McNeil v. Anderson ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 28, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JERRY P. McNEIL,
Plaintiff-Appellant,
v. No. 06-5117
MELISSA ANDERSON, Rogers County (D.C. No. 06-CV-073-CVE-SAJ)
Tax Assessor, (N. D. Oklahoma)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,
ordered submitted without oral argument.
Plaintiff Jerry P. McNeil, an Oklahoma resident appearing pro se, appeals from the
district court’s dismissal of his complaint asserting a slander of title claim against the Tax
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
Assessor for Rogers County, Oklahoma. We exercise jurisdiction pursuant to 28 U.S.C. §
1291 and affirm.
I.
McNeil and his wife are the owners of a parcel of land located in Rogers County,
Oklahoma, having purchased the parcel in October 1985 from Wylie Construction,
Incorporated. In the fall of 2005, defendant Melissa Anderson, the Tax Assessor for
Rogers County, notified McNeil and his wife that they owed $1,252.00 in ad valorem
property taxes on the parcel. McNeil sent Anderson a letter asking that the parcel be
removed from the tax rolls because, in pertinent part, the parcel had originally been part
of a larger piece of property owned by the Cherokee Nation of Indians and, in 1906,
conveyed by homestead deed to Jessie Beatrice Beck, a tribal member. McNeil asserted
that it was “firmly established that Indian lands [we]re not within the taxing authority of
the state,” and thus, in his view, any tax assessments made by Anderson against his
property were “not lawfully due.” Anderson, after consulting with an assistant district
attorney for Rogers County, as well as the Oklahoma Tax Commission, sent McNeil a
letter back stating: “It is our decision that your property is taxable and [she] w[ould] not
be removing it from the tax roll.”
McNeil paid the tax assessment and then, on February 6, 2006, filed this action
against Anderson in federal district court. McNeil’s complaint, similar to his letter to
Anderson, traced the ownership of his property back to the Cherokee Nation, asserted that
the land “was never incorporated within the territory of the Republican state of
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Oklahoma,” and alleged that the land was “now and forever, entirely without the reach of
[the] taxing authority” of Oklahoma or Rogers County. ROA, Vol. I, Doc. 1 at 8 (italics
and underlining in original). The complaint ultimately asserted a slander of title claim
against Anderson, alleging that she had uttered and published slanderous words (in the
form of the tax statement she sent to McNeil), that those words were false and
maliciously made, and that McNeil had sustained special damages as a result of
Anderson’s actions (i.e., “paying the fraudulent claim under duress”).
Anderson moved to dismiss McNeil’s complaint for lack of subject matter
jurisdiction, for failure to state a claim upon which relief could be granted, and on the
basis of immunity from liability under the Oklahoma Governmental Tort Claims Act,
Okla. Stat. tit. 51, §§ 151-200. On May 22, 2006, the district court issued an opinion and
order granting Anderson’s motion to dismiss. In doing so, the district court concluded
that it lacked federal subject matter jurisdiction over McNeil’s slander of title claim.
Although McNeil’s complaint expressly stated that the district court had admiralty and
maritime jurisdiction over the case, the district court rejected that assertion, noting that
“[t]he assessment of ad valorem property taxes by the Oklahoma Tax Commission and
Rogers County do not in any way relate to the protection of maritime commerce or the
regulation of navigable waters . . . .” ROA, Vol. I, Doc. 19 at 2. The district court also
concluded that “[a]ny exemption [McNeil] may seek from property taxes assessed by the
Oklahoma Tax Commission or Rogers County would arise under the laws of Oklahoma,
not federal law,” and thus it lacked “jurisdiction under 28 U.S.C. § 1331.” Id. Although
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McNeil moved for reconsideration, the district court denied that motion. McNeil has
since filed a notice of appeal.
II.
We review de novo the district court’s dismissal of McNeil’s complaint for lack of
subject matter jurisdiction. High Country Citizens Alliance v. Clarke, 454 F.3d 1177,
1180 (10th Cir. 2006). After reviewing McNeil’s complaint, we agree with the district
court that none of the allegations therein demonstrate a connection between the alleged
wrongful conduct of Anderson and maritime commerce, activity, and/or navigation. See
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock, 513 U.S. 527, 538-40 (1995).
Thus, it is clear that the district court lacked admiralty or maritime jurisdiction over
McNeil’s complaint. We likewise agree with the district court that McNeil’s cause of
action is not one that “aris[es] under the Constitution, laws, or treaties of the United
States,” as would be required for the district court to assert subject matter jurisdiction
over the cause of action pursuant to 28 U.S.C. § 1331. Although the materials submitted
by McNeil in connection with his complaint indicate that his parcel was originally owned
by the United States and then conveyed by patent to the Cherokee Nation, those facts are
insufficient, standing alone, to establish that his claim against Anderson involves issues of
federal law. See Oneida Indian Nation v. Oneida County, 414 U.S. 661, 676-77 (1974)
(“Once patent issues, the incidents of ownership are, for the most part, matters of local
property law to be vindicated in local courts, and in such situations it is normally
insufficient for ‘arising under’ jurisdiction merely to allege that ownership or possession
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is claimed under a United States patent.”). Finally, even assuming, for purposes of
argument, that the district court did have jurisdiction over McNeil’s complaint pursuant to
§ 1331, we conclude that McNeil failed to state a claim upon which relief could be
granted. As Anderson noted in her motion to dismiss, the materials submitted by McNeil
in connection with his complaint clearly establish that the property at issue has been sold
numerous times to private persons (including at least one private entity), and thus is
clearly “subject to ad valorem property taxation as part of the general mass of property in
the state.” Robberts v. Northville Township, 22 Fed. Appx. 527, 528 (6th Cir. 2001)
(citing Oklahoma Tax Comm’n v. Texas Co., 336 U.S. 342, 353 (1949)). In other words,
the fact that the property at issue was at one time conveyed to and owned by the Cherokee
Nation and one of its members does not, at this point in time, render the property exempt
from state or local taxes.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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