U.S. v. Tsosie, 94-2144

Citation92 F.3d 1037
Decision Date09 August 1996
Docket NumberNo. 94-2144,94-2144
PartiesUNITED STATES OF AMERICA, on its own behalf and on behalf of Reuben Mariano, a/k/a Na tithl hi ya, Plaintiff-Counter-Claim-Defendant-Appellant, v. Grace TSOSIE, Defendant-Counter-Claimant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Jacques B. Gelin, Environment & Natural Resources Division, Washington, D.C. (Lois J. Schiffer, Asst. Attorney General, Washington, D.C., John J. Kelly, U.S. Attorney, and Raymond Hamilton, Asst. U.S. Attorney, Albuquerque, New Mexico, David C. Shilton, Attorney, Environment & Nat. Res. Division, Washington, D.C., Edwin G. Winstead, of counsel, Asst. Regional Solicitor, Albuquerque, New Mexico, with him on the briefs), for Plaintiff-Counter-Claim-Defendant-Appellant.

Paul E. Frye, of Nordhaus, Haltom, Taylor, Taradash & Frye, Albuquerque, New Mexico, for Defendant-Counter-Claimant-Appellee.

Before SEYMOUR, Chief Judge, BRORBY and MURPHY, Circuit Judges.

SEYMOUR, Chief Judge.

The United States brought this trespass and ejectment action, on its own behalf and as trustee for Mr. Reuben Mariano, against Ms. Grace Tsosie. The United States sought on behalf of Mr. Mariano the possession of land, known as Allotment No. 868, located in Crownpoint, New Mexico. Ms. Tsosie counterclaimed seeking a declaratory judgment that she has an unextinguished aboriginal occupancy right in the land. Both Mr. Mariano and Ms. Tsosie are members of the Navajo Tribe and the property at issue is located in Indian country. 1 The district court dismissed the action sua sponte under the tribal court exhaustion doctrine. See United States v. Tsosie, 849 F.Supp. 768 (D.N.M.1994). The United States appeals, and we affirm.


The pleadings evince the following facts. 2 Prior to 1864, members of the Navajo Tribe occupied the land surrounding and including what would become Allotment No. 868. From 1864 through 1868, the United States removed Navajo Indians from the land and incarcerated them at Bosque Redondo. In 1868, the United States and the Navajo Tribe entered into a treaty which recognized the Navajo Reservation and allowed Navajo Indians to return to their homeland. The events shortly after the 1868 treaty are the genesis of the rights claimed by both Mr. Mariano and Ms. Tsosie.

In 1908, the United States accepted applications for allotments outside the Treaty Reservation. That same year an application was approved for Allotment No. 868 in the name of Na tithl hi ya a/k/a Mr. Mariano; however, a patent was not issued to him until 1964 and he has never occupied the land. He asserts that he has to title to Allotment No. 868 based on the approved application and subsequently issued patent. He further asserts that he has the right to possess the land because Ms. Tsosie breached a homesite lease which allowed her to occupy it.

In 1868, Ms. Tsosie's ancestors returned from Bosque Redondo and resettled on Allotment No. 868. In 1901, her mother was born on or near Allotment No. 868 and her mother's umbilical cord is buried there, which has profound significance in Navajo custom and religion. In 1928, Ms. Tsosie's parents were married and continued living on the land. Shortly thereafter, according to Ms. Tsosie, the United States characterized Allotment No. 868 as "government land" and affirmatively allowed, encouraged and supported the continued occupancy and improvement of the land 3 by her parents. In 1928, Ms. Tsosie was born on the land and has lived there to the present time.

Ms. Tsosie contends that the United States has taken several actions which contradict Mr. Mariano's asserted rights to the land. She asserts that in 1908, allotting agents violated the instructions of the Acting Commissioner of Indian Affairs when they approved Allotment No. 868 because the railroad claimed the land. She further asserts that in 1917, 1931, 1939 and 1960, the United States withdrew land containing Allotment No. 868 to address Indian settlement matters; and in 1945, the United States granted her a grazing permit for Allotment No. 868. 4

In 1968, four years after the United States patented Allotment No. 868 to Mr. Mariano, the legal disputes surrounding the land began. That year Mr. Mariano signed as lessor and the parents of Ms. Tsosie signed as lessees a homesite lease approved by the United States covering one acre of land on Allotment No. 868. Lease payments were not made after 1969. In 1970, Mr. Mariano informed the Bureau of Indian Affairs (BIA) that he wished to terminate the lease and he began fencing the allotment. In 1975, Ms. Tsosie and her parents obtained a temporary restraining order from the Navajo Tribal Court which restrained Mr. Mariano from fencing the allotment and from harassing them or harming their property pending the settlement of the case; however, the case was never settled.

In 1981, Mr. Mariano filed suit against Ms. Tsosie's mother and two BIA officials seeking to eject Ms. Tsosie and her mother and to cancel the homesite lease. The United States defended the BIA officials and removed the action to federal district court. The district court dismissed the BIA officials and remanded the case to tribal court after the BIA declared that the homesite lease was null and void. 5 On remand, Mr. Mariano consented to dismissal without prejudice of the ejectment claim against Ms. Tsosie's mother.

In 1992, the United States filed this trespass and ejectment action on behalf of Mr. Mariano in district court. In a carefully reasoned opinion, the district court dismissed the action sua sponte under the tribal court exhaustion doctrine. On appeal, the United States contends the exhaustion of tribal remedies is inappropriate because (1) the United States as plaintiff enjoys a special right of access to its own courts; (2) the United States has not waived its sovereign immunity; and (3) the policy behind tribal court exhaustion does not apply where tribal law and custom are irrelevant and are, in any event, preempted by Congress with respect to ownership of an Indian allotment.


While concerns of comity do not present a jurisdictional bar, we have held that a court has discretion to raise comity issues sua sponte. Smith v. Moffett, 947 F.2d 442, 445 (10th Cir.1991). "We review a dismissal on exhaustion grounds for an abuse of discretion." Texaco, Inc. v. Zah, 5 F.3d 1374, 1376 (10th Cir.1993)(citing United States v. Plainbull, 957 F.2d 724, 725 (9th Cir.1992)), aff'd after remand, Texaco, Inc. v. Hale, 81 F.3d 934 (10th Cir.1996). Under this standard the district court abuses its discretion "if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact." Plainbull, 957 F.2d at 725. "The proper scope of the tribal exhaustion rule, however, is a matter of law which we review de novo." Zah, 5 F.3d at 1376.

The tribal court exhaustion rule "provides that 'as a matter of comity, a federal court should not exercise jurisdiction over cases arising under its federal question or diversity jurisdiction, if those cases are also subject to tribal jurisdiction, until the parties have exhausted their tribal remedies.' " Id. (quoting Tillett v. Lujan, 931 F.2d 636, 640 (10th Cir.1991)). The rule was created "because of Congress's 'strong interest in promoting tribal sovereignty.' " Id. (citing Moffett, 947 F.2d at 444). Where comity concerns are present, "[j]urisdiction presumptively lies in the tribal court ... unless Congress has expressly limited that jurisdiction." Moffett, 947 F.2d at 444. Moreover, the exhaustion rule does not require an action to be pending in tribal court. Id.; cf. United States v. Bank of New York & Trust Co., 296 U.S. 463, 480, 56 S.Ct. 343, 348, 80 L.Ed. 331 (1936) ("Even where the District Court has acquired jurisdiction prior to state proceedings, the character and adequacy of the latter proceedings ... may require in the proper exercise of the discretion of the federal court that jurisdiction should be relinquished in favor of state administration."). Guided by these principles we now turn to the United States' contentions on appeal.


The United States first contends tribal court exhaustion is inappropriate because the federal government enjoys a special right of access to its own courts under 28 U.S.C. § 1345. Section 1345 provides that "the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States." Our assessment of this argument requires addressing three issues: 1) does the government enjoy special status; 2) does the Tribal court have concurrent jurisdiction; 3) does exhaustion meet the policy concerns set out in National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 856-57, 105 S.Ct. 2447, 2453-54, 85 L.Ed.2d 818 (1985).

"[T]he grant of jurisdiction to the District Court in suits brought by the United States does not purport to confer exclusive jurisdiction," Bank of New York, 296 U.S. at 479, 56 S.Ct. at 348, and "leaves open the question of the propriety of its exercise in particular circumstances," id. at 480, 56 S.Ct. at 348; see also Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 479, 101 S.Ct. 2870, 2875-76, 69 L.Ed.2d 784 (1981)("[T]he mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction over the cause of action."). In Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), the United States brought suit under section 1345 on its own behalf and as trustee for certain Indian tribes for determination of reserved water rights. The Supreme Court admonished that " '[a]bdication of the obligation to decide cases can be justified under [the abstention] doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.' " Id. at 813, 96 S.Ct. at 1244 (quoting County of ...

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