Page 5 of FFJ Case 2:96-CV-294 Support of Federal Defendant's Motion to Dismiss

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       An action for Mandamus does not alone create jurisdiction where jurisdiction does not otherwise exist. It may, however, provide an additional remedy where there is already subject matter jurisdiction. Smith v. Lehman, 459 U.S. 1173; see also Starbuck v. San Francisco, 556 F.2d 450 (9th Cir. 1977). An action for mandamus does not give the a federal court jurisdiction that would not have existed before the Mandamus Act, 28 U.S.C. § 136 1. Craig v. Colburn, 414 F.Supp. 185, 193 (D.Kan. 1976) see Bach v. Cullen 338 F.2d 633 (9th. Cir.1963); J.C. Penney Co. v. U.S. Dept of Treasury. 430 F.2d 63 (2nd Cir, 1971).

       A district court does not have jurisdiction to compel an official to perform a discretionary act. Neal v. Reagan. 587 F.Supp. 1558 (1984); Welch v. Donovan, 551 F.Supp. 809 (D.C. Cir. 1982); R.E.D.M. Corp.v. Lo Secco, 412 F.2d 303 ( 2nd Cir. 1969). Since the BIA did not have a duty to review the tribal resolutions submitted by plaintiffs, any review performed by the BIA would have been discretionary and advisory only. Consequently the Court does not have mandamus jurisdiction to order the BIA to perform the discretionary act requested.

       The federal question statute, § 1331, along with the mandamus statute, § 1361, "do not by themselves waive the sovereign's immunity to suits arising under federal law." Lutz v U.S. Postal Service 538 F.Supp. 1129, 1132 (E.D.N.Y. 1982). According to Kentucky v Ruckelshaus, "28 U.S.C.§ 1331 has never been construed as a waiver of sovereign immunity of the United States from suit," 362 F.Supp. 360, 367. (W.D.Ky. 1973); affd 497 F.2d 1172 (6th Cir. 1974); aff'd 96 S.Ct.2006. "As has been decided on many occasions, 28 U. S. C. § 13 61 did not waive sovereign immunity since it was only intended to ease the burden of proceeding against officials formerly suable only in the District of Columbia." Kentucky, 497 F. Supp. at 368. Since the act requested by the defendant, i.e. review of KBIC's tribal resolutions, is discretionary under mandamus statute § 1361 and sovereign immunity is not waived under federal question statute § 13 3 1, the Court does not have jurisdiction in this matter.

       Plaintiffs claim pendent jurisdiction under 28 U. S.C. § 1367. In order for the federal court to exercise pendent jurisdiction the claim before it must be related to a state claim. It must arise out of the same events as a claim over which state courts already have jurisdiction. However, the State Court does not have subject matter jurisdiction over any part of this case. Consequently, the Federal Court cannot have pendent jurisdiction.

       The Federal Court also cannot exercise "pendent party jurisdiction" since none of the parties are involved in a state claim. Although 28 U.S.C. § 1367 (a) states "supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties," pendent party jurisdiction cannot be used in an attempt to join the tribe since the tribe is a sovereign which is beyond the jurisdiction of State or Federal Court, absent a waiver of its sovereign immunity, and therefore is not an additional party who can be joined.

       As previously discussed, the court does not have subject matter jurisdiction based on Poodry v. Tonawanda Band, Id. Poodry was an action for a writ of habeas corpus based on an alleged violation of the Indian Civil Rights Act. In Poodry the Second Circuit decided that the District Court had "improperly concluded that it lacked subject matter jurisdiction to entertain the petitioner's application for writs of habeas corpus." 85 F.3d at 90 1. The Second Circuit relied heavily on the factthat the petitioners in Poodry had no alternative forum in which to seek redress of their complaint. The present case deals with a request for review of a tribal ordinance involving tribal membership, not a deprivation of individual liberty. Plaintiffs have a remedy which they have chosen not to pursue, an action in tribal court.

       For all the foregoing reasons defendants respectfully request that the Court dismiss the complaint and amended complaint file herein.

MICHAEL H. DETTMER
United States Attorney

Dated: Jan 5, 1998

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