Unpublished Disposition, 842 F.2d 335 (9th Cir. 1988)

MEMORANDUM^* 

The descendants of James and Ann Scarborough appeal the district court's order that dismissed their action for lack of subject matter jurisdiction. We affirm.

FACTS AND PROCEEDINGS

In the late 1840s, James Scarborough and his wife Ann, a Chinook Indian, settled land in Washington ("Scarborough land"). Later, they applied for a land patent under the Oregon Donation Act of 1850, 9 Stat. 496, but both James and Ann died before the patent was issued. In 1865 the United States issued the Scarborough land patent in the name of the Scarborough heirs. Before the patent issued, the guardian of the Scarborough children sold the land claim to Rocque and Mary Ducheney. In 1864 Rocque Ducheney's estate sold the land claim to the United States. In the 1950s the United States deeded the land to Washington State and Pacific County.

In 1982 the Scarborough descendants asked the district court (1) to declare that they own the Scarborough land in fee simple; and (2) to order the Secretary to recover the legal title to the Scarborough land for them. In 1986 the district court dismissed the case for lack of subject matter jurisdiction. The Scarborough descendants filed a timely appeal.

DISCUSSION

The Scarborough descendants contend the district court erred by holding that it lacked subject matter jurisdiction over their action. We disagree.

The Scarborough descendants allege that their case implicates the concept of federal trust responsibility towards Indians and therefore the federal courts have federal question jurisdiction under 28 U.S.C. § 1331. Unless Indian money or property is involved, federal trust responsibility for Indians arises only from federal statutes, treaties, and executive orders. Inupiat Community of the Arctic Slope v. United States, 548 F. Supp. 182, 188 (D. Alaska 1982), aff'd on other grounds, 746 F.2d 570 (9th Cir. 1984) (per curiam), cert. denied, 474 U.S. 820 (1985).

Here, no Indian money or property is involved because the Scarborough land is neither an Indian allotment nor has it ever been held in trust for any Indian. The only federal statute, treaty, or executive order implicated is the Oregon Donation Act. However, this act was designed to indicate which settlers could obtain land patents; it was not aimed at creating a trust responsibility over land settlers who may have Indian heritage. See 9 Stat. at 497. Accordingly, the Oregon Donation Act cannot serve as a basis for federal question jurisdiction. Therefore, the district court did not err when it dismissed the action for lack of subject matter jurisdiction.

AFFIRMED.