Veeder v. Omaha Tribe of Nebraska

• Citation: 864 F. Supp. 889
• Decision Date: 03 October 1994
• Docket Number: No. C 94-4014.,C 94-4014.
• Court: United States District Courts. 4th Circuit. Northern District of West Virginia
• Parties: William H. VEEDER, Plaintiff, v. OMAHA TRIBE OF NEBRASKA, Defendant.

864 F. Supp. 889

William H. VEEDER, Plaintiff, v. OMAHA TRIBE OF NEBRASKA, Defendant.

No. C 94-4014.

United States District Court, N.D. Iowa, Western Division.

October 3, 1994.

COPYRIGHT MATERIAL OMITTED

David A. O'Brien, Washington, DC, and Marchelle Roberts of O'Brien, Galvin, Moeller, Sioux City, IA, for plaintiff.

Thomas Waldman and James Baird of Kutak, Rock, Campbell, Omaha, NB, for defendant.

ORDER RE: DEFENDANT OMAHA TRIBE'S FED.R.CIV.P. 12(b)(1) MOTION TO DISMISS

BENNETT, District Judge.

                I.   INTRODUCTION AND FACTUAL BACKGROUND ................................. 892
                II.  ANALYSIS ............................................................ 893
                     A. Standards For Dismissal Pursuant to Rule 12(b)(1) ................ 893
                     B. Adequacy Of Veeder's Complaint On Its Face ....................... 896
                        1. Supplemental Jurisdiction ..................................... 897
                        2. Federal Question Jurisdiction ................................. 897
                        3. Federal Corporation Jurisdiction .............................. 898
                     C. The Challenge to Diversity Jurisdiction .......................... 898
                     D. Comity ........................................................... 901
                III. CONCLUSION .......................................................... 902
                

This lawsuit is brought by the former attorney for a tribe of Native Americans for payment of attorney fees and expenses incurred during seventeen years of representation on behalf of the tribe in litigation to recover land in western Iowa. The tribe has moved to dismiss for want of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). The motion requires the court to determine whether it has subject matter jurisdiction to entertain this case as a diversity or federal question action, as an action against a federal corporation, or as an action supplemental to other lawsuits over which it currently has jurisdiction. Central to the court's determination of these issues is the dual nature of tribal organization permitted under the Indian Reorganization Act of 1934, 25 U.S.C. § 461 et seq. (IRA). The court concludes that it does not have subject matter jurisdiction to entertain this case as it is currently pleaded.

I. INTRODUCTION AND FACTUAL BACKGROUND

On February 11, 1994, plaintiff William H. Veeder (Veeder), an attorney practicing in Washington, D.C., and claiming Virginia citizenship, brought this action against his former clients, the Omaha Tribe of Nebraska a/k/a the Omaha Indian Tribe (the Tribe). Veeder's complaint alleges that the Tribe entered into a contract and several extensions of that contract with him for legal services in litigation to secure title to land on the Iowa side of the Missouri River. The lawsuits Veeder filed on behalf of the Tribe include United States v. Wilson, No. C75-4024, and Omaha Indian Tribe v. Jackson, No. C75-4026, both of which were concluded some years ago, and Omaha Indian Tribe v. Agricultural Industrial Investment Co., No. C75-4067, which is currently on appeal to the Eighth Circuit Court of Appeals on issues concerning judgments on counterclaims. These lawsuits are collectively known to the parties as "the Blackbird Bend litigation." Veeder alleges that the Tribe has breached the contract for legal representation by failing to pay most of the fees and expenses due him under the contract for pursuing this litigation.¹ Veeder seeks compensatory and punitive damages. In lieu of answering, the Tribe filed the present motion to dismiss for want of subject matter jurisdiction on March 30, 1994.

The present lawsuit is not Veeder's first attempt to recover attorney fees for pursuing the Blackbird Bend litigation. Veeder asserts that he did not become concerned about payment of his fee until the Spring of 1993 when he heard rumors that the newly-elected Tribal Council would settle the litigation and dismiss him. On July 16, 1993, Veeder filed a motion for payment of costs, expenses, and legal fees in the Blackbird Bend litigation, then a notice of attorney's judgment lien. On October 25, 1993, the Honorable Warren K. Urbom denied the motion for payment of costs, expenses, and legal fees, but set a hearing on the notice of attorney's judgment lien. On December 6, 1993, the court in the Blackbird Bend litigation ruled that Veeder was not entitled to an attorney's lien under the provisions of the applicable statute.

Veeder next filed a motion to intervene in the Blackbird Bend litigation on December 16, 1993. Judge Urbom ruled that Veeder's petition of intervention must be denied because Veeder had no interest in the land involved in the litigation, and there was no showing that disposition of the Blackbird Bend litigation would "as a practical matter impair or impede Mr. Veeder's ability to protect his interest" in his fee, such that Veeder could intervene as of right. Omaha Indian Tribe v. Agricultural & Industrial Investment Co., No. C75-4067, C75-4024, C75-4026, slip op. at 4-5 (N.D.Iowa filed Jan. 31, 1994) (Hon. Judge Warren K. Urbom). The court held further that Veeder's petition did not involve common questions of law and fact with the underlying litigation and no statute granted a conditional right to intervene, such that permissive intervention was appropriate. Id. Judge Urbom also stated that he knew of no reason that Veeder could not bring a separate lawsuit for his fee. Id. This separate lawsuit followed.

In his complaint, Veeder alleges that the Tribe is

a federally recognized Indian Tribe organized under the Indian Reorganization Act of 1934 (25 U.S.C. § 476) and is a federal corporation chartered under the Act of June 18, 1934 (48 Stat. 984 as amended).

Complaint, para. II. Veeder's complaint does not state against which of these entities, the constitutionally organized tribe or the federal corporation, he has brought this lawsuit or with which entity he alleges he has a contract. It does assert jurisdiction on several bases:

The Court has jurisdiction of this action based upon diversity of citizenship pursuant to 28 U.S.C. § 1332 because this action is between citizens of two different states (Nebraska and Virginia) and the amount in controversy exceeds the sum of $50,000.00 exclusive of interest and costs. The Court also has federal question jurisdiction based upon the subject matter of this complaint and 28 U.S.C. § 1331. The Court further has ancillary jurisdiction of this matter based on the nature of this complaint as it relates to lawsuits previously filed and/or still pending in this Court identified as Omaha Indian Tribe, Plaintiff, v. Agricultural and Industrial Investment Co., et al., Defendants, No. C75-4067, No. C75-4024, and No. C75-4026. Finally, the Court has jurisdiction pursuant to the Omaha Tribe of Nebraska being organized and existing as a corporation under federal law and 28 U.S.C. § 1349.

Complaint, para. III. The Tribe challenges each and every one of these grounds for subject matter jurisdiction. The Tribe also asserts that as a sovereign predating the United States Constitution, it is immune from suit. Finally, the Tribe argues that even if this court has subject matter jurisdiction, it should defer to tribal remedies which Veeder has failed to exhaust.

The Tribe submitted its motion and brief on March 30, 1994. Veeder resisted the motion on April 12, 1994, and submitted a brief in support of his resistance on June 13, 1994, followed by an affidavit of Mr. Veeder on June 14, 1994. The Tribe was granted leave to file a reply brief and did so on July 7, 1994. The court held oral arguments on the Tribe's motion to dismiss on September 27, 1994.² Veeder was represented at the hearing by counsel David A. O'Brien, of Washington, D.C., who appeared by telephone, and Marchelle Roberts of O'Brien, Galvin, Moeller, in Sioux City, Iowa. The Tribe was represented at the hearing by counsel Thomas Waldman and James Baird of Kutak, Rock, Campbell, in Omaha, Nebraska. Neither party requested an evidentiary hearing, and no evidence was presented. This matter is now fully submitted.

II. ANALYSIS

A. Standards For Dismissal Pursuant to Rule 12(b)(1)³

Fed.R.Civ.P. 12(b)(1) provides that a party may raise the defense of "lack of jurisdiction over the subject matter" in a motion before answering the complaint filed in any action. Parties may not confer subject matter jurisdiction upon the federal courts by stipulation or agreement, and lack of subject matter jurisdiction cannot be waived by the parties or ignored by the court. Pacific Nat'l Ins. Co. v. Transport Ins. Co., 341 F.2d 514, 516 (8th Cir.), cert. denied, 381 U.S. 912, 85 S.Ct. 1536, 14 L.Ed.2d 434 (1965). Because jurisdiction is a threshold issue for the court, the district court has "broader power to decide its own right to hear the case than it has when the merits of the case are reached." Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir.1993) (quoting Osborn v. United States, 918 F.2d 724, 729 (8th Cir.1990), which in turn quotes Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981)).

For the court to dismiss for lack of subject matter jurisdiction under Fed. R.Civ.P. 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993). The court in Titus distinguished between the two kinds of challenges:

In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 731-32 (11th Cir. 1982)....

If the defendant wants to make a factual attack on the jurisdictional allegations of the complaint, the court may receive competent evidence such as affidavits, deposition testimony, and the like in order to determine the

...