Percy Hood and Grace Hood, His Wife v. United States

256 F.2d 522 Percy HOOD and Grace Hood, His Wife, Appellants, v. UNITED STATES of America, Appellee. No. 15267. United States Court of Appeals Ninth Circuit. March 17, 1958. Donald M. Bushnell, Ferndale, Wash., for appellants. Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Reginald W. Barnes, Attys., Dept. of Justice, Washington, D. C., Charles P. Moriarty, U. S. Atty., F. N. Cushman, Asst. U. S. Atty., Seattle, Wash., for appellee. Before LEMMON, FEE and HAMLEY, Circuit Judges. JAMES ALGER FEE, Circuit Judge. 1 The Hoods brought a suit in a Superior Court in the State of Washington against the United States to quiet title 1 to lands formerly within the boundaries of the Lummi Indian Reservation, but which are now indubitably owned by them in fee simple and upon which the United States claimed a lien. 2 The cause was removed to the federal court by the government, 3 where a counterclaim for foreclosure of the lien was filed against the Hoods. The trial court held the lands were subject to a lien for the construction costs, together with operation and maintenance charges, of dikes built under Act of Congress to reclaim some 4,000 acres of land in and adjacent to the…

The Hoods brought a suit in a Superior Court in the State of Washington against the United States to quiet title 1 to lands *524 formerly within the boundaries of the Lummi Indian Reservation, but which are now indubitably owned by them in fee simple and upon which the United States claimed a lien. 2 The cause was removed to the federal court by the government, 3 where a counterclaim for foreclosure of the lien was filed against the Hoods. The trial court held the lands were subject to a lien for the construction costs, together with operation and maintenance charges, of dikes built under Act of Congress to reclaim some 4,000 acres of land in and adjacent to the Reservation.

There are two questions involved. First, did Congress intend to and possess the power to impose a lien upon the lands here involved? Second, are charges for operation and maintenance a lien upon the lands?

The following facts appear from the record. The lands were patented to Mary Yah-Him-A-Loo, in fee simple, subject to restrictions against alienation in 1884. Pursuant to statute and regulations, Mr. Dickens, Superintendent of the Reservation, on November 10, 1925, executed a memorandum of sale of these…

(dissenting).

I dissent, because I am of the opinion that the Court below lacked jurisdiction over the subject-matter of the suit.

1. The complaint, ñled in the Superior Court for Whatcom County in the State of Washington, asserts that “The action is authorized by Section 2410, Title 28, United States Code [Annotated]”.

The pertinent subsection of § 2410 reads as follows:

2. The appellants, who were the plaintiffs below, concede that § 2410(a) is merely a “consent” statute, and that therefore “jurisdiction of the subject matter must be found independently of it”. In support of this concession, the appellants cite Wells v. Long, 9 Cir., 1947, 162 F.2d 842, 844 , in which Judge Healy said:

Judge Healy was there considering 28 U.S.C.A. §§ 901-906 , the predecessor of § 2410, supra. He continued:

The former § 903 of 28 U.S.C.A., supra, quoted in Judge Healy’s opinion, provided in part that “any such suit brought against the United States in any State court may be removed by the United States to the United States district court for the district in which the suit may be pending.”

I do not think that, by this obiter dictum, Judge Healy intended to say that, if the jurisdictional…