evictions on Indian trust land and accordingly concludes that the district court has subject matter jurisdiction. All Mission, 680 F. Supp. at 332.
It is well-established that federal common law can create federal subject matter jurisdiction. Illinois v. City of Milwaukee, 406 U.S. 91, 100, 31 L. Ed. 2d 712, 92 S. Ct. 1385 (under section 1331 "laws" of the United States include federal common law); Smith v. Grimm, 534 F.2d 1346, 1351 (9th Cir. 1976). Federal common law arises when there are "issues in which the federal interest is so strong that they should be resolved on the basis of a uniform judge-made federal law, rather than on the basis of varying state laws." Wright, Miller & Cooper, Federal Practice and Procedure Civil, section 3563.
The court in All Mission concluded that federal common law governed where an Indian housing authority attempted to "evict Indian tenants off of unallotted Indian tribal lands." All Mission, 680 F. Supp. at 331. The All Mission court relied upon the theory that if a state court could not adjudicate the issue and there was no federal statute or treaty on point, then the federal district court must have federal common law jurisdiction. Id. at 332. To reach the conclusion that the state court could not adjudicate the claim, the court in All Mission relied on 28 U.S.C. section 1360(b). Section 1360(b) provides that nothing in section 1360 "shall confer jurisdiction upon the state to adjudicate the ownership or right to possession of such property [i.e., property of any Indian tribe held in trust by the United States] or any interest therein." Id. (bracketed material in original).
In contrast, the Fifth Circuit reached a different conclusion in an analogous case. There the court addressed the issue of whether federal common law would govern an action for breach of an oil and gas lease assignment between Chuska Energy and Mobil Exploration & Producing ("Mobil"). Chuska, 854 F.2d at 727. The lease site which was the subject of the assignment was an Indian reservation. Id. Plaintiff, Chuska Energy, had signed a lease agreement with the Navajos for the exclusive right to operate a tract of land within the Navajo reservation. Id. at 729. Shortly thereafter, Chuska Energy assigned Mobil a right to operate a portion of the land. Id. During the term of the assignment, Chuska Energy filed an action against Mobil for breach of contract.
In its answer, Mobil asserted the affirmative defense that the lease agreement between the Navajos and Chuska Energy was invalid because it did not conform to the requirements of the Mineral Leasing Act of 1938.
The Chuska court recognized that Mobil could assert the invalidity of the Navajo/Chuska lease as an affirmative defense but concluded that such defense would not create federal jurisdiction. Id. at 730-731. The court in Chuska held that the underlying claim--breach of contract--was rooted in state law and that therefore, there was no federal common law jurisdiction. Id. at 730.
The court reasoned that there was "no danger of erroneous or inconsistent construction each time a state court adjudicated those questions [which related to issues requiring the construction of federal statutes and the Constitution] in common law or state statutory actions." Id. The court further explained that a state court's "adjudication of Mobil's claims in a suit to enforce the assignment would not implicate or erode the congressional goal of monitoring the mining of Indian land." Id. at 731. The Chuska court, in dicta, stated that had the Navajos or the Secretary of Interior brought an action regarding the validity of the lease agreement between Chuska Energy and the Navajos, then federal common law would provide the basis for federal question jurisdiction. Id. at 732.
Chuska is consistent with Taylor v. Anderson, 234 U.S. 74, 58 L. Ed. 1218, 34 S. Ct. 724 (1914), where the Supreme Court concluded that an affirmative defense could not be the basis for federal subject matter jurisdiction. Taylor, 234 U.S. at 74. The Court held that an action in ejectment did not arise under the laws of the United States. Id. In Taylor, plaintiffs alleged that they owned property which defendants then possessed.
Plaintiffs alleged that defendants had no legal right to possession of the property. In support of this allegation, plaintiffs contested the validity of defendants' deed to the land by claiming that it was "void under congressional legislation restricting the alienation of lands allotted to the Choctaw and Chickasaw Indians."
Taylor, 234 U.S. at 74. The court concluded that the invalidity of defendants' deed was not an element of plaintiffs' cause of action; rather, plaintiffs had asserted the invalidity of the deed in anticipation of defendants' affirmative defense to the ejectment action. Id. at 74. Since the validity of the lease was not an element of the complaint, the court found that the action was for ejectment only. Id. The court then concluded that an action for ejectment was a question for the state court, and "however essential or appropriate these [invalidity of underlying deed] allegations might have been in a bill in equity to cancel or annul the deed, they were neither essential nor appropriate in a petition in ejectment." Id. at 74.
Here, the action is for eviction--a matter of landlord-tenant law. Landlord-and-tenant actions are state law issues. Powers v. United States Postal Service, 671 F.2d 1041, 1045 (7th Cir. 1982) ("Federal common law of landlord and tenant does not exist."). The court in Powers noted:
It is not to be expected that the federal courts would do a very good job of devising a model code of landlord-tenant law, since they have very little experience in landlord-tenant matters; and though eventually some body of law would emerge it would not in all likelihood be a uniform body, because there are twelve federal circuits and the Supreme Court could not be expected to intervene sporadically.
Id. at 1045. Because landlord-tenant disputes are matters of state law, an action for eviction cannot be the basis for federal question jurisdiction.
An action involving an Indian tribe's --as opposed to an individual tribe member's--possessory rights of trust land would, unquestionably, create a question of federal common law. 28 U.S.C. section 1360(b); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 677, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974) ("The Oneidas asserted a present right to possession based in part on their aboriginal right of occupancy which was not terminable except by act of the United States."). The Oneida court noted, in dicta, that the identities of the parties to an action is a significant factor in determining the federal interest. Oneida, 414 U.S. at 676.
Since the determination of whether a federal interest exists controls the applicability of federal common law, the court in cases involving Indians should look to whether the party is an Indian tribe or an individual member of the tribe. Id. at 676. The Court in Oneida stated:
Insofar as the underlying right to possession is concerned, Taylor is more like those cases indicating that "a controversy in respect of lands has never been regarded as presenting a Federal question merely because one of the parties to it has derived his title under an act of Congress."