Littell v. Nakai, No. 19296.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtJERTBERG, KOELSCH and DUNIWAY, Circuit
Citation344 F.2d 486
PartiesNorman M. LITTELL, Appellant, v. Raymond NAKAI, Appellee.
Docket NumberNo. 19296.
Decision Date01 June 1965

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.


344 F.2d 487

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

344 F.2d 488
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...

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57 practice notes
  • Chilkat Indian Village v. Johnson, No. 86-4312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 23, 1989
    ...of the right to be established is decisive--not the source of the authority to establish it." 642 F.2d at 279 (quoting, Littell v. Nakai, 344 F.2d 486, 488 (9th Cir.1965), cert. denied, 382 U.S. 986, 86 S.Ct. 531, 15 L.Ed.2d 474 (1986)). But Boe was an entirely internal dispute between a tr......
  • R.J. Williams Co. v. Fort Belknap Housing Authority, No. 82-3636
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 31, 1983
    ...jurisdiction is precluded when state jurisdiction would infringe upon the right of the Indians to self-government. Littell v. Nakai, 344 F.2d 486, 489 (9th Cir.1965); see Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1317 (9th Cir.1982). We think that this case involves a genuine issue of triba......
  • Morongo Band of Mission Indians v. California State Bd. of Equalization, Nos. 87-2320
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 20, 1988
    ...714-15 (Indian tribe's claim against private parties for breach of commercial contract did not arise under federal law); Littell v. Nakai, 344 F.2d 486, 488 (9th Cir.1965) (no federal jurisdiction over action by general counsel of Indian tribe against chairman of tribal council to enjoin al......
  • Morongo Band of Mission Indians v. California State Bd. of Equalization, Nos. 87-2320
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 1988
    ...714-15 (Indian tribe's claim against private parties for breach of commercial contract did not arise under federal law); Littell v. Nakai, 344 F.2d 486, 488 (9th Cir.1965) (no federal jurisdiction over action by general counsel of Indian tribe against chairman of tribal council to enjoin al......
  • Request a trial to view additional results
57 cases
  • Chilkat Indian Village v. Johnson, No. 86-4312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 23, 1989
    ...of the right to be established is decisive--not the source of the authority to establish it." 642 F.2d at 279 (quoting, Littell v. Nakai, 344 F.2d 486, 488 (9th Cir.1965), cert. denied, 382 U.S. 986, 86 S.Ct. 531, 15 L.Ed.2d 474 (1986)). But Boe was an entirely internal dispute between a tr......
  • R.J. Williams Co. v. Fort Belknap Housing Authority, No. 82-3636
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 31, 1983
    ...jurisdiction is precluded when state jurisdiction would infringe upon the right of the Indians to self-government. Littell v. Nakai, 344 F.2d 486, 489 (9th Cir.1965); see Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1317 (9th Cir.1982). We think that this case involves a genuine issue of triba......
  • Morongo Band of Mission Indians v. California State Bd. of Equalization, Nos. 87-2320
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 20, 1988
    ...714-15 (Indian tribe's claim against private parties for breach of commercial contract did not arise under federal law); Littell v. Nakai, 344 F.2d 486, 488 (9th Cir.1965) (no federal jurisdiction over action by general counsel of Indian tribe against chairman of tribal council to enjoin al......
  • Morongo Band of Mission Indians v. California State Bd. of Equalization, Nos. 87-2320
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 1988
    ...714-15 (Indian tribe's claim against private parties for breach of commercial contract did not arise under federal law); Littell v. Nakai, 344 F.2d 486, 488 (9th Cir.1965) (no federal jurisdiction over action by general counsel of Indian tribe against chairman of tribal council to enjoin al......
  • Request a trial to view additional results

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