Cherokee Nation, 718 F.Supp. 6, 6 (N.D.N.Y. 1989). Moreover, “[t]he Court has an independent obligation to determine whether it has subject-matter jurisdiction.” Cox v. Lee, No......
  • Request a trial to view additional results

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