NAHNO-LOPEZ v. HOUSER

• Decision Date: 09 November 2010
• Docket Number: No. 09-6258.,09-6258.
• Citation: Nahno-Lopez v. Houser, 625 F.3d 1279 (10th Cir. 2010)
• Parties: Belva Ann NAHNO-LOPEZ; Berdene Nahno-Lopez; Betty Jean Crocker; Lucinda Kerchee; Roberta C. Burgess-Kerchee; Gwendolyn Kay Kerchee; Melvin Kerchee, Jr., Plaintiffs-Appellants, and Reachele Darby-Garcia; Margaret Pence, Plaintiffs, v. Jeff HOUSER; Lori Ware; Michael Darrow; Robin Isom; Loretta Bucknor; Janet Mann; Norman D. Nott, Defendants-Appellees, and Fort Sill Apache Casino, a private enterprise, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

625 F.3d 1279

Belva Ann NAHNO-LOPEZ; Berdene Nahno-Lopez; Betty Jean Crocker; Lucinda Kerchee; Roberta C. Burgess-Kerchee; Gwendolyn Kay Kerchee; Melvin Kerchee, Jr., Plaintiffs-Appellants,andReachele Darby-Garcia; Margaret Pence, Plaintiffs,

v.Jeff HOUSER; Lori Ware; Michael Darrow; Robin Isom; Loretta Bucknor; Janet Mann; Norman D. Nott, Defendants-Appellees,andFort Sill Apache Casino, a private enterprise, Defendant.

No. 09-6258.

United States Court of Appeals,Tenth Circuit.

Nov. 9, 2010.

Gary Montana, Osseso, WI, for Appellants.

Richard Grellner of Law Office of Richard J. Grellner, Oklahoma City, OK (and Robert E. Prince of Carter & Prince, Lawton, OK, with him on the brief), for Appellees.

Before KELLY, GORSUCH, Circuit Judges, and MELGREN^* , District Judge.

PAUL KELLY, JR., Circuit Judge.

Plaintiffs-Appellants filed this action claiming unlawful use of their real property and seeking declaratory judgment, injunctive relief, ejectment, and damages.They appeal from the district court's grant of summary judgment in favor of Defendants-Appellees, members of the Business Committee of the Fort Sill Apache Tribe of Oklahoma and the Manager of the Fort Sill Casino.The district court had subject-matter jurisdiction pursuant to 25 U.S.C. § 345 and appellate jurisdiction arises under 28 U.S.C. § 1291.We affirm.

Background

This case involves a dispute over real property allegedly leased by the Fort Sill Apache Tribe of Oklahoma (the “Tribe”), acting through its Tribal Business Committee(the “Business Committee”).Defendants are members of the Business Committee and the Manager of the Fort Sill Apache Casino (the “Casino”), all named in their individual capacities.Plaintiffs are members of the Comanche Tribe and hold beneficial title to the real property at issue.

In June 1999, the Tribe's General Council authorized the Business Committee to acquire the property.SeeAplt.App. 250.The Business Committee negotiated a purchase agreement.However, litigation ensued and the purchase was never consummated.Instead of purchasing the property, in October 2003Plaintiffs and the Business Committee entered into a lease agreement, pursuant to which the Tribe would make five yearly payments of $300 to each Plaintiff.SeeAplt.App. 180.It is undisputed that Plaintiffs received at least four yearly payments under this lease.They never returned or attempted to return these payments.

Plaintiffs maintain that the Secretary of the Interior never approved the lease, as is required by 25 U.S.C. § 348.Nevertheless, in 2007 construction of a parking facility began.After completion of the parking facility, an official from the BIA issued a notice of trespass to the Tribe, indicating that the BIA considered the lease null and void.The Tribe brought suit challenging the BIA's trespass determination, which the Tribe later dropped, allegedly in reliance on an Assistant United States Attorney's assurance that the BIA had impliedly approved the lease.SeeAplt.App. 183.

After these events, Plaintiffs filed this action which contained seven counts.SeeAplt.App. 12, 20-25.Only two counts survived a motion to dismiss: a claim alleging violation of 25 U.S.C. § 345, which grants federal jurisdiction over Indian claims of unlawful exclusion from congressionally allotted parcels, and a common-law trespass claim.These counts remain only as to Defendants in their individual capacities, and only for declaratory and monetary relief.SeeAplt.App. 101-03.

Defendants moved for summary judgment on these claims.Their memorandum in support contained fifty-seven facts, each of which was supported by an affidavit or documentary evidence.Seeid. 111-23.Of particular importance are the following:

-“The Tribe's Business Committee has authority delegated from the Tribe's General Council to administer business operations of the Tribe ..., including operations of the Fort Sill Apache Casino,”id. 112;

-“[T]he Tribe's General Council authorized the Tribe's Business Committee to acquire the property” at issue in the case, id. 117;

-“Plaintiffs gave express consent to the Tribe to make use of the property, including consent to develop a portion of the property for customer parking for the Fort Sill Apache Casino,”id. 118;

-The Tribe made payments under the lease and loans under the abandoned purchase agreement, which the Plaintiffs never returned or tendered, seeid. 118, 120; and

-Before the lease expired, Casino activities ceased and the Plaintiffs' land was restored to its original condition.Seeid. 123.

In response, Plaintiffs set forth fifty undisputed facts, only four of which contained a reference to the record.None referenced Defendants' undisputed facts.SeeAplt.App. 143-49.Three of the facts with record references pertain to claims by the “Pence Plaintiffs,” who dismissed their claims on appeal.The one remaining “undisputed fact” ostensibly with some support is:

-“Whether or not the General Council of the Ft. Sill Apache Tribe authorized a purchase of the Kerchee lands and not an illegal lease.”Aplt.App. 148.

Though styled as “undisputed facts,” all other statements were merely reassertions of original pleadings or conclusory, unsupported allegations.Seeid. 143-49.

The district court granted summary judgment, holding that Plaintiffs failed to raise a genuine issue of material fact for trial.Seeid. 168.Despite Plaintiffs' non-compliance with the local rule requiring citations to the supporting evidence, the district court reviewed the documents purportedly incorporated by the Plaintiffs and found no support for their assertions.SeeAplt.App. 166.It also held that Defendants were entitled to sovereign and qualified immunity.Seeid. 167-68.

On appeal, Plaintiffs argue that the district court erred in granting summary judgment given disputed genuine issues of material fact and that Defendants are not entitled to any immunity having acted outside of their authority.We hold that the Plaintiffs failed to establish a genuine issue of material fact for trial and affirm solely on that basis.

Discussion

A.Jurisdiction

[1] The surviving claims of the Plaintiffs include a claim asserting violation of 25 U.S.C. § 345 and a common-law trespass claim.SeeAplt.App. 101(district court's order);id. 21, 24(original complaint setting forth the two surviving claims).Some clarification of these claims is needed to explain the basis for subject-matter jurisdiction and properly state the issues.

[2]Title 25 U.S.C. § 345 grants jurisdiction over “suits involving the interests and rights of the Indian in his allotment or patent after he has acquired it.”United States v. Mottaz,476 U.S. 834, 845, 106 S.Ct. 2224, 90 L.Ed.2d 841(1986)(internal quotation marks and citation omitted).However, § 345 does not create cause of action or a standard for liability.See25 U.S.C. § 345;cf.Touche Ross & Co. v. Redington,442 U.S. 560, 577, 99 S.Ct. 2479, 61 L.Ed.2d 82(1979)(“Section 27[of the Securities Exchange Act of 1934] grants jurisdiction to the federal courts....It creates no cause of action of its own force and effect; it imposes no liabilities.”).Thus, Plaintiffs' first count-which asserts “violation” of 25 U.S.C. § 345-does not in and of itself state a claim for relief.

[3]Plaintiffs' second count asserts a common-law trespass claim.However, Indian rights to a Congressional allotment are governed by federal-not state-law.SeeOneida Cnty. v. Oneida Indian Nation of New York State,470 U.S. 226, 235-36, 105 S.Ct. 1245, 84 L.Ed.2d 169(1985)(holding that federal common law, not state law, governed Indian tribes' damage claims);United States v. Milner,583 F.3d 1174, 1182(9th Cir.2009)(“Federal common law governs an action for trespass on Indian lands.”(citations omitted));Felix S. Cohen, Handbook of Federal Indian Law§ 16.03(3)(c)(5th ed. 2005)(“[S]tate courts have no jurisdiction over allotment ownership disputes ....”(footnote omitted)).Thus, to the extent that Plaintiffs ground their trespass claim in state common law, it cannot provide relief.

Plaintiffs' two claims, however, can be fairly construed to articulate a viable claim over which we have jurisdiction.They contend that § 345 was “violated” in the sense that Defendants' presence on their property constituted trespass and was thus “unlawful” within the meaning of § 345.SeeAplt. Br. 8.They combine this with a claim for common-law trespass.SeeAplt.App. 24.We construe the complaint as stating a federal common-law trespass claim, for which § 345 provides jurisdiction.¹AccordMilner,583 F.3d at 1182(noting that actions for trespass on Indian lands are governed by federal common law (citingUnited States v. Pend Oreille Pub. Util. Dist. No. 1,28 F.3d 1544, 1549 n. 8(9th Cir.1994);Oneida Cnty.,470 U.S. 226 at 235-36, 105 S.Ct. 1245)).

In other words, Plaintiffs' two surviving counts form, in essence, one claim: a federal common-law trespass claim for which § 345 provides federal subject-matter jurisdiction.Oklahoma trespass law provides the rule of decision for this federal claim.SeeCalifornia ex rel. State Lands Comm'n v. United States,457 U.S. 273, 283, 102 S.Ct. 2432, 73 L.Ed.2d 1(1982)( “Controversies governed by federal law do not inevitably require resort to uniform federal rules.It may be determined as a matter of choice of law that, although federal law should govern a given question, state law should be borrowed and applied as the federal rule for deciding the substantive legal issue at hand.”)(citations omitted);Milner,583 F.3d at 1182 n. 6(adopting Washington trespass law to govern a federal common-law trespass claim brought by Indians)(citations omitted);Felix S. Cohen, Handbook of Federal Indian Law§ 16.03(3)(c)(5th ed. 2005)(“Although state courts have no jurisdiction over allotment ownership disputes, federal law adopts state law as the rule of decision in many circumstances, either...