Mescalero Apache Tribe v. Burgett Floral Co.

• Decision Date: 03 September 1974
• Docket Number: No. 73-1870,73-1870
• Citation: 503 F.2d 336
• Parties: The MESCALERO APACHE TRIBE, an Indian Tribe, Plaintiff-Appellant, v. BURGETT FLORAL COMPANY, a corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 336

503 F.2d 336

The MESCALERO APACHE TRIBE, an Indian Tribe, Plaintiff-Appellant, v. BURGETT FLORAL COMPANY, a corporation, et al., Defendants-Appellees.

No. 73-1870.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted by Appellant only July 10, 1974 Decided Sept. 3, 1974.

F. Randolph Burroughs, Alamogordo, N.M. (Fettinger and Burroughs, Alamogordo, N.M., on the brief), for plaintiff-appellant.

S. Thomas Overstreet, Alamogordo, N.M., for defendants-appellees.

Before LEWIS, Chief Judge, and MOORE ^* and DOYLE, Circuit Judges.

MOORE, Circuit Judge.

This is an appeal from the dismissal for want of federal jurisdiction of a complaint to recover for trespass brought by an Indian Tribe in the United States District Court for the District of New Mexico. The underlying facts in this case are simple. Appellant, the Mescalero Apache Tribe, recognized by the United States by treaty (Treaty of July 1, 1852 10 Stat. 979) and organized pursuant to the Indian Organization Act, 25 U.S.C. 476 (1970) alleged that the appellees, local companies and an individual engaged in arborculture, entered on their reservation without permission and destroyed trees thereon, causing damage to appellant in the amount of $5,000. ¹ Jurisdiction in Federal Court was asserted under 28 U.S.C. 1362 (1970) which states:

The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.

The District Court, however, dismissed the complaint for failure to state a proper federal question under this section. ² We reverse.

The District Court's order was without opinion, but it may be surmised that its reasoning was similar to that employed by the Second Circuit in the case of Oneida Indian Nation v. Oneida, 464 F.2d 916 (2d Cir. 1972), rev'd, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) in affirming the dismissal of a similar action. Here it was contended that:

(Plaintiffs') success depends upon establishment of their right to possession, and the action is thus basically in ejectment. As to this, a long and unbroken line of Supreme Court decisions holds that the complaint in such an action presents no federal question even when a plaintiff's claim of right or title is founded on a federal statute, patent or treaty.

464 F.2d at 920.

However, the Supreme Court on certiorari distinguished that unbroken line and, in reversing, stated:

In the present case, however, the assertion of a federal controversy does not rest solely on the claim of a right to possession derived from a federal grant of title whose scope will be governed by state law. Rather, it rests on the not insubstantial claim that federal law now protects, and has continuously protected from the formation of the United States, possessory rights to tribal lands, wholly apart from the application of state law principles which normally and separately protect a valid right of possession.

414 U.S. at 677, 94 S.Ct. at 782.

The Court then concluded that the appellants had stated a proper cause of action under 28 U.S.C. 1331 (1970).

In relating Oneida to the present case, it seems clear that the Mescalero Apache Tribe is an Indian Tribe for the purposes of 1362. It further seems clear that the scope of matters arising 'under the Constitution, laws, or treaties of the United States' should be at least as broad under 1362 as under 1331. ³ Therefore, for appellees to prevail, they must sufficiently distinguish the cause of action in Oneida, ejectment, from trespass, the one at bar, so as to provide a rationale for different jurisdictional conclusions. This, in our opinion, cannot be done.

Appellees argue that in Oneida the Indians were not in possession nor was their right to title clear-- hence, there was a special federal interest in returning them to their...