Opposition Brief — Verdin v. Louisiana Land & Exploration Co.

| Supreme Court, U.S. |

7-Ai, ED

mt |

+) APR 8 (997

VY

No. 96-1458 OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

ee

SIDNEY VERDIN, JAKE BILLIOT, WICKLIFF VERDIN,

AUTHOR BILLIOT, ALTON VERDIN, JAY NAQUIN,

JOHN VERDIN, JR. AND FOREST BILLIOT, JR.,

Petitioners,

versus

THE LOUISIANA LAND AND

EXPLORATION COMPANY,

Respondent.

+

On Petition For Writ Of Certiorari

To The Louisiana Supreme Court

Sd

RESPONDENT'S BRIEF IN OPPOSITION

2

CuHartes D. MARSHALL, JR.* Dona.p L. PELTIER

Davip N. SCHELL, Jr. Petter, Morvant &

Rosert T. Lorio CAVELL

MILLING, BENSON, WoopwarpD, 101 St. Louis Street

Hittyer, Prerson P. O. Box 5919

& Miter, L.L.P. Thibodaux, LA 70302

Suite 2300 - 909 Poydras Street Telephone: (504) 449-7500

New Orleans, LA 70112-1010

Telephone: (504) 569-7000

Attorneys for Respondent, The Louisiana Land

and Exploration Company

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

RESTATEMENT OF QUESTION PRESENTED

FOR REVIEW BY PETITIONERS

Is a state court deprived of its jurisdiction to deter-

mine whether it has jurisdiction in a possessory/trespass

action merely because the defendants have made the

unsupported and conclusory claims that they are

“Indians”, and that the property involved is “Indian

country”, in their pleadings filed in defense of that

action?

il

TABLE OF CONTENTS

Page

RESTATEMENT OF QUESTION PRESENTED FOR

REVIEW OY PUTIN. a5 hcesccscascsen ences i

TABLE OF AUTEUR see oss cena bicsescceescouceus iv

STATEMENT OF JURISDICTION..................- 1

STATEMENT OF THE SASS . «ooo ccc cc ccctecaceess 1

I. Course of Proceedings and Disposition of the

Ce DR ns oinie <n evikng vavnnaewaneavineens 2

II. Correction of Misstatement in the Petition as to

Relief Granted by the State Court ........... 6

REASONS FOR DENYING THE WRIT............. 7

I. The Court has no jurisdiction to consider Peti-

ME Creer erent ee 7

II. In any event, the State Court properly deter-

mined that it had jurisdiction to determine its

own jurisdiction of Respondent’s State Court

EEE TE OR eT ee ee ee Ee Ore 9

A. Petitioners cannot be allowed to manipu-

late jurisdiction under the guise of federal

preemption based on unsupported and

conclusory allegations of “Indian” status

or involvement of “Indian country” ..... 9

B. Courts always have the power to deter-

mine their jurisdiction ................... 11

C. There is no “Indian Exception” to the Stoll

principle that courts have the power to

determine their jurisdiction.............. 13

D. Petitioners have totally misrepresented the

application of Public Law 280........... 15

Me

ili

TABLE OF CONTENTS - Continued

Page

E. The state cases cited by petitioners are

inapplicable because they involved feder-

ally recognized tribes and/or lands desig-

nated as, or concluded to be, trust lands

for Indians

CONCLUSION

iv

TABLE OF AUTHORITIES

Page

CASES

Barbry v. Dauzat, 576 So.2d 1013 (La. App. 3d Cir.

1991), cert denied, 578 So.2d 136 (La. 1991)........ 14

Boisclair v. Superior Court, 801 P.2d 305 (Cal. 1990) ..7, 16

DeCoteau v. District County Court, 420 U.S. 425, 95

S.Ct. 1062, 43 L.Ed. 2d SOO €2975)}. «os case anes 13, 14

Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958, 127

Fe ee Bs, |) ee ean nay Ser ree 14

Jefferson v. Gamm, 90 So. 682, 150 La. 372 (La. 1922) .... 13

Jicarilla Apache Tribe v. Bd. of County Commissioners,

118 N.M. 550, 883 P.2d 136 (N.M. 1994)......... 7, 16

Langley v. Ryder, 778 F.2d 1092 (5th Cir. 1985)....... 15

Morrison v. H. B. Mitchell Const. Co., 392 So.2d

4202 (La. Asp: TOt Ga. Sao kk sche cccstesneeias 13

Ollestead v. Native of Village of Tyonek, 560 P.2d 31

(ADROEA FO7S io oa cca iat aee neh nese baevtesstineass 7, 16

Smith v. Gretna Machine Iron Works, 617 So.2d 144

(la. Age. TE CIe Tore vixcetavnevs sasscusesinsae 13

State v. Voorhies, 35 La. Ann. 1142 (La. 1882)........ 13

Stoll v. Gottlieb, 305 U.S. 165, 50 S.Ct. 134, 83 L.Ed.

SOR CRON 66 es Ki ee ee eee eres i, #, 43, 22, 33,

STATUTES

TB NAR ne Bae so cas bes he ek ss adnan dagsas seas 13,35

re BABS Oe ek SNe ya ie em Ee eer yee 1, ¥

2B WBA Pi: Be ei ce ea sae Sek he pias Coke Coen es 15

a d

Vv

TABLE OF AUTHORITIES - Continued

Page

na (me Cle: Peak: Ont SS 3. ee ae 6

Le. Se Ce Pee Bee SO. oe aoc eee ee 6

OTHER

Bt Sanden WA ae bce a dee a bees Wa ee 12

oe Ws OR: GOLA sok cece cokes chien ees 3, 12

APPENDIX

Appendix A — Judgment of the 17th Judicial Dis-

trict Court for the Parish of Lafourche, State of

Louisiana, August 7, 1995....... cKiped BR ge nese ws ass la

RESPONDENT'S BRIEF IN OPPOSITION

Respondent requests that the Court deny the petition

for writ of certiorari seeking review of the opinion of the

Louisiana First Circuit Court of Appeal reported at 681

So.24 63 (La. App. 1st Cir. 1996). That opinion is repro-

duced commencing at page la of the petition and is

herein referred to as the Court of Appeal’s opinion or

decision.

STATEMENT OF JURISDICTION

This Court should not exercise jurisdiction over this

case pursuant to 28 U.S.C.A. § 1257 or Supreme Court

Rule 10(b) or (c) because there is neither an important

federal question involved nor does the Court of Appeal’s

decision conflict with any decision of this Court.

¢

STATEMENT OF THE CASE

The premise of petitioners’ argument for a writ is

that a state court has no power or authority to determine

whether it has jurisdiction over a possessory action

merely because the defendants have made the unsup-

ported and conclusory claims, as a defense, that they are

members of an unrecognized “Indian” tribe with aborigi-

nal rights to the involved property, which they allege to

be “Indian country”. That premise is squarely in conflict

with this Court’s decision in Stoll v. Gottlieb, 305 U.S. 165,

50 S.Ct. 134, 83 L.Ed 104 (1938); it is being advanced by

petitioners solely to achieve forum shopping between

state court and federal court. A brief review of the course

of proceedings and disposition of this case by the lower

courts illustrates the petitioners’ fulsome efforts to

achieve forum shopping in this case.

I. Course of Proceedings and Disposition of the Case

Below.

Respondent commenced its suit in the Louisiana state

district court against petitioners in connection with

Respondent's efforts: (1) to remove two unattended and

illegal butterfly shrimp nets which had been placed with-

out its authorization in a private canal on its posted

marshland property; and (2) to prohibit further acts of

trespass in two sections (approximately 1280 acres) of

Respondents’s property in proximity to the illegal nets.

Contrary to the misleading implications in both peti-

tioners’ statement of the Question Presented for Review

(petition, p. i) and footnote 1 in the petition (p. 2), none of

the petitioners has ever lived on the marshland property

at issue and none of them has been displaced in any way

by the judgment of the state district court or the Court of

Appeal’s decision. The illegal shrimp nets that Respon-

dent sought to have removed had not been installed for

some tribal communal purpose; they had been installed

through acts of trespass by certain of the petitioners for

their own profit.

After unsuccessfully trying to remove the case to the

federal district court for the Eastern District of Louisiana

on the ground that the federal court had exclusive and

preemptory jurisdiction over the controversy merely

because the petitioners had made the unsupported and

conclusory claims, as a defense, to be members of an

unrecognized “Indian” tribe and that the acts in contro-

versy occurred within “Indian country” (The Louisiana

Land and Exploration Company v. Sidney Verdin, et al., C.A.

No. 93-2970), the petitioners (joined by others) then filed

their own suit in the same federal court (Verdin, ei al. v.

The Louisiana Land and Exploration Company, C.A. No.

93-3537, the “federal suit”) claiming to be members of an

unrecognized “Indian” tribe with aboriginal rights over

not just the approximate 1280 acres involved in Respon-

dent’s state court proceeding, but also many thousands of

acres of marshland property owned by others, all of

which they claimed to be “Indian country”. |

In recognition of the pending effort by the alleged

tribe for the plaintiffs in the federai suit to obtain federal

recognition as an Indian tribe from the United States

Bureau of Indian Affairs, the federal court (on Respon-

dent’s motion) chose to stay further proceedings in the

federal suit pending the final determination of that fed-

eral recognition process in regard to plaintiffs’ alleged

tribal status.! Following the issuance of the BIA’s nega-

tive recommendation of recognition of such tribal status

issued to the Secretary of the United States Department of

1 The BIA later issued a recommendation to the Secretary of

the United States Department of Interior against such

recognition, 59 Fed. Reg. at 66118: “The petitioner maintains

that they are the descendants of the historical Houma Indian

tribe. There is no evidence supporting this contention. .. . There

is also no evidence that the petitioner, as a group, descends from

any other historical tribe, or from historical tribes which

combined and functioned as a single autonomous entity.”

Interior, petitioners then attempted to disassociate them-

selves from that unsuccessful effort by claiming tribal

affiliation with at least two other groups, neither of which

has any status as a federally recognized Indian tribe.

The petitioners subsequently presented to the state

court, at a pre-trial hearing, an exception to its jurisdic-

tion based on the same removal arguments that had been

rejected by the federal court (e.g., that there is no state

court jurisdiction because they have alleged that they are

members of an “Indian” tribe and they have alleged that

the acts in controversy occurred within “Indian coun-

try”). Those arguments were rejected by the state court

because petitioners offered no proof whatsoever of either

Indian tribal affiliation or the status of the property as

“Indian country.” (See Oral Reasons for Judgment

Regarding the Defendants’ Exception of Lack of Subject

Matter Jurisdiction (copy included in petition, commenc-

ing at p. 11 a). Petitioners sought a supervisory writ of

review from that determination, which was similarly

rejected by the state appellate court. (petition, p. 21 a.)

On the eve of trial in state court, petitioners once

again attempted to remove the case to federal court (Loui-

siana Land and Exploration Company v. Sidney Verdin, et al,

C.A. No. 95-2447), raising the same “preemptive” juris-

dictional arguments (i.e., their allegations of being mem-

bers of an “Indian” tribe, and involvement of “Indian

country”) that had been previously rejected by the federal

court. They were rejected again, with sanctions being

imposed on the petitioners for the improvident removal.

At trial of the possessory/trespass action in the state

court, the petitioners did not offer one shred of evidence

to support their conclusory claims of “Indian” tribal sta-

tus or that the approximate 1280 acres somehow constitu-

ted “Indian country.” Nor did they offer any evidence of

possession of that property. (Respondent offered over-

whelming evidence of its historical possession of that

property to the extent of its title.) Since no evidence was

offered by petitioners which in any way suggested that

the state court’s jurisdiction was interdicted in any

respect by any federal law, the state court went on to

recognize and maintain Respondents’ possession of the

approximate 1280 acres. It also enjoined the Verdin peti-

tioners from committing further acts of trespass and

awarded Respondent compensation for damages inflicted

on the property by the Verdin petitioners in furtherance

of their illegal shrimping activities. (See August 7, 1995

Judgment (copy attached hereto as Appendix A)).

The district court’s opinion was affirmed by the

Court of Appeal’s decision, and the Louisiana Supreme

Court denied writs. (petition, p. 9 a).

The petitioners now seek this Court’s intervention in

an attempt to effect their forum shopping on the same

“preemptive” jurisdictional argument based on their

unsupported and conclusory allegations of “Indian” sta-

tus and “Indian country” which has been consistently

rejected by all lower courts, state and federal.

II. Correction of Misstatement in the Petition as to

Relief granted by the State Court.

The state court did not enter “an order of eject-

ment,”? as misrepresented by petitioners in their Ques-

tion Presented for Review (petition, p. i). To the contrary,

the state court rendered judgment pursuant to and in

conformity with La. Code Civ. Proc. art. 3662: (i) recog-

nizing and maintaining Respondent’s historical posses-

sion of the property involved in the suit, (ii) enjoining

further acts of trespass thereon, and (iii) awarding dam-

ages to Respondent caused by the Verdin petitioners’

trespasses. (See August 7, 1995 Judgment, at [J 1-4 (copy

attached hereto as Appendix A)).

¢

2 No such order or relief exists under Louisiana law. Under

Louisiana law, a possessory action can be brought either by one

in possession who seeks to be maintained in possession against

disturbances or by one seeking to be restored to possession

within one year of being evicted. (La. Code Civ. Proc. art. 3655).

Relief awarded in a possessory action is either to be restored to

possession, if evicted, or to be maintained in possession, if a

disturbance has not caused an eviction, with an order

compelling the defendant to assert an adverse claim to

ownership in a petitory action filed within statutorily

prescribed time limits, and damages where appropriate. (La.

Code Civ. Proc. art. 3662(1)(2) and (3).)

NR

REASONS FOR DENYING THE WRIT

THIS COURT HAS NO JURISDICTION TO

CONSIDER PETITIONERS’ ARGUMENTS.

This Court does not review decisions of state courts

unless either a federal question has been decided in a

way that conflicts with the decision of another state court

of last resort or a United States court of appeal or this

Honorable Court [28 U.S.C.A. § 1257, Sup. Ct. R. 10.1.(b)

and (c)].

There is no important question of federal law

involved in this matter. Although petitioners attempt to

create the chimera of such a conflict by inappropriately

citing this court to certain decisions involving federally

recognized tribes and/or members thereof and/or to

specific lands held in trust by the United States for

federally recognized tribes and/or members of such

tribes and/or specific lands statutorily created as

“Indian country,” the petitioners well know that none of

those decisions relates either to their circumstances of not

having any federal recognition of their alleged tribal sta-

tus, or to Respondent’s property, which is not “Indian”

trust lands or statutorily prescribed “Indian country.”

[See, tor example, petitioners’ insidious references to

Boisclair v. Superior Court, 801 P.2d 305 (Cal. 1990); Jicarilla

Tribe v. Board of County Commissioners, 118 N.M. 550, 883

P.2d 136 (N.M. 1994) and Ollestead v. Native of Village of

Tyonek, 560 P.2d 31 (Alaska 1977) and the several federal

statutes cited in the petition, all of which relate to or

involve federally recognized Indian tribes and/or specific

trust lands].

None of the decisions cited by petitioners purports to

hold, and none of the statutes they cite purports to sug-

gest, that mere unsupported and conclusory allegations

of “Indian” tribal status or “Indian country” deprives a

state court of its jurisdiction to determine whether it has

jurisdiction over the individuals or property at issue. To

the contrary, the lower court decisions in this case recog-

nizing that state courts do have such jurisdiction are all

consistent with applicable authorities, including the para-

mount and controlling decision of this Court in Stoll v.

Gottlieb, 305 U.S. 165, 50 S.Ct. 134, 137, 83 L.Ed. 104

(1938), recognizing that:

“a court must have the power to determine

whether or not it has jurisdiction of the person

of a litigant or whether its geographical jurisdic-

tion covers the place of occurrence under con-

sideration.”

Thus, there is no jurisdictional basis which supports

petitioners’ writ.

na ——

II.

IN ANY EVENT, THE STATE COURT PROPERLY

DETERMINED THAT IT HAD JURISDICTION TO

DETERMINE ITS OWN JURISDICTION OF RESPON-

DENT’S STATE COURT SUIT.

A. Petitioners cannot be allowed to manipulate juris-

diction under the guise of federal preemption

based on unsupported and conclusory allegations

of “Indian” status or involvement of “Indian coun-

”

try”.

The petitioners in this’. -. accuse Respondent of

“manipulation of state and federal courts” (petition, p.

15) because petitioners were twice unsuccessful in

removing Respondent’s state suit on grounds of complete

federal preemption. They further accuse Respondent of

“duplicity” (petition, p. 15) and engaging in “perfidy”

(petition, p. 16), because the federal court chose to stay

the federal suit petitioners (and others) filed against

Respondent as a back-up to their unsuccessful effort at

removal. To the contrary, it is the perfidious petitioners

who seek to achieve manipulation of forums. The pur-

pose of their petition for this writ is no more than to

obtain an improper and collateral review of their unsuc-

cessful efforts to effect forum shopping in federal court

through improper removals of Respondent’s state court

suit.

The federal court, on the initial remand of Respon-

dent’s state suit back to the state court, properly deter-

mined, consistent with prior decisions of this Court

which are discussed below, that mere unsupported and

conclusory allegations of “Indian” tribal status or the

“BEST AVAILABLE COPY

10

involved property being “Indian country” pled by peti-

tioners in defense to Respondent’s state suit neither

established federal jurisdiction nor preempted state court

jurisdiction:

[a]lthough defendants submitted affidavits and

a memorandum to the Court to establish both its

protected status as Houma Indians/Lower

Pointe Au Chien Tribe and its claims to the land

at issue, it has not vet been established that

defendants are pn ers of a protected tribe,

that the properi:, . 1e is Indian land or that

the named defendants have possessory rights

to this land. These issues will be addressed in

this court in the related case 93-3537 [(the peti-

tioners’ federal suit)]. Because federally pro-

tected status is not a definitive factor in this

case, plaintiff’s claim is not necessarily stating a

federal cause of action.

1994 U.S. Dist. Lexis

10337, *3 (E.D. La. July

27, 1994)

The recognition by the lower courts that a court must

have the power to determine its own jurisdiction is con-

sistent with controlling decisions of the United States

Supreme Court which should not be overruled or mod-

ified; following those controlling decisions does not

result in conflicting decisions or injustice to anyone in

this case. Since the desired remedy the petitioners seek

can still be pursued in their (now stayed) federal court

suit, denial of review by this Court in this case will not

cause material injustice nor will it affect the public inter-

est. By doing what courts do in each and every case,

either expressly or tacitly, i.e., determine its jurisdiction,

a

11

it cannot be argued that there has been any departure

from proper judicial proceedings. The petitioners’ unhap-

piness with their unsuccessful efforts to change the forum

of this case to federal court obviously is not an appropri-

ate reason for review by this Court.

B. Courts Always Have the Power to Determine Their

Jurisdiction.

The United States Supreme Court has long recog-

nized:

Where adversary parties appear, a court must

have the power to determine whether or not it

has jurisdiction of the person of a litigant or

whether its geographical jurisdiction covers

the place of the occurrence under consideration.

Every court in rendering a judgment tacitly, if

not expressly, determines its jurisdiction over

the parties and the subject matter.

Stoll v. Gottlieb, 305 U.S. 165, 50 S.Ct. 134, 137, 83 L. Ed.

104 (1938) (footnote omitted, emphasis added).

In this case, the petitioners make the same argument

to this Court which has been rejected by all other state

and federal courts to which it has been presented: that is,

there is no state court jurisdiction merely because they

have alleged that they are members of an Indian tribe

and they have alleged that the dispute with Respondent

occurred within Indian country.

Under Stoll, it is clear that the court must have the

power to determine whether its geographical jurisdiction

covers the place of the occurrence under consideration. In

this case, the court was called upon to determine whether

12

the trespass occurred within “Indian country.” Rather

than try to show that it was “Indian country,” the peti-

tioners took the position that their mere allegation that

the court lacked jurisdiction precluded the court from

determining whether it in fact had jurisdiction.> The peti- |

tioners’ assertion, that a court cannot determine its juris- ;

diction because a wrong determination of jurisdiction

would result in a prohibited adjudication of the merits,

has been flatly rejected by the United States Supreme

Court in Stoll:

An erroneous affirmative conclusion as to the

jurisdiction does not in any proper sense enlarge

the jurisdiction of the court until passed upon

by the court of last resort, and even then the

jurisdiction becomes enlarged only from the

necessity of having a judicial determination of

the jurisdiction of the subject matter.

Id.

3 To the contrary, Respondent proffered evidence from the

United States Government’s Bureau of Indian Affairs (“BIA”)

which confirmed that it had “no records showing federal trust

or federally recognized Indian lands within Sections 27 and 28.”

R. 465. The BIA is charged with the responsibility of recording

and maintaining records of all lands held in trust by the United

States for individual Indians or tribes. See 25 C.F.R. § 150.1 et seq.

See also 59 Fed. Reg. at 66118 where in connection with its

recommendation not to recognize the Houmas Indians (which

the defendants now try to distance and disassociate themselves

from) the BIA found:

“The petitioner maintains that they are descendants

of the historical Houma Indian tribe. There is no

evidence supporting this contention.”

13

Following the Stoll principle, Louisiana courts have

long recognized that a court cannot dismiss for lack of

subject matter jurisdiction on mere allegations:

It is an indisputable proposition that where a

question of law can be determined only after a

question of fact has been investigated and set-

tled, the court which is called upon to solve the

former, must necessarily pass primarily on the

latter.

State v. Voorhies, 35 La. Ann. 1142, 1143 (La. 1882). See also

Jefferson v. Gamm, 90 So. 682, 685, 150 La. 372 (La. 1922)

(“every court has jurisdiction to determine questions of

fact upon which depend the question whether the court

has jurisdiction of any particular case.”); Morrison v. H.B.

Mitchell Const. Co., 392 So.2d 1102 (La. App. 1st Cir. 1979); -

and Smith v. Gretna Machine Iron Works, 617 So.2d 144 (La.

App. 5th Cir. 1993).

C. There is No “Indian Exception” to the Stoll Princi-

ple That Courts Have the Power to Determine Their

Jurisdiction.

The petitioners’ attempt to create the appearance of

an exception to the Stoll principle where Indians are

involved is also flatly rejected by decisions of the United

States Supreme Court. In DeCoteau v. District County

Court, 420 U.S. 425, 95 S.Ct. 1082, fn. 2 at 1084, 43 L. Ed.

2d 300 (1975), the United States Supreme Court recog-

nized that South Dakota state courts could determine

whether lands constituted “Indian Country” (as stat-

utorily defined in 18 U.S.C.A. § 1151) for purposes of

14

determining whether they had civil and criminal jurisdic-

tion. Citing DeCoteau, the Supreme Court recently reaf-

firmed its recognition that a state (Utah) court could

determine whether lands constituted “Indian Country”

for jurisdictional purposes. Hagen v. Utah, 510 U.S. 399,

114 S.Ct. 958, 127 L. Ed. 2d 252 (1994).

DeCoteau has previously been relied upon by a Loui-

siana court. In Barbry v. Dauzat, 576 So.2d 1013 (La. App.

3d Cir. 1991), cert. denied, 578 So.2d 136 (La. 1991), the

appellant made the same argument that the defendants

make here, i.e. that the district court lacked subject matter

jurisdiction for a child custody proceeding because the

father and child were alleged members of an Indian tribe

and were residing on Indian lands. Citing DeCoteau the

court held:

a determination of whether the tribal or state

district court has jurisdiction over the subject

matter and person of the minor child, because

he is an alleged member of the Tunica-Biloxi

Indian Tribe and is domiciled and residing on

the Reservation, would first depend on whether

or not the minor child is an Indian child. . . . We

find, for the purposes of ruling on the relator’s

alternative contention that the state court lacks

jurisdiction, because relator and the minor child

are Indians, who are citizens of a sovereign

nation residing on the Reservation, which is a

sovereign nation, that we must make such a

determination.

Id. at 1021.

The same type of determination that was made by

the state courts in DeCoteau, Hagen and Barbry is proper in

this case as well.

15

D. Petitioners have totally misrepresented the Appli-

cation of Public Law 280.

In narrowing their own creation of an “Indian excep-

tion” to the Stoll principle (that courts have the power to

determine their jurisdiction), the petitioners totally mis-

represent the application of Public Law 280, 28 U.S.C.A.

§ 1360. Contrary to the petitioners’ assertion, that statute

did not take away any state court powers; rather, in an

effort to shift the burden and costs to the states, it

granted jurisdiction to certain states over general civil

and criminal claims arising on “Indian country.”* Other

states, like Louisiana,5 have no jurisdiction, civil or crimi-

nal, where the place of the occurrence under consider-

ation is within “Indian country.” However, under the

petitioner’s version of this law, “Indian country” would

extend to whatever a defendant claimed it to be. Thus, in

Louisiana, in any civil or criminal matter, a defendant

could allege that he was an Indian and the occurrence at

issue was within Indian land and, under the petitioners’

argument, the state court would have to dismiss each and

every such case because it was powerless to determine its

jurisdiction! Stoll, DeCoteau and Hagen clearly show that

is not the law.

* Federal law defines “Indian country” as (a) Indian

reservation land; (b) dependent Indian communities; and (c)

Indian allotments (18 U.S.C.A., § 1151).

> “Louisiana is not a P.L. 280 state.” Langley v. Ryder, 778

F.2d 1092, 1095 (Sth Cir. 1985) (emphasis in original).

16

E. The state cases cited by petitioners are inapplicable

because they involved federally recognized tribes

and/or lands designated as, or concluded to be, trust

lands for Indians.

The state cases cited by the petitioners are inapplica-

ble because they involved federally recognized Indian

tribes and/or lands statutorily designated, or conceded,

to be held by the United States in trust for Indians. In

Boisclair v. Superior Court, 801 P.2d 305, 307-15 (Cal. 1990)

leaders of a federally recognized Indian tribe obtained

the dismissal of a suit concerning rights to a road travers-

ing “what both sides concede to be Indian land.” In

addition, note the more recent criticism of Boisclair in

Jicarilla Apache Tribe v. Bd. of County Commissioners, 118

N.M. 550, 883 P.2d 136, 143 (N.M. 1994) (“With deference,

we do not believe that any such ‘complete preemption

doctrine’ with respect to disputes over property rights on

Indian land has ever been enunciated by the U:S.

Supreme Court or that any such doctrine would be

appropriate in defining the scope of [28 U.S.C.]

§ 1360(b).”). In Ollestead v. Native of Village of Tyonek, 560

P.2d 31 (Alaska 1977), a suit was filed against a federally

chartered corporation established under federal Indian

law by a federally recognized Indian tribe alleging rights

to share in proceeds from property expressly held in trust

by the United States for the benefit of the tribe; a deter-

mination of whether Indians or Indian trust property was

involved was not required.

Thus, the state court properly determined that it had

jurisdiction over Respondent’s suit in any event.

+

17

CONCLUSION

This case is not “writ worthy.” Petitioners have not

shown that the lower court’s determination, that a state

district court has the power to determine whether it has

subject matter jurisdiction, is even arguably incorrect,

much less in conflict with either a decision of this Court,

other state courts or federal law. To the contrary, that

determination is in full accord with controlling decisions

of this Court. The result sought by the petitioners, that

state courts must abdicate their jurisdiction on mere alle-

gations, is unsupportable and could leave plaintiffs, such

as Respondent, without any forum to pursue their claims.

It is respectfully submitted that the writ of certiorari

should be denied.

Respectfully submitted,

Cuarves D. MARSHALL, JR.* Donatp L. PELTIER

Davip N. ScHELL, Jr. Pevtier, Morvant &

Rosert T. Lorio CAVELL

MILLING, BENSON, Woopwarp, 101 St. Louis Street

Hittyer, Pierson & P. O. Box 5919

Miter, L.L.P. Thibodaux, LA 70302

Suite 2300 — 909 Poydras Street Telephone: (504) 449-7500

New Orleans, LA 70112-1010

Telephone: (504) 569-7000

Attorneys for Respondent, The Louisiana Land

and Exploration Company

* Counsel of Record for Respondent

la

APPENDIX A - JUDGMENT OF THE 17TH

JUDICIAL DISTRICT COURT FOR THE

PARISH OF LAFOURCHE, STATE OF LOUISIANA

AUGUST 7, 1995

THE LOUISIANA LAND : NO. 72464 DIV. B

aia | ee.

: DISTRICT COURT

VERSUS : PARISH OF LAFOURCHE

SIDNEY VERDIN, ET AL: rare OF LOUISIANA

FILED:

DEPUTY CLERK

JUDGMENT

This matter came on for trial on the merits on July 31

and August 1, 1995. In attendance for the parties were:

Donald L. Peltier

Charles D. Marshall, Jr.

David N. Schell, Jr.

Counsel for plaintiff, The Louisiana Land

and Exploration Company

Mary W. Riviere

Joel R. Waltzer

Jennifer N. Willis

Counsel for defendants, Sidney Verdin,

Wickliff Verdin, Jake Billiot, Author Billiot,

Alton Verdin, Jay Naquin, John Verdin, Jr.

and Forest Billiot, Jr.

After considering the testimony of the witnesses, the

evidence submitted and the arguments of counsel [and

after directing a verdict in favor of Jake Billiot, Author

2a

Billiot, Alton Verdin, Jay Naquin, John Verdin, Jr. and

Forest Billiot, Jr.], the Court, for reasons orally assigned,

finds, with respect to the following described property:

Section 27: NE '/4 and N '/2 of NW/4 and NW

1/4 of SE '/a and E '/2 of SE '/4 and W '/2 of SW 1/4;

and

Section 28: All except NE '/s of NE 1/4

in Township Nineteen (19) South, Range Twenty

(20) East, Lafourche and Terrebonne Parishes

that: (1) plaintiff, The Louisiana Land and Exploration

Company had possession of the said property at the time

the disturbances of defendants, Wickliff Verdin and

Sidney Verdin occurred; (2) plaintiff, The Louisiana Land

and Exploration Company had such possession quietly

and without interruption for more than a year imme-

diately prior to the disturbances; (3) the disturbances

were one in fact but which did not amount to an eviction;

and (4) this action was instituted within a year of the

disturbances. Therefore, IT IS ORDERED, ADJUDGED

AND DECREED that:

1. The Louisiana Land and Exploration Company’s

right to the possession of the said property is hereby

recognized and maintained;

2. A permanent injunction is hereby issued against

Sidney Verdin and Wickliff Verdin restraining, enjoining

and prohibiting them, any agents, employees and all

persons, firms or corporations acting or claiming to act in

either of their behalf, or in concert with either of them,

from trespassing, disturbing or in any way interfering

with The Louisiana Land and Exploration Company’s

possession of the said property;

=e Gene Ree ema

ie re emcee:

3a

3. Sidney Verdin and Wickliff Verdin are ordered to

assert any adverse claim of ownership of the said prop-

erty within sixty days after the date this judgment

becomes executory, or be precluded thereafter from

asserting the ownership thereof;

4. Judgment in the amount of Nine Thousand Two

Hundred Forty and No/100 ($9,240.00) dollars, together

with legal interest from the date of judicial demand, is

hereby rendered in favor of The Louisiana Land and

Exploration Company and against Wickliff Verdin;

5. Sidney Verdin is hereby ordered to remove, upon

twenty-four (24) hours advance written notice to LL&E of

the date and time of said removal activities, any and all

buildings, butterfly nets, pilings and other structures sit-

uated on the said property and placed thereon or claimed

by him within sixty (60) days of the date of the signing of

this Judgment, failing which, LL&E may demolish and

remove same at the expense of Sidney Verdin; and

6. All costs of this proceeding are assessed against

Sidney Verdin and Wickliff Verdin.

Judgment read, rendered and signed in Thibodaux,

Louisiana, this 7th day of August, 1995.

/s/ Jerome J. Barbera III

JUDGE