28 U.S.C. § 1359 — Parties collusively joined or made

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.)