Salt River Pima-Maricopa Indian Com. v. ARIZONA S. & R. CO.

• Citation: 353 F. Supp. 1098
• Decision Date: 14 December 1972
• Docket Number: No. Civ. 72-376-Phx.,Civ. 72-376-Phx.
• Parties: SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, Plaintiff, v. ARIZONA SAND AND ROCK COMPANY, an Arizona corporation, and Salt River Valley Water Users' Association, an Arizona corporation, et al., Defendants.
• Court: U.S. District Court — District of Arizona

353 F. Supp. 1098

SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, Plaintiff, v. ARIZONA SAND AND ROCK COMPANY, an Arizona corporation, and Salt River Valley Water Users' Association, an Arizona corporation, et al., Defendants.

No. Civ. 72-376-Phx.

United States District Court, D. Arizona.

December 14, 1972.

Marks & Marks, Phoenix, Ariz., for plaintiff.

Carson, Messinger, Elliott, Laughlin & Ragan, Phoenix, Ariz., for Arizona Sand & Rock Co.

Killian & Legg, Mesa, Ariz., for Mesa Sand and Rock, Inc.

Smith & Buckley, Mesa, Ariz., for Johnson & Stewart Materials, Inc., Johnson and Campo.

Perry & Head, George Sorenson, Jr., Phoenix, Ariz., for Allied Concrete & Materials.

Robert E. Hurley, Phoenix, Ariz., for Salt River Valley Water Users Assn.

Robert V. Kerrick, Asst. Atty. Gen., Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for Arizona State Highway Commission.

Ronald W. Meyer, Phoenix, Ariz., for Maricopa County.

Standage & Allen, Mesa, Ariz., for Merrill and Ickes.

William Smitherman, U. S. Atty., Alice A. Wright, Asst. U. S. Atty., Phoenix, Ariz., for Federal defendants.

MEMORANDUM AND ORDER

WILLIAM D. MURRAY, Senior District Judge.

Before the court are motions to dismiss for lack of jurisdiction by Mesa Sand and Rock, Inc., John L. Merrill, Mrs. John L. Merrill, John L. Merrill, Administrator of the Estate of Ira L. Merrill, Sarah Ann Ickes, John Doe Ickes, husband of Sarah Ann Ickes, Gilbert Allen Merrill and Mrs. Gilbert Allen Merrill, Ira Keith Merrill and Mrs. Ira Keith Merrill, and by defendant Arizona State Highway Commission along with a motion to dismiss for failure to state a claim upon which relief may be granted by defendant United States. There is in addition a petition by the plaintiff for an order to show cause why the U. S. Attorney should not be ordered to prosecute suit on behalf of the tribe. Further, the defendants Arizona State Highway Commission have also moved to join the United States as a necessary or indispensable party. The motions of the private and corporate defendants rely upon Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205 (1911) which held that under the well pleaded complaint rule jurisdiction is insufficient where the only federal ingredient in the suit is that the plaintiff's title was derived from the United States. The United States has moved to dismiss count two of the complaint which asks for a writ of mandamus under 28 U.S.C. § 1361, ordering the Department of Justice to prosecute the allegations of trespass levied against the private and corporate defendants in count one of the complaint. For the following reasons the court has determined that this court has jurisdiction, that the complaint states no grounds upon which to issue the writ of mandamus, and further that the United States is not an indispensable party.

Under 25 U.S.C. § 175 the United States Attorney has authority to represent Indians in all suits at law and in equity. Under recent 9th Circuit decisions this authority has been held discretionary. Rincon Band of Mission Indians v. Escondido Mut. Wat. Co., 459 F.2d 1082 (1972); United States v. Gila River Pima-Maricopa Indian Community, 391 F.2d 53 (1958) and Siniscal v. United States, 208 F.2d 406 (1953). It is clear that should the United States choose to exercise its discretion it could file suit in this case under 25 U.S.C. § 175 and as guardian and trustee for the tribe. United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913), etc.

In 1966 Congress passed 28 U.S.C. § 1362 upon which the complaint herein relies for jurisdiction and which provides that the district courts are to have original jurisdiction of all civil actions brought by Indian tribes or bands wherein the matter in controversy arises under the Constitution, laws or treaties of the United States. Judge Friendly held in Oneida Indian Nation of N. Y. State v. County of Oneida, N. Y., 464 F.2d 916, 919 note 4 (2nd Cir. 1972) that the sole purpose of § 1362 was to remove any requirement of jurisdictional amount. Contrary to Judge Friendly's holding and consistent with Judge Lumbard who dissented in the Friendly decision this court finds that House Report No. 2040, which accompanied S. 1356 (28 U.S.C. § 1362), indicates that in addition to removing the $10,000 jurisdictional requirement of 28 U.S.C. § 1331 the effect of the bill would be to provide the means whereby the tribes are assured of the same judicial determination whenever the government chooses not to exercise its discretion and declines to bring the action. U.S.C.C. & A.N. 1966, p. 3147. Reading these sections (25 U.S.C. § 175, 28 U.S.C. §§ 1331 and 1362) together it is apparent that this court has under § 1362 a statutory grant of jurisdiction in this matter. Under § 1362 any case which might have been brought by the United States is deemed to be one arising under the Constitution, laws or treaties of the United States if it is brought on behalf of an Indian tribe by their own attorneys.

In its petition for order to show cause and subsequent memoranda the plaintiff relies upon 43 U.S.C. § 1457, 28 U.S.C. §§ 519 and 547, and 25 U.S.C. § 175 as a basis for its contention that the United States has a duty to prosecute the charges in the complaint. In addition plaintiff establishes that the United States is a trustee of the land in question for the Indians and as such has a duty to obtain redress from those who trespass upon it. Neither theory creates a...