United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CAROLYN S. OSTBY, Magistrate Judge.
Plaintiff Kurt Haeker ("Haeker") seeks to partition his undivided fee interest in land within Indian Allotment 3316 on the Crow Indian Reservation. See Second Amend. Cmplt (ECF 19). The United States holds the legal title to the remaining undivided legal interest in trust for the benefit of several individual Indian allottees.
Pending is the United States' motion to dismiss for lack of subject matter jurisdiction. ECF 20. Having considered the parties' arguments and submissions, the Court makes the following findings and recommends that the motion be granted.
Land Area 202, Tract No. 3316 ("Allotment 3316") is within the Crow Indian Reservation. See BIA Title Status Report (ECF 21-1) at 1. It consists of approximately 840 acres in the following three sections: (1) T4S R32E, Section 7, SE 1/4, containing approximately 160 acres in Big Horn County; (2) T6S R31E, Section 28, N1/2NE1/4 and SW1/4NE1/4, containing approximately 120 acres in Big Horn County; and (3) T3S R29E, Section 33, NE1/4, E1/2NW1/4 and S1/2, containing approximately 560 acres in Yellowstone County. Id.
A Bureau of Indian Affairs Title Status Report, certified on June 20, 2014, indicates that an undivided 8/9ths of Allotment 3316 is held by the United States of America in trust for eight Indian owners and that the remaining undivided 1/9th interest is owned in fee by non-Indian Esther Moser He Does It ("He Does It"). ECF 21-1 at 2 (Appendix "A"). An uncertified and incomplete document submitted by the Haeker indicates that in 1984 the undivided 1/9th interest passed from the Estate of He Does It to her heirs, Diane Feller, Vernon Red Wolf, and Leroy Landrie. ECF 19-1 at 3. In 1985, the United States issued a fee simple patent to the heirs of He Does It for the undivided 1/9th interest in Allotment 3316. See ECF 21-4 at 10. This patent was issued pursuant to 25 C.F.R. § 152.6, which provides:
Whenever the Secretary determines that trust land, or any interest therein, has been acquired through inheritance or devise by a non-Indian, or by a person of Indian descent to whom the United States owes no trust responsibility, the Secretary may issue a patent in fee for the land or interest therein to such person without application.
It appears that Yellowstone County subsequently levied taxes against that portion of the 1/9th undivided fee interest in Allotment 3316 that was in Yellowstone County. Said taxes were not paid and subsequently, on December 9, 2013, Yellowstone County issued a tax deed for "An undivided 1/9 % interest" in lands within Allotment 3316 to Colorado Assets LLC. Id . See Tax Deed (ECF 21-2). Colorado Assets LLC subsequently conveyed a "1/9 %" undivided interest in Allotment 3316 to Haeker. See Quit Claim Deed (ECF 21-3). 
Haeker thereafter filed this action, seeking to partition from Allotment 3316 "the NE quarter of the NE Quarter and the North Half of the Southeast Quarter of the North east quarter of Section 33 Range 29 East, Township 3 south, Section 33 consisting of 60 acres[.]" ECF 19 at 4. The Second Amended Complaint asks the Court to "vest title [in this parcel] in the name of Kurt Haeker." Id.
III. PARTIES' ARGUMENTS
The United States presents two arguments in support of its contention that this Court lacks jurisdiction because sovereign immunity has not been waived.
First, the United States argues that the Indian lands exception to the Quiet Title Act renders it immune and deprives this Court of jurisdiction to partition Haeker's interest in Allotment 3316. Id . at 9. The United States contends that because it holds the legal interest in Allotment 3316 in trust for the benefit of the individual Indian allottees, its interest is protected from suit by the Indian lands exception to the Quiet Title Act. Id . at 12.
Second, the United States argues that Haeker has failed to establish subject matter jurisdiction because neither 28 U.S.C. § 1347 nor § 2409 provides a basis for jurisdiction over this partition action. U.S.'s Br. Supporting Mot. to Dismiss (ECF 21) at 5. The United States argues that these statutes apply only if the United States is a tenant in common with the person seeking relief, and that the United States is not a tenant in common with Haeker or any of the undivided trust interest owners in Allotment 3316. Id . at 6. The United States contends that it "has no right to possess or use Indian trust or restricted land" and that for purposes of its administration of the trust duty owed to the individual Indian trust interest owners, the common property is treated as trust land. Id . at 7-8. Because no "particular segment of the actual physical land in Allotment 3316... can be identified as trust or fee[, ]" the United States argues, Haeker's only remedy is to sell or lease his undivided interest, or seek partition by "negotiat[ing] with the other undivided interest owners[.]" Id . at 8-9.
In response, Haeker essentially argues that the determinative issue is whether the United States is a tenant in common or "simple administrator" of the lands it holds in trust for the Indian allottees. Haeker's Opposition to Mot. to Dismiss (ECF 22) at 1. On this point he argues that the United States is a tenant in common and therefore is the proper defendant in the pending partition action. He argues that he "would rather make a deal with the Crow beneficiaries" but federal law prohibits an Indian from conveying an interest in lands. Id . at 2. He points out that the United States has the authority to sue to quiet title on behalf of the Indians, but chooses in this case to assert sovereign immunity, ...