United States v. Rice (327 U.S. 742)/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice RUTLEDGE concur, dissenting.

The Act of April 10, 1926, 44 Stat. 239, has two main purposes. It provides the machinery for bringing in the United States where the property interests of a restricted Indian of the Five Civilized Tribes are being litigated in either the federal or the state courts. This was done so that all interested parties might be concluded by one proceeding and titles to these Indian lands stabilized. H.Rep.No.322, 69th Cong., 1st Sess., p. 2. In case the proceeding is brought in a state court, the United States is given 'the right to remove' the suit to the federal court by filing in the state court a petition for removal. The Act provides that when such petition is filed it shall be 'the duty of the State court to accept such petition and proceed no further in said suit.' The right to remove is unqualified. It rests in the sole discretion of the United States, which is given the choice of the forum. As stated in the House Report, supra, p. 2:

'Section 3 provides only where the interest of a restricted Indian of the Five Civilized Tribes is being litigated in the State courts that service may be had upon the Government, and the Government is given the right to chose the forum in which the suit may be tried and may transfer such case to the United States district court upon motion in the event that the Government chooses to do so.'

But it is said that this special Act, passed in 1926, is governed by the general removal Act of March 3, 1887, 24 Stat. 552, Judicial Code § 28, 28 U.S.C. § 71, 28 U.S.C.A. § 71, which disallows appeals from orders remanding causes removed from state courts. I do not agree.

(1) The 1926 Act contains none of the qualifications written into the general removal acts.

(2) The 1926 Act is an independent statute dealing with a highly specialized problem and limited as to parties and subject matter. The mischief at which the general removal acts were aimed is not present here. They were concerned with eliminating litigious interruptions of private litigation by prolonged disputes over the jurisdiction of the court to which the cause was removed. But the United States is not in a position of a private litigant. The United States has a special function to perform in these Indian cases. It represents the public interest. Heckman v. United States, 224 U.S. 413, 437-444, 32 S.Ct. 424, 431-434, 56 L.Ed. 820. It alone is given the 'right to remove.' If the cause is remanded, it alone can seek review. It should be remembered that the 1926 Act provides a procedure whereby the United States can be bound by a suit instituted by another. It is fair to infer that when the United States was subjected to that risk, Congress intended that it should have a right, if it so elected, to have the cause heard and determined by its own courts. The 'right to chose the forum in which the suit may be tried' (H.Rep., supra) can hardly have any other meaning.

(3) The 1887 Act in its operation was not applicable to the United States. It provided for removal by defendants. They alone could remove. The right of removal was therefore not available to the United States. It could not be a defendant in a state court, since it had not consented to be sued there. That was well settled at the time. For in 1896 the Court stated, 'The United States, by various acts of congress, have consented to be sued in their own courts in certain classes of cases, but they have never consented to be sued in the court of a state in any case.' Stanley v. Schwalby, 162 U.S. 255, 270, 16 S.Ct. 754, 760, 761, 40 L.Ed. 960. It seems clear then that the prohibition against review of orders of remand contained in the 1887 Act was not aimed at the United States. I think, therefore, that it should require an explicit provision in the 1926 Act to conclude that the United States was now to be bound by an Act heretofore inapplicable to it. It has long been held that if the United States is to be deprived of a right or a remedy by the general terms of a statute, 'the language must be clear and specific to that effect.' United States v. Stevenson, 215 U.S. 190, 197, 30 S.Ct. 35, 36, 54 L.Ed. 153; United States v. American Bell Tel. Co., 159 U.S. 548, 554, 16 S.Ct. 69, 72, 40 L.Ed. 255; United States v. Herron, 20 Wall. 251, 263, 22 L.Ed. 275; Dollar Savings Bank v. United States, 19 Wall. 227, 239, 22 L.Ed. 80. This seems to me to be a clear case for the application of that rule.

If Congress had said that orders of remand under the 1926 Act should not be reviewed, mandamus of course would not lie. But since there is no such prohibition, mandamus is available to compel the District Court to preform its duty. Chicago & A. Railroad Co. v. Wiswall, 23 Wall. 507, 23 L.Ed. 103; Ex parte Pennsylvania Co., 137 U.S. 451, 453, 11 S.Ct. 141, 142, 34 L.Ed. 738.