Littell v. Nakai

• Decision Date: 01 June 1965
• Docket Number: No. 19296.,19296.
• Citation: 344 F.2d 486
• Parties: Norman M. LITTELL, Appellant, v. Raymond NAKAI, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

344 F.2d 486 (1965)

Norman M. LITTELL, Appellant, v. Raymond NAKAI, Appellee.

No. 19296.

United States Court of Appeals Ninth Circuit.

April 16, 1965.

Rehearing Denied June 1, 1965.

Frederick Bernays Wiener, John F. Doyle, Washington, D. C., William H. Rehnquist, Phoenix, Ariz., for appellant.

Harold E. Mott, E. Tillman Stirling, Welch, Mott & Morgan, Washington, D. C., for appellee.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, Atty. Dept. of Justice, Washington, D. C., Charles A. Muecke, U. S. Atty., Phoenix, Ariz., amici curiæ, U. S. A.

Before JERTBERG, KOELSCH and DUNIWAY, Circuit Judges.

KOELSCH, Circuit Judge.

This appeal involves a question of the jurisdiction of the United States District Court over a suit brought by a non Indian against a member of the Navajo Tribe of Indians.

Norman M. Littell, the plaintiff-appellant, is the General Counsel and Claims Attorney of the Navajo Tribe; he has held that position for over 16 years, and his present retainer, evidenced by a written contract duly approved by the Secretary of the Interior and Commissioner of Indian Affairs, as required by 25 U.S.C. § 81, does not expire until August 7, 1967. He is a resident of Maryland.

Raymond Nakai, the defendant-appellee, is the Chairman of the Navajo Tribal Council. He was elected to that position by popular vote in March, 1963. He is a resident of Arizona.

Littell commenced this suit in the United States District Court for the District of Arizona, to secure an injunction against Nakai. The gravamen of his complaint was Nakai's alleged tortious interference with Littell's performance of the contract. He alleged that Nakai sought to have him removed as General Counsel by the Secretary of the Interior;¹ that Nakai has prevented him from appearing before the Tribal Council when in session and, at successive meetings, has caused him to be forcibly ejected from the Council Chamber; and that Nakai has prohibited the Tribe from paying to him accrued retainer fees amounting to more than $10,000 at the time the complaint was filed. He further charged that in these matters Nakai acted arbitrarily, wholly without justification and in excess of his authority as chairman.

The district court granted Littell a restraining order but, following a hearing, held that jurisdiction was lacking and dismissed the complaint. Littell has appealed.

We conclude that the decision of the lower court was right, and the judgment should be affirmed.

The matter in controversy is not, as Littell urges, one "arising under the Constitution laws or treaties of the United States," within the meaning of 28 U.S.C.A. § 1331. "A case in law or equity" said Chief Justice Marshall in the early case of Cohens v. Virginia, 6 Wheat. 264, 378, 19 U.S. 264, 378, 5 L.Ed. 257 (1821) "* * * 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." And ever since, the Court has recognized this same basic test. Thus, in Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205 (1912) the Court pointed out that although the suit before it concerned conflicting claims to Creek Indian lands, allotted to individual Indians under the authority of certain statutes of the United States, jurisdiction was nevertheless lacking because the complaint did not tender any issue involving the validity or construction of those statutes. An opposite result was reached in Norton v. Larney, 266 U.S. 511, 45 S.Ct. 145, 69 L.Ed. 413 (1925). That suit was also one to quiet title to allotted Indian lands but, unlike Shulthis, its outcome directly hinged upon the meaning of the allotment statute — in particular, the mode of identifying the intended allottee. Accordingly, the court declared "it thus appears that the right set up by appellees plaintiffs would be defeated by the construction of the act, as appellants contend, but would be supported by the opposite construction. The case, therefore, in fact is one arising under a law of the United States within the meaning of section 24, subdivision 1, of the Judicial Code." id. p. 515, 45 S.Ct. p. 147.

In the case before us, plaintiff does refer in his complaint to 25 U.S.C § 81; plainly, the purpose is to show that the retainer contract, having been approved by the proper officials as required by federal law, vested plaintiff with legally recognized rights entitled to judicial protection. Green v. Menominee Tribe of Indians, 233 U.S. 558, 34 S.Ct. 706, 58 L.Ed. 1093 (1914). But "a suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law upon the determination of which the result depends." Schulthis v. McDougal, supra, at page 569, 32 S.Ct. at page 706. From the pleading it is apparent that the "real substance of the controversy" Gully v. First Nat'l Bank, 299 U.S. 109, 114, 57 S.Ct. 96, 8 L.Ed. 70 (1936) centers upon the contract and its construction rather than the statutory basis for the contract, and as said in Puerto Rico v. Russell & Co., 288 U.S. 476, 483, 53 S.Ct. 447, 451, 77 L.Ed. 903 (1933) "The federal nature of the right to be established is decisive — not the source of the authority to establish it."

We agree with Littell that his complaint sufficiently discloses all facts required by 28 U.S.C. § 1332 to invoke the diversity jurisdiction of the district court; but we think that the allegations appearing in the complaint, together with the affidavits and other materials presented to the court at the hearing, show that this controversy is of the type within the exclusive jurisdiction of the Navajo Tribal Court.

Historically, the Indian Tribes were regarded as distinct political communities Worcester v. Georgia, 31 U.S. 515 at 560, 6 Pet. 515, 8 L.Ed. 483 (1832); Ex parte Crow Dog, 109 U.S. 556 at 568, 3 S.Ct. 396, 27 L.Ed. 1030 (1883). Thus, in United States v. Kagama, 118 U.S. 375 at 381-382, 6 S.Ct. 1109, 1112-1113, 30 L.Ed. 228 (1886) the Court, after noting the "anomalous" and "complex character" of the relationship between the general government and the Indian Tribes, declared that the Tribes "* * * were and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the state within whose limits they resided."

Present day recognition of the autonomous status of the Navajo Indian Tribe over "internal and social relations" is provided by Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). That case, it is true, dealt with a question of the power of the State of Arizona over the Navajo Indian Reservation; nevertheless, the Supreme Court, in reaching its decision that Arizona State courts had no authority to entertain a civil suit by an outsider against an Indian arising out of a transaction on the Reservation, emphasized that the general government, at the inception of its dealings with the Navajos, regarded the Navajo Tribe as a separate political community. The Court said, with reference to the Navajo Treaty of 1868 (15 Stats. 667):

"Implicit in these treaty terms, as it was in

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