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August 31, 1978

Cecil ANDRUS et al., Defendants

The opinion of the court was delivered by: FLANNERY


This matter comes before the court on defendants' motion to dismiss. This motion raises procedural questions in this area which appear to be matters of first impression. In this suit, plaintiffs are the City of Sault Ste. Marie, Michigan, and three individual taxpayers of that city. It appears that a group of Indians claiming to be the Sault Ste. Marie tribe of Chippewa Indians has been acquiring land in the area surrounding the city and then conveying that land in trust to the United States pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 461, Et seq. In January of 1977, the tribe acquired a 76-acre tract within the city limits, and the Bureau of Indian Affairs approved the transfer of title to these lands in trust to the United States. As a result of the taking of these lands in trust, this tract is no longer subject to city taxes or to city zoning ordinances. Plaintiffs also allege (and defendants deny) that the trust status of these lands prevents city law enforcement on this property. Plaintiffs contend that the Sault Ste. Marie tribe is not a tribe within the meaning of 25 U.S.C. § 479, and that, therefore, the taking of lands in trust by the United States is an abuse of discretion. Plaintiffs seek a declaratory judgment to this effect on the basis, and on the bases, that (1) defendants' methods of taking lands in trust violate due process and (2) defendants have failed to abide by the National Environmental Protection Act (NEPA) in taking this land for the construction of a large housing project without the filing of an environmental impact statement.

 Defendants' motion to dismiss rests on three grounds. First, defendants claim that since this is a suit which will affect an interest in real property held by the United States, the United States is an indispensable party. However, defendants claim that since the United States' interest in this case is in Indian trust lands, the United States has not consented to be sued, See 28 U.S.C. § 2409a, and therefore this case must be dismissed. Second, defendants contend that the Sault Ste. Marie tribe is an indispensable party since any disposition of this case will affect their status as a tribe. However, defendants point out that this court has no personal jurisdiction over the tribe, which is located in Michigan, that the tribe is also immune from suit, and that, therefore, this case must be dismissed. Third, defendants contend that plaintiffs have failed to state a claim for which relief can be given. Specifically, defendants state that the individual taxpayers lack standing, and that the city has suffered no legal wrong since the city's ability to sell municipal bonds (the only actual damage alleged according to defendants) has not been impaired. The court will deal first with the issues of standing and certain jurisdictional problems presented by the complaint. The court will then consider defendants' arguments regarding sovereign immunity, indispensable parties, and the issues regarding plaintiffs' subsidiary claims.

 I. Standing.

 The issue of standing is fairly easily disposed of. In City of Tacoma et al. v. Andrus et al., 457 F. Supp. 342, (D.D.C. 1978), the court had occasion to address issues similar to those presented here. In that case the Puyallup Tribe had purchased parcels of land within the city limits of Tacoma, Washington, and the City and Port of Tacoma, four individual taxpayers of the city, two adjacent municipalities and the county containing them all brought suit. The plaintiffs in that case did not attack the validity of the designation of the Puyallups as a tribe, but did attack the validity of taking land within municipal boundaries in trust due to the diminishment of the tax base and impairment of municipal law and zoning enforcement. The court in that case held that as to the City of Tacoma and the county, the loss of taxes and the frustration of police powers were sufficient injuries in fact to give those parties standing since these interests were indeed affected by the workings of the statute. Id. at 345. Similarly in the present suit, the City of Sault Ste. Marie has advanced the same types of injuries, and therefore the city must be held to have presented a claim for which relief may be granted. As for the individual taxpayers, the court in Tacoma indicated that their interests were not within the zone regulated by the statute, and that therefore they should be dismissed. Id. at 346. The individual plaintiffs in this case will suffer the same fate.

 II. Subject Matter Jurisdiction.

 The court notes that the complaint raises some doubts as to this court's subject matter jurisdiction over this case. The court may raise such issues Sua sponte and act to clarify them. Plaintiff states that this court has jurisdiction to hear this case pursuant to 28 U.S.C. § 1331, which is general federal question jurisdiction, and pursuant to section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701 Et seq. The Supreme Court in Sanders v. Califano, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977), has held that there is no independent grant of federal jurisdiction under the Administrative Procedure Act. Id. 430 U.S. at 104-107, 97 S. Ct. at 983-85. Section 10 of the A.P.A. clearly establishes the policy that judicial review of administrative action should be widely available. Id. 430 U.S. at 104, 97 S. Ct. at 983. However, the Indian Reorganization Act, the statute primarily at issue in this lawsuit, contains no specific review provisions. Although the Court recognized that, in the absence of specific review provisions, it might be rational to presume jurisdiction from the Congressional statement of policy in the A.P.A., the Court rejected such reasoning in light of the recent amendment to 28 U.S.C. § 1331. In Pub.L. 94-574, 90 Stat. 2721, Congress eliminated the $ 10,000 jurisdictional amount requirement for suits against the United States, its agencies, and any of its officers and employees in their official capacities. The Court held that by this amendment, Congress intended that section 1331 should henceforth supply subject matter jurisdiction for federal court review of agency action. Id. 430 U.S. at 107, 97 S. Ct. at 985. Therefore, in the absence of review provisions in the statute at issue, the only way for plaintiff to vindicate the policy favoring judicial review expressed by Congress in section 10 of the A.P.A. is by recourse to federal question jurisdiction. The A.P.A. alone provides no independent subject matter jurisdiction.

 Plaintiffs have invoked 28 U.S.C. § 1331(a) as an alternate basis for this court's jurisdiction. Section 1331(a) provides courts with general federal question jurisdiction over cases which "arise under" the Constitution, laws and treaties of the United States. Although the exact extent of this "arising under" clause has never been precisely determined, it is clear that section 1331(a) contemplates that the court must find that the law of the United States, in one form or another, is the basis of the dispute. The case at hand clearly arises under the Indian Reorganization Act of 1934, 25 U.S.C. § 461, Et seq. The ultimate resolution of this case will involve a determination of whether the defendants have abided by the provisions of the Act in taking title to the land at issue in trust. Although the statute to which section 1331(a) looks in any particular case may limit the court's exercise of subject matter jurisdiction, Association of American Medical Colleges v. Califano, 186 U.S.App.D.C. 270, 275-277, 569 F.2d 101, 106-108 (1977), the Indian Reorganization Act contains no such statutory restriction. Therefore, this court does have subject matter jurisdiction of this case pursuant to 28 U.S.C. § 1331 and 25 U.S.C. §§ 461 Et seq. The court will now turn to consideration of whether the exercise of this jurisdiction is barred by either of the two remaining arguments advanced by defendants.

 III. United States as Indispensable Party: The Problem of Sovereign Immunity.

 Defendants argue that the United States is an indispensable party to this litigation since the title to the tract in question was transferred not to the Department of the Interior, Bureau of Indian Affairs, or officers thereof, but to the United States itself. Defendants further argue that since this title has been passed to the United States, this is primarily a suit concerned with title to property, and that pursuant to 28 U.S.C. § 2409a the United States has not consented to be sued regarding land taken in trust for the Indians. Plaintiffs have replied that the United States is adequately represented by the named defendants, and that in any case, this suit is not barred by the doctrine of sovereign immunity since this is primarily a lawsuit to review agency action as allowed by 5 U.S.C. § 701, Et seq.

 With regard to defendants' assertion that the United States is an indispensable party to this action, Congress, in its recent amendments to 5 U.S.C. § 703, has sought to eliminate such contentions. Although the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 701 Et seq., do not serve to provide an independent basis for subject matter jurisdiction, it cannot be said that this congressional enactment is a total nullity. Rather, 5 U.S.C. §§ 701-706 provide a blueprint for suits brought to review agency action. After the definitional and policy statements of 5 U.S.C. §§ 701 and 702, section 703 provides rules for the form of this type of action, and establishes guidelines for venue. Section 704 allows that only certain types of agency action may be reviewed. Section 705 provides for relief pending review, and section 706 defines the scope of review. Whatever else this case may involve, it is clear that this court must engage in some type of review of the actions of the Department of the Interior. As such, this suit must follow the outline supplied by Congress in 5 U.S.C. §§ 701-706.

 When Congress amended 5 U.S.C. § 703 to eliminate the contention that the United States was an indispensable party to suits seeking judicial review of agency action, the House Judiciary Committee stated:

Despite these attempts (to simplify pleadings in cases seeking judicial review of administrative action), problems persist involving parties defendant in actions for judicial review. In the committee's view the ends of justice are not served when government attorneys advance highly technical rules in order to prevent a determination on the merits of what may be just claims.
When an instrumentality of the United States is the real defendant, the plaintiff should have the option of naming as defendant the United States, the agency by its official title, appropriate officers, or any combination of them. The ...

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