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

Supreme Court, U.S.

FILED

APR 17 1997

| GEEICE OF PHE €LERM

———

No. 96-1458

In The

Supreme Court of the United States

October Term, 1996

¢

SIDNEY VERDIN, JAKE BILLIOT, WICKLIFF VERDIN,

AUTHOR BILLIOT, ALTON VERDIN, JAY NAQUIN,

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

Petitioners,

versus

LOUISIANA LAND AND EXPLORATION COMPANY,

Respondents.

+

On Petition For Writ Of Certiorari

To The Louisiana Supreme Court

¢

PETITIONERS’ REPLY BRIEF

*

R. GLen CATER Mack E. BARHAM

JENNIFER N. WIztis Rosert E. ARCENEAUX*

Cater & WILLIS Jutta SYMON DE KLUIVER

3723 Canal Street BARHAM & ARCENEAUx, PLC

New Orleans, LA 70119 650 Poydras Street,

Telephone: (504) 488-6300 Suite 2700

New Orleans, LA 70130-6161

wrap aed Telephone: (504) 525-4400

Wartz & Downer Joet R. WaALTzeR

423 Goode Street Wattzer & ASSOCIATES

Houma, LA 70361 144 Elk Place, Suite 1710

Telephone: (504) 876-0870 New Orleans, LA 70112

Telephone: (504) 525-1586

Attorneys For Petitioners, Sidney Verdin, et al.

* Counsel of Record

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

OR CALL COLLECT (402) 342-2831

ee es emg OBR RO Re pen et ~-

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

(1938) is utterly irrelevant to the question posed by

this Petition. Of course a court has the power to

decide whether it has jurisdiction, and its decision on

that issue, if unappealed, acquires binding res judicata

effect, which is the holding of Stoll. Unlike in Stoll,

Petitioners have directly appealed the erroneous deci-

sion by the state courts below that they did have

jurisdiction to “adjudicate .. . the ownership or right

of possession of” Indian land or real or personal

property belonging to any Indian, “or any interest

therein.” 28 U.S.C. § 1322 (b). As the California

Supreme Court held in Boisclair v. Superior Court, 801

P.2d 305 (Cal. 1990), Public Law 280’s prohibition

“plainly supports the position that state court juris-

diction is barred whenever one litigant claims the

disputed property is Indian trust land.”

LL&E alleges that the [ndians do not actually reside

on the property in dispute and also questions

whether the Indians’ acts of possession had “some

tribal communal purpose.” Opposition at p. 2. Indian

aboriginal title, however, is a right of occupancy and

use to land that has been inhabited by the Indians

and their ancestors from time immemorial, rights

which cannot be terminated without the express con-

sent of the sovereign. Oneida County, N.Y. v. Oneida

Indian Nation of N.Y. (“Oneida II”), 470 U.S. 226, 233-4,

105 S.Ct. 1245, 1251, 84 L.Ed.2d 169 (1985). Tribal

communal purpose and actual residence upon every

inch of the land, however, are completely irrelevant

to the issue of aboriginal title.

Contrary to LL&E’s statements and as LL&E well

knows, the Indians have not petitioned the United

States Bureau of Indian Affairs for recognition as an

Indian tribe, nor has the BIA issued any ruling with

regard to the petitioners before this Court. See discus-

sion at p. 3 of Petition for Writs of Certiorari. The

United Houma Nation filed papers with the BIA, but

the Indians have never claimed membership in a

United Houma Nation. The BIA found no such tribe

as the United Houma Nation exists, but speculated

that certain subgroups, such as the Point au Chien

Indians, which include your petitioners, may indeed

qualify for tribal recognition. LL&E’s continued mis-

representation of the BIA record is not unexpected,

but lamentable.

The federal district court did not decide that state

court jurisdiction existed or even that federal ques-

tion jurisdiction did not exist, but rather, it decided

only that federal removal jurisdiction did not exist.

LL&E’s clever use of artful pleadings has prevented

the assumption of such jurisdiction.

Petitioners did not offer “one shred of evidence” of

their Indian status or rights at the trial of this matter

because they refused to be forced into waiving their

absolute right, guaranteed by Public Law 280, to have

a federal court hear this evidence and decide the

issue. This was net “forum shopping” as LL&E

naively calls it. It is a steadfast refusal to accede to the

forced waiver of federally protected rights that LL&E

has tried to engineer.

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

1082, 43 L.Ed.2d 300 (1975), Hagen v. Utah, 510 USS.

399, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994), and Barbry

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

denied, 578 So.2d 136 (La. 1991), do not support the

view that a state court has the jurisdiction to adjudi-

cate claims to Indian lands. Indeed, none of these

cases even involve land claims, and therein lies the

distinction that has eluded the lower courts and

LL&E.

LL&E tries to suggest that Louisiana is not bound by

Public 280 by citing only to 28 U.S.C. § 1360. This

section expressly grants jurisdiction in civil and crim-

inal matters to six specific states. Public Law 280 was

also codified at 25 U.S.C. § 1322, which gave all other

states the option of assuming that jurisdiction with

the consent of the Indians themselves. Both statutes,

however, withheld jurisdiction to adjudicate dis-

putes involving title to or possession of Indian land.

25 U.S.C. § 1322(b); 28 U.S.C. § 1360(b). Because a

state court cannot adjudicate a claim to Indian land

on the merits, it has no power to assert jurisdiction

over such a dispute under the guise of a determina-

tion that the land at issue is not “Indian land” or that

the claimants are not “Indians.” In ruling on jurisdic-

tion, the court is making the prohibited adjudication

on the merits. This anomalous result, if permitted, is

exactly what compelled the courts in Boisclair, supra,

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

(Alaska 1977) to abstain fron. asserting jurisdiction

over an Indian land claim.

This case raises writ-worthy issues. The decision

below is a direct conflict with the interpretation and

application of Public Law 280 given by the courts of

California and Alaska. Louisiana so cavalierly dis-

misses this law as to assert jurisdiction over Indian

land claims without even discussing the matter. Cali-

fornia and Alaska correctiy respect federal jurisdic-

tion in such matters. While equity alone is generally

not a sufficient reason for the grant of certiorari, this

Court has traditionally been sensitive to the mistreat-

ment that Native Americans have received in the

state courts. The result below aptly explains why such

vigilance is required.

Respectfully submitted,

R. GLeN CATER

JENNIFER WILLIS

Cater & WILLIS

3723 Canal Street

New Orleans, Louisiana

70119

Telephone: (504) 488-6300

JosepH L. Warrz

Mary W. Riviere

Waitz & DOwNER

423 Goode Street

Houma, Louisiana 70361

Telephone: (504) 876-0870

Mack E. BARHAM

Rosert E. ARCENEAUX*

Jutta SYMON DE KLUIVER

BARHAM & ARCENEAUX

650 Poydras Street,

Suite 2700

New Orleans, Louisiana

70130

Telephone: (504) 525-4400

Joe, R. WaLtTzer

WALTZER & ASSOCIATES

144 Elk Place, Suite 1710

New Orleans, Louisiana

70112

Telephone: (504) 525-1586

Attorneys for Petitioners, Sidney Verdin, et al.

* Counsel of Record