28 U.S.C. § 1360 — State civil jurisdiction in actions to which

Page 380 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1359 HISTORICAL AND REVISION NOTES Based on section 257 of title 40, U.S.C., 1940 ed., Public Buildings, Property, and Works (Aug. 1, 1888, ch. 728, § 1, 25 Stat. 357; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167). The venue provisions of section 257 of title 40, U.S.C., 1940 ed., are incorporated in section 1403 of this title. Other provisions of section 257 of title 40, U.S.C., 1940 ed., are retained in said title 40. Changes were made in phraseology. § 1359. Parties collusively joined or made A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court. (June 25, 1948, ch. 646, 62 Stat. 935.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed. §§ 41(1) and 80 (Mar. 3, 1911, ch. 231, §§ 24(1), 37, 36 Stat. 1091, 1098; May 14, 1934, ch. 283, § 1, 48 Stat. 775; Aug. 21, 1937, ch. 726, § 1, 50 Stat. 738; Apr. 20, 1940, ch. 117, 54 Stat. 143). Other provisions of section 41(1) of title 28, U.S.C., 1940 ed., are incorporated in sections 1331, 1332, 1341, 1342, 1345, and 1354 of this title. Provisions of section 80 of title 28, U.S.C., 1940 ed., for payment of costs upon dismissal of an action for lack of jurisdiction are incorporated in section 1919 of this title. Other provisions of said section 80 appear in sec- tion 1447 of this title. Provisions of section 80 of title 28, U.S.C., 1940 ed., for dismissal of an action not really and substantially in- volving a dispute or controversy within the jurisdiction of a district court, were omitted as unnecessary. Any court will dismiss a case not within its jurisdiction when its attention is drawn to the fact, or even on its own motion. The assignee clause in section 41(1) of title 28, U.S.C., 1940 ed., ‘‘is a jumble of legislative jargon.’’ (For fur- ther references to the consequences of ‘‘its obscure phraseology,’’ see, 35 Ill. Law Rev., January 1941, pp. 569–571.) The revised section changes this clause by confining its application to cases wherein the assignment is im- properly or collusively made to invoke jurisdiction. Furthermore, the difficulty of applying the original clause is overcome and the original purpose of such clause is better served by substantially following sec- tion 80 of title 28, U.S.C., 1940 ed. The assignee clause was incorporated in the original Judiciary Act of 1789. Such section 80 was enacted in 1875. The history of the assignee clause ‘‘shows clearly that its purpose and effect, at the time of its enact- ment were to prevent the conferring of jurisdiction on the Federal courts, on grounds of diversity of citizen- ship, by assignment, in cases where it would not other- wise exist.’’ (Sowell v. Federal Reserve Bank, 1925, 45 S.Ct. 528, 529, 268 U.S. 449, 453, 69 L.Ed. 1041, 1048.) Thus the purpose of the assignee clause was to prevent the manufacture of Federal jurisdiction by the device of as- signment. It achieves this purpose only partially. For example, the assignee clause excepts two types of choses in action from its coverage: (1) Foreign bill of exchange; and (2) corporate bearer paper. But this does not prevent the use of assignment of these choses in ac- tion to create the necessary diversity or alienage for jurisdictional purposes. Such section 80 does, however, prevent that. (See Bullard v. City of Cisco, 1933, 54 S.Ct. 177, 290 U.S. 179, 78 L.Ed. 254, 93 A.L.R. 141.) Its coverage against collusive jurisdiction is unlimited, and its ap- proach is direct. The assignee clause, on the other hand, prevents the bona fide assignee of a chose in ac- tion within its terms from resorting to the Federal courts unless there is jurisdiction to support the as- signee-plaintiff’s case and a showing that there would have been jurisdiction if the assignor had brought the action in lieu of the assignee-plaintiff. Since the as- signee clause deals with the bona fide assignee, there has been much litigation to determine the assignments which should or should not be within the purview of the clause. Thus the courts have thought it advisable to limit the term ‘‘chose in action’’ and exclude from its scope (1) an implied in law duty or promise, and (2) a transfer of a property interest; and to exclude an as- signment by operation of law from the coverage of the clause. Intermediate assignments and reassignment also give difficulty. § 1360. State civil jurisdiction in actions to which Indians are parties (a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian coun- try listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general applica- tion to private persons or private property shall have the same force and effect within such In- dian country as they have elsewhere within the State: State of Indian country affected Alaska ..................... All Indian country within the State. California ................ All Indian country within the State. Minnesota ................ All Indian country within the State, except the Red Lake Reservation. Nebraska ................. All Indian country within the State. Oregon ..................... All Indian country within the State, except the Warm Springs Reservation. Wisconsin ................ All Indian country within the State. (b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, be- longing to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adju- dicate, in probate proceedings or otherwise, the ownership or right to possession of such prop- erty or any interest therein. (c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section. (Added Aug. 15, 1953, ch. 505, § 4, 67 Stat. 589; amended Aug. 24, 1954, ch. 910, § 2, 68 Stat. 795; Pub. L. 85–615, § 2, Aug. 8, 1958, 72 Stat. 545; Pub. L. 95–598, title II, § 239, Nov. 6, 1978, 92 Stat. 2668; Pub. L. 98–353, title I, § 110, July 10, 1984, 98 Stat. 342.) Page 381 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1364 Editorial Notes AMENDMENTS 1984—Subsec. (a). Pub. L. 98–353 struck out ‘‘or Terri- tories’’ after ‘‘Each of the States’’, struck out ‘‘or Ter- ritory’’ after ‘‘State’’ in 5 places, and substituted ‘‘within the State’’ for ‘‘within the Territory’’ in item relating to Alaska. 1978—Subsec. (a). Pub. L. 95–598 directed the amend- ment of subsec. (a) by substituting in the item relating to Alaska ‘‘within the State’’ for ‘‘within the Terri- tory’’, which amendment did not become effective pur- suant to section 402(b) of Pub. L. 95–598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1958—Subsec. (a). Pub. L. 85–615 gave Alaska jurisdic- tion over civil causes of action between Indians or to which Indians are parties which arise in all Indian country within the Territory of Alaska. 1954—Subsec. (a). Act Aug. 24, 1954, brought the Me- nominee Tribe within the provisions of this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective July 10, 1984, see section 122(a) of Pub. L. 98–353, set out as an Effec- tive Date note under section 151 of this title. AMENDMENT OF STATE CONSTITUTIONS TO REMOVE LEGAL IMPEDIMENT; EFFECTIVE DATE Act Aug. 15, 1953, ch. 505, § 6, 67 Stat. 590, provided that: ‘‘Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitu- tion or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act [adding this section and section 1162 of Title 18, Crimes and Criminal Procedure]: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.’’ CONSENT OF UNITED STATES TO OTHER STATES TO ASSUME JURISDICTION Act Aug. 15, 1953, ch. 505, § 7, 67 Stat. 590, which gave consent of the United States to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as pro- vided for in this section and section 1162 of Title 18, Crimes and Criminal Procedure, to assume jurisdiction at such time and in such manner as the people of the State shall, by legislative action, obligate and bind the State to assumption thereof, was repealed by section 403(b) of Pub. L. 90–284, title IV, Apr. 11, 1968, 82 Stat. 79, such repeal not to affect any cession of jurisdiction made pursuant to such section prior to its repeal. Retrocession of jurisdiction by State acquired by State pursuant to section 7 of Act Aug. 15, 1953, prior to its repeal, see section 1323 of Title 25, Indians. Executive Documents ADMISSION OF ALASKA AS STATE Admission of Alaska into the Union was accom- plished Jan. 3, 1959, on issuance of Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85–508, July 7, 1958, 72 Stat. 339, set out as notes preceding section 21 of Title 48, Territories and Insular Possessions. § 1361. Action to compel an officer of the United States to perform his duty The district courts shall have original juris- diction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. (Added Pub. L. 87–748, § 1(a), Oct. 5, 1962, 76 Stat. 744.) § 1362. Indian tribes The district courts shall have original juris- diction of all civil actions, brought by any In- dian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States. (Added Pub. L. 89–635, § 1, Oct. 10, 1966, 80 Stat. 880.) § 1363. Jurors’ employment rights The district courts shall have original juris- diction of any civil action brought for the pro- tection of jurors’ employment under section 1875 of this title. (Added Pub. L. 95–572, § 6(b)(1), Nov. 2, 1978, 92 Stat. 2457.) Editorial Notes PRIOR PROVISIONS A prior section 1363 was renumbered section 1366 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 95–572, § 7, Nov. 2, 1978, 92 Stat. 2457, provided that: ‘‘(a) Except as provided in subsection (b) of this sec- tion, the amendments made by this Act [enacting this section and section 1875, renumbering section 1363, re- lating to construction of references to laws of the United States or Acts of Congress, as section 1364, and amending sections 1863, 1865, 1866, 1869, and 1871 of this title] shall apply with respect to any grand or petit juror summoned for service or actually serving on or after the date of enactment of this Act [Nov. 2, 1978]. ‘‘(b) The amendment made by section 5 of this Act [amending section 1871 of this title] shall apply with re- spect to any grand or petit juror serving on or after the sixtieth day following the date of enactment of this Act [Nov. 2, 1978].’’ § 1364. Direct actions against insurers of mem- bers of diplomatic missions and their fami- lies (a) The district courts shall have original and exclusive jurisdiction, without regard to the amount in controversy, of any civil action com- menced by any person against an insurer who by contract has insured an individual, who is, or was at the time of the tortious act or omission, a member of a mission (within the meaning of section 2(3) of the Diplomatic Relations Act (22 U.S.C. 254a(3))) or a member of the family of such a member of a mission, or an individual de- scribed in section 19 of the Convention on Privi- leges and Immunities of the United Nations of February 13, 1946, against liability for personal injury, death, or damage to property. (b) Any direct action brought against an in- surer under subsection (a) shall be tried without a jury, but shall not be subject to the defense