# Opposition Brief — Verdin v. Louisiana Land & Exploration Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0419%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1212 ## Text | 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0419%3A2. Public record. Not legal advice.